PEOPLE v. TULLY (RICHARD C.)Appellant's Reply BriefCal.September 23, 2010 supreme coco 6 COPY IN THESUPREME COURTOFTHE STATE OF CALIFORNIA PEOPLE OF THESTATE OF CALIFORNIA, ) ) California SupremeCourt Plaintiff / Respondent, ) Case No. S030402 oy | )* Andeg VS. ) ) youepel4 RICHARD C. TULLY, )Pn 5 Defendant/Appellant. ) | yah OY -an > aga. LYuNO? SWa"dNS Ce ee, suesourt APPELLANT’S REPLY BRIEF SEP 88 2010 Automatic Appeal from the judgment ofthe Superior Court Frederiok K: Ghinien Clark ofthe State of California for the County ofAlameda _ (Superior Court No. H9798) Beant Honorable WilliamR. McGuiness & JAMES S. THOMSON ' Attorney & Counselor at Law 819 DelawareStreet Berkeley, California 94710 Telephone: (510) 525-9123 Facsimile: (510) 525-9124 Attorney for Appellant' RICHARDC. TULLY DEATH PENALTY TABLE OF CONTENTS I. THE MISSING PORTIONS OF THE RECORD DEPRIVE APPELLANT OF MEANINGFUL APPELLATE REVIEW. ..... 1 A. Introduction... ........ 0. cece eee eee ee cece cea enaes 1 B. RespondentFails to Account for All the Unrecorded Hearings, Conferences, and Proceedings in Appellant's OFS< 2 1. Meaningful Appellate Review of Eleven of Appellant's Claims Cannot Be Accomplished Based on Respondent's Reconstructive Methodology. ......... 0... cece eee cece eens 4 2. Respondent Fails to Demonstrate that Any of the Unrecorded Hearings Involved "Routine Scheduling and Procedural Matters." ................0.005- 8 3. RespondentFails to Define What Constitutes a "Routine Scheduling and Procedural Matter" and Fails to Justify Why "Routine Scheduling and Procedural Matters" Should be Dismissed as "Unimportant.” 2... 0... ee ee eee 14 C. Respondent's "Reconstruction" of the Unrecorded Hearings, Conferences and Proceedings Fails to Provide Meaningful Appellate Review. ...... 0.0... cece ee ee ees 15 1, The Settled Statement Does not Recreate the Objections, Arguments and Holdingsthat Occurred During Each of the Unrecorded Hearings, Conferences, and Proceedings in Appellant's Case. 2.0.0... ceeeee 16 2. "Court Summaries" Do not Recreate the Objections, Arguments and Holdings that Occurred During Each of the Unrecorded Hearings, Conferences, and ProceedingS ............ 00 cee cece eee ees 20 Il. E. 3. The Existing Record Cannot Adequately be Reconstructed From the Settled Statement and "Court Summaries." ..........0 00 eee eee eee 22 Appellant has Established Prejudice and Reversible Error Resulting From the Missing Transcripts and Appellant's Judgment and Convictions Must be Reversed. .......... 26 Conclusion. ......... 2... cee ee eee eee teense 29 THE TRIAL COURT IMPROPERLY DENIED APPELLANT'S SUPPRESSION MOTION. .......... 0.02 e eee eee eee eens 31 A. Introduction. ..... 2.0... cece ee cee eee 31 B. The Facts ...... 2... ceceeteeee 31 C. The Violations of Appellant's Constitutional Rights are not Forfeited. 2... 0. eeee ees 36 On March 7, 1987 Appellant's Constitutional Rights were Violated When He was Unlawfully Detained, Interrogated, and Custodially Seized Without Notice of his Right Under Mirandaand the Fifth Amendment.................... 40 1. Appellant was Unreasonably Seized by the Police in Light of the Facts Knownat the Time of the Traffic 1S) (0)640 2. The Livermore Police Detained Appellant Past the TimeIt took to Write a Citation for Driving With a Suspended License and Without Reasonable SUSPICION ........ eee ee tee tees 41 3. Appellant's Alieged Consent to Search his Person was Invalid and Involuntarily Coerced........... 44 a. Appellant was Seized and Custodially Interrogated Before He was Notified of his Miranda Rights ............... eee eee 45 ii ThePolice Illegally Restrained Appellant's Freedom ofMovement and Any Subsequent Consent was Involuntarily Earned. ........ 46 Substantial Evidence Does not Support the Trial Court's Finding that Appellant Gave Valid Consent .................... 47 The Search of Appellant Exceeded the Scope of his Consent ............. 000 eee eee eee 48 Within the Scope of Appellant's Consent to A Terry Frisk for WeaponsIt was Objectively Unreasonable for the Livermore Police to Search Appellant's Coin Pocket for A Weapon .......... cece eee eee eens 50 The Livermore Police Unconstitutionally Searched Appellant's Car and his Person At the Police Station ................... 51 Substantial Evidence Does not Support the Trial Court's Finding that the Livermore Police Did not Exceed the Scope of Appellant's Consent ....... 0.0.2 cece eee eee 52 On March 7, 1987, Appellant was Coerced by the Livermore Police Into Making Involuntary Statements .... 0... 0... eeeee 52 Appellant's Arrest was Unlawful.......... 54 Appellant's Statements were Obtained in Violation of Miranda. .................. 54 lil Hi. E. C. Appellant was Involuntarily Coerced into Making Incriminating Statements by False Promises of Leniency that Violated his Right to Fundamental Fairness Underthe Due Process Clause of the Fourteenth Amendment ............ 00: cece eee eeee 56 TheIllegality of the Detention, Search, Arrest, and Interrogation of Appellant Requires Suppression of All Evidence Obtained on March7, 27, and 30,1987 ........... 0.5000 00- 57 Suppression of the Fingerprint Evidence and Inculpatory Statements Gained From Appellant on March 27 and March 30, 1987 Flows From the Violations of Appellant's Rights Under the Fourth and Fifth Amendment on March 7, 1987 ....... 0.0 eee eee ee eee 58 Substantial Evidence Does not Support the Trial Court's Finding that the Discovery of Evidence wasthe Result of Investigative Serendipity ... 0.0... 0c eee e eee eee 60 Conclusion ......... 000 c eee eee eee eee eee eens 64 THE TRIAL COURT IMPROPERLY DENIED APPELLANT'S MOTION TO SUPPRESS STATEMENTS THAT WERE UNLAWFULLY AND INVOLUNTARILY OBTAINED BY LIVERMORE LAW ENFORCEMENT............2500 000 65 A. Introduction ......... 0...eeeee 65 B. The Facts ....... cee eceee ene enn 66 March 27, 1987... 0...eeeee 66 March 30, 1987... 2... ceeeee 68 Appellant's Arguments are not Procedurally Barred ...... 70 iv Appellant's Coerced and Involuntary Statements on March 27, 1987 Should Have Been Suppressed Since they were Gained in Violation of his Rights Under the Fifth, Sixth, Eighth and Fourteenth Amendments and Article I Section 1, 7, 15, and 24 of the California Constitution 2.0... 0... cee cee eee eens 74 1. Appellant Properly Invoked his Rights Under Mirandaand the Fifth Amendment by Unequivocally Requesting the Presence of Counsel ............. 75 2. Appellant's Statements on March 27, 1987 were Involuntarily Coerced and his Purported Waiver was Invalid 2.0... ... cee eee eee ene 80 The Trial Court Erred in Failing to Suppress Appellant's Coerced and Involuntary Statements on March 30, 1987 Since they were Gained in Violation of his Rights Underthe Fifth, Sixth, and Fourteenth Amendments and Article I of the California Constitution .......... 00.0. e ee eee eee eee 84 1. Appellant Unequivocally Invoked his Rights Underthe Fifth and Fourteenth Amendments ..... 84 2. Appellant Unequivocally Invoked his Right to Remain Silent ....... 0.0... cee eee ee eee 85 3. Appellant's Statements, and the Purported Waiver of his Constitutional Rights on March 30, were Involuntary .......... 0.0.0 92 The Trial Court's Ruling on Appellant's Suppression Motion is not Supported by Substantial Evidence ........ 96 The Trial Court's Ruling was not Harmless Error ........ 98 Conclusion ....... 0.0.0 cece eee ee eee 100 IV. THE TRIAL COURT ERRED BY IMPROPERLY DISMISSING FOR CAUSE CAPITAL JURORS QUALIFIED TO SIT ON APPELLANT'S JURY ...... 0.0. ceeeeees 101 A. Introduction ...... 0... 0c cece eect nee 101 B. Respondent Doesn't Defend the Trial Court's Systemic Errors During Jury Selection in Appellant's Case ....... 103 The Trial Court Improperly Dismissed Five Jurors for Cause 2.0... cece eee ete nent eens 104 l. The Trial Court Improperly Dismissed Juror M.D ........ 0... ce cc ee ee eee 104 Substantial Evidence Doesn't Support the Trial Court's Determination that Juror M.D.'s Viewson Capital Punishment Would Have Prevented or Substantially Impaired his Ability to Perform as a Juror in Appellant's Capital Case . 0.eeeeee eee 106 The Court Impermissibly Dismissed Juror M.D. Based on his Evaluation of the Facts of the Case and not his Ability to Impose the Death Penalty .............. 107 The Trial Court Unequally Applied the Witt Standard Between Jurors M.D. and Alternate Juror D.R 1... eeee 109 The Trial Court Improperly Dismissed Juror E.Hwkeens 111 The Trial Court Improperly Dismissed Juror M.K eee 113 RespondentFails to Address Prosecutorial Misconduct Committed During Juror M.K.'s Examination .............. 113 vi D. Substantial Evidence Doesn't Support the Trial Court's Determination that Juror M.K.'s Viewson Capital Punishment Would Have Prevented or Substantially Impaired his Ability to Perform as a Juror in Appellant's Capital Caseeeeeeeeee 114 The Trial Court Improperly Dismissed JurorB.D wo...eee 116 Respondent Fails to Address All Claims Raised by Appellant in his Opening Brief ..................0005. 116 Substantial Evidence Doesn't Support the Trial Court's Determination that Juror B.D.'s Viewson Capital Punishment Would Have Substantially Impaired her Ability to Perform as a Juror in Appellant's Capital Case ..... 117 The Trial Court Improperly Dismissed Juror T.L eee 118 Respondent Fails to Address All of Appellant's Arguments and Several Incidents of Trial Court Error ........... 118 Substantial Evidence Doesn't Support the Trial Court's Determination that Juror T.L.'s Views on Capital Punishment Would Have Substantially Impaired her Ability to Perform as a Juror in Appellant's Capital Case .... 0... . eee eee ee 119 Conclusion .......... 00.0 cee cece eee eee ee ee neces 121 THE TRIAL COURT IMPROPERLY DENIED THE DEFENSE MOTION TO EXCLUDE ALL WITNESSES FROM THE GUILT PHASE ......................20005. 122 Vil VI. A. Introduction ........... cee ee teen eee 122 B. RespondentFails to Address All the Claims Raised by Appellant in his Opening Brief ............. 123 C. Respondent Fails to Show that the Trial Court Didn't AbuseIts Discretion When It Denied Appellant's Motion to Exclude All Witnesses From the Trial ProceedingS ..... 02... . eee ee eee tee tees 125 1. Respondent Fails to Rebut Proofthat the State Prosecutor Misled the Trial Court and Contributed to the Erroneous Denial of Appellant's Motion to Exclude All Witnesses .... 125 2. Respondent Fails to Show that the Trial Court Adequately Considered Controlling Law or the Constitutional Effects that Would Result From the Denial of Appellant's Motion .............. 127 3, RespondentFails to Show that the Trial Court Considered Whether the Witnesses’ Presence Posed a Substantial Risk of Altering or Influencing their Testimony ................-- 130 D. Respondent HasFailed to Show that the Trial Court's Abuse of Discretion Wasn't Prejudicial ............... 134 E. Conclusion ....... 0... ccceee eee tees 134 INSUFFICIENT EVIDENCE SUPPORTS APPELLANT'S CONVICTIONS OF CAPITAL MURDER, THE BURGLARY-MURDERSPECIAL CIRCUMSTANCE, OR HIS CONVICTION FOR ASSAULT WITH INTENT TO COMMIT RAPE ......... 0. ccc eee eens 135 A. Introduction ........... eee ee eee eee ee eee 135 vill VIL. B. Insufficient Evidence Supports Appellant's Capital Murder Conviction Based on Premeditation and Deliberation Theories .............. 00... cee ee eee 136 C. Insufficient Evidence Supports Appellant's First Degree Murder Conviction on a Felony Murder Theory ........ 147 1. Insufficient Evidence Supports the Felony-Murder Theory ...............-.00005 143 2. Insufficient Evidence Supports the Burglary Murder Special Circumstance ................ 147 3. Insufficient Evidence Supports Appellant's Conviction For Assault With Intent to Commit Rape ............ 20. e eee eee eee ee 150 D. The Insufficiency of the Evidence Supporting Appellant's Guilt Convictions Is Demonstrated by this Court's Recent Case Law ..... 2... eee eeeeee eae 155 E. Conclusion ......... 0.0:eas 158 THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF APPELLANT'S UNEMPLOYMENTAS FACTS PROBATIVE OF HIS INTENT TO STEAL ................ 159 A. Introduction ........ 0... eee eee eens 159 B. Appellant's Claims have not Been Procedurally Defaulted ....... 0... eeetees 161 C. The Trial Court Abused Its Discretion by Admitting Evidence of Appellant's Poverty as Indicia of his Motive for the Burglary-Murder Special Circumstance......... 163 D. Conclusion ..... 0.0... ccc cece eee eee eee enna 166 1X Vil. THE TRIAL COURT'S ERROR AND PROSECUTORIAL MISCONDUCT RESULTED IN THE IMPROPER INTRODUCTION OF VICTIM IMPACT EVIDENCE AT THE GUILT PHASE.......... 0... cece ees 168 A. Introduction 2.0.0.0... 0. cece ee tee eens 168 B. The Trial Court's Errors Facilitated Victim Impact Evidence and Issues to Permeate the Guilt Phase ProceedingS ........ 2... cece ee etnies 170 1. The Trial Court Failed to Limit the Evidence and Argument to Relevant and Material Matters ..... 171 2. The Trial Court Erred in Admitting Guilt Phase Victim Impact Testimony ...............0.05. 173 3. The Trial Court Erred in Admitting A Photograph of Ms. Olsson While She was Alive ............ 174 4, Appellant's Constitutional Right to a Fair Trial was Prejudiced by the Trial Court's Errors ....... 177 The Prosecutor Committed Misconduct by Introducing Victim Impact Evidence during the Guilt Phase Proceedings77 1, The Prosecutor's Pattern and Course of Repeated Misconduct Obviates the Contemporaneous Objection Rule in Appellant's Case .... 0.6.0.0... eee eee 178 The Prosecutor Committed Misconduct During Voir Dire 2...eeeeens 179 The Prosecutor Committed Misconduct During Opening Statements ........... 00... e eee eee 181 The Prosecutor Committed Misconduct During the Presentation of Evidence ................. 183 D. a. The State's Examination of Barbara Green .............. 0000 ee eue 185 b. The State's Examination of Maxine Gratten .................000ue 188 c. The State's Examination of Clifford Sandberg .................0.. 190 d. The State's Examination of Sandra Walters ...............0 ee aue 192 5. The Prosecutor Committed Misconduct During the Guilt Phase Closing Arguments ............ 192 6. Appellant's Constitutional Rights were Prejudiced by the Rampant Prosecutorial Misconduct During the Guilt Phase of his Capital Trial ............ 193 Conclusion ... 0... 0. ceeeeeeee 196 IX. THE PROSECUTOR COMMITTED MISCONDUCT DURING THE GUILT PHASE CLOSING ARGUMENTS............ 198 A. Introduction ....... 0.0.0 cece eee eee eee eee 198 B. RespondentFails to Fully or Effectively Address Numerous Acts of Prosecutorial Misconduct During the Guilt Phase Closing Arguments ............. 0.0. e eee eee ee eee 199 1. By Impermissibly Impugning the Integrity of Defense Counsel .............. 200.0020 eee eee 199 2. By Using Inflammatory Epithets to Describe Appellant ....... 0.0... cee eee eee eee 203 3. By Impermissibly Commenting on the Exercise of Appellant's Constitutional Rights ............ 207 xi Xl. D. 4. By Arguing Facts not in Evidence, Misstating the Trial Court's Instructions, and Circumventing the Trial Court's Orders ......... 0... ce cess 210 The Cumulative Prejudice Resulting From Prosecutorial Misconduct During Closing Argumentin the Guilt Phase Violated Appellant's Constitutional Rights ............ 214 Conclusion ........... 2. ccc eee cece eet ene 216 THE JURY DID NOT FIND, UNANIMOUSLY AND BEYOND A REASONABLE DOUBT, EACH FACTUAL ELEMENT ESSENTIAL TO APPELLANT'S CONVICTION ........... 218 A. Introduction 2.0... 0.0... ceceeens 218 B. Respondent Fails to Fully Address Appellant's Arguments that the Jury's Findings were Insufficient to Support his Capital Conviction .... 0.0... 6c cece eens 219 This Court's Precedent, Supreme Court Precedent, and Persuasive Authorities Don't Support Respondent's Conclusions .............Lene eee eee eee eens 221 Conclusion ........... ccc cee eee eee teen ee eee 225 ERRORSIN THE GUILT PHASE JURY INSTRUCTIONS REQUIRE REVERSAL OF APPELLANT'S CONVICTIONS AND THE SPECIAL CIRCUMSTANCE................5- 227 A. Introduction .......... 2... ccc ec et eee eee 227 B. The Consciousness of Guilt Instruction Given in Appellant's Case was Inherently Contradictory and Misleading ......... 0... cece ceeeee227 The Circumstantial Evidence Instruction Given in Appellant's Case Impermissibly Lightened the Prosecution's Burden of Proof .......... 000 cece eee ee eens 231 Xil D. The Trial Court's Failure to Instruct on Voluntary Intoxication as a Defense to the Burglary-Murder Special Circumstance Requires Reversal of the Jury's Special Circumstance Finding ........... 0.0.00 eee ee ee eee 232 E. Conclusion .......... 0.000. eee eee eee ences 234 XU. THE CUMULATIVE EFFECT OF ERRORS REQUIRES REVERSAL OF APPELLANT'S CONVICTIONS AND THE SPECIAL CIRCUMSTANCE .......... 0.00.0. e eee eee ee 236 XIN. THE ADMISSION OF TWO UNCHARGED MISDEMEANOR BATTERIES AS AGGRAVATING FACTORSIN THE PENALTY PHASE VIOLATED STATE LAW AND APPELLANT'S CONSTITUTIONAL RIGHTS ............. 239 A. Introduction .... 0... 0... eee eee ee eee eee nee 239 B. The Facts ..... 0... ceeee eee eee eens 240 C. Appellant's Arguments are not Procedurally Forfeited ... 243 D. The Trial Court's Admission of the Section 190.3(b) Evidence Violated State Law...........0.0......000005 245 E. Appellant's State and Federal Constitutional Rights were Violated by the Admission of the Prejudicial and Irrelevant Section 190.3(b) Evidence ................ 248 F, The Erroneous Admission of the Section 190.3 Evidence Prejudiced Appellant ..................... 251 G. Conclusion .... 0... 0. ccc cece eee eee eens 253 XIV. THE TRIAL COURT ERRED IN ADMITTING VICTIM IMPACT EVIDENCE AT THE PENALTY PHASE.... 255 A. Introduction .... 0.00.0... ce eee ee ee eee eee eee 255 xiii XV. I, Appellant's Arguments are not Procedurally Barred ..... 257 The Trial Court's Admission of Prejudicial Victim Impact Testimony Rendered Appellant's Penalty Phase Proceedings Fundamentally Unfair .................. 261 the Victim Impact Evidence Should Have Been Excluded Dueto the Prosecutor's Failure to Provide Timely and Particularized Notice ......... 0.0. eee eee 264 Introduction of the Victim Impact Evidence was Unduly Prejudicial ... 0.0... . cee cee ce ee teens 267 The Use of Victim Impact EvidenceIs Unconstitutional ..........eee eee ence een eeees 271 Admission of Victim Impact Evidence that is not Limited to the Facts or Circumstances Known to the Defendant When He Committed the Crime is Unconstitutional ..... 274 Application of Payne v. Tennessee to Appellant's Case Violates Ex Post Facto Considerations ............... 276 Conclusion .......... 0. cece ec cee eee ee eee eens 277 THE PROSECUTOR COMMITTED MISCONDUCT DURING THE PRESENTATION OF VICTIM IMPACT EVIDENCE _ AND THE TRIAL COURT ERRONEOUSLY DENIED APPELLANT'S MOTION FOR A MISTRIAL .............. 279 A. Introduction 2.0.0.0... cee eee eee eens 279 B. Appellant's Arguments are not Procedurally Defaulted ... 2.2... ceceec eee eens 281 the Prosecutor Committed Pervasive and Continuous Misconduct During Presentation of the Victim Impact WitNeSSES ....... 0... cee ee eee eee eens 283 1. The Examination of Sandra Walters............ 286 XiV F, 2. The Examination of Trip Walters .............. 289 3. The Examination of Jan Dietrich .............. 292 4. The Examination of Clifford Sandberg ......... 296 Appellant's Constitutional Rights were Prejudiced by the Repeated and Flagrant Prosecutorial Misconduct .... 297 The Trial Court Erred by Denying Appellant's Motion fora Mistrial ......... 0... cece eee eee eee 301 Conclusion ............ ccc cece eee eee ee ee eee wees 304 XVI. THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT DURING THE PENALTY PHASE XVII. ARGUMENTS....... 00.000 e eee cee ene e eee eeas 305 A. Introduction ...... 2.0... cece eee teens 305 B. Appellant's Claims of Misconduct are not Forfeited ..... 309 C. The Prosecutor, in Violation of Court Orders, Sought to F. Interject Misleading and Irrelevant Arguments, Unsubstantiated by Evidence in the Record, Into the Penalty Phase Proceedings ...................00- 312 The Prosecutor Prejudicially Argued Facts not in Evidence During the Penalty Phase Closing Arguments ........... 0.00. eee eee eee eee 315 The Prosecutor Prejudicially Misstated the Law During Penalty Phase Closing Arguments ............. 327 Conclusion ..........20.0331 THE PROSECUTOR'S RELIGIOUS ARGUMENTS PERMEATED THE PENALTY PHASE ARGUMENTS AND PREJUDICED APPELLANT ............ 0.0.0.0... 0 eee. 333 XV XVIII. XIX. D. Introduction ...... 0... ccc cee eee eee 333 Appellant's Claims Have not Been Forfeited .......... 333 The Prosecutor Forced Defense Counsel to Respondto the State's Religious References ..............-500-- 336 The Prosecutor's Religious References During the State's Opening Penalty Phase Summation Created a Fundamentally Unfair Sentencing Phase ............-. 315 The Prosecutor's Religious References in Penalty Phase Rebuttal Prejudiced Appellant's Right to a Fundamentally Fair Trial . 0.0...cteee ene 327 Cumulative Prejudice from Counsels' Repeated References to Religion Violated Appellant's Constitutional Rights 0.0... 0... c eeeeeeeee e eee 348 Conclusion ...... 0.0.0. eee eeeens 353 THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING THE PROSECUTOR TO ARGUE FUTURE DANGEROUSNESS.............202 205 354 Introduction ....... 0... cece ete eens 354 The Trial Court's Determination Wasn't Supported by Substantial Evidence of Appellant's Future Dangerousness ...... 0.0.2 c eee eee eee eee 354 The Trial Court's Ruling, and the Prosecutor's Conduct, Violated this Court's Precedents ..............-000-- 357 Conclusion .......... 0c cece eee eee eens 358 THE TRIAL COURT ERRED BY ALLOWING THE PROSECUTOR TO DISPLAY INFLAMMATORY CHARTS TO THE JURY ........eeeees 360 xvi XXII. E. Introduction .... 0.0... cee eect eee ees 360 Appellant's Arguments Have not Been Forfeited ....... 361 The Prosecutor's Use of Charts and his Related Arguments Violated Appellant's Constitutional Rights . . . 363 The Trial Court Committed Prejudicial Error by Allowing the Prosecutor to Use the Charts and Arguethat the Lack of a Mitigating Factor Constituted An Aggravating FactOr .. 0.0... cceee eet een eae 366 Conclusion ..... 0.0... . ce eee eee ee eee eee eens 369 THE TRIAL COURT ERRED BY FAILING TO ANSWER THE JURY'S REQUEST FOR "THE LEGAL DEFINITION OF LIFE WITHOUT THEPOSSIBILITY OF PAROLE." ............. 370 A. Introduction ..... 00... 0... eee eee eee 370 B. Appellant's Argumentis not Subject to E. Procedural Forfeit .................. 00.000 ee ee eee 371 The Trial Court was Constitutionally Required to Directly and Plainly Instruct the Jury as to the Legal Definition of Life Without the Possibility of Parole .............. 374 The Trial Court Violated Appellant's Rights by Failing to Provide the Jury With "the Legal Definition of Life Without the Possibility of Parole.” ................. 376 Conclusion ... 0... 0... cece eee eee eee eee 383 THE TRIAL COURT IMPROPERLY DENIED APPELLANT'S REQUEST FOR ALLOCUTIONIN VIOLATION OF HIS CONSTITUTIONAL RIGHTS .......0... 0.0.0.0... 0000. 384 A. Introduction .... 00.0... eeee eee eee 384 XVii F. Appellant's Federal Constitutional Right to Allocution was Improperly Abridged by the Trial Court .......... 384 This Court Should ReconsiderIts Denial of the Right to Allocution in Capital Cases ......... 0.0.0 cece e ee eee 386 The Denial of a Capital Defendant's Right to Allocution Violates the Equal Protection Clause, and the Denial in the Instant Case Violated Appellant's Equal Protection Rights 0.0... ccc cee eee teens 389 State Law, the Common Law,and the Prosecutor's Improper Comments on Appellant's Lack of Remorse Compelled the Trial Court to Grant Appellant's Request for Allocution to Avoid Violating his Rights to Equal Protection and to Render a Fundamentally Fair Sentencing Proceeding .... 391 Conclusion ......... 0... eee ee eee enna 393 XXII. APPELLANT'S DEATH SENTENCE RESTS ON THE PROSECUTION'S IMPROPER USE OF LACK OF REMORSEAS A NON-STATUTORY MATERIALLY INACCURATE AGGRAVATING FACTOR............... 394 A. Introduction ......... 0.0... cece eee eee eens 394 B. Use of Lack of Remorse as a Non-Statutory Aggravating Factor Renders the California Capital Sentencing Statutes Unconstitutional... 0.2...22.395 Use of Lack of Remorse as a Non-Statutory Aggravating Factor in Appellant's Case Violated his State and Federal Constitutional Rights ... 02.2.0... eee ee eee ee 397 1. Appellant Has Shownthat the Trial Court Committed Prejudicial Error by Allowing the Prosecutor to Argue Lack ofRemorse as a Non-Statutory Aggravating Factor ......... 0.06 cee ee ee eee 400 XViii XXIII. 2. The Court Should Have Instructed the Jury Regarding the Limited Manner in Which It was Permitted to Consider the Evidence of Lack of Remorse ....... 0. cee eee eee eee eens 402 3. Respondent Doesn't Rebut Appellant's Arguments that the Trial Court Erred in Failing to Sustain Defense Objections or Grant a Defense Motion for Mistrial in Response to the Prosecutor's Improper Arguments About Appellant's Remorse ......... 20: eee eee eee eee eee 405 4. Appellant Has Shownthat the Prosecutor Committed Prejudicial Misconduct by Arguing Lack of Remorse as A Non-Statutory Aggravating FactOr . 0... cece eee eee cent eeenes 406 5. The Prosecutor's Lack of Remorse Arguments Strayed far From Comments on Evidence of Overt Remorselessness and was not Factually Supported by Evidence in the Record ................... 411 The Trial Court's Error and the Prosecutor's Misconduct were not Harmless Beyond a Reasonable Doubt ........ 415 Conclusion ..... 0.0.0... cee ce eee eee e teen eeees 416 APPELLANT'S DEATH SENTENCE MUST BE REVERSED BECAUSE ALL ESSENTIAL FACTORS WERE NOT PROPERLY CHARGED AND WERE NOT FOUND BEYOND A REASONABLE DOUBT BY AN UNANIMOUSJURY ...... 0... ccc eee 418 Introduction .......... 0.0. eee eee eee 418 This Court Should Reconsider Its Earlier Case Law ..... 419 Conclusion ........ 0... cece cece teens 423 XiX XXIV. XXV. THE CUMULATIVEPREJUDICIAL EFFECT OF THE ERRORSIN APPELLANT'S PENALTY PHASE PROCEEDINGS REQUIRES REVERSALOF HIS DEATH SENTENCE .......... 0.0020 e ee eee ees 424 Introduction ....... 0... ccc ee eee eee 424 Argument ..... 0. ccc cece eee ee een eee 424 Conclusion ........ 0... c cece eee tenes 427 THE TRIAL COURT FAILED WHEN PERFORMING ITS DUTIES IN REVIEWING THE JURY'S DEATH VERDICT ........ 0.0... eceee eee 428 Introduction .......... 0... cee ee eee eee 428 Appellant's Arguments are not Subject to Procedural Forfeit 2.0... 0ceeeeee teens 428 The Trial Court's Ruling was Deficient ............... 429 The Trial Court Made Deficient Aggravation Findings .. 431 The Trial Court Made Deficient Mitigation Findings .... 433 The Trial Court Improperly Foundthat the Circumstances in Aggravation Outweighed the Circumstances in Mitigation ...... 0.0... cece eee teen ees 436 The Trial Court Improperly Relied upon Its Notes ...... 438 The Trial Court Improperly Relied upon Appellant's Probation Report ...... 0.0... cccee eee 440 The Trial Court Didn't Make an Independent Determination on the Appropriateness of the Death Penalty ..... 0.0... 2 cece cece eee eee 443 Conclusion .... 0.0... eeeee ee eee 446 XX XXXVI. XXVII. DEATH QUALIFICATION VOIR DIRE IS UNCONSTITUTIONAL ..................0.0.0005. 448 Introduction ........... 00... e eee ee eee eee eens 448 Appellant’s Arguments are not Subject to Procedural Forfeit 2...0. 451 The Supreme Court and this Court’s Precedents Do not Foreclose Appellant’s Arguments ................... 452 Conclusion ........... 0.0 cece eee eee eee 460 CALIFORNIA’S DEATH PENALTY SCHEMEIS UNCONSTITUTIONAL BECAUSEIT FAILS TO PROPERLY NARROW THE CLASS OF DEATH PENALTY OFFENDERS AND OFFENSES.......... 461 Introduction ....... 0... c eee eee eee eee 461 Persuasive Authorities Demonstrate that the California Death Penalty Scheme Fails to Properly Narrow the Class of Death Penalty offenders and offenses .............. 464 Constitutional Authorities Demonstrate that the California . Death Penalty SchemeFails to Properly Narrow the Class of Death Penalty offenders and offenses .............. 470 1. This Court’s Precedents Do not Adequately Address Appellant’s Claim ............ 0.0.0.0 eee eae 470 2. The Violation of the Furman Death Sentence Ratio Renders the California Capital Sentencing Scheme Unconstitutional .......... 0.00.0. e eee ee eee 472 XX1 D. XXVIII. 3. The Selection of Thirty Three (33) Special Circumstancesby Initiative and Expansion of Those Special Circumstances by this Court Renders the California Capital Sentencing Scheme Unconstitutional ............ 0... eee eee eee 475 Conclusion ....... 0... ccc eee eee ee eens 478 CALIFORNIA’S DEATH PENALTY SCHEME AS INTERPRETED BY THIS COURT AND AS APPLIED AT APPELLANT’S TRIALIS UNCONSTITUTIONAL........... 00.0000. 0 eee A480 Introduction ........ 0... ccc ee ee ee eens 480 Section 190.3(a) as Applied is Vague, Overbroad and Results in an Arbitrary and Capricious Death Penalty System ........... 20.2 e eee eee 480 California's Death Penalty Scheme Lacks Safeguards to Avoid Arbitrary and Capricious Sentencing ........... 482 1. The California Capital Sentencing Statutes as Applied to Appellant's Case Violated his Constitutional Rights by Failing to Require the Prosecution to Prove the State's Case Beyond a Reasonable Doubt ..............-.0 000s eee ee 483 2. At a Minimum,Each Sentencing Finding Must be Proven by a Preponderance of the Evidence ..... 484 3. California Law Fails to Require Unanimous Jury Agreement on Aggravating Factors ............ 485 4. California Law Fails to Require that the Jury Base Any Death Sentence on Written Findings Regarding Aggravating Factors ............... 486 XXii XXIX, 10. 11. 12. California Law Fails to Provide the Inter-Case Proportionality Review Required to Prevent Arbitrary, Discriminatory, or Disproportionate Impositions of the Death Penalty .............. 487 The Prosecution May not Constitutionally Rely on Unadjudicated Criminal Activity as An Aggravating Factor ..............-200005s 488 Factor 190.3(c) is Unconstitutionally Vague ..... 489 Restricting the List of Potential Mitigating Factors is Unconstitutional ................... 489 Factor 190.3(i) is Unconstitutionally Vague ..... 490 Factor 190.3(k) is Unconstitutionally Vague ..... 490 The Failure to Instruct that Statutory Mitigating Factors were Relevant Solely as Potential Mitigators was Unconstitutional ............... 491 The Denial of Safeguards to Capital Defendants Violates the State and Federal Constitutions ..... 492 The Trial Court Erred in Failing to Instruct the Jury in Accordancewith Constitutional Requirements ......... 493 The Death Penalty Is Unconstitutional ............... 494 Conclusion ....... 0.0... : ce eee eee ee eee 497 APPELLANT’S CONVICTION AND DEATH SENTENCE VIOLATES INTERNATIONAL LAW .... 499 Introduction ........... 0. cece eee eee teens 499 Appellant’s Argumentis not Subject to Procedural Forfeit 26...eeeeee tee eens 500 XXiil C. Appellant Has Standing to Assert his Rights Under International Law ........... 0. c eee eee ee ees 501 D. The California Capital Sentencing Scheme Violates International Law ......... 00.2.2 cece eee eee eens 505 E. This Court Should Reconsider Prior Precedent in the Face of Appellant’s Persuasive Claim ...............- 510 F. Conclusion ............ 0c cee eee ee eee eee eens 511 XXX. APPELLANT’S DEATH SENTENCE WAS IMPOSED THROUGH THEARBITRARY, DISPARATE, AND UNCONSTITUTIONAL IMPLEMENTATION OF CALIFORNIA’S CAPITAL SENTENCING STATUTES..... 512 A. Introduction ........ 0. eeeee eens 512 B. This Court has not Foreclosed Appellant’s Arguments ... 514 C. Bush v. Gore is Controlling, Applicable to this Capital Case, and Requires the Reversal of Appellant’s Death Sentence for Violations of his Rights Under the Fourteenth Amendment ................2005- veces 516 D. Conclusion..........eda c cece eee een eee ee eenee 519 CONCLUSION 2.0.0.0... cccee een n eens 521 CERTIFICATE OF COMPLIANCE......... 0.000 c eee eee eens 522 XXiV TABLE OF AUTHORITIES CALIFORNIA CASES Abbott v. Cavelli (1931) 114 Cal.App. 379 2.0.0.2... cee eee ee eee 362 Carlos v. Superior Court (1983) 35 Cal.3d 131 ...........0006. 472, 478 Commonwealth v. Chambers (Penn. 1991) 528 Pa. 558 ......... 335, 349 Cooley v. Superior Court (2002) 29 Cal.4th 228 ..............0005. 229 Fuji v. State ofCalifornia (1952) 38 Cal.2d 718 ........... 000 eee 505 Hale v. Morgan (1978) 22 Cal.3d 388 2.0... 0. cee ce eee passim In Re Arturo D. (2002) 27 Cal 4th 60 0... 2. eeeeee eee 72 In re Leanna W (2004) 120 Cal App.4th 735 1.0.2... 0... ..2 0008. 141 In Re Shannon B, (1994) 22 Cal.App.4th 1235 ................000. 389 Kopp v. Fair Pol. Practices Com (1995) 11 Cal.4th 607 ............ 478 Krauss v. Superior Court (1971) 5 Cal.3d 418 1.0.2... 00.0.5. e eee eee 34 Lockridge v. Superior Court (1970) 3 Cal. 3d 166 ............... 59, 60 Panopulos v. Maderis (1956) 47 Cal.2d 337 12... 00... cee passim People v. Abilez (2007) 41 Cal.4th 472 2.0... cee eee eee passim People v. Albritton (1998) 67 Cal.App.4th 647 2.0.00... 6. cece eee. 224 People v. Alfaro (2007) 41 Cal.4th 1277 2.0.0.0... 0. e eee 313, 445, 497 People v. Alvarez (1996) 14 Cal.4th 155 2.0... ee eeeeee 2 People v. Andersen (1980) 101 Cal. App. 3d 563 ............. 00006. 94 People v. Anderson (1966) 64 Cal.2d 633 2.0.0... eee cece cee eee nee 403 People v. Anderson (1968) 70 Cal.2d 15 2.0... 6. cee eee passim People v. Anderson (2001) 25 Cal.4th 543 2.0... ee eee ee eee passim People v. Apalatequi (1978) 82 Cal.App.3d 970 ...... 0... cee eee eae 27 XXV People v. Arias (1996) 13 Cal.4th 92 20.0... cee eee 1, 29, 287 People v. Ashmus (1991) 54 Cal.3d 932 ....... 0.0.02 00 121, 448, 462 People v. Avena (1996) 13 Cal.4th 394 0.0... ee ee eee 212 People v. Avila (2006) 38 Cal.4th 491 0... 0... eee eee eee passim People v. Bacigalupo (1993) 6 Cal.4th 457 20... 6.0 cee eee 476 People v. Baker (1956) 147 Cal.App.2d 319 ......eve e eee eens passim People v. Balderas (1985) 41 Cal.3d 144 ................ 360, 365, 367 People v. Barnes (1986) 42 Cal.3d 284 20... 0. ccc cee eee 93 People v. Barnwell (2007) 41 Cal.Ath 1038 ........... 000-000 ee passim People v. Beames (2007) 40 Cal.4th 907 ... 0.00.0... eee ee eee passim People v. Bell (2007) 40 Cal4th 582 20.0... oe e eee ee eee 296, 497 People v. Belmares (2003) 106 Cal.App.4th 19 ............-.0-05- 414 People v. Bemore (2000) 22 Cal.4th 809 0.02.0... eee eee eee 403 People v. Bennett (2009) 45 Cal.4th 577 1.0... 6c eee eee passim People v. Benson (1990) 52 Cal.3d 754 2.0... ccc eee eee 82, 312 People v. Bentley (1955) 131 Cal.App.2d 687.2... 0.6... cece eee eee 286 People v. Berryman (1993) 6 Cal.4th 1048 2.0.0.0... cee eee eee 282 People v. Bohana (2000) 84 Cal.App.4th 360 .............0000 008 372 People v. Bolin (1998) 18 CalAth 297 . 0... eeeeee passim People v. Bolton (1979) 23 Cal.3d 208 12... .. 00. cece eee eee passim People v. Bonilla (2007) 41 Cal.4th 313 2.0.02... ce cece eee passim People v. Bonillas (1989) 48 Cal.3d 757 2.0... 6.0 e ce eae 430, 437, 478 People v. Bonin (1988) 46 Cal.3d 659 10... cee eee passim People v. Box (2000) 23 Cal.4th 1153 2.2... oe eee eee eee passim XXV1 People v. Boyd (1985) 38 Cal.3d 762 ........ 2.00. eee eee eee passim People v. Boyde (1988) 46 Cal. 3d 212 ................. 0000-5 passim People v. Boyette, (2002) 29 Cal.4th 381 .............0.2.006- passim People v. Bradford (1997) 15 Cal.4th 1229.00.00... ...........000. 131 People v. Brady (2010) — Cal.Rptr.3d— ................-006- passim People v. Braeske (1979) 25 Cal.3d 691 2.0... 0... eee ee ee eee 53 People v. Bramit (2009) 46 Cal.4th 1221 ...............0..... passim People v. Brasure (2008) 42 Cal.4th 1037 ..............0-00 2008 497 People v. Bravo (1987) 43 Cal.3d 600... 02... eee ee eee 48 People v. Brommel (1961) 56 Cal. 2d 629 .... 02... eee eee eee 39 People v. Brown (1985) 40 Cal. 3d 512 ................0.0006- passim People v. Brown (1998) 46 Cal.3d 432 2.0.0.0... cece ee 403 People v. Brown (2004) 33 Cal.4th 382 .............-... 2020005 passim People v. Bunyard (2009) 45 Cal.4th 836 ................ 101, 419, 497 People v. Burgener (2003) 29 Cal. 4th 833 ...............0.-. 443, 445 People v. Burney (2009) 47 Cal4th 203 ........ 0.0.00. .000005 passim People v. Butler (2009) 46 Cal4th 847 1.0.0.0... eee eee eee eee 101 People v. Cahill (1993) 5 Cal.4th 478 2.0... 02.0.0... ce eee eee 65, 76 People v. Cahill (1994) 22 Cal.App. 4th 296 ...............00.. 92, 93 People v. Cain (1995) 10 Cal.4th 1... 0... eee eee eee passim People v. Caitlin (2001) 26 Cal.4th 81 .................. 458, 483, 484 People v. Carasi (2008) 44 Cal.4th 1263 .................0.. 102, 313 People v. Carey (2007) 41 Cal.4th 109 .................. 101, 253, 497 People v. Carrera (1989) 49 Cal.3d.291 ......... 00. eee eee, passim _ People v. Carrington (2009) 47 Cal.4th 145.000... 0.0.0. ...00.. passim XXVil People v. Cash (2002) 28 Cal.4th 703 0.2.0.0... cece eee eee eee eee 105 People v. Champion (1995) 9 Cal.4th 879... 0... cece eee eee 357 People v. Clark (1990) 50 Cal.3d 597 ©... 2... cece eee ee 109, 389 People v. Clenney (1958) 165 CalApp.2d 241 we eee eee ee 146 People v. Coddington (2000) 23 Cal.4th 529 ............. 307, 318, 325 People v. Cole (2004) 33 Cal.4th 1158 1.0.0... 0... ce eee eee eee 190 People v. Coleman (1969) 71 Cal.2d 920 ....... 0... eee ee eee eee 407 People v. Collins (1976) 17 Cal.3d 687 2.0.0... 6c c eee eee 221 People v. Collins (2010) 49 Cal.4th 175 2.0.6... eee eee eee 248, 497 People v. Combs (2004) 34 Cal.4th 821 ..............0 202-0 e- passim People v. Cook (2007) 40 Cal.4th 1334 .............0-05- 367, 368, 497 People v. Cooper (1991) 53 Cal.3d 1158 . 6.0.0... cece eee eee 463 People v. Cowan (2010) 50 Cal.4th 401 2.0... 0. cee eee eee eee 102, 497 People v. Cox (1991) 53 Cal.3d 618 2.0.0... cece eee eee 360, 394 People v. Craig (1957) 49 Cal.2d 313 2.0... ccc eee ees 152 People v. Crandell (1988) 46 Cal.3d 833 ...........-005- 434, 435, 439 People v. Crenshaw (1992) 9 Cal.App.4th 1403 ..........-02 2+ eee 48 People v. Crew (2003) 31 Cal.4th 822 2.0.0... eee ee ee ree 213 People v. Crittenden (1994) 9 Cal.4th 83 2.0.0... eee eee eee 487 People v. Cruz (2008) 44 Cal.4th 636 .......... 0.00000 102, 248, 261 People v. Cummings (1993) 4 Cal.4th 1233 ..........02-000- passim People v. Cunningham (2001) 25 Cal.4th 926 ...........-0 0s eee eee 491 People v. Curl (2009) 46 Cal.4th 339 2.0... occeee497 People v. D'Arcy (2010) - - Cal.Rptr.3d-- ..........20 ee eee 313, 497 People v. Davenport (1995) 11 Cal.4th 1171 ...........--00--- passim People v. Davis (2005) 36 Cal.4th 510 2.0.0... cece eee eee eee passim XXVIil People v. Davis (2009) 46 Cal.4th 539 1.2.2.0... eee eee passim People v. Dellinger (1984) 163 Cal.App.3d 284 .................0. 221 People v. Dennis (1998) 17 Cal.4th 468 .................0... 433, 434 People v. DePriest (2007) 42 Cal.4th 1... ...... 0.0.0.0 ee eee, passim People v. DeSantis (1992) 2 Cal.4th 1198.0... 0.0.0.0... 2. ee eee 176 People v. Diaz (1992) 3 Cal.4th 495 2.0... eee cee eee 145 People v. Dillon (1983) 34 Cal.3d 441 0.0... 0. eee eee eee passim People v. Doolin (2009) 45 Cal.4th 390 ................. 313, 322, 497 People v. Dykes (2009) 46 Cal.4th 731 2.0.0... ce eee eee eee passim People v. Edelbacher (1989) 47 Cal. 3d 983... 0.0.0... ee eee passim People v. Edwards (2001) 54 Cal.3d 787 2.0... 0... cece eee passim People v. Ervine (2009) 47 Cal.4th 745 ...............05. 262, 398, 497 People v. Espinoza (1992) 3 Cal.4th 806 ...... 0... .. 0. cee eee eee 279 People v. Failla (1966) 64 Cal.2d 560 ....... 1... e cece eee ee 220 People v. Farley (2009) 46 Cal.4th 1053 ..............05. 101, 116, 497 People v. Farnum (2002) 28 Cal.4th 107 ....... 0.0... ee ee, passim People v. Fauber (1992) 2 Cal.4th 792 2.0.0... eee eee eee eee 487 People v. Feagley (1975) 14 Cal.3d 338 2.0.0... ccc eee ee 225 People v. Fierro (1991) 1 Cal. 4th 173 20.2... eee eee ee, 46, 274, 275 People v. Flood (1998) 18 Cal.4th 470 0.0.0.0... 0c. eee eee eee 349 People v. Fosselman (1983) 33 Cal.3d 572 .... 0.00.00. cee ee eee ee 321 People v. Friend (2009) 47 Cal. 4th 1... 0... ee eee eee passim People v. Frierson (1979) 25 Cal.3d 142 11... 0... cc eee eee passim People v. Frye (1998) 18 Cal.4th 894 00... . eee eee. passim People v. Fudge (1994) 7 Cal.4th 1075 2.0.2... eee eee eee 314 People v. Gallego (1990) 52 Cal.3d 115 .............005. 145, 146, 452 XX1X People v. Geier (2007) 41 Cal.4th 555 2.0... eee ee eee 227, 445, 497 People v. Ghent (1987) 43 Cal.3d 739... 0... cece eee eee 510 People v. Gionis (1995) 9 Cal.4th 1196... 0.0... eee eee ee eee 279 People v. Glass (1975) 44 Cal.App.3d 772 .........5-+055 184, 185, 186 People v. Gonzales (1983) 141 Cal.App.3d 786 ......-....e eee eens 221 People v. Gonzalez (1990) 51 Cal.3d 1179 ...... 0.06.0 e eee eee passim People v. Gordon (1990) 50 Cal.3d 1223 ...... Lace eee eens passim People v. Granados (157) 49 Cal.2d 490 0.0... eee eee eee 152 People v. Gray (2005) 37 Cal.4th 168 2... 0.0... eee eee eee eee 487 People v. Green (1980) 27 Cal.3d 1.1... eee eee ee eee 73, 385, 386 People v. Griffin (1976) 59 Cal.App.3d 532 .....--. 1 eee eee eee 62 People v. Gurule (2002) 28 Cal.4th 557 2.0... 6c eee ees 182 People v. Gutierrez (2009) 45 Cal.4th 789 .........--. 0s eee 419, 497 People v. Hamilton (2009) 45 Cal.4th 863 ......--.. 2. seen passim People v. Harris (1989) 47 Cal. 3d 1047 «0.6... . eee eee eee eee passim People v. Harris (2005) 37 Cal.4th 310... 0.2... ee eee eee eee 267 People v. Harris (2008) 43 Cal.4th 1269 .. 0.2... 06... eee eee eee 102 People v. Hart (1999) 20 Cal.4th 546 22.0... 6. see eee eee eee 266 People v. Hartsch (2010) 49 Cal.4th 472 2.0... 0. cece eee ees passim People v. Haskett (1982) 30 Cal.3d 841 ..........--- sees eee. 141, 515 People v. Hawkins (1995) 10 Cal.4th 920 ........--. see eee ee 320, 321 People v. Hawthorne (1992) 4 Cal.4th 43 2.02... 0... eee eee eee passim People v. Hawthorne (2009) 46 Cal.4th 67 .......-. 0. eee ee eee passim People v. Hayes (1990) 52 Cal.3d 577 6.0... cece eee eee ees 261 People v. Heard (2003) 31 Cal.4th 946 «0... .... 2. cee eee eee eee 119 People v. Hernandez (2003) 30 Cal. 4th 835 .........-+.5-55 65, 90, 395 People v. Hill (1998) 17 Cal.4th 800... 0... 0. eee eee passim People v. Hogan (1982) 31 Cal.3d 815 2.0.2... 2 eeeee ee 82 People v. Holloway (2004) 33 Cal.4th 96 ................ 277, 447, 510 People v. Holmes (1960) 54 Cal. 2d 442 «0.0.0.0... 00.0... eee 37, 259 People v. Holt (1997) 15 Cal.4th 619 ....... 0. ee eee eee 156 People v. Hood (1969) 1 Cal.3d 444 2.0... ceeeee ene 403 People v. Hovarter (2008) 44 Cal.4th 983 ............ 0.0... 000005 497 People v. Howard (2008) 42 Cal.4th 1000 ................00. 227, 497 People v. Hoyos (2007) 41 Cal.4th 872 2.0.0... cece cee ee eee 101 People v. Huggins, (2006) 38 Cal.4th 175 ............. 0.0000. 259, 277 People v. Hughes (2002) 27 Cal.4th 287 .. 0.0.0... 0... ee eee eee 231, 232 People v. Ireland (1969) 70 Cal.2d 522 ...........00...05. 147, 148, 154 People v. Jackson (1980) 28 Cal.3d 264 2.0.0.0... 0... ce eee eee eee 228 People v. Jackson (1996) 13 Cal.4th 1164 ............. 0.00.0. 458, 459 People v. Jackson (2009) 45 Cal.4th 662 ............ 0.000000. passim People v. James (1977) 19 Cal.3d99 oo. eeeeee 46, 47 People v. Jenkins (1979) 91 Cal.App.3d 579 ........ 0.0.02 0000- passim People v. Jenkins (2000) 22 Cal.4th 900 ...................08. passim People v. Jennings (2010) -- Cal.Rptr.3d-— ..............0000. passim People v. Johnson (1989) 47 Cal.3d 1194 2.0... ee eee ee 458 People v. Johnson (1992) 5 Cal. App. 4th 552 2.2... eee 458, 489 People v. Johnson (1993) 6 Cal4th 1 oo... eee eee eee passim People v. Jones (2003) 29 Cal.4th 1229 2.0... eee ee eee 224 People v. Jones (2003) 30 Cal. 4th 1084 .......... 0.0.0.0... eee 224 People v. Jordan (1971) 19 Cal.App.3d 362 ..............0. 00005. 146 People v. Jordan (1986) 42 Cal.3d 308 .......... 00.0.0 0 00 e eee passim XXX1 People v. Jurado (2006) 38 Cal.4th 72 .........-- 0 ee eee 267, 268, 269 People v. Keenan (1988) 46 Cal.3d 472 1.0.0.0... . eee eee 391, 392, 400 People v. Kelly (1992) 1 Cal.4th 495 ....... 00... eee ee eee 248, 251,377 People v. Kimble (1988) 44 Cal.3d 480 ....... 0.060 e cece e ee eee eee 176 People v. Kipp (2001) 26 Cal4th 1100 ........ 0... 0c ee eee eee eee 168 People v. Kirkes (1952) 39 Cal.2d 719 1... 0... cece cece eee passim People v. Kirkpatrick (1994) 7 Cal.4th 988 ...........-00005-- 105, 515 People v. Lancaster (2007) 41 Cal.4th 50 2.0... 60.2. cece eee eee 10] People v. Leonard (2007) 40 Cal.4th 1370 ..........--00 ee eee passim People v. Letner (2010) 50 Cal4th 99.0.0... cee eee ee eee eee 1, 27, 28 People v. Levaditis (1992) 2 Cal.4th 759 ........ne 442, 487, 488 People v. Lewis (1990) 50 Cal.3d 262 2.0.0... 66. c ee eee eee passim People v. Lewis (2008) 43 Cal4th 415 2.0... cee eee eee eee passim People v. Loker (2008) 44 Cal.4th 691 ........ 0002s eee eee eee passim People v. Lomax (2010) 49 Cal.4th 530... 0... 02. ee eee eee eee 102, 497 People v. Love (1961) 56 Cal.2d 720.1... cece eee eens 312 People v. Lucas (1995) 12 Cal.4th 415 0.0.0... cece eee eee eee passim People v. Lucero (2000) 23 Cal.4th 692 ............0 0s eee eee 389, 519 People v. Lynch (2010) — Cal.Rptr.3d—.. 2.0.0.0. 2c eee eee eeepassim People v. Marshall (1997) 15 Cal.4th 1... 0.6... e eee eee passim People v. Martinez (2009) 47 Cal.4th 399 ... 00... . 6. eee eee eee passim People v. Martinez (2010) 47 Cal.4th 91] ..........2-0 22-2 e eee passim People v. Mason (1991) 52 Cal.3d 909 ...........0--0 06 109, 110, 205 People v. Massie (1998) 19 Cal.4th 550 .. 0.22... 62 ee eee eee 389, 519 People v. Mattson (1990) 50 Cal. 3d 826 .........----05- 276, 277, 448 People v. Maury (2004) 30 Cal.4th 342 2.0... 2... eee eee eee 514, 515 XXXii People v. Mayfield (1997) 14 Cal.4th 668 .............. 0.000005 passim People v. McDermand(1984) 162 Cal.App.3d 770 ................ 463 People v. McGaughran (1979) 25 Cal.3d 577 2.0.0... 0c cece 42 People v. McLain (1988) 46 Cal.3d 97 .. 0.0.0... 0. cece 488 People v. McPeters (1992) 2 Cal.4th 1148 ........ 02.0... 0.0 e eee 221 People v. McWhorter (2009) 47 Cal.4th 318 .................. 101, 497 People v. Median (1995) 11 Cal.4th 694 ................. 207, 346, 480 People v. Mendoza (2007) 42 Cal.4th 686 .............-2.-000- passim People v. Michaels (2002) 28 Cal.4th 486... 0.0.0.0... cece ene 2 People v. Mickey (1991) 54 Cal.3d 612 ..............0 000.004 232, 234 People v. Mills (2010) 48 Cal.4th 158... 0.0.0.0... 02.2002 0 00 eee passim People v. Millwee (1998) 18 Cal.4th 96 .............0-20008- 168, 315 People v. Milner (1988) 45 Cal. 3d 236............ 0.00 ce eee ee eee 73 People v. Mincey (1992) 2 Cal.4th 408 ....... 02... 0c cece ee ee 357 People v, Miranda (2008) 44 Cal.3d 46 ............. 0.0200 passim People v. Monterroso (2004) 34 Cal.4th 743 2.0... 0... eee eee eee 240 People v. Montiel (1993) 5 Cal.4th 877 .. 00.0.0... cee eee eee 311 People v. Morgan (2007) 42 Cal.4th 593 .............-2.0000- passim People v. Morris (1988) 46 Cal.3d 1 ................ eee eens 146, 147 People v. Mungia (2008) 44 Cal.4th 1101 ..................-.. passim People v. Murtishaw (1981) 29 Cal.3d 733 ..........20 2c e eee passim People v. Nakahara (2003) 30 Cal.4th 705 .................-. 219, 222 People v. Neely (1999) 70 Cal.App.4th 767 ......... 0... e eee 61, 62 People v. Nicolaus (1991) 54 Cal.3d 551 2.0.0... 0. cece cece passim People v. Noguera (1992), 4 Cal.4th 599 1.1.0.0... 2 ce eee eee eee 287 People v. Ochoa (1998) 19 Cal.4th 353 2.0.0... eee eee ee eee 327, 483 XXXili People v. Osband (1996) 13 Cal.4th 622 ........ cee eee eee passim People v. Padilla (1995) 11 Cal. 4th 891 2.0...eee 338 People v. Page (2008) 44 Cal4th 1] oo... eee eee eee, 215, 227, 497 People v. Panah (2005) 35 Cal.4th 395.0...kee passim People v. Parson (2008) 44 Cal.4th 332 2.0.2.0... cece ee eee passim People v. Partida (2005) 37 Cal. 4th 428 1.0.0... 0... ce eee eee 190, 243 People v. Pensinger (1991) 52 Cal.3d 1210 2.0... 0. cece eee 205 People v. Phillips (1985) 41 Cal. 3d 29 0.0.0... ccc eee passim People v. Pitts (1990) 223 CalApp.3d 606 ............... 294, 295, 296 People v. Poggi (1988) 45 Cal.3d 306 2... 0... cee eee eee 176 People v. Pollock (2004) 32 Cal.4th 1153 2.0.0... 6. eee eee eee eee 275 People v. Pride (1992) 3 Cal.4th 195 2.0... eee cee eee 137 People v. Prieto (2003) 30 Cal4th 226 ..............000. 419, 514, 515 People v. Raley (1992) 2 Cal.4th 870 1.0.0.2... 0. c ee eee 141, 156, 442 People v. Ramos (1982) 30 Cal.3d 553 20...eee 176 People v. Randall (1970) 1 Cal.3d 948 2.0.0... ccc eee eee 75 People v. Raven (1990) 52 Cal. 3d 336 2.0... 0c eee eee 452 People v. Ray (1996) 13 Cal.4th 313 2.0... 0... eee eee passim People v. Redd (2010) 48 Cal.4th 691 2... .. 0.0... ee ee eee eee 195, 196 People v. Reza, (1981) 121 Cal.App.3d 129 1.0.0.0... ce eee eee eee 233 People v. Richardson (2008) 43 Cal.4th 959 . 0... 0... ee eee ee passim People v. Riel (2000) 22 Cal.4th 1153 2... .......0...000. 179, 200, 282 People v. Riggs (2008) 44 Cal.4th 248 2.0... 0... ccc eee ee eee passim People v. Robbins (1988) 45 Cal.3d 867 1.0... eee eee passim People v. Rodrigues (1994) 8 Cal.4th 1060 ................00-- passim People v. Rodriguez (1986) 42 Cal.3d 730 1.0.2... .. 0c eee eee passim XXXIV People v. Rodriguez (1993) 21 Cal.App.4th 232) ............... passim People v. Rodriguez (1999) 20 Cal.4th 1... .... eee eee eee passim People v. Rogers (2006) 39 Cal.4th 826 ................000005 29, 497 People v. Roldan (2005) 35 Cal.4th 646 .............. 0.000055 passim People v. Romero (2008) 44 Cal.4th 386 ................008. 445, 497 People v. Rowland (1992) 4 Cal4th 238 2.0... 0... cece eee 287 People v. Roybal (1998) 19 Cal.4th 481 ................000005 passim People v. Rundle (2008) 43 Cal.4th 76 20.0... eee eee eee passim People v. Russo (2001) 25 Cal.4th 1124 ..................... 220, 223 People v. Salcido (2008) 44 Cal.4th 93 0... 0... ccc eee ee passim People v. Samayoa (1997) 15 Cal.4th 795... 0... eee passim People v. Sandoval (1992) 4 Cal.4th 155 2.0...ee eee passim People v. Sapp (2003) 31 Cal.4th 240 2.0.2... cece eee 419 People v. Sarazzawski (1945) 27 Cal.2d 7.0...cee eee 349 People v. Saunders (1993) 5 Cal. 4th 580 ... 0.0.0.0... 0.0 e eee passim People v. Scott (1997) 15 Cal.4th 1188 0.0.0.0... ceeeee 1 People v. Seaton (2001) 26 Cal. 4th 598 2.0...eee 1,2 People v. Slaughter (2002) 27 Cal.4th 1187 .................5- passim People v. Smith (2005) 35 Cal.4th 334 2.0.0... ccc eee passim People v. Smith (2007) 40 Cal.4th 483 2.0.0.0... cee eee passim People v. Smithey (1990) 20 Cal.4th 936 ..... 0.0.0.0... 0. cee eee passim People v. Snow (2003) 30 Cal.4th 43 2.0.0.0... cee eee 419 People v. Solomon (2010) 49 Cal.4th 792 .... 0.0... cc cece eee passim People v. Stansbury (1993) 4 Cal.4th 1017 ...............00205 passim People v. Staten (2000) 24 Cal.4th 434 2.0.0... cee eee 136 People v. Steele (2002) 27 Cal. 4th 1230.2... 2.2.0... 0. cee eee passim XXXV People v. Stegner (1976) 16 Cal.3d 539 2.0... 6. cece eee eee ee 224 People v. Stevens (2007) 41 Cal.4th 182 .............2 000 eee passim People v. Stewart (2004) 33 Cal.4th 425 .......... 000 - eee 24, 26, 131 People v. Superior Court (Arketa) (1970) 10 Cal.App.3d 122 ...... 48, 51 People v. Superior Court (Engert) (1982) 31 Cal. 3d 797 ............ 432 People v. Sutton (1993) 19 Cal.App.4th 795 ..........---20-- 255, 263 People v. Tate (2010) 49 Cal.4th 635 «0.6... eee eee eee eee passim People v. Taylor (2010) 52 Cal.3d 719 2.0... 0... cece eee eee passim People v. Taylor (2001) 26 Cal.4th L155 2... 0.0.20... eee eee passim People v. Thomas (1945) 25 Cal.2d 880 1.0.0.0... eee eee eee eee 224 People v. Thompson (1988) 45 Cal.3d 86 ..........0e eee ee eeepassim People v. Thompson (2010) 49 Cal.4th 79... 0... 6. eee eee ee eee ee 497 People v. Thornton (2007) 41 Cal.4th 391 .........-- 20.2 eee . passim People v. Turner (1994) 8 Cal.4th 137 2.0... 0. cee eee eee ee eee 480 People v. Valdez (2004) 32 Cal.4th 73 2... 6... cece ee eee eee 298, 299 People v. Valencia (2008) 43 Cal.4th 268 ...........----. 272, 313, 364 People v. Vasila (1995) 38 Cal. App. 4th 865 .......---+++++- 35, 55, 56 People v. Vera (1997) 15 Cal. 4th 269.00... eee ee ee eee passim People v. Verdugo (2010) — Cal.Rptr.3d-- ........-02- +02 eee 234, 497 People v. Walker (1991) 54 Cal. 3d 1013... 06... eee eee eee 259 People v. Wallace (2008) 44 Cal.4th 1032 .........--.-. ee eee passim People v. Wash (1993) 6 Cal.4th 215 2... cee eee eee eee passim People v. Watson (1956) 46 Cal.2d 818 ©... 0... 0. eee eee ee eee passim People v. Weaver (2001) 26 Cal. 4th 876 2.0... 6. ee eee eee eee 491 People v. Wells (1996) 12 Cal.4th 979 20... eee eee ees 517 People v. Wharton (1991) 53 Cal.3d 522 2.0... 6 eee eee eee eee 316 XXXVI People v. Wheeler (1978) 22 Cal.3d 258 10.0.0... 2c cee ee eee 221 People v. Whisenhunt (2008) 44 Cal.4th 174 ............. 102, 248, 497 People v. Williams (1995) 40 Cal.App. 4th 446 ............... 138, 139 People v. Williams (2010) 49 Cal.4th 405 ..............0..-0-- passim People v. Williamson (1998) 17 Cal. 4th 148 ............. 260, 452, 501 People v. Wilson (1967) 66 Cal.2d 749 ...... 0... 0 eee eee passim People v. Wilson (1992) 3 Cal.4th 926 ........... 0.0.0.0 eee passim People v. Wilson (1998) 17 Cal. 4th 148 .................0.0.. passim People v. Wilson (2008) 44 Cal.4th 758 ......... 0.0.0.0 00000. passim People v. Wrest (1992) 3 Cal.4th 1088 .............0.08. 182, 183, 364 People v. Wright (1988) 45 Cal 3d 1126 .................0... 229, 428 People v. Yeoman (2003) 31 Cal.4th93 11.0.0... 0.0... eee 190, 191 People v. Young (2005) 34 Cal.4th 1149.0... 0... eee ee, passim People v. Yu (1983) 143 Cal-App.3d 358 ...............00.00 000. 250 People v. Zambrano (2007) 41 Cal.4th 1082............0.0000. passim People v. Zamudio (2008) 43 Cal.4th 327 ....... 0.0.0.2 00 02005. passim Ross v. Superior Court (1977) 19 Cal.3d 899 2.0.0.0... eee ee eee 442 Strauss v. Horton (2009) 46 Cal.4th 364 ................00 000005. 472 Willett v. Superior Court (1969) 2 Cal.App.3d 555 ...............0.. 42 Yeap v. Leake (1997) 60 Cal.App.4th 591.0... 0.2... passim XXXVIl FEDERAL CASES Adamsv. Texas (1980) 448 U.S. 38 0.eee 115, 118 Alberty v. United States (1896) 162 US 499 ... 1... 1. eee eee eee 229 Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862 .......-..2. 00500 424 American Baptist Churches v. Meese (N.D. Cal. 1989 712 F.Supp. 756 0.6... cece eeee tenes 506 Apprendi v. New Jersey (2000) 530 U.S. 466 .........-. 5005s. passim Arave v. Creech (1993) 507 U.S.463 2.0...eeeees 512 Arizona v. Fulminante (1991) 499 U.S. 279 1.0... cee eee 349, 447 Ashmusv Ayers (N.D.C.A. 2008) Case No. 93-CV-00594 ........--- 462 Atkins v. Virginia (2002) 536 U.S. 304 2.0... eee eee eee 472, 494 Ball v. United States (1891) 140 U.S. 118 «2.0.0... 00... eee eee 385, 392 Ballard v. Estelle (9th Cir.1991) 937 F.2d 453 20... ee eee 225, 263 Ballew v. Georgia (1978) 435 U.S. 223 2.0... eceee 458 Barclay v. Florida (1983) 463 U.S. 939 2.2... 0s cece eee eee passim Beck v. Alabama (1980) 447 U.S. 625 2.0... eceee 65, 225 Berger v. United States (1935) 295 U.S. 78 2... 1s eee cnet eee 199 Berghuis v. Thompkins (2010) 130 S.Ct. 2250 .......- 0. 0c eee 36, 37 Berkemer v. McCarty (1984) 468 U.S. 420 0.6... . ce eee ces 45 Blakely v. Washington (2004) 542 U.S. 296 ......--- ee eee eee passim Boldenv. Holman (1969) 394 U.S. 478 2.0. eee eee 106, 107, 483 Bollenbach v. United States (1946) 326 U.S. 607 .......... 374, 375, 376 Booth v. Maryland (1987) 482 U.S. 496 2... 6... eee eee eens passim Brownv. Illinois (1975) 422 U.S. 590 0...eee passim Brownv. Louisiana (1980) 447 U.S. 323)...eeeee 225 Burch v. Louisiana (1979) 441 U.S. 139 2...ee221 Bush v. Gore (2000) 531 U.S.98 2.0... cece ee eee passim XXXVill Cage v. Louisiana (1990) 498 U.S. 39 2...eeeeepassim Calderon v. Coleman (1998) 525 U.S. 141 ............... 371, 377, 378 Caldwell v. Mississippi (1986) 472 U.S. 320.......... 0.00 e eee eee 348 California v. Beheler (1982) 463 U.S. 1121 1.00.00... 0... e eee ee 44 California v. Ramos (1983) 463 U.S. 992 ...... 00... eee eee eee 176 Chandlerv. Florida (1981) 449 U.S. 560 ........... 20. cee eee eee 177 Chapman v. California (1967) 386 U.S. 18.1.2... 00.00.02 eee passim Choungv. People ofState ofCalifornia (D.C. Cal. 1970) 320 F.Supp. 625 . Clemon v. Mississippi (1990) 494 U.S. 738.0... 0. cece ee eee 1 Coker v. Georgia (1977) 433 U.S. 584 2.0... ce eee eee 353, 449 Colorado v. Connelly (1986) 479 U.S. 157 0...eee 87, 487 Cunningham v. California (2007) 549 U.S. 270 ........... 418, 422, 423 Darden v. Wainwright (1986) 477 U.S. 168 ........... 0.00000. passim Davis v. United States (1994) 512 U.S. 452 10.0... eee eee 487, 512 Dobbs v. Zant (1993) 506 U.S. 357 2...eeeens 1 Donnelly v. DeChristoforo (1974) 416 U.S. 637... 0.0.00... eee. passim Dowling v. United States (1990) 493 U.S. 342 2... 0.00.0... ee eee. 401 Draper v. Washington (1963) 372 U.S. 487 2.0.0... eee eee 1 Ellidge v. Florida (1998) 525 U.S. 944 ........... eee e ee eeeens 509 Estelle v. McGuire (1991) 502 U.S. 62 2.0... eee eee ee passim Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295 .................. 250 Florida v. Jimeno (1991) 500 U.S. 248 2...ecee ee ee 49 Florida v. Royer (1983) 460 U.S.491 02.2... ceeee 46, 47 Ford v. Wainwright (1986) 477 U.S. 399 1.0...eee eee 516 Francis v. Franklin (1985) 471 U.S. 307.20... eee ce eee 200 Gardner v. Florida (1977) 430 USS. 349 10... ee ee eee passim XXX1X Gideon v. Wainwright (1963) 372 U.S. 335 2.0... eee eee eee 2, 15, 30 Godfrey v. Georgia (1980) 446 U.S. 420 ....... 6... eee eee eee passim Green v. United States (1961) 365 U.S. 301 ........-0006. 384, 385, 386 Gregg v. Georgia (1976) 428 U.S. 153 2.6... eee eee ee eee passim Griffin v. California (1965) 380 U.S. 609 ...........-00-- 207, 400, 411 Griffin v. Illinois (1956) 351 U.S.1206... passim Hamilton v. Vasquez (9th Cir. 1994) 17 F.3d 1149 ...........-.265- 372 Hicks v. Oklahoma,(1980) 447 U.S. 343) 20.0... eee ee eee 166, 250, 485 Hurd v. Terhune (9th Cir. 2010) — F.3d -- 2.0.00... eee eee .85, 86, 88 Hurtado v. California (1884) 110 U.S. 516... 0... 6. ee eee 421 In Re Winship (1970) 397 U.S. 358 00... passim Jackson v. Virginia (1979) 443 U.S. 307 ©... 0 eee eee ee passim Johnsonv. Mississippi (1988) 486 U.S. 578 2.0...eee 489 Jones v. United States (1999); 526 U.S. 227 1.0... eee nee passim Kelly v. South Carolina (2002) 534 U.S. 246 .. 0.6... cee eee eee 377 Killian v. Poole (9th Cir. 2002) 282 F.3d 1204 ............045- 424, 427 Knight v. Nebraska (1999) 528 U.S. 990 1.0... 6c cee eee eee 509 Knowles v. Iowa (1998) 525 U.S. 113 2...cee41,42 Lackey v. Texas (1995) 514 U.S. 1045 66... eee eee eee 509 Lindsay v. Normet (1972) 405 US 56 2.1... cee eee eee 229 Lockett v. Ohio (1978) 438 U.S. 586 10...ee eee passim Lowenfield v. Phelps (1988) 484 U.S. 231 1.0... eee eee eee 476 Mapp v. Ohio (1961) 367 U.S. 643 20... ccceee 59 Martin v. Ohio (1987) 480 U.S. 228. 2...cecenee 234 Maynard v. Cartwright (1988) 486 U.S. 356... 6... cee ee eee 481 McDowell v. Calderon (9th Cir. 1987) 130 F.3d 833 ...........645- 374 xl McGauthav. California (1971) 402 U.S. 183 «2.0.0... eee eee 475 McGuire v. Estelle (1991) 502 U.S. 62 2.1...eee passim McLain v. Calderon (9th Cir. 1998) 134 F.3d 1383 ................ 371 Megargee v. Wittman (E.D. Cal 2008) 550 F.Supp.2d 119 ........... 246 Michigan v. Harvey (1990) 494 U.S. 344 1... 0. eee ee eee eee 383 Michigan v. Mosley (1975) 423 U.S.96 11.00... cece cee ee 89 Mills v. Maryland (1988) 486 U.S. 367 .......... 0000 cece eee 489 Miranda y. Arizona (1966) 384 U.S. 436 ............0.202006- passim Mongev. California (1998) 524 U.S. 721 2.0.0... eee eee 493 Mooneyv. Holohan (1935) 294 U.S. 103 1.2.2.2... cee cee eee 394 Murray v. Giarratano (1989) 492 US. 1......... 0... ee eee eee 225 Myersv. Ylst (9th Cir. 1990) 897 F.2d 417 2.0... eee eee 485 Napue v. Illinois (1959) 360 U.S. 264 2.0... eee eee ee 306 New Orleans v. Dukes (1976) 427 U.S. 297 2.0... eee ee 390 Parker v. Dugger (1991) 498 U.S. 308 ....... 0.0.2 e eee eee eee 1, 236 Paynev. Arkansas (1958) 356 U.S. 560 0.0... eee eee eee passim Payne v. Tennessee (1991) 501 U.S.808 .............. 02000005 passim Penry v. Lynaugh (1989) 492 U.S. 302 ...............20-008- 274, 474 People v. Pinholster (1992) 1 Cal.4th 865 .................00.. passim Proffitt v. Florida (1976) 428 U.S. 242 0.0... cee eee 484, 489 Pulley v. Harris (1984) 465 U.S.37 2.2.0... eee eee passim Riggins v. Nevada (1992) 504. U.S. 127.2... 0.0... c eee ee eee ee 395 Ring v. Arizona (2002) 536 U.S. 584 20...eeeee passim Roberts v. Louisiana (1976) 428 US. 325... 0.2.0... eee ee eee 433, 434 Roper v. Simmons(2005) 543 U.S. 551 2.0.0.0... 00. e eee eee 472, 494 Rosalez-Lopez v. United States (1981) 451 U.S. 182 ........... 180, 181 xli Ross v. Moffitt (1974) 417 U.S. 600... 2... c cece cece eee 1, 442 Sandovalv. Calderon (9th Cir. 2001) 241 F.3d 765 ............- passim Sandstrom v. Montana (1979) 442 U.S.510 1.2... cee ee eee 221 Schad v. Arizona (1991) 501 US. 630 0.0...eeeees passim Schneckloth v. Bustamonte (1973) 412 U.S. 218.0... 6. ee eee eee 47 Serra v. Lappin (9th Cir.2010) --- F.3d --- 6... eee ee eee 506 Shafer v. South Carolina (2001) 532 U.S 36... 6... eee ee eee 370, 377 Silva v. Woodford (9th Cir. 2000) 279 F.3d 825 .........-.. 370, 374, 376 Simmonsv. South Carolina (1994) 512 U.S. 154 ...........005, passim Sioux City BrId.ge Co. v. Dakota County (1923) 260 U.S. 441... 513,514 Smith v. Illinois (1984) 469 US. 91 0...eeee 75, 78 Smith v. Robbins (2000) 528 U.S. 259... eee eee ee 1, 388, 482 Sochorv. Florida (1992) 504 U.S. 527 1.0... cc eee ees 267, 415 Sosa v. Alvarez-Machain (2004) 542 U.S. 692 «1... 0... ce eee ee eee ee 506 Stanford v. Kentucky (1989) 492 U.S. 361 6.6... eee ee eee 472 Stirone v. United States (1960) 361 U.S.212 1... 0.0... eee ee eee 421 Stringer v. Black (1992) 503 U.S. 222 2.0... cece eee ees 416 Sullivan v. Louisiana (1993) 508 U.S. 275 2...eeee passim Sumnerv. Shuman (1987) 483 U.S. 66 2.0.6... 62 eee eee 65, 433, 452 Taylor v. Kentucky (1978) 436 U.S. 478 «0.0... eee eee passim Taylor v. Louisiana (1975) 419 U.S. 522 «0... eee eee passim Terry v. Ohio (1968) 392 U.S.1 2... cece eee eee ees 49, 50, 51 The Charming Betsy (1804) 6 U.S. (2 Cranch) 64; ......---..-.0-5- 507 The Nereide (1815) 13 U.S. (9 Cranch) 388 .......... 0 eee eee eee 507 The Paquete Habana (1900) 175 U.S. 677 2.6... cee eee eee 507 Tison v. Arizona (1987) 481 U.S. 137 20...ees 354 xlii Townsendv. Sain (1963) 372 U.S. 293 2... ccccee 487 Trop v. Dulles (1958) 356 U.S. 86 2.0.6 kecceee ee 494 Tumey v. Ohio (1927) 273 U.S.510 2...cee eee passim United States v. Bacall (9th Cir. 1971) 443 F.2d 1057 ........... passim United States v. Behrens (1963) 375 U.S. 162 2.0... eee eee 384 United States v. Bensimon (9th Cir. 1999) 172 F.3d 1121 ........... 163 United States v. Booker (2005) 543 U.S. 220 ...........0 00000 passim United States v. Cortez (1981) 449 U.S. 411 2... 0. eee eee 47 United States v. Havens (1980) 446 U.S. 620 ..... 0.0... cece eee 401 United States v. Lovasco (1977) 431 U.S.783 2.0.0.0... eee eee 394, 401 United States v. Mayan (9th Cir. 1994) 17 F.3d 1174 ............ 207, 208 United States v. Mitchell (9th Cir. 1999) 172 F.3d 1104.............. 160 United States v. Taheri (9th Cir. 1981) 648 F.2d 598 ................ 35 United States v. Thomas (9th Cir. 1988) 863 F.2d 622 ....... 42, 312, 321 United States v. Williams (9th Cir. 1971) 436 F.2d 1170 ......... passim Untied States v. Wallace (9th Cir. 1988) 848 F.2d 1464 .......... passim Village of Willowbrook v. Olech (2000) 528 U.S. 562 .............. 390 Wainwright v. Goode (1983) 464 U.S. 78 00... cece ee ee 316 Wainwright v. Greenfield (1986) 474 U.S. 284 2.0... 0... eee eee 263 Wainwright v. Witt (1985) 469 U.S. 412 1.0... eee ee eee passim Wardius v. Oregon (1973) 412 US 470 2.0...ceees 229 Weeks v. United States (1914) 232 U.S. 383 2.0...ene 57 Wong Sun v. United States (1963) 371 U.S. 471 .............. 34, 56, 59 Woodson v. North Carolina (1976) 428 U.S. 280 .............. 333, 409 Zant v. Stephens (1983) 462 U.S. 862 ........ 0.0 cee nes passim xliti PERSUASIVE STATE CASES Commonwealth v. Robles (Mass. 1982) 666 NE.2d 497 ..........4.- 230 Cunningham v. Thompson (2003) 186 Or.App. 221 .......--..-0085 519 Fielden v. People (1889) 128 Ill. 595 2...keeeeee 385 Johnson v. Jamaica (Jam. 1966) No. 588/1994 .. 0.0... 6.6 ee eee eee 508 Lewis v. Attorney GeneralofJamaica (P.C. 12 September 2000) 3 WLR 1785... eete eee e enn e eens 509 Mansfield v. State (Fla. 2005) 911 S0.2d 1160 ..........----.0005- 224 Mohnv. State (Alaska 1978) 584 P.2d 40 1.0.2... cece eee ee eee 387 Patterson v. State (1926) 21 Ala.App. 357 1.6.0.6... ce eee eee 388 People v. Eckles (1980) 83 Ill.App.3d 292 «1.2.2... cece eee eee 335 People v. Emig (1972) 177 Colo. 174 2.00... eee eee eee 388 Pratt and Morganv. The Attorney General ofJamaica (Privy Council 1993) 3 SLR 995 2 AC 1,4 AIL ER 769 ....... 6 eee eee eee eee 509 Sellman v. State (1981) 47 Md.App. 510 ..............5. sete e ees 387 Soering v. United Kingdom (1989) 161 Eur. Ct. H.R. (Ser. A) .....-... 509 State v. Bobo (Tenn. 1987) 727 S.W.2d 945) 00... cece eee 489 State v. Burkhart (Tenn. 1976) 541 S.W.2d 365 ..... 06... ee eee eee 388 State v. Ceballos (Mary. 2003) 832 A.2.14 1... 6. eee eee ees 338 State v. Feeney (Conn. 1994) 637 A.2d 1088 ......... 02 eee ee eee 230 State v. Fortin (2004) 178 N.J. 540, 633 2.2... eee eee eee 420 State v. Lovelace (Idaho 2004) 90 P.3d 298 2.0.0... cee ee eee eee 224 State v. Marshall (1992) 613 A.2d 1059 1.0... eeeeee 519 State v. Middlebrooks (Tenn. 1999) 995 S.W.2d 550 ..........000-- 335 State v. Myers (N.Car. 1983) 305 SE.2d 506... 0.2.0... eee eee eee 230 State v. Nicoletti (R.1. 1984) 471 A.2d 613 2.0.2... cc cee eee ee 387 State v. Townley (1921) 149 Minn. 5 2.0...eeeee ee 388 xliv State v. Tucker (Ariz. 2003) 68 P.3d110............ 2.0... cee eee 224 State v. Voit (Ore. 1973) 506 P.2d 734 2.1... . 2. ee eee eee eee 230, 231 State v. Wangberg (Minn. 1965) 136 N.W.2d 853. «0... eee ee eee 335 State v. Young (Utah 1993) 853 P.2d 327 ....... cc ccceeecceecees 463 Tomlinson v. State (1982) 98 N.M. 213.0... 00... cee eee ee 387 Watson v. State (Tex. Crim. 1988) 762 S.W.2d 591 .............. 89, 90 Wilson v. State (1947) 76 Ga.App. 257 2.0.0.0... cee eee 388 xlv PERSUASIVE FEDERAL CASES Bennett v. Angelone (4th Cir.1996) 92 F.3d 1336 ........----2 2005 334 Cunningham v. Zant (11th Cir.1991) 928 F.2d 1006 ............ passim Davis v. Greer (7th Cir. 1982) 675 F.2d 141 2.0... 6. eee eee ee eee 374 Evans v. Thigpen (5th Cir.1987) 809 F.2d 239 ......... 2. eee eee 339 Filartiga v. Pena-Irala (2d Cir. 1980) 630 F.2d 876 .....---...2055- 506 Frolova v. Union ofSoviet Socialist Republics (7th Cir. 1985) 761 F.2d 370. .cececececeeeeee cee eens Lees . 506 Hanoch Tel-Oren v. Libyan Arab Republic (D.D.C. 1981) 517 F.Supp. 542, 2.0.2... eeeee eee eee eee 503, 504 Jones v. Kemp (N.D.GA 1989) 706 F.Supp. 1534........eveeseees 353 Matta-Ballesters v. Henman(7th Cir. 1990) 896 F.2d 255 .........-. 503 Romine v. Head (11th Cir. 2001) 253 F.3d 1349 ............--. 408, 409 Spears v. Mullin (10th Cir. 2003) 343 F.3d 1215 .... 2.02... - eee 224 Streetman v. Lynaugh (5th Cir. 1987) 812 F.2d 950 ......-....---5: 94 United States ex rel. Lujan v. Gengler (7th Cir. 1990) 896 F.2d at 259) 2.cetett e eee 502, 503 United States v. Giry (1st Cir.1987) 818 F.2d 120 ............-. 335, 339 United States v. Hernandez (5th Cir. 1978) 574 F. 2d 1362 ........... 90 xlvi PERSUASIVE RESOURCES 2 Wigmore, Evidence (3d ed. 1940) ..... 0... cece ee eee eee 160 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) .............. 312 5 Witkin & Epstein, Trial Practice (2d Ed. 1988) ........ee 356 6 M. Whiteman, Digest ofInternational Law (1968) 1110 ........... 503 Allen et al., Impact ofJuror Attitudes about the Death Penalty on Juror Evaluations ofGuilt and Punishment: A Meta-analysis (1998) 22 Law & Hum. Behav. 715... 0.0... cecenent enna 459 AMERICAN BAR ASSOCIATION,Standardsfor Criminal Justice, availableat: http://new.abanet.org/sections/criminaljustice/Pages/Standards.aspx(last visited Sept. 2, 2010). 2...eeeee eee ee eee 468 American Convention on Human Rights (1996) OAS/Ser.L.V/11.92 .. 499 Bersoff & Glass, The Not-So Weisman: The Supreme Court=s Continuing Misuse ofSocial Science Research (1995) 2 U Chi L Sch Roundtable 279 .......... 0.0.02. c ee eee eee 454, 549 Brooke Butler, Death Qualification and Prejudice: The Effect ofImplicit Racism, Sexism, and Homophobia on Capital Defendants’ Right to Due Process (2007) 25 Behav. Sci. Law 857 .... 0... cece eee eee 457 Brooke Butler, The Role ofDeath Qualification and Needfor Cognition in Venireperson’s Evaluations ofExpert Scientific Testimony in Capital Trials (2007) 25 Behav. Sci. Law 561 1.0...eeeeee eee 457 Brooke Butler, The Role ofDeath Qualification in Venireperson’s Susceptibility to Victim Impact Statements (2008) 14(2) Psychology, Crime & LW, 133 2.ceeeee een eee e eens 456 Brooke M. Butler & Gary Moran, The Role ofDeath Qualification in Venireperson’s Evaluations ofAggravating and Mitigating Circumstances in Capital Trials, (2002) 26:2 Law and Human Behavior, 175........ 449 Brooke Butler & Gary Moran, The Impact ofDeath Qualification, Beliefin Just World, Legal Authoritarianism, and Locus ofControl on Venireperson’s Evaluation ofAggravating and Mitigating Circumstances in Capital Trials, (2007) 25 Behav. Sci. Law 57 .................0-0. 456 Bowers & Steiner, Death by Default: An Empirical Demonstration ofFalse and Forced Choices in Capital Sentencing (1999) 77 Tex. L. Rev. 605 2...cccee tence ent e ee nees 455 xIvii Bowers, Sandys & Brewer, Crossing Racial Boundaries: A Closer Lookat the Roots ofRacial Bias in Capital Sentencing when the Defendantis Black and the Victim is White (2004) 53 DePaul L. Rev. 1497........ 456 Byme, After Lockhart v. McCree: Conviction-Proneness and the Constitutionality ofDeath-Qualified Juries (1986) 36 Cath. U. L. Rev. 287 0.0...eeneeee 459 CALIFORNIA COMMISSION ON THE FAIR ADMINISTRATION OF JUSTICE, Final Report (2008) Gerald Uelman,ed., availableat: http://www.ccfaj.org/documents/CCFAJFinalReport.pdf(last visited June XO A00C0)467 Carlos Manuel Vazquez, Treaty - Based Rights and Remedies of Individuals (1992) 92 Colum. L. Rev. 1082 ......... 0.0... eee eee 505 Cass R. Sunstein, Symposium: Bush v. Gore: Order Without Law (2001) 68 U. Chi. L. Rev. 73 2...eecee eee eens 518 Concluding Observations of the Human Rights Committee: United States of America, (1995) U.N. GAOR Hum.Rts. Comm., 53d Sess., 1413 2...eeeene nee teen nee 494 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1984) Art. 16, G.A. Res. 39/46, 39 U.N. GAORSupp.(No. 51) at 197, U.N. Doe. A/39/51 . 1.6... eee eee ee 499 Craig Haney, Aida Hurtado, and Luis Vega, Modern Death Qualification: New Data on Its Biasing Effects (1994) 18:6 Law and Human Behavior 619 ........ 0... cccee 454 Craig Haney, Commonsense Justice and Capital Punishment (1997) 3 Psychol. Pub. Pol'y & L. 303 2... ceeeeeens 495 Craig Haney, Media Criminology and the Death Penalty (2009) 58 DePaul L. Rev. 689 0.0... ccc ceeet eens 494 David C. Balduset al., Equal Justice and the Death Penalty: A Legal and Empirical Analysis (1990) Northeastern University Press ........... 473 David Sloss, The Domestication ofInternational Human Rights: Non-Self- Executing Declarations and Human Rights Treaties (Winter 1999) 24 Yale J.Int] b. 129 eeeeenna 505 Directors of the Columbia Law Review Association, The Nature and Consequences ofForensic Misconductin the Prosecution ofa Criminal Case (1954) 54 Colum. L.Rev. 946,975) 1.0.0... cece eee ee 169 xlvili Eisenberg & Garvey, The Deadly Paradox ofCapital Jurors (2001) 74 So. Cal. L. Rev. 371 20...eeeee een tees 455 G. Ben Cohen & Robert J. Smith, The Death ofDeath Qualification (2008) 59:87 Western Reserve Law Review 1 .................00- 455 Garvey, Aggravation and Mitigation in Capital Cases: What do Jurors Think? (1998) 98 Colum. L. Rev. 1538 2.0.2.2... 0. cece eee eee 455 Garvey, Johnson & Marcus, Correcting Deadly Confusion: Responding to Jury Inquiries in Capital Cases (2000) 85 Cornell L. Rev. 627 ....... 456 Garvey, The Overproduction ofDeath (2000) 100 Colum. L. Rev. 2030 2... 0... ceceee eee eens 455 Gross, Determining the Neutrality ofDeath-Qualified Juries: Judicial Appraisal ofEmpirical Data (1984) 8 Law & Hum. Beh.7 .......... 459 Halsbury's Laws of England (Ist ed. 1909) ..................005. 459 Harry F. Tepker, Jr., The Ox-bow Incident (1997) 22 Okla. City U. L. Rev. 1209 .occcee nent cette eee ee ne teens 385 Hoffman, Where’s the Buck - Juror Misperception ofSentencing Responsibility in Death Penalty Cases (1995) 70 Ind. L.J. 1137 ...... 477 J. Sullivan, The Capital Defendant's Right to Make a PersonalPleafor Mercy: Common Law Allocution and Constitutional Mitigation (1987) 15 N.MLL. Rev. 41 0.0...ccceect e eens 456 John H. Jackson, Status of Treaties in Domestic Legal Systems: A Policy Analysis (1992) 86 Am. J. Intl. 310 2.2... . cee eee eee 386 Jordan J. Paust, International Law as Law ofthe United States (1996) Carolina Academic Press, Durham N.C. «wo... eeee 505 Kadane, After Hovey. A Note on Taking Account ofthe Automatic Death Penalty Jurors (1984) 8 Law & Human Behavior 115 .............. 457 Kadane, Juries Hearing Death Penalty Cases: Statistical Analysis ofa Legal Procedure (1983) 78 J. American Statistical Assn. 544 ........ 457 Laurence Benneret al., Criminal Justice in the Supreme Court: An Analysis of United States Supreme Court Criminal and Habeas Corpus Decisions (2001) 38 Cal. W. L. Rev. 87 2...eecteee 518 xlix Louis Henkin, Foreign Affairs and the United States Constitution (2d ed. 1996) Oxford University Press, Oxford; U.K. ........... 000 eee eee 505 Luginbuhl & Middendorf, Death Penalty Beliefs and Jurors= Responses to Aggravating and Mitigating Circumstances in Capital Trials (1988) 12 Law & Human Behavior 263 ............00 0000 e- 457, 459 Michael A Simons, Born Again on Death Row:Retribution, Remorse, and Religion (2004) 43 Cath. Law 311,322 ........... 2.00 ee eeee 395 Michael P. Seng, Commentary: Reflections on When We, the People Kill (2001) 34 J. Marshall L. Rev. 713 2.0... eeeeee eee 518 Moar, Death Qualified Juries in Capital Cases: The Supreme Court's Decision in Lockhart v. McCree (1988) 19 Colum. Hum.Rts. L. Rev. 369, 374 0... ccc ccctte eet e eens 453, 459 NATIONAL DISTRICT ATTORNEY’S ASSOCIATION, National Prosecution Standards (2d. ed 1991) 2...eceens 212 Nicole L. Waters & Valerie P. Hans, A Jury ofOne: Opinion Formation, Conformity, and Dissent on Juries (2008) Cornell Legal Studies Research Paper No. 08-030 2.0...cceeeens 465 Osterman & Heidenreich, Lying in Wait: A General Circumstance (1996) 30 U.S.F. L. Rev. 1249...ccceens 463 Peters, Constitutional Law: Does Death Qualification Spell Deathfor the Capital Defendant’s Constitutional Right to an Impartial Jury? (1987) 26 Washburn L.J. 382,395 2.0...ceteen eens 459 Restatement(Third) of the Foreign Relations Law of the United States (1987) 114...cnneen eee eee 506 Sandys, ‘Cross-Overs’ - Capital Jurors who Change their Minds about Punishment: A Litmus Testfor Sentencing Guidelines (1995) 70 Ind. L.J. L183 occeee eee eee eee e ee ene nneee 456 Sanjay Chhablani, Disentangling the Sixth Amendment(2009) 11 U.Pa.J. Const. L.487 0.0... ccceee eee nee ete e eee 218 Seltzer et al., The Effect ofDeath Qualification on the Propensity ofJurors to Convict: The Maryland Example (1986) 29 How. L.J.571 ........ 459 Smith, Due Process Educationfor the Jury: Overcoming the Bias ofDeath Qualified Juries (1989) 18 Sw. U. L. Rev. 493 ............0--- 452-453 Steven Shatz & Nina Rivkind, The California Death Penalty Scheme: Requiemfor Furman? (1997) 72 N.Y.U. L. Rev. 1283 ........... passim Tanford, The Limits ofa Scientific Jurisprudence: The Supreme Court and Psychology (1990) 66 Ind. L.J.137 0.0...ene 454 The International Covenant on Civil and Political Rights (1992) 999 UN.T.S. 171, 175 0.ceence teen enn eas 494 Theodore Eisenberg, Stephen P. Garvey, & Martin T. Wells, But Was he sorry? The Role ofRemorse in Capital Sentencing (1998) 83 Cornell L. Rev. 1599...cccene n eee nen n ee eeaes 455 Thompson, Death Qualification After Wainwright v. Witt and Lockhartv. McCree (1989) 13 Law & Human Behavior 185 .................. 453 Universal Declaration on Human Rights, (1948) G.A. Res. 217A (IID), U.N. GAOR,3dSess. art. 3, U.S. Doc. A/810 2... ee ee eee 499 Walter Van Tilburg Clark, The Ox-Bow Incident (Random House 1940; and Twentieth Century Fox 1943) 2.0.0... cece ee eee 477 Webster’s New World Dictionary (3rd College Ed. 1988) ............ 88 William J Bowers, Wanda D.Foglia, Jean E Giles & Michael E. Antonio, The Decision Maker Matters: An Empirical Examination ofthe Way the Role ofthe Judge and the Jury Influence Death Penalty Decision Makin (2006) 63 Wash. & Lee L. Rev.931 ....... 0... cece cee 455 William J. Bowers, Zhe Capital Jury Project: Rationale, Design, and a Preview ofEarly Findings (1995) 70 Ind. L. 1043 ................. 454 Yuji lwasawa, The Doctrine ofSelf-Executing Treaties in the United States: A Critical Analysis (1986) 26 Va. J. Intl L. 627 ............ 505 hi CALIFORNIA STATUTES Cal. Evidence Code § 600(b) ... 0...eccee 141 Cal. Evidence Code § 1101 ..... 0... 2. eeeeee 161, 163 Cal. Penal Code § 190.3 2... 0.2... cee ce eens passim Cal. Penal Code § 192 1.0...ceceeens 518 Cal. Penal Code § 240 2.0... .. cece cece eee tenes 246, 355 Cal. Penal Code § 952 «0... ceceteenies 145 Cal. Penal Code § 190.4............ ccceens passim CALJIC No. 2.01 2.0...ceceene een en eeee 227 CALJIC No. 2.02 2...ccceee nnn e eens 227 CALJIC No. 2.03 2.0... ceceeee eee n nen 227, 228 CALJIC No. 2.04 0... cccccceee nent eens 227 CALJIC No. 2.05 . 0...cececnet een e eens 227 CALJIC No. 2.06 2.0...cnet nen eeee 228, 229 CALJIC No. 2.09 0...ccceee eee n nnn 227 CALJIC No. 2.50 2... ccc cccteen enn enna 227 CALJIC No. 2.52 00... cccceene n eens 227, 228 CALJIC No. 2.71...ennn enn enes 227 CALJIC No. 4.22 0...cccten eee nen n eens 234 CALJIC No. 8.10 00...ceeeeenn teenies 142 CALJIC No. 8.11 00...ceceene eee tenes 142 CALJIC No. 8.20 2... 0. cc ccc cee eee teen tne nnenee 142 CALJIC No. 8.21 ... ccceeenee nena 227 CALJIC No.8. CALJIC No.8. hi 28 U.S.C. 28 U.S.C. 28 U.S.C. 28 U.S.C. 28 U.S.C. 28 U.S.C. 28 U.S.C. 28 U.S.C. 28 U.S.C. 28 U.S.C. 28 U.S.C. 28 U.S.C. 28 U.S.C. 28 U.S.C. FEDERAL STATUTES 1331 Leneee eee eee eee eee 503 1332Leeee tenet eee 503 1SFO504 1330 Looe eeeeeeeee tenes 503 1602 2...ceceeee ence eens 504 1603 2...ceeeee ene 504 16042.ccceens 504 1605 2.ceeeeee eee eee 504 1606 2.eeeeeee 504 1607oocccee ee eens 504 1608 20.ceceeee eee 504 1609oeceeeee eee 504 L610cecee eee eee 504 L611Leeee tence nee 504 liti I. THE MISSING PORTIONSOFTHE RECORD DEPRIVE APPELLANT OF MEANINGFUL APPELLATE REVIEW. A. Introduction. Meaningful appellate or post-conviction habeas corpus review of a capital trial cannot be conducted without a complete and accurate record.’ Meaningful appellate review is essential to assure the constitutionality and fairness of the death penalty. (See Zant v. Stephens (1983) 462 U.S. 862, 876). Whena state providesa first appeal of right, the Fourteenth Amendment requires the state to provide “adequate and effective appellate review to indigent defendants.” (Smith v. Robbins (2000) 528 U.S. 259, 276 (quoting Griffin v. Illinois (1956) 351 U.S. 12, 20)). A state must provide the defendant“a sufficiently complete record ofthetrial proceedings” (Draper v. Washington (1963) 372 U.S. 487, 500), to “assure the indigent defendant an adequate opportunity to present his claimsfairly in the context of the [s]tate’s appellate process.” (Ross v. Moffitt (1974) 417 U.S. 600, 616). The Eighth Amendmentrequires the states to conduct “meaningful appellate review,” an instrumentcrucial “in ensuring that the death penalty is not imposedarbitrarily or irrationally.” (Parker v. Dugger (1991) 498 USS.308, 321; see also Gregg v. Georgia (1976) 428 U.S. 153, 195; and Clemons v. Mississippi (1990) 494 U.S. 738, 749 ). To do so requires the full and accurate record of the proceedings in capital cases. (See Dobbsv. Zant (1993) 506 U.S. 357, 358; Gregg, supra, 428 U.S. at 167; and Gardner v. Florida (1977) 430 U.S. 349, 361). ' (See, e.g., People v. Frye (1998) 18 Cal.4th 894, 941; People v. Seaton (2001) 26 Cal.4th 598, 701; People v. Scott (1997) 15 Cal.4th 1188, 1203-1204; People v. Arias (1996) 13 Cal.4th 92, 158, Cal.Rptr.2d 770; People v. Hawthorne (1992) 4 Cal.4th 43, 66; People v. Rundle (2008) 43 Cal.4th 76, 111; and People v. Letner (2010)50 Cal.4th 99). In this case, sixty (60) hearings, proceedings or conferences were not fully recorded.” This deficient record prevents “meaningful appellate review”ofthe state and federal claims oferror infecting Appellant’s capital trial, and will also have adverse effects on him post-conviction if he needs to pursue those avenues. Errors stemming from an incomplete trial record are structural by nature, and because of the heightened needfor reliability imposed by the Eighth and Fourteenth Amendmentin capital prosecutions, no showing of prejudice.’ In any event, Petitioner shows prejudice herein. B. RespondentFails to Account for All the Unrecorded Hearings, Conferences, And Proceedings in Appellant’s Case. Here,“forty-four (44)” court hearings, proceedings, or conferences were nottranscribedin this case. (I AOB 19).’ Additionally, on (17) other * Thereporters’ notes of hearings on January 19, 1988, April 15, 1988, and June 17, 1988 werelost or destroyed and apparently were never transcribed. (ART 2, 6, 7). Proceedings on December15, 1987, June 17, 1991, September 23, 1991, November 25, 1991, January 30, 1992, February 11, 1992 and May 26, 1992 were not reportedat all. (ART 3-5, 9). The court reporter deleted her notes from August 11, 1987, August19, 1987, September 10, 1987, November 17. 1987, November 18, 1987, November 24, 1987, and May 26, 1987, but she believes they were “probably transcribed.” (ART 8). 3 (Compare Seaton, supra, 26 Cal.4th at 700; People v. Alvarez (1996) 14 Cal.4th 155, 196 n. 8; and Hawthorne, supra, 4 Cal.4th at 66; with Payne v. Arkansas (1958) 356 U.S. 560, 578; and Gideon v. Wainwright (1963) 372 U.S. 335, 383). * The missing hearings, proceedings, and conferences were heldin front of the following courts on the following dates: Livermore Municipal Court Hearings: August 11, 1987 (CT 1122); August 19, 1987 (CT 1124, 1126); and September 10, 1987 (CT 1128). Livermore Municipal Court Preliminary Hearings: November17, 1987 (CT 488, 514); November 18, 1987 (CT 526:24, 538, 564:12); November 19, 1987 (CT 586:14, 709:15, 1151, 746:15); November24, occasionsthereis “no reporter’s transcript” of a hearing. (/d. at 16 n.6). Moreover, the trial court failed to preserveits trial notes, which were used in ruling upon Appellant’s motion for modification of his death sentence.(I AOB19). In short, a total of sixty (60) proceedings are missing from the record.” Ofthe sixty (60) proceedings, Respondent concedes that eleven (11) separate proceedings in Appellant’s case were not recorded andthat “(w]hat occurred on those dates has not been definitively reconstructed.” 1987 (CT 1043:5, 1046:3, 1078:8, 1079:22); and December1, 1987 (CT 1105:20). Alameda Superior Court Pretrial and In Limine Proceedings: December 15, 1987 (CT 1543); April 15, 1988 (CT 1584); April 18, 1988 (CT 1593); June 6, 1988 (CT 1626); June 17, 1988 (CT 1631); June 17, 1991 (CT 1665); September 23 (CT 1666); November 25, 1991 (CT 1668); January 27, 1992 (CT 1737); January 30, 1992 (CT 1738); February 11, 1992 (CT 1739); March 10, 1992 (CT 1744); March 20, 1992 (CT 1745); April 17, 1992 (CT 1750); May 6, 1992 (CT 1751); and June 9, 1992 (CT 1825). Alameda Superior Court Trial Proceedings: August 13, 1992 (In chambers conference regarding guilt phase instructions and exhibits) (CT 1975); August 14, 1992 (CT 1974); September 10, 1992 (In chambers conference regarding penalty phase jury instructions) (CT 2018); and November 2, 1992 (CT 2144). Alameda Superior Court Trial: June 11, 1992 (RT 110); June 25, 1992 (CT 1887); July 1, 1992 (CT 1908); July 24, 1992 (RT 190); August 4, 1992 (RT 2522); August 11, 1992 (RT 2903); August 12, 1992 (RT 2977); August 20, 1992 (RT 3261); August 27, 1992 (RT 3335); September 3, 1992 (RT 3404); September 9, 1992 (RT 3601); September 9, 1992 (RT 3611); September 15, 1992 (RT 3731); September 15, 1992 (RT 3816); September 15, 1992 (RT 3727); and September 16, 1992 (RT 3890). ° Respondentsays that “two ofthe transcripts appellant claimsare missing are not.” (RB 53). Respondentincorrectly quotes Appellant’s brief in regards to the January 27, 1992 hearing. (See CT 1737). Respondentis correct in noting that the conference on August 14, 1992 was recorded. Appellant retracts his prior assertion to the contrary. (RB 73).° Respondentsays that the failure to record fifteen (15) other proceedings should be ignored, claiming that the proceedings were “routine scheduling and procedural matters.” (/d. at 70). For twenty (20) additional unrecorded conferences, respondent attempts a secondary reconstruction of the proceedings; deems the substance ofthese proceedings routine and procedural; and then argues that they should be dismissedout of hand. Respondentfails to address fourteen (14) unrecorded proceedings asserted as missing by Appellant. Respondent’s analysis fails to cure the error stemming from deficiencies in the appellate record. Respondentfails to show that Appellant hasnotbeen prejudiced by the lack of a full and fair record in his capital case. 1. Meaningful Appellate Review of Eleven of Appellant’s Claims Cannot Be Accomplished Based on Respondent’s Reconstructive Methodology. In Respondent’s view,“the existing record reconstructs many ofthe missing reporter’s transcripts....” (RB 72). To the contrary,it is Respondent who “reconstructs” whole transcripts through speculation as to what occurred during forty-six (46) unrecorded proceedings. However, Respondent merely cross references documents pertaining to the unrecorded hearings and concludesthat the subject of each hearing is either immaterial an “scheduling and procedural matter[],” (/d. at 70), or that the record sufficiently establishes what occurred during the unrecorded hearing. ° Respondenterroneously argues that any prejudice stemming from the lack of record for these eleven dates maybe imputed to Appellant’s trial counsel, since he allegedly waived the court reporter’s presence for seven of the proceedings. (See RB 74(citing proceedings on February 11, March 20, March 20, April 17, May 6, May 26, and June 9, 1992)). Respondent has not established thattrial counsel waived the reporter’s presenceprior to the hearing. Whethertrial counselis at fault for allegedly waiving the reporter’s presence is an issue for post-conviction review of counsel’s assistance. Here, the question is whetherthereis a sufficient record for this Court to conduct meaningful appellate review on direct appeal. Cross-referencing various textual sources does not recreate the objections stated or detail the arguments madebythe parties. Nor doesit recreate any court references to the case law cited, or the reasoning behind conclusions reached by the court during the unrecorded proceedings. The missing transcripts involve proceedings throughoutthe case and will affect the resolution of whole claims and many sub-issues. Moreover, it will affect any subsequentlitigation in Appellant’s case, if this Court were not to order a newtrial. Anappellant challenging the adequacy of the record must show that the lack of record materially affects the resolution of issues on appeal. (See People v. Pinholster (1992) 1 Cal.4th 865, 921). Here, eleven (11) of Appellant’ claims are directly and materially affected by the lack of record dueto the trial court’s failure to transcribe a conference, proceeding or entire hearing: 1, The missing November19, 1987 conference concerned information requested by Appellant’s counsel regarding his initial detention and interrogation on March 7, 1987. The matters discussed during the proceeding affect the resolution of Appellant’s Claim II - The Trial Court Improperly Denied Appellant's Suppression Motion; 2. The missing record for hearings on April 18th, 1988 and June 6, 1988 concerned the defense suppression motion regarding Appellant’s subsequent detention and interrogations on March 27th and 30th, 1987. The matters discussed thus affect the resolution of Appellant’s Claim III- The Trial Court Improperly Denied Appellant's Motion to Suppress Statements That Were Unlawfully and Involuntarily Obtained by Livermore Law Enforcement; 3. The missing June 25, 1992 and July 1, 1992 conferences concerned jury questionnaires and juror responsesand the excusal of several jurors. The matters discussed thus affect the resolution of Appellant’s Claim IV- The Trial Court Erred by Improperly Dismissing for Cause Capital Jurors Qualified to Sit on Appellant's Jury; 4. The missing June 11, 1992 conference concerned the excusal of the state’s witnesses from the guilt phase proceedings. The matters discussed during the conference thus affect resolution of Appellant’s Claim V - The Trial Court Improperly Denied the Defense Motion to Exclude All Witnesses From the Guilt Phase; 5. The missing April 15, 1988 hearing concerned evidence supporting the prosecution's theory of the case and arguments regarding the Penal Code section 995 Motion. The matters discussed during the proceeding thus affect the resolution of Appellant’s Claim VI- Insufficient Evidence Supports Appellant's Convictions of Capital Murder, the Burglary-murder Special Circumstance, or His Conviction for Assault with Intent to Commit Rape; 6. The unrecorded conference on August 4, 1992, concerned prosecutorial efforts to admit evidence of Appellant's poverty as probative of his motive. (See RT 2522). The matters raised during the discussion affect the resolution of Appellant’s Claim VII - The Trial Court Erred in Admitting Evidence of Appellant's Unemploymentas Facts Probative of His Intent to Steal; 7. The unrecorded in chambers proceeding on August 13, 1992 concernedthe guilt phase jury instructions. The matters discussed during the hearing are relevantto resolution of Appellant’s Claim XI - Errors in the Guilt Phase Jury Instructions Require Reversal of Appellant's Convictions and the Special Circumstance; 8. The unrecorded conference on September1, 1992 concerned the prosecution’s victim impact evidence. The matters discussed are material to Appellant’s Claim XIV - The Trial Court Erred in Admitting Victim Impact Evidenceat the Penalty Phase; 9. On September 9 and September 15, 1992 four unrecorded conferences were held regarding defense objections to prosecutorial misconduct during the admission ofthe state’s penalty phase case and closing argument. The matters discussed during the in chambers and unrecorded conferences are relevant to Appellant’s Claim XVI - The Prosecutor Committed Prejudicial Misconduct During the Penalty Phase Arguments; 10. On September 14, 1992, the court and the parties held a discussion off the record concerning Appellant’s objectionsto the five charts displayed by the prosecution during the opening morning ofits penalty phase closing arguments. (See RT 3670). The matters that were discussedare relative to Appellant’s Claim XIX - The Trial Court Erred by Allowingthe Prosecutor to Display Inflammatory Charts to the Jury; and 11. OnSeptember 16, 1992, the parties and the trial court held an unrecorded in chambers conference concerning the proper responseto the jury’s deliberation question in the penalty phase. The unrecorded conference is relevant to the disposition of Appellant’s Claim XX - The Trial Court Erred by Failing to Answerthe Jury's Request for “The Legal Definition of Life Without the Possibility of Parole;” Lastly, although not an unrecordedhearing,the trial court’s notes, which were used whenit ruled on Appellant’s motion for modification, are missing. This deficiency in the record affects the disposition of Appellant’s Claim XXV - The Trial Court Failed When Performingits Duties in Reviewing the Jury's Death Verdict. Significantly, the missing record also contains potentially exculpatory evidence indicating that a person other than Appellant may have committed the Olsson homicide. As Respondent concedes, (See RB 60), at the November 24, 1987 hearing the unrecorded discussion concerned a request by defense counsel for “certain information the prosecutor had developed on potential suspects.” (/bid.). Similarly, on August 11, 1992, an unreported hearing concerned questions to Detective Scott Robertson about “ThomasPillard, a.k.a. ‘Doubting Thomas’ a potential suspect in the murderinvestigation.” (See RB 68). The lack of record has prevented Appellant’s appellate and habeas corpus counsel from fully pursuing this evidence. Respondent tries to exploit the lack of record in this case by arguing that several of Appellant’s claims, which are dependent on missing transcripts, should be procedurally barred. Respondent does so despite the state’s inability to prove what arguments and objections were made during the relative unrecorded proceeding. Appellant’s claims cannotbe forfeited becausethe record does not demonstrate whether or not a contemporaneous objection was properly lodged by counsel. The contemporaneousobjection rule maybe waived whendeficiencies in the record impede meaningful review of a claim and a determination as to whether Appellant’s counsel made the requisite objection. (Cf. People v. Young (2005) 34 Cal.4th 1149, 1203 (“because it cannot be ascertained whether defense counsel specifically requested clarification [of an instruction], we shall give defendant the benefit of the doubt and find the issue preserved for appeal’)). 2. Respondent Fails to Demonstrate that Any of the Unrecorded Hearings Involved “Routine Scheduling and Procedural Matters.” In fifteen (15) instances, Respondentasserts that the missing portion of transcript involved only “routine scheduling and procedural matters.” (RB 70).’ Respondent’s assertion covers missing transcripts for entire hearings and individual bench conferences, during pretrial andtrial proceedings. Respondent’s citations to the settled statement do not prove the content of the unrecorded hearings. In all fifteen instances, Respondent fails to offer any evidence, beyondits conclusory assertions,that the unreported proceedingsdealt solely with “routine scheduling and procedural matters.” The fifteen (15) proceedings were held on: September 10, 1987 (RB 54); November, 18, 1987 (RB 54); November24, 1987 (RB 70); December 1, 1987 (RB 55); December 15, 1987 (RB 55); January 19, 1988 (RB 56); April 15, 1988 (RB 56); April 18, 1988 (RB 56); June 6, 1988 (RB 56); June 17, 1988 (RB 57); June 11, 1992 (RB 70); August 20, 1992 (RB 71); August 27, 1992 (RB 71); September 9, 1992 (RB 57); and November2, 1992 (RB 57). l. Respondent concedesthat the September 10, 1987 hearing was not reported, but argues that the entire hearing may be summed upin one sentence. (See RB 54). The clerk’s transcript: indicates that on September 10, 1987, Detective Jensen did not appear with compliance discovery materials; the prosecutor reported that there would be a substitution of counsel; and the court vacated the date set for the preliminary hearing and maintained that date for a compliance hearing. (RB 54). However, since there is no transcript, Respondent cannot describe what materials Detective Jensen failed to deliver; cannot describe the Court’s order(s) concerning the non-compliance; and cannot describe why counselfor the state was substituted. The hearing also involved discovery matters not reported. 2. Respondent concedesthat the November 18, 1987 hearing was not recorded. (RB 54). Respondentcalls the hearing “routine,” dealing with “Detective Jensen[‘s] request [for] an in camera hearing to claim his privilege to refuse to disclose certain police records.” (RB 54). Respondentargues that the proceedingis “procedural”since it dealt with “Detective Newton[‘s] claim [of] privilege not to disclose police-file information regarding work that [Thomas] Marshall had donefor the Livermorepolice department.” (RB 54-55). Again, because there is no transcript, Respondent cannot describe the ground(s) on which Detective Jensen claimed one or moreprivileges, the content of the police-file information at issue, the ground(s) on which Detective Newton claimed one or more privileges, the subject matter of Thomas Marshall’s testimony, any objections raised, or the content of the police-file information. 3. Respondent concedes that on November, 24, 1987, several conferences during a preliminary hearing were not recorded. (RB 70). Respondent argues that the conferences concerned only “routine scheduling and procedural matters.” (Ibid.). Respondent argues that defense counsel requestedthat the court read several newspaperarticles into the record prior to argument. (/bid.). Without addressing the court’s resolution asto defense counsel’s request, Respondent then calls the conference “routine” because the court would later change the date for argument. (/bid.). There is no record of the substance of the newspaperarticles in question, no discussion of the reasons for reading them in to the record, no description of any objections or arguments made,the basis for the court’s reasoning, or whether the court acquiesced to the defense’s request. 4. Respondent concedesthat the December 1, 1987 hearing was not recorded. (See RB 55). Respondentsays that Appellant was held to answer; the Court ordered him to appear for arraignment, and the prosecutor discussed biological evidence during the hearing. (/d. at 70). Because there is no transcript, Respondent cannotdescribe the content of defense counsel’s objections, what officer was charged with carrying the biological evidence, the exactnature ofthe biological evidence, and what, if any, orders were issued by the court concerning the preservation of the evidence. 5 & 6. Respondent concedes that Appellant’s December 15, 1987 arraignment was not recorded andthat the record does not contain a reporter’s transcript for the event. (See RB 55). Respondent nevertheless contendsthat the hearing was inconsequential, arguing that that “the clerk’s transcript indicates that [the] December 15, 1987 [hearing] was continued to January 19, 1988” because “the reporter’s transcript for the preliminary hearing hadnot yet been preparedat the time of the appearance.” (/bid.). According to Respondent, this same problem occurred on January 19, 1988, a hearing which Respondent also says concerned a continuance. (/bid.). The fact that, at some point, the hearing was continuedis in no way dispositive of whether anything ofsignificance was discussed on those 10 dates. Neither Respondent nor Appellant can determine whether statements or arguments made during this proceeding shed light on any of Appellant’s arguments. Rather the absence of a record should not be used to deny any of Appellant’s claims or arguments. 7. Respondent concedesthat the April 15, 1988 hearing was not reported, but argues that the hearing addressed another “continuance.” (RB 56). Respondent reaches this conclusion byciting to the settled statement, alleging that defense counsel believed that “the Penal Code section 995 motion wasfiled that same day,” and concluding that “the motion hearing wascontinued.” (/bid.). As noted by Respondent, since the motion was filed that day,it is very likely thatAppellant’s counsel expressed his reasoning for setting aside the indictment. Of particular concern, would be counsel’s consideration of the charges that related to the state’s theory of the case and basis for special circumstances that were inadequately supported by the evidence. Respondent cannotverify that the matters discussed on record on April 15, 1988 were inconsequential. 8 & 9. Respondent agrees that the in limine proceedings held on April 18, 1988 and June 6, 1988 were not recorded. (RB 56) Respondent asserts that the hearings were inconsequential because the “clerk’s transcript indicates that on both dates Appellant was not present andthe court dropped the defense suppression motion without prejudice.” (/bid.). Respondentarguesthat the fact that “the court reporter has certified ...[in] her shorthand notes...that the pending matters were dropped from calendar” ameliorates any concerns about the missing reporter’s transcripts. (Jbid.). However,certified notes are not an adequate substitute for substantive text of the hearing that led to the court’s decision to “drop” the defense’s suppression motion. On both April 18, and June 6, 1988, the Court and. counsel conducted pretrial and in limine proceedings, which were[likely] discussed before continuing the matter. The reporter’s certified notes are 11 based on memoryand donot contain the parties word-by-word arguments, cases cited in support, or objections made during either the April 18 or June 6, 1988 hearings. They do not contain summaries of the court’s conclusions and reasoning. 10. Respondent concedesthatthe transcript for the June 17, 1988 proceeding is missing. Respondentinsists that the hearing was immaterial since the clerk’s transcript indicates that on that date the “court continued a motion to correct the record.” (RB 57). Because there is no transcript, Respondent cannot show thatthe errors in the record were corrected. Respondent cannotoutline the party’s contentions, nor describe the court’s holdings. 11. Respondent concedesthat a June 11, 1992 conference was not recorded during thetrial proceedings. Respondentasserts that the conference dealt with “marking several exhibits,” and therefore concerned “routine scheduling or procedural matters.” (RB 70-71). Respondentcites to the clerk’s transcript for evidence that several exhibits were marked during the conference. Respondent then argues that the conference must have dealt only with the exhibits, (/d. at 71), but fails to note the additional reason - the recording of objections made by defense counsel and prosecution to those exhibits. Moreover,just prior to the unreported conference on June 11, 1992, defense counsel requested to be heard by the trial court just after it had ordered the testifying witnesses out of the courtroom. (/d. at 70). Thetrial court’s order regarding witness presence in the courtroom is the subject of one of Appellant’s claims in this appeal. (See Claim V — The Trial Court Improperly Denied the Defense Motion to Exclude All Witnesses From the Guilt Phase). Respondent’s argumenttries to divert this Court’s focus from whythe conference washeldin thefirst instance and what actually occurred during the conference. While exhibits may have been marked, the reason for the conference was undoubtedly also 12 to discuss the court’s witness exclusion order. 12. Respondent acknowledges that on August 13, 1992 an unrecorded conference and proceeding occurred during the jury’s deliberation. (RB 60). Respondent arguesthat “undoubtedly th[e] discussion[s] concerned [] insignificant procedural matters,” since previously, and on the record, the court and counsel had reviewed the jury verdict forms, exhibits, and discussed how to accommodate requests for photos and videos. (/d. at 71). Respondent puts forth no evidence to support its argument. The state’s “undoubted”belief that the unrecorded hearing was immaterial is insufficient. The hearing in question occurred at a critical time in Appellant’s case and the party’s discussion of the jury verdict forms assuredly involved more than “procedural matters.” The conference likely included discussion ofjury questions or other significant juror actions, prejudicial actions of the media, or objections to exhibits or media participation. It also could have addressed anticipated juror questions regarding the verdict form or a mistrial. 13. Respondent concedes that a conference during the hearing on August 27, 1992 was not recorded. (RB 71). Respondent argues that the conference was immaterial and cites to the reporter’s transcript, which indicates that the court “conducted an unreported ‘brief scheduling conference’ with counsel.” (/bid.). This citation does nothingto illuminate what occurred during the unreported conference. It also does nothing to describe the court’s briefing schedule, the subject of the briefs, the topic of the briefs, and why they were necessary at that moment. 14. Respondent concedes that the September 9, 1992 conferences before the court and in chambers were not recorded. Respondent argues that the conference is immaterial since it dealt with whether the Court could excuse Appellant’s brother, Roger Tully, from the proceedings. (RB 57). Respondentdoes not offer any proof as to what actually occurred during the 13 proceedings orthat the conferences dealt solely with excusing the witness. Nor does Respondent offer any evidence to document the positions taken by the parties, nor the reasoning behind the court’s decision. 15. Respondent concedesthat the November 2, 1992 hearing was not recorded. Respondent says the hearing is inconsequential because the clerk’s transcript indicates that the court continued the “report and sentence” calendared for that day. (RB 57). Respondent argues that though the settled statement indicates that counsel could not remember what occurred at the November2, 1992 hearing, “the majority of court appearances following [Defense Counsel] Wagner’s appointmentrelated to scheduling matters.” (/bid.). Here, nothing in the record indicates what occurred at the November 2, 1992 hearing. The fact that defense counsel cannot remember whatoccurred - does not meanthe content of these proceedings should be dismissed as “routine” and dealing solely with “scheduling and procedural matters.” 3. Respondent Fails to Define What Constitutes a “Routine Scheduling and Procedural Matter” and Fails to Justify Why “Routine Scheduling and Procedural Matters” Should be Dismissed as “Unimportant.” According to Respondent, “routine matters” include those proceedings involving witness privileges, non-compliance with discovery orders by state witnesses, and the preservation of biological evidence. (See RB 70). According to Respondent,“scheduling and procedural matters” include rulings on a defense motion to suppress evidence, the correction of errors in the record, and defense objections to the dismissal of a witness. These matters cover a broad array of subjects and Respondent has fashioneda definition for “routine scheduling or procedural matters”that would encompass almostall relative substantive proceedings and objections. 14 Even if some of these hearings constitute “scheduling and procedural matters,” Respondent has failed to show whythey should be considered “unimportant,” “inconsequential,” and “immaterial.” Procedural matters structure an entire trial and errors dealing with the structure require separate analysis on appellate review. (See e.g., Payne, supra, 356 U.S. at 78 (coerced confession); Gideon, supra, 372 U.S. at 83 (right to counsel); and Tumey v. Ohio (1927) 273 U.S. 510 (biased judge)). Mere assertions that the missing recordsfor fifteen hearings addressed solely with “immaterial” subjects, does nothing to assure that the procedural matters discussed and resolved at those hearings did not infect Appellant’s trial with error. Likewise, such assertions do nothing to prove that the lack of record will not infect this Court’s appellate review with similar error. C. Respondent’s “Reconstruction”of the Unrecorded Hearings, Conferences and Proceedings Fails to Provide Meaningful Appellate Review. For twenty (20) incidents involving unrecorded conferences, hearings, and proceedings, Respondent attempts to reconstructa transcript through cross-reference to the Settled Statement, “court summaries made on the record,” and the clerk’s transcript.2 Respondentsays “that during these unreported conferences nothing could have resulted in reversal of the judgment.” (RB 72). Respondent’s conclusion and reconstructive methodologyis not a substitute for the transcript of these unrecorded proceedings. For many hearings, Respondent does [nothing] more than repeat whatis stated in the settled statement or court summaries. (See RB * Respondent “reconstructs” what happenedat hearings or conferences on August 11, 1987; August 19, 1987; November17, 1987; November19, 1987; August 13, 1992; September 10, 1992; September9, 1992; November 24, 1987; June 25, 1992; July 1, 1992; August 12, 1992; September 3, 1992; September 15, 1992; September 16, 1992; July 24, 1992; August 4, 1992, August 11, 1992; and September15, 1992. 15 62, 63, 67, 68, 69). In no instance does Respondent actually recreate what occurred during the unreported hearing or conference,let alone, meaningfully review the objections stated, arguments held and orders issued bythetrial court, if any. 1. The Settled Statement Does not Recreate the Objections, Arguments and Holdingsthat Occurred During Each of the Unrecorded Hearings, Conferences, and Proceedings in Appellant’s Case. The settled statement in Appellant’s case was composed on September 3, 1999. It was made twelve (12) years after the first hearing in Appellant’s case in 1987 and seven years after his conviction in 1992. It was created from the memoriesoftrial participants. Respondent believes that review of the settled statement “makes clear...an absence ofprejudice from the missing transcript.” (RB 54). Yet the state’s only referenceto the settled statement is brief quotations of Appellant’s trial counsel in 1999. Respondent’s argumentsare primarily based on the clerk’s transcript or “court summaries.” (See /d. at 53-61). Respondentfails to support its conclusionthat the “The Settlement Statement Reconstructs Many Unreported Proceedings and Discussions.” (Id. at 53). Respondent’scitation to the settled statement shedsnolight on the content of the unrecorded hearing in question. For instance, Respondent concedesthat the August 11, 1987 pretrial discovery hearing was not recorded, but arguesthatthe “clerk’s transcript provides a detailed account of the hearing”by citing to the settled statement which “indicatesthat ‘all the information Byron Brownrecalls concerning this hearing is contained in the Municipal Court Clerk’s Docket and Minutesforthis date.” (RB 58). The settled statement cannot provide meaningful guidance to this Court as it was recreated twelve (12) years after the hearing in question. Quite 16 simply, noneofthe parties’ could remember what occurred onthe date in question. This is why the settled statement indicates that the parties agreed that all information they could recall waslisted in the Court Clerk’s minutes. Respondentutilizes the same logic to “reconstruct” what occurred during the August 19, 1987 hearing claiming that the clerk’s transcript established that “the court heard argument and ruled on a discovery motion.” (RB 58). Respondentcites to the settled statement, which reads that “all the information Byron Brownrecalls concerning this hearingis contained in the Municipal Court Clerk’s Docket and Minutesfor this date.” (bid.). Respondent merely repeats what the minute order states and whatcounsel recalled at the settled statement proceedings. Respondent concedes that the Court conducted a preliminary hearing and held an unrecorded bench conference and other unrecorded proceedings on November 17, 1987. (RB 58-59). Respondent believes that the conference concerned “exclud[ing] testimony ofprosecution witness Marshall regarding admissions made by Appellant while Marshall and Appellant werein jail together.” (RB 58-59). However, as before, the settled statement sheds no light on the issue since it does not indicate that a break was taken to discuss Marshall’s testimony. Moreover,there is no record of the objections made bythe parties during the bench conference. Instead, the settled statement simply states that “Defense Counsel Brown _ recalls that the discussion was about‘the time frames Thomas Marshall was working with the Livermore Police Department.” (RB 59). Respondent next concedes that an unrecorded bench conference was held on November19, 1987 concerning the court’s examination of “Officer Newtonabout certain information the defense had requested.” (RB 59). Respondentcites to the settled statement as establishing that the discussion concernedthe time frame during which compensation was given to the 17 witness Thomas Marshall by the Livermore Police Department. (RB 59). Respondent’s arguments do not, however, show how the information from the settled statement adequately reconstructs what happened during the conference. Thesettled statement fails to reveal arguments and objections raised by defense counsel or the court’s holding. Respondent concedes that during the same hearing on November19, 1987, an in-chambers discussion and a sidebar discussion were not recorded. (RB 59-60). These conferences werecalled in response to prosecutorial objections made during Appellant’s cross-examination of Thomas Marshall. Respondent argues that nothing material occurred during the conferences by citing to the settled statement, which indicates that “Defense Counsel Brownbelieved that the ‘discussion concerned simplifying the questions for the witness, Thomas Marshall.” (RB 60). Respondent’scitation to the settled statement does inform as to what actually happened during the sidebar and in-chambers hearing, and defense counsel’s brief statement does nothing to evince the Court’s ruling or defense and prosecutorial arguments during the conferences. Respondent concedesthat a discussion off the record occurred over the span of a “30-minute recess” on November 24, 1987. (RB 60). According to Respondent, the discussion concerned a request by defense counsel for “certain information the prosecutor had developed on potential suspects.” (Ibid.). Respondent arguesthat the hearing did not deal with | anything material, by citing to the settled statement, which indicates that the “discussion concerned what leeway (defense counsel)...would be given in questioning the witness, Scott Robertson, about the focus of the police and the other leads and suspectsthat the police had in the case.” The settled statement conflicts with Respondent’s reasoning and explanation for the “30 minute recess” by referencing highly material issues related to the scope of a witness’ testimony. It also fails to documentthecritical 18 discussion between the parties and the court concerning possible exculpatory evidence. Respondent concedes that both “in-trial and in chambers conferences regarding guilt phase instructions and exhibits” were not recorded on August 13, 1992. (RB 60). Respondent arguesthat the record for the next day, August 14, 1992, “memorializes” the discussion. (/d. at 61). Respondentthus cites to Defense Counsel Wagner’s recollection, as provided in the settled statement, that “the results of [the August 13, 1992] discussions werelater put on the record.” (/bid.). However, the parties’ memories, a day after the hearing cannotsubstitute for a reporter’s transcript that fully documented the objections and arguments lodged, and the holdings reached. Moreover, both in trial and in camera conferences were not recorded. Respondent’s citation to the settled statement, however, while indicating that the results were memorialized a daylater, fails to recreate what arguments and objectionsled to the trial court’s decisions. The existing record thus fails to show what exhibits and instructions were objected to and on what grounds the exhibits and instructions were admitted. Respondent concedesthatin trial bench conferences and proceeding were held off the record on September 9, 1992. (RB 61). Respondent believes that the bench conference concerned objections raised by the defense during the cross-examination of Appellant’s son during the penalty phase. (/bid.). Respondentalso believes that the settled statement sufficiently reconstructs the conference since the court’s ultimate rulings are in the reporter’s transcript. (bid.). Respondentcites to the settled statement, which indicates that the conference concerned Appellant’s “beyond the scope of direct examination objection to Kenneth Burr’s cross examination question of Richard Anthony Tully....” (/bid.). However, while the court recordedits ultimate rulings in the record,the settled 19 statement and Respondent’s arguments fail to describe the arguments made, the support cited, and any court response given during the off the record conversation. Here, duringa critical part of Appellant’s case and in regards to a critical matter, the existing record fails to sufficiently detail what occurred during the September 9, 1992 unrecorded conference. Finally, Respondent concedesthat an “in trial and in-chambers conference regarding penalty phase jury instructions...” was not recorded on September 10, 1992. (RB 61). Respondentasserts that the court later memorialized the results of the hearing andcites to the settled statement, which “indicates that Defense Counsel Wagnerrecalled ‘conferring on penalty phaseinstructions and believed the results of these discussions were later put on the record.”” (Jbid.). Respondent’sassertion fails to illuminate what arguments and objections were made off record and instead, in a | conclusory manner, cites to the record as evidenceofthe results of the unrecorded conference. Counsel’s belief that the discussion waslater put on recordis not sufficient factual basis for meaningful appellate review of whattranspired on September10, 1992. 2. “Court Summaries” Do not Recreate the Objections, Arguments and Holdings that Occurred During Each of the Unrecorded Hearings, Conferences, and Proceedings. Respondentnextasserts that in several incidents “court summaries” alone “reconstruct” many unreported proceedings and discussions. However, Respondent goes on to underminethis assertion, by again cross- referencing the clerk’s transcript, the reporter’s transcript, and thesettled statement to build its “reconstruction” of the unrecorded hearings. Respondent’s efforts again fail to illuminate what occurred during the unrecorded proceedings and,instead, prove the inadequacy of the existing record. 20 Respondent concedes that an unreported bench conference and hearing occurred during Appellant’s trial on July 24, 1992. Respondent believes that the hearing concerned the admission ofphotos and videosinto evidence. (RB 67). Respondenttries to discount the settled statement, by claiming it does not matter that “Defense Counsel Wagner...did not recall this review of the exhibits.” (/bid.). In Respondent’s view, the record provides “a detailed account of their requests and objections....” (Jbid.). However, Respondentfails to offer any substantive proof of what happened during the unrecorded proceeding. Respondent concedes that another unreported bench conference occurred on August 4, 1992. Respondentbelieves thatthe conference concerned defense objections to the prosecutor’s questioning of John Chandler, andthat it was called after the defense requested an offer of proof. (See RB 67). Respondentcites to the court summary of the discussion wherethe court overrules defense counsel’s objections. (/d. at 67-68). However, while the court’s summary indicates that off the record, the court and counsel discussed at least three separate issues relative to the court’s determination, (drug use, Appellant’s appearance, andrelativity of the employment evidence), the court’s summary fails to include what, if any, offer of proof was made bythe prosecution. (/bid. (citing 13 RT 2536- 37)). Instead, it merely reiterates the party’s positions and the court’s holding, thus wholly missing an essential part of the defense’s objection and why the in-chambers hearing wascalled in the first instance. Respondent concedes that an unrecorded bench conference occurred during Appellant’s trial on August 11, 1992. (RB 68). Respondent believes that the hearing concerned defense objections to the prosecutor’s questions to Scott Robertson about “Thomas Pillard, a.k.a. ‘Doubting Thomas’ a potential suspect in the murder investigation.” (RB 68). Respondentargues the court’s summary, which waslimited to the judge’s 21 recollection at the end of the day after the jury had been excused, provides sufficient detail to substitute for a record of the unrecorded conference. (Ibid. (citing 14 CT 2924-25)). However, the court’s summary fails to summarize defense and prosecution arguments, or the court’s reasoning. Next, Respondent concedes that two unrecorded conferences occurred off the record during the prosecution’s penalty phase opening summation on September 15, 1992. (See RB 69). These conferences were called in response to defense objections to the prosecution’s arguments concerning victim impact evidence. (Ibid.). In both unrecorded instances, arguments were halted and conferences occurred in chambers. (Jbid.). Respondentargues that the court’s summary, a total of two paragraphs, sufficiently reconstructs what occurred during both unrecorded conferences. (Ibid.). However, the objections deal with misconduct raised as groundsfor reversal in Appellant’s brief. (See Claim XVI- Prosecutorial Misconduct at the Penalty Phase Requires Reversal of Appellant’s Death Sentence). Thus, it was critical that defense counsel’s and the prosecutor’s arguments be preserved for review. Thetrial court’s brief summary of counsel’s objections does nothing to cure the lack of evidenceindicating the positions taken by each party, the support offered by eachparty, and the court’s reasons for sustaining and denying the parties’ requests. 3. The Existing Record Cannot Adequately be Reconstructed From the Settled Statement and “Court Summaries.” Respondentnext attempts to reconstruct what occurredin six unrecorded hearings and conferences using only the settled statement and “court summaries.” (RB 70). However, like before, Respondent’s efforts fail to fully reconstruct what occurred during the unreported hearings. In each instance, Respondent’s arguments offer nothing more than conclusory 22 assertions as to what occurred during the unrecorded hearing. In no instance does Respondentestablish any substantive aspects of the unreported hearing in question. Respondent concedesthat a conference concerning defense witness Sergeant Robinson’s testimony was held off the record on November 24, 1987. (RB 62). Respondentasserts that the arguments held during the conference can be reconstructed based on the court’s explanation that the conference “addressed the ‘possible problemsin light of this line of questioning.” (/bid.). Respondentcites to the settled statement as evidence that “the ‘discussion concerned what leeway [defense counsel] would be given in questioning the witness...” (Jbid.). Respondent’s references to the court’s summary andthe settled statement fail to develop what arguments, objections and delimitations were made during the unrecorded conference. Respondent’s citations fail to describe the context of Sgt. Robinson’s testimony, and do notestablish the parties’ contentions or the court’s justifications. Yet again, Respondent’s patchworkuse ofthe settled statement and “court summaries”to fill significant gaps in the record fails to adequately “reconstruct” the record. Respondent acknowledges yet another unrecorded proceeding in Appellant’s case; this time regarding jury questionnaires, held on June 25, 1992. (RB 62-63). Respondent makes a similar argument as to the unrecorded proceeding held on July 1, 1992, which also referenced the jury questionnaires, and resulted in the dismissal of several jurors by stipulation. (RB 63). Respondent argues that the “memorialized transcript” indicates that on June 25, 1992, after 160 jurors completed the questionnaires, “counsel conferred so that they could excuse certain prospective jurors for cause by wayofstipulation.” (/d. at 62). The settled statementreiterates the memorialized transcript. But together, the documents fail to provide any substantive description of what occurred during the unrecorded 23 proceeding on June 25, 1992. Neither document describes the parties’ contentions, what matters were set for calendar, and what matters were settled by the parties through agreement. Moreover, the lack ofrecord impedes Appellant from determining whetherthe trial court adequately clarified ambiguities inherent in the questionnaire prior to dismissal of the jurors. (See People v. Stewart (2004) 33 Cal.4th 425, 454). Respondent next concedes that on August 12, 1992 an unrecorded in camera discussion occurred resulting in a stipulation betweenthe parties as to possible exculpatory DNA evidence in Appellant’s case. (RB 64). The record indicates the stipulation, which told the jury that the unidentified hair found in Olsson’s room “remain[ed] unidentified,that is, it doesn’t belong to Sandy Olsson, does not belong to the defendant.” (/bid. (citing RT 2979)). Theparties reachedthis stipulation after Appellant’s counsel withdrew his final question to Criminalist Brinkley regarding the hair. The stipulation, evidence and counsel’s examination of Criminalist Brinkley are relevant both to the issue of defendant’s innocence and the effectiveness of his defense strategy. Thus, while the unreported hearing on August12, 1992 resulted in a stipulation betweenthe parties, the content of the hearing is of significant importance to Appellant’s appeal. Counsel’s decision to reach a stipulation, instead of questioning Criminalist Brinkley, remains a vital and unresolvedissue in the absence ofa reporter’s transcript. Respondentagrees that the trial court and counsel had an unrecorded conference concerning the judge’s ruling on victim impact evidence on September1, 1992. (RB 65).” Respondent argues that the judgeultimately granted the defense request for a written ruling, which obviates the need to recreate what arguments and objections were raised * Appellant recognizes thatthe citations in his opening brief inadvertently referencedthis date as September 3, 1992. Accordingly, Appellant amendsthat assertion to September 1, 1992. 24 during the unrecorded conference. However, given that the judge’s ruling wasadverseto the defense’s position, Respondent’s assumption provides no evidenceofthe positions taken, and objections made by defense counsel - during the unrecorded hearing. Likewise, Respondent’s arguments impede effective review ofthetrial court’s reasoning for admitting the victim impact evidence in question. Respondent concedes that three unrecorded bench conferences occurred regarding the prosecutor’s closing argument in the penalty phase on September 15, 1992. (RB 65-66). The state’s penalty phase closing summation is the subject of several challenges for misconductin this appeal. (See Claim XVI - Prosecutorial Misconductat the Penalty Phase Requires Reversal of Appellant’s Death Sentence). Respondent arguesthat the unrecorded hearings dealt solely with the scheduling of defense counsel’s arguments because the next time the parties appeared on record, the Court concludedthat the arguments would continue the next day. (RB 65). This conclusion, however, ignores the two previous unrecorded conferencesand the objections raised therein. (See I AOB 20 (citing 18 RT 3727, 3731, 3816)). Moreover,it ignores the misconduct committed during the state’s penalty phase summation and the importanceof the objections lodged throughout. The lack of record wholly impedes this Court’s ability to conduct meaningful review of the record for evidence of misconduct by the prosecutor during his penalty phase summations. Finally, Respondent concedesthat the court and counsel conducted an unrecorded bench conference concerning a question lodged by the jury during their penalty deliberations on September 16, 1992. (RB 65-66).'° '© Respondentasserts that the conference actually occurred on September 17, 1992. (RB 66). Appellant recognizesthat the citations in his opening brief referenced this date as September 16, 1992. While the conference was discussed on the record on September 17, 1992, that 25 Respondentarguesthat the Court’s summary on the following day, September 17, 1992, creates a sufficient record of what occurred during the unrecorded conference on September 16, 1992. (/bid.). However,like the unrecorded conferences during the penalty phase closing arguments, the answerultimately given by the court has been challenged on appeal. (See Claim XX - The Trial Court Failed to Answerthe Jury’s Request for “The Legal Definition of Life Without the Possibility of Parole). Thus, a full record is critical to evaluating the party’s objections, arguments and positions, as well as, the Court’s reasoning and ultimate holding. D. Appellant has Established Prejudice and Reversible Error Resulting From the Missing Transcripts and Appellant’s Judgment and Convictions Must be Reversed. In a capital case, the preparation and transmittal of an accurate and complete recordis critical to the integrity of appellate review. Without an adequate record for appellate review, Appellant cannot enforce compliance with the constitutional mandate that the state’s capital sentencing process narrow the class of death eligible offenders, limit the risk of wholly arbitrary actions, or satisfy heightened standardsofreliability as imposed by the Eighth Amendment. (See I AOB 18). Likewise, without an adequate record for appellate review, current counsel cannotpresent Appellant’s appeal and, therefore, cannotfulfill Appellant’s Sixth Amendmentright to effective counsel. Similarly, without an adequate record for appeal, the state of California cannot assure that Appellant’s trial wasfair and conformed with due process and equal protection requirements imposed by the Fourteenth Amendmentand Article I of the California Constitution. discussion referenced the unrecorded discussion which occurred the day before, September 16, 1992. 26 Respondent’s reliance on to Pinholster, supra, 1 Cal.4th at 920-22 is unavailing, (see RB 75-76), since the case is distinguishable on several bases. First, in Pinholster, this Court recognized in the language immediately following the text quoted by Respondent, that “it was only the[] sidebar arguments the court refused to order reported in every instance.” (/bid.). Here, Appellant complains that sixty (60) hearings, entire proceedings, and conferences went unrecorded. Second,in Pinholster, this Court found that the unrecordedside bar conferences did not pertain to any issues on appeal. (/bid.). Here, Appellant has shownthat eleven (11) of his claims are materially affected by the lack of record. It is for these reasons that Appellant’s case is more comparable to cases in whicha large or crucial portion of the record is missing. (See Peoplev. Apalatequi (1978) 82 Cal.App.3d 970, 973). Finally, the situation in Appellant’s case affects more material than in Pinholster. Not only did the trial court fail to require transcription of every hearingin this capital case,it also failed to preserveits trial notes. The importance of these notes cannot be understated as they were used by the court in denying Appellant’s motion for new trial. (See Claim XXV - The Trial Court Failed in Performing its Duties in Reviewing the Jury’s Death Verdict)). Since Appellant submitted his Opening Brief in 2006, this Court has not had the opportunity to address a case where deficiencies in the appellate record presented significant reliability and due process concerns. This Court has, however, found in three cases that deficiencies in the record did not impedeits ability to conduct meaningful review on direct appeal. (See People v. Richardson (2008) 43 Cal.4th 959, 1037; People v. Rundle (2008) 43 Cal.4th 76; and Letner, supra, 50 Cal.4th at 195). In truth, in neither Richardson, Rundle or Letner, was this Court confronted with a record as depleted as in Appellant’s case. Two of those cases involved only minimal deficiencies in the record. (See Richardson, supra, 43 Cal.4th at 1037 27 (Defendantalleges that nine unreported bench conferences prevented meaningful appellate review); and Rundle, supra, 43 Cal.4th at 76(trial court failed to record two hearings, including a jury instruction hearing)). Letner is distinguishable based on the material impactthat the deficiencies in the record have on eleven (11) of Appellant’s claims. In Letner, the trial court failed to have transcribed sixty-two (62) “discussions” off the record duringthetrial. (See Letner, supra, 50 Cal.4th at 195) This Court found that, in doing so, the trial court had committed error under section 190.9(a)(1). (/bid.). This Court, however, found, that the defendant had failed to show that the error manifested prejudice. Appellant’s case is distinguishable. First, Appellant’s case involvestrial court errorin failing to record whole proceedings and hearings in addition to several material conferences held during the course of the trial. Second, Appellant has demonstratedthat deficiencies in the record affect the resolution of eleven (11) of his claims on appeal. Third, Appellant has demonstrated that deficiencies in the record have prohibited him from pursuing exculpatory evidenceindicating that another person committed the crime for which he has been convicted. In sum, Letneris not applicable to Appellant’s case. Suchis not the case here, where the sheer breadth of hearings that were not recorded impedes meaningful review in toto. Similarly, in several instances where Respondentalleges that a claim or argumenthas been forfeited on appeal, there is no Appellate record by whichto verify the state’s assertion that no contemporaneous objection was raised. Finally, in many instances where Appellant alleges violation of his constitutional rights there exists no record to verify the argumentsraised before the court, the objections lodged, andthe court’s reasoning justifying its order. The missing portions of the record in Appellant’s case presentreliability and due process concernsat both state and federal constitutional levels that 28 cannot be remedied byruling on the claims presented in Appellant’s Opening Brief and procedural arguments lodged in Respondent’s Answering Brief. Indeed, here, because this Court cannot issue adequate rulings on several claims and arguments raised by both parties, Appellant has carried his burden of demonstrating that the appellate record is not adequate to permit meaningful appellate review. (Contra People v. Arias (1996) 13 Cal.4th 42, 58). E. Conclusion. Appellant is constitutionally entitled to an appellate record “adequate to permit [him or her] to argue’ the points raised in the appeal.” (People v. Rogers (2006) 39 Cal.4th 826, 857). The Fourteenth Amendmentrequiresthe state to furnish an indigent defendant with a record sufficient to permit adequate and effective appellate review and the Eighth Amendmentrequires reversal when deficiencies in the record create a substantial risk that the death penalty is being imposedin an arbitrary and capricious manner. (/bid.). Appellant has carried his burden of showing the record is inadequate to permit meaningful appellate review. On sixty (60) occasionsthe trial court failed to fully record hearings, proceedings, and conferences that occurred during Appellant’s capitaltrial. The gapsin the record effect claims of error raised in Appellant’s Opening Brief and violate Appellant’s right to due process and equal protection. Ina capital case, it is unacceptable for Appellantto fight for his life with an inadequate record that prohibits counsel from fully and fairly presenting his appeal for review. Here, the lack of record in this case impedes this Court from conducting meaningful appellate review andalso challenges the test for prejudice enunciated in People v. Frye (1998) 18 Cal.4th 894. Errors in preservation of the appellate record implicate the fairness andreliability of the proceedings, as well as rights so essential that the errors necessarily 29 renderthis proceeding fundamentally unfair. In a capital case where sixty (60) hearings, proceedings and conferences were not adequately recorded, no showing ofprejudice should be required sincethetrial court’s errors havestructurally affected Appellant’s chances of earning meaningful appellate review. (See e.g. Payne, supra, 356 U.S.at 560; Gideon, supra, 372 U.S. at 335; and Tumey, supra, 273 U.S.at 510). 30 Wl. THE TRIAL COURT IMPROPERLY DENIED APPELLANT’S SUPPRESSION MOTION. A. Introduction. Appellant’s convictions are based on evidence that wasthe fruit of an illegal detention, search, arrest, and interrogation instituted by officers from the Livermore Police Department on March 7, 1987. Livermore Police detained Appellant without reasonable suspicion. He was then seized without probable cause, forced to consentto a search ofhis person, and coerced, by false promises from law enforcementofficers, into making incriminating statements. Ultimately, as a result of their unlawful conduct, Livermore Police would gain incriminating fingerprint evidence and Appellant would provide statements that were used against him at trial. As a result of the introduction of the fingerprints and incriminating statements, Alameda County prosecutors would secure a capital conviction and death sentence against Appellant. B. The Facts. Respondent acknowledgesthat prior to March 1987, Livermore Police did not have any viable suspects in the Sandra Olsson homicide. (RB 79). Respondent concedesthat prior to March 1987, the Livermore Police and California Departmentof Justice had compared Appellant’s fingerprints to the print found on the murder weapon and no match had been made.(Jbid. (citing RT 130 and 140-41)). Respondenttries to explain awaythis exculpatory fact by arguing that only Appellant’s right index finger was analyzed. (/bid.). Respondent’s explanation is not convincing. Nine monthsafter the Olsson homicide, Appellant was detained for driving with a suspendedlicense in different neighborhood. He was not considered a suspect in the Olsson homicideat that time. Police officers 31 Trudeau, Painter and Schweib had been watching Kenneth Perry’s residence. (RB 79). Appellant and Ed Snyder appearedat Perry’s house. Mr. Snyder was a knownnarcotics user with an outstanding arrest warrant. Officer Painter identified Appellant, based on an incident “about a week earlier...in which Appellant was suspected of vandalizing a truck with a knife.” ([bid.). Painter heard, through double hearsay, that Appellant was a “heavy narcotics user who was normally armed.” (Jbid.). After Appellant and Snyder left Perry’s residence, the Livermorepolice officers stopped Appellant’s car. Respondent concedes that Appellant was detained for driving with a suspended license. (RB 80). Respondent concedesthat Officer Trudeau detained Appellant, removing him from his car, while the other officers arrested his passenger, Snyder, based on an outstanding warrant. (Ibid. ). Respondent acknowledges that Officer Painter took control of Appellant while Officer Trudeau completed citation for Appellant’s violation of driving with a suspendedlicense. (Jbid.). Respondent concedesthat Officer Painter told Appellant about the reported vandalism incident, and that he had heard that Appellant was “‘heavily’ armed with a knife.” (Ibid.). In this context, Appellant consented to a search of his person for weapons, not drugs. Respondent concedes that Officer Painter used a flashlight to conduct a visual inspection of Appellant’s person, which did not reveal any weapons,andthatthe officer did not conducta frisk of Appellant. (RB 81). Respondentargues that the officer “looked inside Appellant’s belt line and pockets” and found a “bindle containing white powderfrom one of Appellant’s front pants’ pockets.” (Jd. at 81). Following this impermissible search, the officers in turn searched Appellant’s car, arrested Appellant and took him to the Livermore Police Station. While at the station, the officers searched his person again, recovering drug paraphernalia and suspected narcotics. 32 Respondentfails to acknowledge severalcritical facts underlying Appellant’s claim: 1) That the Livermore Police seized Appellant for a substantial amount of time; 2) That Officer Trudeau retained Appellant’s driver’s license for seven days; 3) That Livermore Police had completed the citation for driving with a suspended license prior to any discussions with Appellant regarding a search ofhis person orcar; 4) That Officer Trudeau had only asked for consent to search for a knife; and 5) That at no point during the investigative detention was Appellant advised of his Mirandarights. (See I AOB 41 (citing ART 254, 261; Defense Suppression Hearing Exhibit D, at 54)). Instead, Respondent attempts to make it appearas if Officer Painter gained consent to search Appellant’s person for narcotics, not weapons, outside Officer Trudeau’s presence and based on suspicion of narcotics, not weapons, offenses. (See RB 81). Respondentfails in this attempt. Appellant was not read his Mirandarights until after he was interrogated, following a custodial arrest, and after he was transported to the Livermore Police Station. At that time, having been givenhis rights, Appellant expressly refused to talk about the crimes underlying his detention, although he indicated that he did not want to go to jail. In response, as Respondent concedes, Officer Trudeau initiated negotiations with Appellant. (RB 81). In exchange for Appellant’s work as an informant for the Livermore Police, Officer Trudeau promised that Appellant would not goto jail and that “nothing he said would be used 33 against him.” (Jd. at 82 (citing RT 81)). Respondent acknowledgesthat, while waiting for Narcotics Detective Jensen to arrive, Trudeau questioned Appellant about his life history and social background. (RB 81-82).'' That night, Appellant was released. On March 17, having retained Appellant’s license for ten (10) days, Officer Trudeauvisited the listed residence. (RB 82-83). He then broke his promise to Appellant, by contacting Officer Robertson of the homicide unit, and describing Appellant’s statements, as well as, the proximity of Appellant’s prior residence to the scene of the Olsson homicide. (/d.at 83).'” Officer Trudeau also contactedthe officer who took the statement regarding the vandalism incident involving Appellant and relayed this '' During the interrogations, Officer Trudeau cajoled Appellant into revealing much abouthis life history. Later, well after Officer Trudeau broke his promise not to reveal this information, many of these facts would be used bythe prosecution to incriminate Appellant at his capital trial. This included the facts that Appellant used methamphetamine, had been a Marine, and had beentreated at the Veteran’s Administration Hospital. (See I AOB 29 (citing RT 190- 91)). Thus, Appellant’s involuntary statements in response to Officer Trudeau’s false promise were used to his material prejudice. This was fundamentally unfair because Officer Trudeau never intended to keep Appellant’s confidencesprivate. 2 Trudeau’s realization that Appellant had previously lived near the scene of the Olsson homicide wasonly ascertained via his extended seizure of Appellant’s license. There was no legal reason for Trudeau to keep Appellant’s license. It should have been given back to Appellant after the citation was written or when he wasreleased from the police station that night. Thus, this seizure itself was illegal under the Fourth Amendmentand a “fruit” of the illegal arrest. In determining whether evidenceis the “fruit of the poisonoustree” for a Fourth, Fifth, or Fourteenth Amendment violation, and therefore inadmissible, this Court must ask “whether, granting establishmentofthe primary illegality, the evidence to which instant objection is made has been comeat by exploitation ofthatillegality or instead by meanssufficiently distinguishable to be purged of the primary taint.” (Krauss v. Superior Court (1971) 5 Cal.3d 418, 422; see also Wong Sun v. United States (1963) 371 U.S. 471, 488). 34 information to Officer Robertson. (RB 84). Based on these facts, Officer Robertson “hand carried Appellant’s 1973 prints to Sacramento”for analysis by the Departmentof Justice (DOJ). (Ibid. (citing RT 191-93)).” At that time, a match was purportedly made between Appellant’s right ring finger and a fingerprint left on the knife used in the Olsson homicide. (/d. at 133).'4 On March 27, 1987, Livermore police arrested Appellant pursuant to two outstanding warrants unrelated to the Olsson homicide. Appellant was then taken to the Livermore Police Station where he wasarrested for the murder of Olsson. On March 27, 1987, Appellant made a statement to law enforcement officers after several hours of interrogation. On March 30, 1987, Appellant made two additional statements. (RB 83). '3 The fingerprint evidenceis the fruit of the poisonoustree as it was gained basedonthe illegal seizure of Appellant. Immediately upon Appellant’s detention, and for 10 days after his release, Officer Trudeau illegally seized Appellant’s driver’s license. But for this seizure, Officer Trudeau would not have returned to Appellant’s listed address and, indeed, there was no other basis for re-submitting the fingerprints to the DOJ beyondthe illegal evidence. (See United States v. Taheri (9th Cir. 1981) 648 F.2d 598, 600). It was, therefore, Officer Trudeau’sillegal and extended seizure of the license that prompted investigation into Appellant and ultimately led to Appellant’s arrest, conviction and death sentence. ‘4 Additionally, it was Appellant’s involuntary and coerced statements, stemming from his unlawful detention on March7, 1987, which led Officers Trudeau and Robertson to resubmit Appellant’s fingerprints for analysis. Thus, this Court should also suppressthe fingerprint evidence basedon the taint of Appellant’s involuntary statements and violations of his due process and Miranda rights. (See People v. Vasila (1995) 38 Cal. App. 4th 865, 877). 35 C. The Violations of Appellant’s Constitutional Rights are not Forfeited. Initially, Respondent argues that manyofthe claimsraisedin this argument are “procedurally defaulted.” (RB 88). Respondent basesthis assertion on its conclusion that Appellant has raised his federal constitutional arguments for the first time on appeal. (/bid.). The contested claimsare: 1. That the excessive duration of Appellant’s detention violated his rights under the Fourth Amendment (RB 89); 2. That Appellant’s detention wasnot justified by “reasonable suspicion” in violation of his rights under the Fourth Amendment. (/d. at 91); 3. That Appellant’s rights under the Fifth Amendment were violated when he wasseized and interrogated without having been given his Miranda warnings (/bid.); 4. That Appellant’s rights under the Fourth and Fifth Amendmentwere violated when his person was searched prior to Miranda warnings. (Id. at 92); 5. That Appellant’s consent to search was involuntary and coerced by an unlawful investigative detention in violation of his rights under the Fourteenth Amendment(Jd. at 94); 6. Theuseattrial of statements made by Appellant in response to Officer Trudeau’s false promises were fundamentally unfair in violation of his rights under the Fourteenth Amendment(/d. at 102); and 7. Appellant’s statements were involuntary and their admission at his capitaltrial violated his rights under the Fourteenth Amendment(/d. at 108). Respondent is wrong to argue that violations of Appellant’s fundamental constitutional rights have been waived. Respondentis also wrongto arguethat the objections lodged by Appellant’s trial counsel did 36 not include or subsume objections based on the violation of federal constitutional rights. This Court permits the use of new legal arguments on appeal where they involve the same facts or legal standard as those asserted at trial. (See People v. Avila (2006) 38 Cal. 4th 491, 527 n.22). In that situation, this Court is not barred from reviewing collateral violations of the federal constitutional stemming from the trial court’s errors. (See /bid.). While Respondent acknowledges the holding in People v. Avila, the state nonetheless argues that violations of Appellant’s fundamental constitutional rights have been waived. (See RB 88 n. 10). Respondentis wrong because under Avila, an appellate claim is not forfeited if the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply. (Avila, supra, 38 Cal.4th at 547 n.22). This is true so long asthe trial court’s act in admitting the evidence, which was erroneous,had the additional /egal consequenceofviolating the federal Constitution. (/bid. (emphasis added)). Each of Appellant’s claimsfall squarely underthe rule set forth in Avila andhis allegationsoftrial court error and resulting constitutional violations must therefore be reviewed on the merits. (/bid.). Additionally, “[a] defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation ofcertain, fundamental, constitutional rights.” (People v. Vera (1997) 15 Cal. 4th 269, 276). Although the Court has not set forth exactly what it deems to be a “fundamental”right, it has listed some examples. (See People v. Saunders (1993) 5 Cal. 4th 580, 592; and People v. Holmes (1960) 54 Cal. 2d 442, 443-444). Only rights grounded in the California or federal Constitutions maybe considered “fundamental” and exempt from the general rules of forfeiture. Appellant’s claim involves two rights based on the Fourth Amendment and one based on the Fourteenth Amendment. All are fundamental constitutional rights in nature. 37 Despite the standards adopted in Avila and Vera, Respondent argues that Appellant’s claims are barred for failure to object with specificity at trial. In their effort to gain dismissal of Appellant’s claims, Respondent too narrowly limits Appellant’s objectionsat trial. According to Respondent, Appellant moved to suppress the methamphetamine and syringes seized from his person andcar solely because: 1) his consent was based on an un- Mirandized interrogation; 2) the search exceeded the scope of Appellant’s: consent; 3) his consent to search his car was obtained by the unconstitutional search of his person; and 4) the search incident to his arrest wasbasedonanillegal seizure. (RB 86). Respondentthen arguesthat, at trial, Appellant moved to suppress his statements on March 7, 1987 because: 1) the statements were elicited in violation ofMiranda; and 2) the statements were made involuntary based on false promises. (Jbid.). Respondenttries to frame Appellant’s objections to the March 27, 1987 statementsas limited to suppression because the arrest preceding the statements wasillegal due to a violation of the “knock-notice” rule. (/d. at 86-87). Respondent’s construction of Appellant’s argument is undermined bythestate’s concessionthat Appellant moved to suppress the fingerprint evidence and statements on March 27 and March 30, 1987 based onthetotality of the constitutional violations incurred during his detentions, interrogations, and arrests. (See RB 88 (“Appellant’s bottom-lineis that all of the constitutional violations he suffered compelled suppression of the fingerprint evidence against him and the inculpatory statements he made....”)). Accordingly, Appellant has preservedall of his arguments. ° 15 Moreover, on November 19, 1987, April 18, 1988 and June 6, 1988 three hearings concerning Appellant’s suppression claims were not recorded. Appellant’s arguments here cannotbe forfeited, due to the incomplete record, whether or not he lodged all relevant objections to the admission of the evidence. (Cf. Young, supra, 34 Cal.4th at 1203). 38 At the suppression hearing, Appellant correctly challenged the basis for his seizure and the police officers’ failure to explain his Miranda rights before initiating an interrogation. The officer’s failure to Mirandize Appellant had the additional affect of causing his involuntary consentto search and the waiver of his Fourth Amendmentrights in response to police coercion. The admission of the evidence bythetrial court thus had the “additional legal consequence”ofviolating Appellant’s rights under the Fourth Amendment. (See Avila, supra, 38 Cal. 4th at 527 n.22). Likewise, in his motion to suppress, Appellant argued that Officer Trudeau’s statements were an unlawful “promise of leniency” under People v. Brommel (1961) 56 Cal. 2d 629, 632. Appellant can argue on appealhis “fundamental fairness” claim under the Fourteenth Amendmentsince the trial court’s admission of evidence stemming from Officer Trudeau’s actions had the additional legal consequence of violating Appellant’s Fourteenth Amendmentrights. (See Avila, supra, 38 Cal. 4th at 527 n.22). This Court may review all of Appellant’s assignments of error on appeal and Appellant’s arguments have been properly preserved underthis exception. The indefensible nature of the police misconductat hand, Appellant’s involuntary and coerced waiverofhis rights and Respondent’s unpersuasive argumentsfail to prove that Appellant’s fundamentalrights under the Fourth and Fourteenth Amendments werenot violated bythetrial court’s admission ofillegally seized evidence. The clear violations of Appellant’s constitutional rights would perpetrate a grave injustice if not remediedby this Court. 39 D. On March 7, 1987 Appellant’s Constitutional Rights were Violated When He was Unlawfully Detained, Interrogated, and Custodially Seized Without Notice of his Right Under Miranda andthe Fifth Amendment. Respondent aims to undermine Appellant’s assertion that “the...numerous violations of his constitutional rights [occurred] when [Livermore Police] stopped him in the Fiat on March 7, 1987.” (RB 89). Respondentarguesthat: 1) the police did not unduly detain Appellant. (/d. at 89-90); 2) the police did not need reasonable suspicion to engage Appellant in an investigative detention. (/d. at 91); 3) Appellant gave valid consent to the search of his person.(/d. at 92); 4) the police did not exceed the scope of that consent. (/d. at 95); and 5) that the above constitutional violations did not taint any searches incidentto arrest. (/d. at 98). Respondent’s contentions are taken up in turn. 1. Appellant was Unreasonably Seized by the Police in Light of the Facts Knownat the Timeof the Traffic Stop. Appellant wasnot free to leave while the police issued a citation to him. At all times, he was under the independentdetention of an officer while Appellant’s passenger wasbeing arrested in his presence. The police had taken Appellant driver’s license and did notreturn it at the time. Appellant wastherefore seized while Livermore Police issued a citation for driving without a suspendedlicense. (RT 215-16). The police did not have reasonable suspicion that Appellant had committed any crime greater than driving with a suspendedlicense. Throughout the detention, the police engaged Appellant in investigatory questioning. He was, however, never given his Miranda rights as required by the Fifth Amendment. Thus, duringthis time, any consent to search andall resulting evidence obtained from Appellant was involuntarily obtained by the police and tainted by the unreasonable 40 | detention and seizure of Appellant. Therefore, the admissionofall evidence resulting from Appellant’s unlawful detention, search, arrest, and interrogations on March 7 and March 27, 1987, violated his rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments, as well as, Article I of the California Constitution. 2. The Livermore Police Detained Appellant Past the Time It took to Write a Citation for Driving With a Suspended License and Without Reasonable Suspicion. Respondentagreesthat the “[p]olice mustcarry out detentions in a manner, ‘reasonably related in scope to the circumstances which justified the interference in the first place.’” (RB 90). Respondent argues that Appellant was not subject to an “unreasonably prolonged detention that rendered invalid the consent to search he gave during that detention.” (RB 90 (quotations omitted)). Respondent argues that the officers were allowed to interrogate Appellant about incidents unrelated to the crimesjustifying the underlying detention because they had “reasonable suspicion”that Appellant was involvedin the other crimes. (/d. at 91). To support this argument, Respondent mischaracterizes facts in the record, aggrandizes hearsay evidence and minimizes the length of Appellant’s detention. Respondent also misapprehendsrelevant law byinsisting that the police officers did not need more than reasonable suspicion to unduly seize Appellant and engage in investigative interrogations. Livermore Police justified their detention of Appellant because he had violated the law by driving with a suspended license. (ART 260). The duration of that detention can only be justified by the time it took for the Livermore police to write Appellant a citation for the criminal infraction. (See Knowles v. Iowa (1998) 525 U.S. 113, 118). Beyond driving with a suspendedlicense, the Livermore police had no separate and reasonable 41 justification for the continuing detention of Appellant once the citation was complete. At the completion of the citation, “all evidence necessary to prosecute that offense had been obtained.” (/bid.; see also People v. McGaughran (1979) 25 Cal.3d 577, 587). This Court’s decision in McGaughranis particularly instructive. There, the defendant waslegally stopped fora traffic violation, driving the wrong way downa one-waystreet. (McGaughran, supra, 25 Cal.3d at 587). After giving a warningfor the traffic stop, the police continued to detain the defendant for the purpose of running a warrant check. (/bid.). This Court declared that such an “additional period of detention” was not “‘reasonably necessary”for the original stop, and thus “‘exceeded constitutional limitations.’” (Jbid. (quoting Willett v. Superior Court (1969) 2 Cal.App.3d 555, 559)). Similarly, Appellant was legally stopped fora traffic violation and the police continued to unlawfully detain him after the citation was written, for the purpose of questioning and searching him for unrelated crimes. Here, as in McGaughran,the continued detention of Appellant exceeded constitutional limitations because it was not “reasonably necessary,” (McGaughran, supra, 25 Cal.3d at 587), to addressthe original violation. Thus, all evidence that was the “product of exploitation of the unlawful detention...should have been suppressed.” (/d. at 591). Detentionsinstigated in “the hopes that something might turn up,” are unlawful and constitute an unreasonable interference with the detainee’s personalliberty. (Brownv.Illinois (1975) 422 U.S. 590, 605; see also United States v. Thomas (9th Cir. 1988) 863 F.2d 622, 628). Since, by engaging in investigative detentions, the police are conducting unlawful fishing expeditions for any incriminating evidence, the use of such detentions also defeats claims that later evidence was earned byfortuity. (See United States v. Bacall (9th Cir. 1971) 3 F.2d 1057; and People v. 42 Rodriguez (1993) 21 Cal-App.4th 232). '° Respondentis thus wrongto argue that the detention of Appellant wasreasonably related in scope to the circumstancesthat justified the offense. (See RB 90). After being pulled over, Appellant was interrogated long enoughfor his passengerto be arrested and for the officers to complete a citation for driving with a suspendedlicense. Officer Trudeau testified that he had finished writing the citation and returned to Appellant’s car by the time Officer Painter asked Appellant for consent to search. (RT 215-19). Officer Painter testified that he wastrying to solicit incriminating evidence and/or consent for a search from Appellant related to a crime other than driving with a suspendedlicense. (ART 263). Officer Painter did not have reasonable suspicion to believe that Appellant had committed a separate crime. He barely had a “hunch,” based on circumstantial hearsay statements from a unreliable source that Appellant was a heavy narcotics user and might have a knife in his possession. Officer Painter’s “fishing expedition” was thus not based uponarticulable justifications that would support a finding of reasonable suspicion for the commission of separate offenses. Appellant’s continuing detention was therefore unreasonable in light of the original purpose ofthe stop. Respondent wrongly argues that reasonable suspicion is not needed to continue a detention of a person so that police may question him about an incident unrelated to the basis for detention. (RB 91). Indeed, © The Ninth Circuit Court of Appeals has identified criteria for determining whether tainted evidence has beensufficiently “purged” to be admissible. (See Bacall, supra, 443 F.2d at 1056-1057). It asks what “direction” and “impetus”the illegal seizure gave to the investigation, and whether anything seized illegally or any leads gained from theillegal seizure “tended significantly to direct” the investigation toward the evidence — that is, whether the police had after the illegal seizure “a substantially greater reason to seek those specific items than they had had before”the illegal seizure. (Jbid.). 43 Respondent concedesthat “During traffic stop an officer...may [] request consent to search, where such actions do notprolong the detention beyond the time it would otherwise taken.” (Ibid. (emphasis added)). Respondent tries to defend the unreasonable duration of Appellant’s detention in an effort to support the invalid consent to search later given by Appellant. (/d. at 92). This argumentfails. At the time that Officer Trudeau completed the citation and gave Appellantreceipt of the infraction, all purpose justifying the detention had ceased. Atthat time, the continuing detention of Appellant had becomeanillegal seizure in light of the lack of probable cause or reasonable suspicion justifying the detention of Appellant for the commission of offenses other than a suspendedlicense. Therefore, any evidence gained from Appellant’s detention after the issuance ofthe citation violated Appellant’s right against “unreasonable search and seizures” under the Fourth Amendmentto the U.S. Constitution and Article I of the California Constitution. 3. Appellant’s Alleged Consent to Search his Person was Invalid and Involuntarily Coerced. Appellant’s “freedom of movement” had been effectively restrained by the police to a “degree associated with a formal arrest,” after the officer completedthe citation, failed to return Appellant’s driver’s license, and refused to grant his release. (California v. Beheler (1983) 463 U.S. 1121, 1125). However, before interrogating Appellant about separate criminal incidents and cajoling Appellant into involuntarily consenting to a search of his person, the police never advised Appellant ofhis rights under the Fifth Amendmentin accordance with Miranda v. Arizona (1966) 384 U.S. 436. Under such conditions, the continued questioning of Appellant, and ultimately the involuntary consent to search earned bythe police, violated Appellant’s rights under the Fifth Amendmentto the U.S. Constitution and Article I of the California Constitution. . 44 a. Appellant was Seized and Custodially Interrogated Before He wasNotified of his Miranda Rights. Apparently, Respondent believes that a custodial arrest only occurs if the police draw their guns, handcuff the defendant and place him in their patrol car. (RB 94). According to Respondent’s theory, only at that point would a reasonable person feel unable to walk away from the police and the detention would coincide with the test for “custody for Miranda purposes.” (Id. at 93). Respondent’s requirements ignore the differences between detentions and seizures, as well as the effect of unlawful detentions perpetrated without reasonable suspicion. Respondent’s proposition would prevent any detention stemming from traffic stop from rising to the level of a custodial seizure, absent the use of guns and handcuffs, a theory not founded in the law. (See Berkemer v. McCarty (1984) 468 U.S. 420, 440). Here, based on a misperceptionoffacts and applicable law, Respondent wrongly concludes that there was “no suggestion that at the traffic stop there wasrestraint on appellant’s freedom of movementof the degree associated with a formalarrest.” (RB 93). To be sure, the police officers did more than engagein a “brief and casual”interrogation of Appellant for a “few minutes.” (See RB 93-94). Appellant was detained by several officers under the pretext of issuing a citation for a suspendedlicense. Theofficer’s true intent, however, was discovering incriminating information regarding an unrelated crime (or crimes). Appellant was detained long enoughto givethe officer hislicense, be removed from his car, answer questions about his suspendedlicense, and witnessthe arrest of his passenger. During the same course oftime, the officer completed his citation, gave Appellant the citation, listened to Officer Painter’s rendition of the suspected vandalism incident and answered several of Officer Painter’s questions. (ART 254-267). At no 45 time in this sequence of events was Appellant informed of his Miranda rights. (RT 251). A reasonable person in Appellant’s position would notbelieve that they were free to leave, and would have conceded to any demands made by the police. Appellant could not have driven away without his license. He believed that the subject of the police interrogation -- the vandalism incident -- was the basis for his arrest. In such restrictive custody, police are required to give Miranda warnings. Without such warnings, Appellant’s consent was merely an appeasement to an implied assertion of police authority and was not a knowing and voluntary waiverof his Fifth Amendmentprotectionsagainst self-incrimination. (Contra People v. Fierro (1991) 1 Cal.4th 173, 217). b. The Police Illegally Restrained Appellant’s Freedom of Movement and Any Subsequent Consent was Involuntarily Earned. Voluntary consent cannot be given by a person whose freedom of movementis being unlawfully restrained. (See e.g. People v. James (1977) 19 Cal.3d 99, 109; Florida v. Royer (1983) 460 U.S. 491, 507). Here, Appellant consented to a search of his person based onfalse statements by the officers and unlawful restraint of his person. Respondent’s arguments to the contrary are wrongheaded. Respondentbelieves that at no point could Officer Painter’s questions becomesustainedand coercive since he “asked appellant if he ‘would mind’ being searched.” (RB 94). The test for coercion does not turn upon anofficer’s statements as much asthe officer’s actions in restraining the suspect’s freedom of movementand failing to give a Miranda warning. Here, Appellant submitted to the demandsofanofficer who was unlawfully detaining and interrogating him and “his assentis not voluntary becauseit is inseparable from the unlawful conduct ofthe 46 officers.” (James, supra, 19 Cal.3d at 109). As aresult, Appellant’s consent wastainted by the illegality of the police misconduct and wasineffective to justify the ultimate search of his person. (See United States v. Cortez (1981) 449 U.S. 411, 417). No intervening circumstances occurred between Appellant’s illegal detention and involuntary consent. (/bid.). No particularized and objective suspicious factors had arisen to continue justifying his detention. (/bid.). c. Substantial Evidence Does not Support the Trial Court’s Finding that Appellant Gave Valid Consent. Respondent wronglyasserts that “[s]ubstantial evidence supports the trial court’s rejection of appeliant’s argumentthat he wasthe victim of a Miranda violation.” (RB 94). In fact the inverse is true; only scant evidence supported the trial court’s determination that Appellant’s consent wasvoluntary and was not madein violation of his Mirandarights. This evidence wasinsufficient to fulfill the prosecution’s burden of showingthat “the consent was,in fact, freely and voluntarily given.” (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 222). Instead, at trial and in Respondent’s brief, all the state has shown or argued is that Appellant “submit[ted] to a claim of lawful authority,” (Royer, supra, 460 U.S.at 497), in appeasementof coercive meansinstituted by police officers. Here, the police seized and interrogated Appellant without notifying him ofhis rights. The police misconduct constituted a clear violation of Appellant’s rights under the Fifth Amendment. No substantial evidence to the contrary exists that can support the trial court’s ruling. In recent years, this Court has only infrequently been presented with allegations of Fourth Amendmentviolations in capital cases. (See Peoplev. Zamudio (2008) 43 Cal.4th 327). In contrast to Zamudio, Appellant was seized by police during a traffic stop. He was removed from his car. He 47 wasforcedto forfeit his license. He waited while his passenger was arrested for an outstanding warrant. He wastold not to leave. Unlike the defendant in Zamudio, Appellant had no reasonable expectation that he could terminate the encounter or not consent to police demands. In contrast to Zamudio,police had noreasonto suspect Appellant of murder or any violent crimeat the time of his arrest. There was thus no reason to detain Appellant, beyond a warrant check, and certainly no reasonto frisk him. Finally, in contrast to Zamudio, Appellant did not consent to speak to the police voluntarily. Instead, Appellant consented to police requests to search him because he had did notbelieve that he had the liberty of saying no. In sum,significant differences between Appellant’s case and Zamudio prove that Appellant’s rights, under the Fourth and Fourteenth Amendments were violated by the Livermorepolice officer’s unreasonable search and seizure of his person. 4. The Search of Appellant Exceeded the Scopeofhis Consent. The scope ofthe police search, whether earned pursuant to coerced or voluntary consent, must nevertheless be limited to the scope to which the suspecthas assented. (People v. Superior Court (Arketa) (1970) 10 Cal.App.3d 122, 127). When a search is conducted pursuantto a coerced or invalid consent, or the search exceeds the scope of the consent given, the Fourth Amendmentis violated. (People v. Bravo, (1987) 43 Cal.3d 600, 605; People v. Crenshaw, (1992) 9 Cal.App.4th 1403, 1408). Here, the trial court’s ruling, and Respondent’s contention, that “the search did not exceed the scope of the consent given” (RB 95), are not supported by substantial evidence. Respondent’s arguments simply fail to provide any substantive support for the trial court’s arbitrary ruling. Respondent’s arguments fail against the well-recognizedrestrictions that the Fourth Amendmentplaces upon searches based on consent. (See 48 RB 98). According to Respondent, police suspicions of crimes concerning weapons, whichare vocalized to the defendant, suffice to inform a reasonable person of the police’s intent to search “any pocket” for drugs. This reasoning strains credulity and diminishesthe protections against unreasonable searches and seizures provided by the Fourth Amendment. Under Florida v. Jimeno (1991) 500 U.S. 248, the standard for measuring the scope of a suspect’s consent is objective reasonableness. Here, a reasonable person would not have understood Officer’s Painter’s vocalized suspicions that Appellant was “heavily armed,’” (RB 96), as a request to search for drugs. Thus, Officer Painter was required to confine his search to a Jerry frisk, and thereby limit the search’s “scope to an intrusion reasonably designed to discover guns, knives, clubs or other hidden instrument[s] for the assault of the police officer.” (Terry v. Ohio (1968) 392 U.S. 1, 29, 30-31). Instead, the Officer’s thorough search of Appellant’s beltline, pockets, and coin pockets violated Appellant’s Fourth Amendmentrights. Respondent argues “because Officer Painter explicitly told Appellant that he had been informed that Appellant was a heavy narcotics user and heavily armed with a knife...it is reasonable for the officer and Appellant to have understood that the search was to encompassany pockets...” (RB 97). Respondent makes this argument, despite the officer’s admission that he had requested to search Appellant only for a knife and could not “recall [] narrowing [the] scope ofmy search....” (/d. at 96). Likewise, Respondent admits that Officer Trudeau “was sure Painter did not mention drugs whenPainter obtained [Appellant’s] consent to search,” (/d. at 97 (quotations omitted)), and that neither officer could fully recall where they had seized the drugs allegedly found on Appellant. (/d. at 98). Respondent’s arguments do nothing to prove the context of Appellant’s search, or cure the dearth of evidence supporting the trial court’s erroneous 49 ruling. a. Within the Scope of Appellant’s Consentto A Terry Frisk for Weaponsit was Objectively Unreasonable for the LivermorePolice to Search Appellant’s Coin Pocket for a Weapon. Appellant ultimately acquiesced to Officer Painter’s pressure to search his person for a knife. The circumstances surrounding Appellant’s consent were provedat the preliminary hearing, which occurredfive years before the officer’s testimonyat trial and the same yearasthe alleged offenses. At that time, Officer Painter repeatedly testified that he expressly requested only to search Appellant for weapons. (ART 253-255, 261). Officer Painter’s testimony waslater corroborated by Officer Trudeau who testified that he was sure that Officer Painter had not mentioned drugs whenhe obtained Appellant’s consent. (RT 197). In light of these facts, Respondenttries to attack the credibility of Officer Painter’s testimonyat the preliminary hearing. (/d. at 98). The evidence, based onthe officers’ testimony, establishes thatit wasobjectively unreasonable for Officer Painter to search Appellant’s coin pocket for a knife. Respondent’s arguments stretch too far. The state insists that the officer’s actions were reasonable since Appellant “could easily fit a small fold-up knife” within a “coin pocket [that] was two inches deep.” (RB 98). Effectively, according to Respondent’s description, such a knife would have resembled a nail clipper, been innocuousat best, and would not have warranted the label “heavily armed with a knife.” (/d. at 96). Similarly, officers utilizing their flashlight would have assuredly noticed a bulge in such a small pocket. Perhaps, mosttellingly is that Officer Paintertestified that he did not expect to find a weaponin the pocket. (RT 133). In sum, the officer’s search ofthe coin pocket wasnotrelated to the 50 sole justification for the Terry search. Theofficers had originally requested to search Appellant for weapons. He had understoodthe request for a pat down for weapons. Thepolice officer’s canvas, however, exceeded the scope of Appellant’s consent when he searched a pocket where a weapon could not reasonably be hidden. (See Arketa, supra, 10 Cal.App.3d at 467). A reasonable person would have understoodthe officer’s requests to search as a request to search for weapons only. Likewise, a reasonable person would not believe that a weapon could be hidden in a two-inch deep coin pocket. Substantial evidence does not support the trial court’s finding that Officer Painter’s search did not exceed the scope of Appellant’s consent. b. The Livermore Police Unconstitutionally Searched Appellant’s Car and his Person at the Police Station. Immediately after Appellant was searched, Officer Trudeau searched Appellant’s car. Since this search occurred contemporaneously with the unlawful search of Appellant’s person, it was illegal for the same reasonsas discussed above. Respondent wrongly contends that because the “police constitutionally searched his personatthe traffic stop,” there was “nothing wrong with the subsequent consent[to the] search of Appellant’s car...the arrest, and the search incidentto the arrest.” (RB 99). First, Respondent has failed to establish that Appellant’s consent to search his person was voluntary or that the search did not exceed the scope of his consent. Appellant’s assent to the searches was involuntary and is inseparable from the officers’ unlawful conduct. Second, because ofthese two unlawful searches, Appellant was arrested on the basis ofillegally seized evidence. Thus, since the arrest was not supported by any independent factual basis establishing probable cause, Appellant’s seizure wasillegal andall resulting “fruits” of the illegal seizure should have been suppressed. Third, at the police station Appellant was searched again. This 31 search wasillegal as it was the direct result of the illegal arrest andall tainted evidence subsequently procured should have been suppressed. c. Substantial Evidence Does not Support the Trial Court’s Finding that the Livermore Police Did not Exceed the Scope of Appellant’s Consent. The trial court found that Officer Painter’s search of Appellant did not exceed the scope of the consent given. (RT 220). Thetrial court’s factual findings are not supported by substantial evidence. Here, based on the evidence, arguments and authorities presented in Appellant’s Opening Brief, this Court, using its independent judgment, should find that his search and seizure was unreasonablein violation of the Fourth Amendment and Article I, sections 1, 2, 7, 13, 17, and 24 of the California Constitution. Respondent’s arguments to the contrary are baseless and hinge upon the reasoning that becausetrial courts have the powerto judge the credibility of witnesses, this Court “must presumethe trial court foundthat Painter asked Appellant if he could search him for narcotics and weapons.” (RB 97). This Court should not base its holdings on presumptions inferred by Respondent, especially when these presumptionsdirectly contradict the officer’s plain testimonyat the suppression andtrial hearings. (ART 253- 55 and 261). Respondent’s arguments fail to counter Appellant’s showing that the trial Court’s factual findings are not supported by substantial evidence. 5. On March 7, 1987, Appellant was Coerced by the Livermore Police into Making Involuntary Statements. Thetrial court correctly found that Appellant’s right to fundamental fairness under the Fourteenth Amendment’s Due Process Clause was violated by Officer Trudeau’s false and broken promises. (ART 348). However, having found that Appellant’s subsequent statements were 52 involuntary and worthy of suppression,the trial court wrongly refused to suppressall fruits derived from the involuntary statements. Instead, it dismissed Appellant’s right tofundamentalfairness as “technical.” The trial court did not correctly evaluate the prejudicial effect of the introduction of the fingerprint evidence and Appellant’s later incriminating statements on March 27 and 30, 1987, upon Appellant’s constitutional rights. Respondentchallenges “[t]he trial court[‘s] erroneous[] hold[ing] that Appellant’s March 7 statements to Officer Trudeau were involuntary.” (RB 101).'’ Respondentattempts to detach the causal link between the constitutional violations suffered by Appellant on March 7 and the inculpatory evidence gained by the LivermorePolice, through those violations, on March 27 and 30, 1987. Respondentfails to provide persuasive arguments or any evidence that would defeat the trial court’s ruling on the involuntariness of the evidence. Similarly, Respondentfails to defend against Appellant’s claim that the false promises used by police were so coercive that they violated fundamental fairness under the Fifth and Fourteenth Amendments. '” Respondentclaimsthatthe state hasthe ability to attack thetrial court’s ruling here, though the Court ultimately ruled in Respondent’s favor by refusing to suppress evidence obtained throughthe fruit of the poisonoustree. Respondent claims this powerthrough the “People’s right” on an appeal “by the defendant and pursuantto the provisions of section 1252, to obtain review of allegedly erroneousrulings by the trial court in order to secure an affirmanceofthe judgment of conviction.” (RB 101 (citing People v. Braeske (1979) 25 Cal.3d 691, 700-01)). While the People may havea right to challengethetrial court’s determination on appeal, Respondenthas not shownthat the prosecution properly objected to the ruling attrial. It is manifestly unfair for Respondent to argue for the forfeiture of Appellant’s claims for failure to object at trial, when Respondent cannot demonstrate that the prosecution has complied with the samerules of preservation. 53 a. Appellant’s Arrest was Unlawful. Prior to the Livermore Police Department’s custodial interrogation of Appellant, he had been unlawfully detained, interrogated and seized without adequate and particularized reasonable suspicion, probable cause or Miranda warnings. The Livermore Police had also coerced Appellant into involuntarily consenting to a search of his car and person. During the custodial interrogation that followed, Officer Trudeau used false promises to coerce Appellant into revoking his assertion of Fifth Amendmentrights and making involuntary and incriminating statements that would later be used by police to perpetrate his arrest and develop inculpating evidence on March 27 and 30, 1987. Respondent contendsthat the false promises used by Officer Trudeau could not have induced Appellant to make involuntary statements since, “Trudeau made the promise after appellant made the incriminating statements.” (RB 101 (emphasis omitted)). This argumentis in error. Officer Trudeau madethe false promises while Appellant was making incriminating statements and in order to induce Appellant into making more incriminating statements; particularly about his personal background. Moreover, statements made following the false promises, were later introduced against Appellant at his capital trial. Appellant was coercedinto violating his constitutional rights under the Fourth and Fifth Amendment. b. Appellant’s Statements were Obtained in Violation of Miranda. Following his arrest for narcotics possession, Appellant was takento the police station and read his Mirandarights. Immediately thereafter, he expressly refused to talk to Trudeau aboutthe items seized from him and invoked, as Officer Trudeau understood, his right to remain silent. (RT 202). Later that night, Trudeau promised that, if Appellant did not really 54 wantto go to jail, Appellant could assist police. (/d. (citing RT 203)). Trudeau also promised that nothing Appellant said to law enforcement would be used against him. (/bid.). Officer Trudeau used Appellant’s concerns and false promises to cajole him into incriminating himself after he had invoked his Mirandarights. In determining whether a statement based on a promiseis voluntary, this Court in People v. Vasila asked two questions: “Was a promise of leniency either expressly made or implied, andif so, did that promise motivate the subject to speak?” (Vasila, supra, 38 Cal. App. 4th at 873 (citing People v. Boyde (1988) 46 Cal. 3d 212, 238)). In answering the second question, the Court in Vasila foundthat “the promises clearly motivated defendant’s decision to lead investigators to the weapons. The turning point in the interrogation appears to have been [the investigator’s] promise that defendant would be released on his own recognizancethat day.” (dd. at 876). Respondent argues that because Appellant “reinitiated the conversation with Trudeau after he had invokedhisright to silence earlier,” the subsequent statements made by Appellant in responseto a false promise, “could not have violated his Miranda rights. (RB 192). Respondentignores the extremely coercive nature of false promises and ignores the lessons from Vasila, supra, 38 Cal.App.4th at 873. Officer Trudeau expressly madethe false promise to Appellant. The promise motivated Appellant to speak because “the turning point in the interrogation appears to have been[the investigator’s] promise that defendant would be released on his own recognizancethat day.” (/d. at 876). Respondent cannot rebut the fact that - but for Officer Trudeau’s false promise- Appellant would not haverelinquished his right to remain silent, offered to workas an informant, and related the involuntary statements. Appellant’s Mirandarights were violated when Officer Trudeau failed to “scrupulously 55 honor” his promises, which had coerced Appellant into waiving his constitutional rights. Cc. Appellant was Involuntarily Coerced into Incriminating Himself by False Promises of Leniency that Violated his Right to FundamentalFairness Under the Due Process Clause of the Fourteenth Amendment. The trial court found that Appellant’s constitutional rights under the Due Process clause wereviolated by his involuntary and incriminating responsesto coercive false promises by law enforcement. (ART 347). The trial court, however, wrongly found that the violation of Appellant’s fundamental right to fairness did not warrant the suppression of evidence later obtained in violation ofthe fruit of the poisonous tree doctrine. (See Wong Sun, supra, 37\ U.S. at 471). The trial court’s conclusion was wrong. But for the involuntary statements made by Appellantin response to fundamentally unfair tactics by law enforcement, the Livermore Police would have nevercollected the fingerprint evidence and incriminating statements on March 27 and 30, 1987. Thus,the fruit of the poisonoustree growsfrom the violation of Appellant’s constitutional rights perpetrated by Officer Trudeau whenheillegally detained, seized, and interrogated Appellant, and used false promises to coerce Appellant into making involuntary statements. Respondent attempts to defeat the characterization of Officer Trudeau’s statements as false promises. Respondent does so knowingfull well that because Appellant “reasonably expect[ed] benefits in the nature of more lenient treatment at the hands ofthe police, prosecution or court in consideration of making a statement” use offalse promises “is deemed to render the statement involuntary and inadmissible.” (Vasila, supra, 38 Cal.App.4th at 874 (citations omitted)). In this effort, Respondent 56 characterizes the officer’s promise not to use Appellant’s statements as actually meaning “[they] would not be used in a court of law to prosecute him for the drug charges for which the police had arrested him.” (RB 103). This strained interpretation incredulously defines “law enforcement” by excluding police and limiting the term to include only the prosecutor. This is assuredly not what Appellant understood the promise to mean Respondent’s argumentalso fail to prove that the trial court wrongly determined that the statements were involuntary based on substantial evidence. 6. The Iegality of the Detention, Search, Arrest, and Interrogation of Appellant Requires Suppression of all Evidence Obtained on March 7, 27, and 30, 1987. By unlawfully detaining, searching, and arresting Appellant, the police violated his rights under the Fourth Amendmentto the U.S. Constitution and Article I, sections 7 and 24 of the California Constitution. By inducing Appellant, through false promises, to make involuntary and incriminating statements despite having invokedhisright to silence, the police violated his rights under the Fifth and Fourteenth Amendments to the U.S. Constitution, and Article I, sections 1, 7, 13, and 24 of the California Constitution. By using the tainted evidenceat trial to obtain a death sentence, the state violated the “heightenedreliability” requirement imposed by the Eighth AmendmentandArticle I, section 17 of the California Constitution. The only remedy that may redress these constitutional violations is suppressionofall the tainted evidence earned by the police through these coercive andillegal tactics, and later used by the state prosecutor to convict Appellant of a capital crime and sentence him to death. The exclusionary rule is the principal meansof discouraging lawless conduct by law enforcement agents. (See Weeks v. United States (1914) 57 232 US. 383, 391-93). Respondentfails to support its assertion that“the fingerprint evidence did not comeby exploitation ofthat illegality, but by means sufficiently distinguishable to be purged of the primary taint.” (RB 106). Respondent cannotrebut the fact that, without the incriminating evidence, which includes Appellant’s driver’s license and his coerced statements to Officer Trudeau on March 7, 27, and 30, the police would have never becomesuspicious of Appellant. Moreover, Respondent’s arguments do not disprove Appellant’s allegations that the trial court’s determination was not supported by substantial evidence. a. Suppression of Fingerprint Evidence and Inculpatory Statements Given by Appellant On March 27 And March 30, 1987 Flows From the Violations of Appellant’s Rights Underthe Fourth and Fifth Amendment on March7, 1987. Appellant’s unlawful detention, interrogation, and search led directly and immediately to his narcotics arrest. In turn, the illegal arrest led directly and immediately to the seizure of Appellant’s driver’s license and the coercion of incriminating statements from Appellant. No attenuation or independentbases separate these events. Thus, Respondent wrongly concludesthat, “even if appellant suffered constitutional violations on March 7, 1987, in additionto theelicitation...of involuntary statements, suppressionofthe fingerprint evidence remains outof order.” (RB 106). When Officer Trudeau broke his promise to Appellant by disclosing Appellant’s involuntary statements to Officer Robertson, those statements and the unlawful seizure of Appellant’s driver’s license were the only reason that the Livermore Police resubmitted Appellant’s fingerprints to the DOJ laboratory. Thefruits of the illegal detention, interrogation, search and arrest of Appellant on March 7, 1987 thus include the evidence from 58 the second comparison of Appellant’s fingerprints. Every eventin this chain is connected to the illegal acts by Livermore Police and each piece of evidence subsequently gained is poisonousfruit. (Wong Sun, supra, 371 USS. at 471). Likewise, the taint runs to Appellant’s arrest on March 27, 1987, and the resulting involuntary and incriminating statements he made on March 27 and 30. If the fingerprints had not been resubmitted, based on the unlawful detention of Appellant and unlawful seizure of his driver’s license, Appellant would not have been arrested on March 27 and would not have been questioned about the Olsson homicide. Likewise, without the tainted fingerprint evidence, Appellant would not have been confronted with the allegation that his fingerprints were found on the knife and he would not have given three separate incriminating statements to law enforcement. The “fruits” of the misconduct by Livermore Police on March 7 thus include the three statements Appellant made following his March 27arrest. Respondent wrongly argues that Appellantis not “due suppression of the fingerprint evidence the police later uncovered against him,or the inculpatory statements he gave police on March 27 and 30.” (RB 104). Without suppression, the lawless conduct exhibited by the police would go without redress and there would be no deterrence to future constitutional violations by the Livermorepolice department. (Mapp v. Ohio (1961) 367 U.S. 643, 655). The fingerprint evidence and involuntary statements were the direct and immediate result of the chain of illegal events and nothing happenedto purge the taint. (Brown, supra, 422 U.S. at 602). All the evidence was garnered by exploitation ofillegal actions by the Livermore Police. (See Lockridge v. Superior Court (1970) 3 Cal. 3d 166, 170). 59 b. Substantial Evidence does not Support the Trial Court’s Finding that the Discovery of Evidence Wasthe Result of Investigative Serendipity. The trial court’s determination and Respondent’s argumentthat “the fingerprint evidence sought to be suppressed wasnottainted by the illegally obtained statements and is admissible” is not supported by substantial evidence. (RB 104 (citing RT 221)). Likewise,the trial court’s ruling that “police would inevitably have again compared [appellant’s] prints with those found on the knife found at the murder scene”is not supported by even a preponderanceofthe evidence. (RB 106 (citing RT 222)). Respondent’s arguments to the contrary do not remedy the constitutional violations suffered by Appellant, or support the trial court’s rulings. Respondentarguesthat the exclusionary rule should not apply here because,“deterrence can haveits effect only whenit can be said that an object ofthe illegal conduct was the securing of the evidence soughtto be suppressed.” (RB 105). In Respondent’s view, the Livermore Police had “no intention or expectation that evidence related to the Olsson investigation would surface from his March 7 conversation with Appellant.” (/bid.). Respondent’s arguments miss the mark. The illegality of Appellant’s detention, interrogation, search and arrest was based on an “investigatory detention” and fishing expedition embarked upon by Livermore Police. At the time, Livermore Police sought to obtain any incriminating evidence andtheparticularity of the search matters not as muchasthe particularity of the tainted evidence theylater obtained. Thus, because Livermore Police were seeking to obtain any incriminating evidence, it can be said that “‘an object of the illegal conduct wasthe securing of the evidence,” which Appellant now seeks to suppress. (Brown, supra, 422 U.S. at 605 (footnote omitted)). Thus, the proper 60 question is not whether the police were seeking the evidencetheylater found, but whetherthe police’s intent to make “something turn up” extendedto the evidencelater discovered. !® (Bacall, supra, 443 F.2d at 1056; see also Rodriguez, supra, 21 Cal.App.4th at 232). Respondentargues that Officer Trudeau “serendipitously” connected Appellant to the Olsson homicide after “forgetting” to give Appellant his driver’s license back.'? Respondent characterizes the officer’s possession of Appellant’s driver’s license as “serendipitous” or “forgetful.” (RB 105). The fact that discovery may have been “unexpected,” (See People v. Neely (1999) 70 Cal.App.4th 767, 789), does not change the fact that Officer '8 In Bacall, the evidence learned through whatthe court termed “investigative serendipity” was “obtained without resort to any clue or knowledge gained from the items unlawfully seized” or, at most, “any such leads as may have been obtained were de minimis.” (Bacall, supra, 443 F.3d at 1057, 1059). Here, in contrast, the fingerprint evidence wasdiscovered based entirely upon the unlawful seizure of Appellant on March 7, 1987 and the unlawful seizure of his driver’s license from March 7 to March 17, 1987. '° This case is distinguishable from those in which the police commit misconduct during the course of investigating a specific crime and serendipitously discover evidence regarding another crime altogether. (See United States v. Williams (9th Cir. 1971) 436 F.2d 1170-72). In Williams, after anillegal arrest, the police asked a neighbor to care for the defendant’s cat when the neighbor blurted out damning information. The Ninth Circuit held that this act purged the taint of the illegal arrest becausethe officer’s had no investigative intent whatsoever when they sought out the neighbor. (/bid.). In this case, it was not “serendipity” that Appellant’s unlawful detention for questioning led, by way of an unlawful search, to his narcotics arrest and the subsequent making of involuntary statements that linked him to another crime altogether. It was instead exactly what Painter and Trudeau intended from their misconductin the first instance, a plan to gather evidence for other crimes. 61 Trudeau hadillegally seized the license.”” Thus, whether or not Appellant came to be viewedas a suspect in the Olsson murderfortuitously or by “circumstance,” these characterizations do not change the fact that the police officer’s objectivein illegally detaining Appellant was securing tainted and incriminating evidence. Respondent has wholly failed to show that the evidence was secured by “happenstance”free of illegal and unconstitutional taint. (Contra People v. Griffin (1976) 59 Cal.App.3d 532, 537). | Likewise, Respondent fails to support the trial court’s determination that the Livermore Police would have “inevitably discovered”the fingerprint evidence. (RT 347-349). Respondent’s argumentsare based on the “possibility” that Livermore Police could have inevitably discovered the evidence. Prior to Appellant’s seizure, no fingerprint match had been made, no investigatory leads to Appellant through neighborhood canvassing had been obtained, and there were no definite plans by Livermore Police to recheck housesin the neighborhood. In fact, since Livermore Police did not re-canvass the neighborhood until after Appellant’s arrest, but for Appellant’s unlawful detention and seizure on March 7, 1987 no investigation would have revealed that Appellant once lived in proximity of Ms. Olsson and, ultimately, no evidence would have been introduced in support ofthe fingerprint evidence match. Respondentarguesthat because Sergeant Stewart wantedhisofficers to re-canvass the neighborhoodthis fact suffices to prove that they would have “inevitably discovered” that Appellant lived in the neighborhood. 20 As the Court of Appeal has explained: “We concede that an illegal act by a peaceofficer may yield unexpected evidence subject to exclusion. [legal entry into a bordello may reveal a narcotics laboratory, or beating a rape suspect may yield a confession to murder, all quite unexpectedly. But in such examples, there is present an intention to get something.” (Neely, supra, 70 Cal. App. 4th at 789 (emphasisin original)). 62 This reasoning is attenuated at best, and ludicrous when Respondentusesit to argue that because Sergeant Stewart wanted a second canvassing the police would have “inevitably” re-compared Appellant’s fingerprints. This is especially true in light of the fact that the police had previously searched the neighborhoodwithout identifying Appellant, and had previously submitted his fingerprints, which did not return a match. (RT 130 and 140- 1). Respondent’s arguments that if the Livermore Police “had a chance to carry out [their] plans...” they would have identified Appellant’s residence and resubmitted his fingerprints, is entirely speculative. Thetrial court’s “investigative serendipity” and “inevitable discovery”rulings are not supported, respectively, by substantial evidence or a preponderance of the evidence. Testimony submitted at the suppression hearing proved that the Livermore Police were on an investigatory “fishing expedition” for any evidenceat the time of Appellant’s arrest on March 7. Their later suspicions, stemming from the unlawful seizure of Appeliant’s driver’s license, could hardly be characterized as “fortuitous” as they were based on conduct aimedat illegally obtaining evidencein violation of Appellant’s rights. Likewise,at the suppression hearing, no testimony established a definitive likelihood that Livermore Police would have resubmitted the fingerprint evidence or obtained any evidence on their own accord that would have corroborated suspicions of Appellant. In sum, Respondent’s andthetrial court’s conclusion that the evidence was“fortuitously discovered,” but would have been “inevitably discovered” is only supported by speculative reasoning and scant evidence. 63 E. Conclusion. The Livermore Police Department’s misconduct should not be sanctioned andthe fruits of their illegality should be suppressed. Fingerprint evidence and incriminating statements obtained by the Livermore Police from Appellant’s unlawful seizure on March 7, 1987 should have been suppressed. Thetrial court’s admission ofthe evidence violated Appellant’s rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and Article I of the California Constitution. The only evidence used by the prosecution to prove Appellant’s guilt wereallegations that Appellant’s “fingerprints” matched the fingerprints on the knife; and the statements made by Appellant on March 27 and 30, 1987, all of which was obtainedillegally as the result of a fishing expedition for incriminating evidence conducted by police. Had this evidence been properly excluded, Appellant would not have been convicted and sentenced to death. Likewise, had this evidence been excluded, Appellant’s rights under the Fourth, Fifth, Eighth and Fourteenth Amendmentsto the U.S. Constitution, as well as, under Article I, sections 1, 4, 13, 15, 17, and 24 of the California Constitution, would not have been violated. Neither substantial evidence nor a preponderanceofthe evidence supportsthetrial court’s determinations that this evidence was admissible. Moreover, the resulting errors were not harmless beyond a reasonable doubt andcreated a fundamentally unfair trial that led to Appellant’s convictions and death sentence. 64 Til. THE TRIAL COURT IMPROPERLY DENIED APPELLANT’S MOTION TO SUPPRESS STATEMENTS THAT WERE UNLAWFULLY AND INVOLUNTARILY OBTAINED BY LIVERMORE LAW ENFORCEMENT. A. Introduction. On March 27 and 30, 1987, members of the Livermore Police Department and Alameda County District Attorney’s Office coerced Mr. Tully into making involuntary statements and waivers of his constitutional rights. The statements were erroneously and prejudicially admitted by the trial court and exploited by the prosecutor. The statements were obtained in violation of Appellant’s Fifth Amendmentright againstself- incrimination, his Fourteenth Amendment due processrights, as well as Article I sections 7, 15, and 24 of the California Constitution. Thetrial court’s failure to suppress the statements violated Appellant’s Eighth Amendmentand Article I right to “heightenedreliability” at all phases of a capital case. (See e.g. Sumner v. Shuman (1987) 483 U.S. 66, 72; Beckv. Alabama(1980) 447 U.S. 625, 638; and People v. Hernandez (2003) 30 Cal. 4th 835, 878). Whena statement obtained in violation of the Fifth or Fourteenth Amendments is erroneously admitted into evidence, the conviction may only be affirmed if the state can establish that the error is harmless beyond a reasonable doubt. (See People v. Johnson (1993) 6 Cal.4th 1, 30-32; and People v. Cahill (1993) 5 Cal.4th 478, 509-510). Applying the standard announced in Chapmanv. California (1967) 386 U.S. 18, 24, admission of Appellant’s statements of March 27 and March 30 was anything but harmless. His convictions must be reversed. 65 B. The Facts 1. March27, 1987. Respondent concedes that Appellant was arrested on March 27, 1987 on two narcotics warrants. Following his arrest, Appellant, without shoes or shirt, was taken to the Livermore Police Station for interrogation. He spent the next six hours waiting to be interrogated, and then was interrogated for the next six hours. Respondent concedes that Appellant’s detention and interrogation stretched over twelve (12) hours from the morning ofMarch 27 to the early morning of March 28. (See RB 110 and 115). Respondent agrees that the Livermore Police told Appellant’s wife, Vicky Tully, to go to the Livermore Police Station on March 27. (RT 65- 69). At the time, she was under investigation for the commission of check fraud. Respondent arguesthat the police did not “arrest her on the check fraud butreferredit to the District Attorney’s Office for a determination on possible prosecution.” (RB 111). Respondent neglects to mention that the police questioned Vicky at length about the check fraud and surreptitiously taped the interview. Duringthis interview, several times, Vicky wastold that police were arranging a meeting between her and Appellant. Based on this pressure, Vicky ultimately confessed to the check fraud allegations. (See I AOB 85-87). Six hours after his arrest, Appellant was interrogated by Livermore police officers. Respondent concedes that the opening two hoursofthe interview were not taped. (RB 111). Respondent acknowledges that, prior to the interrogation - Appellant was given candybars, a coke andcigarettes — gratuitous gestures that would be repeated throughoutthe interrogation. (Ibid.). Respondent acknowledgesthat the police spoke to Appellant about booking information andhis residential history before advising Appellant of his Miranda rights. (Ibid.). Respondent neglects, however, to 66 acknowledge that during the two hour span whenthe interrogation was not recorded, the exchanges were heated. Respondentfails to mention that Officer Robertson falsely told Appellant that five DOJ fingerprint analysts had matchedhis fingerprints to the Olsson homicide. (I AOB 67(citing People’s Trial Exhibit 4)). Respondent fails to mention that the officers informed Appellant of the check fraud charges pending against his wife. Respondentfails to mention that Appellant was never given a shirt or shoes during the 12 plus hourperiod. Two hours before midnight, Officer Robinson began questioning Appellant about taking a polygraph examination. At that point, Appellant requested the presence of counsel three times. (People’s Trial Exhibit 5D at 73 (“I think it would behoove meto consult a lawyer.”) (“TI think it would be best if I consult a lawyer.’”) (“That’s right. I don’t know,that’s why I’d like to talk to somebody whodoes.”)). Respondent concedes that the Livermore Police took a fifteen- minute break after Appellant requested counsel. (RB 113-14). Respondent concedesthat at this time, Officers Robertson, Newton and Trudeau discussed the interrogation proceedings and decided to substitute Officer Trudeau for Officer Newton. (Jbid.). Officer Robertson and Trudeau reinitiated the interrogation, despite having heard Appellant’s three prior requests for counsel. Moreover, it was only after being reintroduced to Officer Trudeau, a personhetrusted, that Appellant indicated that he may not need counsel and was “all right.” (See RB 115). The interrogation continued for the next two hours. Appellant did not make any admissions about the homicide, but did make statements regarding newshe had heard about the homicide that would be used by the prosecution during his capital trial. (RB 115 (citing to RB 25-26)). Respondent wrongly claimsthat during this time Vicky was waiting in the police lobby. (/bid.). In fact, sometimeafter 10:30 PM, Officer Trudeau 67 had beensent to retrieve Vicky from her homeandreturn herto the station. (See I AOB 70 n. 18). After midnight, and following the end of Appellant’s interrogation, Vicky was brought into the interrogation room to speak with her husband, while Officer Robertson stood by. Mr. and Mrs. Tully briefly spoke, and Vicky related police threats against her and the Tully family. After their meeting, Appellant wassent to the Santa Rita Jail and Vicky went home. 2. March30, 1987. On March 30, 1987 Officers Robertson and Newton contacted Vicky and interviewed her again. She informedthe officers about the details of her conversation with Appellant on March 27, 1987. She told them that Appellant had been a percipient witness to the homicide. She recited Appellant’s account andthe fact that a man named Thomas “Doubting Thomas”Pillard, a Hells Angels member, had raped and killed Ms. Olsson. Vicky told investigators that she feared retaliation by Doubting Thomas and the Hells Angels motorcycle gang. Respondent acknowledgesthat to ameliorate Vicky’s fears, Officers Robertson and Trudeau discussed enrolling both her and Appellant in the state’s Witness protection program. (See RB 116). Respondent dodges the fact that Officer Robertson analogized Vicky and Appellant’s situation to a case where a participant in a murder “turned state’s evidence”andis “out in his own business right now.” (People’s Trial Exhibit 8B at p. 10-11). Later that day, the officers used Vicky’s request for witness protection to induce Appellant to speak based on his wife’s fears. (I AOB 71 (citing RT 73, 219-21)). Thereafter, the officers went to talk with Appellant at the Santa Rita 68 Jail. Vicky Tully was escorted to the jail and drove her own car.” Respondent admitsthat the first thirty minutes of the officer’s interrogation of Appellant on March 30 were not recorded. (RB 117). Duringthiscritical portion of the interrogation, Officers Newton and Robertson discussed with Appellant the chances of enrolling the Tully family in the state’s Witness protection program. (RT 130-131 and 203-04). They also told Appellant that his wife was likely to be charged and incarcerated for the check fraud charges and that she could also be charged as an accessory to the Olsson homicide. (See I AOB 71-72 (citing RT 70, 130, 203-204, 220-21)). Respondent concedes that when police “asked him if he wanted to give an additional statement, Appellant did not respond.” (RB 117 (citation omitted)). Respondent also concedesthat in response to Appellant’s silence, the officers discussed his potential enrollment in the state’s Witness protection program as a meansofalleviating any fears about Doubting Thomas. (/bid.). They also discussed Vicky’s concerns and her request for enrollment in the program. Induced bythe information, Respondent concedes that Appellant then asked about “what he would receive from [the] program.” (/bid.). The officers also told Appellant that Vicky said he *!Accordingto the testimonyofthe police, Vicky Tully voluntarily contacted them. She then told Robertson and Newton the substance of the conversation she had with her husband on March 27, 1987. (RT 64- 69). During the recorded portion of the interview, Vicky expressed reluctance to provide any informationor to help the police to get her husbandto talk to them. Newton respondedbytelling her about a 1981 homicide case he had worked where two drug dealers testified in court. (People’s Trial Exhibit 8B at 2-3, 10-12). Later, the police asked Vicky if she wouldstay to talk to the district attorney, “whois on his way overhereto talk to us about somethingelse.” (/d. at 13). Her meeting with the district attorney was not recorded. After the interview, Newton and Robertson drove out to the jail to interview Appellant about Vicky’s statements and also escorted Vickyto the jail. According to Newton, he told Vicky that he would see if her meeting with Appellant “waspossible.” (RT 214). Vicky wasthus directed or encouraged to accompanythe police officers to the jail. 69 wanted to “changehis story.” (/bid.). They then allowed Appellantto speak with Vicky before continuing the interrogation. During this short unrecorded conversation, Respondent concedes that Vicky relayed to Appellant her fears for herself and the Tully children. These fears stemmed from Appellant’s arrest for capital murder and because the “police ‘were holding the check issue’ over her head...[and] were threatening her with charges as an accessory to murder.” (RB 119). Respondentalso concedesthat the prospect of the Witness protection program “played the “key”part in appellant’s decision to talk to the police.” (/d. at 120). Shortly thereafter, police then had “Mrs. Tully leave the room.” (/d. at 118). At 8:08 p.m., officers began recording their secondinterrogation of Appellant on March 30th. Appellant was given his Mirandarights, waived them and immediately asked the police to record information about “the Witness protection program. (RB 118). In exchange, Appellant gave the statement detailing Thomas Doubting’s murder of Ms. Olsson. (See I AOB 73). This statement waslater presented to the jury by the prosecution. (See People’s Trial Exhibit 6C)). Officer Robertson then called Deputy District Attorney Fraser and played Appellant’s statements for him. Dep. District Attorney Fraser then interviewed Appellantat the jail. A tape of that interview wasalso played for the jury by the prosecution. (See People’s Trial Exhibit 9c)). C. Appellant’s Arguments are not Procedurally Barred. Respondent contends that many of Appellant’s claims are procedurally barred. In Respondent’s view, Appellant’s arguments and objectionsattrial in support of suppressing his March 27 and March 30 statementsare limited to six claims: 1) his March 27 statements must be suppressed because they were given in violation ofhis right to counsel 70 under Miranda; 2) his March 30 statements must be suppressed because they were given in violation of his right to counsel under Miranda;3) his March30 statement must be suppressed because, during the untaped portion of the March 30 interview, police had deniedhis right to remain silent under Miranda; 4) his March 30 statements were made involuntarily because he had been coerced into speaking based on promisesthat he would be enrolled in the Witness protection program; 5) police had unconstitutionally used his wife as an “agent” to induce Appellant to speak; and 6) his second statement to Deputy District Attorney Fraser was involuntary and should have been excludedas fruit of the poisonoustree. (See RB 124). Respondent then argues that five grounds in Appellant’s Opening Brief have been waived, including challengesto: 1) the validity of Appellant’s waiver of his Miranda rights on March 27. (RB 124); 2) the voluntariness of Appellant’s statements on March 27 based on the use of Officer Trudeau. (/bid.); 3) the voluntariness of Appellant’s statements on March 27 in response to promises concerning his enrollment in the Witness protection program. (/d. at 127-29); 4) the validity of Appellant’s waiver of his Miranda rights on March 30. (/d. at 130); and 5) the voluntary nature of Appellant’s statements on March 30, 1987. (Id. at 137).”” *? Respondentclaims that this argumentis also procedurally barred because Appellant did not present evidence ofa past relationship with Officer Trudeau at the suppression hearing. However, Respondent ignores the “past relationship” Appellant and Officer Trudeau had from their contact on March 7, 1987. (RT 1928-29). There, Officer Trudeau had released Appellant in exchange for future cooperation. Officer Trudeau had promised Appellant that he would not reveal any personal information revealed by Appellant, and then interrogated him abouthis life history and current social circumstances. Undoubtedly, Officer Trudeau had developed a relationship based on trust with Appellant. This was proved on March 27, 1987, when Appellantstated, just as 71 None of Respondent’s procedural arguments hold merit. Appellant’s trial counsel effectively pled the arguments and objections that are raised in Appellant’s Opening Brief and further explained herein. Appellant recognizes that “objections and claims mustbeinitiated in the trial court so that the court can take steps to prevent error from infecting the remainder of the trial, so that an adequate record may be developed, andso that the court, acting as a finder of fact that has observed the participants, may reach conclusions on matters such as credibility and intent.” (Williams, supra, 43 Cal.4th at 624). Appellant however, adequately objected onall available constitutional bases before the trial court and his arguments are now preserved on appeal. As Respondent previously conceded, Appellant challenged the validity of the waiverofhis right to counsel given prior to the March 27 statements. (RB 120). Likewise, this challenge was based on the violations of his Miranda rights that had occurred after Appellant invokedhisright to counsel and Officer Trudeau reinitiated a new roundofinterrogation. (ld. Officer Trudeau joined the interrogation,“I trust you and believe you.” (People’s Trial Exhibit 5D at 103). Here, reliance on Jn Re Arturo D. (2002) 27 Cal 4th 60, 77 n. 18, is misplaced because Appellant’s statements, in reference to the sudden appearance of Officer Trudeau,reflect a prior relationship. Appellant expressly confirmed this prior relationship in response to Officer Robertson’s question that, “Do You Know Officer Trudeau?” (RB 114-15 (citing RT 140-41; People’s Exhibit 5D at 74)). Itis fallacious for Respondentto arguethatthe trial court was unaware, At the time Appellant’s motion to suppress was decided, of Officer Trudeau and Appellant’s prior relationship. This is especially true given the context of Officer Robertson’s decision to introduce Officer Trudeau into the interrogation. (RT 140-41, 149-51, 170). Appellant is not therefore barred from arguing that thetrial court’s decision,that Appellant’s statements were not involuntary or coerced, was erroneous and arbitrary in light of its knowledge that Livermorepolice used Officer Trudeau’sfalse repertoire with Appellant to coerce him into making incriminating statements. 72 at 115). Finally, Respondent concedesthat at trial, Appellant argued that his statements on March 30 were made in continuing violation ofhis Miranda rights. (Id. at 121). While Respondent may“feel [ ] obliged to defend[the trial court’s ruling] on all available grounds,” the state is wrongto insist that “[t]his Court has no obligation to address the merits of waived claims[ | and should instead reject assignments onerror for proceduralfailure to object grounds.” (RB 124 n. 15 (quotations omitted)).”* This argument makes no sense because Appellant’s arguments should not be waived. Appellant’s trial counsel challenged the March 27 and 30 statements on all available grounds underthe Fifth, Sixth, Eighth and Fourteenth Amendments and Article I of the California Constitution.” *3 Respondenterrors in arguing that this Court should procedurally bar Appellant’s claim because federal courts will not later review this Court’s decision. (RB 124 n. 15). First, Respondent must incorrectly believe that it is this Court’s duty to predict what the federal courts will do with Appellant’s case on collateral review, instead of reviewing the record of Appellant’s arguments on direct appeal. Second, Respondent’s citation to People v. Green (1980) 27 Cal.3d 1 and People v. Milner (1988) 45 Cal. 3d 236, for the proposition that this Court is foreclosed from hearing Appellant’s arguments ignores the exceptions to the contemporaneous objection rule laid out in Claim I and rediscussed here. (See Vera, supra, 15 Cal.4th at 276-277). Third, Respondent’s argumentthat the federal courts are precluded from reviewing claims dismissed for want of contemporaneousobjection is also erroneous. *4 Additionally, on November, 19, 1987, April 18, 1988 and June6, 1988 three hearings concerned with information relevant to Appellant’s suppression claims were not recorded. Appellant’s claims cannot be forfeited because the record does not demonstrate that Appellantfailed to lodge the relevant objections to the admission of the evidence. (Cf Young, supra, 34 Cal.4th at 1203). 73 D. _—Appellant’s Coerced and Involuntary Statements on March 27, 1987 Should have been Suppressed Since they were Gained in Violation of his Rights Under the Fifth, Sixth, Eighth And Fourteenth Amendments andArticle I Section 1, 7, 15, and 24 of the California Constitution. During his Mach 27, 1987 tape recorded interview, Appellant unequivocally invoked his right to counsel on three separate occasions. Instead of honoring these requests, Livermore Police officers continued the interrogation and then took a break, switched tactics, and reinitiated the interrogation. The officers also used false promises of leniency concerning Appellant’s enrollment in the state’s Witness protection program in orderto induce Appellant to speak. Likewise, the officers leveraged criminal charges against Appellant’s wife to coerce Appellant into waiving his Mirandarights and incriminating himself in the Olsson homicide. The record and facts establish a violation of Appellant’s rights underthe Fifth, Sixth, Eighth and Fourteenth Amendments. In the last four years, this Court has issued twelve (12) opinionsin capital cases denying claims premised on motions to suppress.”> In not one of these cases did this Court find a violation of the petitioner’s constitutional rights. Appellant’s case is factually distinguishable from the cases this Court has been presented with in the last four years. Appellant’s case involves a mixture of police techniques that induced and coerced Appellant into making incriminating statements. Livermorepolice officers: 1) made promises of leniency and enrollment in witness protection; 2) utilized threats of a lie-detector; 3) failed to respect Appellant’s invocation *5 (See People v. Martinez (2010) 47 Cal.4th 911; People v. Carrington (2009) 47 Cal.4th 145; People v. Dykes (2009) 46 Cal.4th 731; People v. Davis (2009) 46 Cal.4th 539; People v. Hawthorne (2009) 46 Cal.4th 67; People v. DePriest (2007) 42 Cal.4th 1; People v. Leonard (2007) 40 Cal.4th 1370; People v. Smith (2007) 40 Cal.4th 483; Zamudio, supra, 43 Cal.4th 327; People v. Rundle (2008) 43 Cal.4th 76,; People v. Tate (2010) 49 Cal.4th 635; and People v. Williams (2010) 49 Cal.4th 405). 74 of his right to counsel; 4) lied to Appellant concerning material evidence; 5) used Appellant’s wife as a police decoy; and 6) interviewed Appellant over for nearly twelve (12) hours. As will be shown,these idiosyncratic facts render Appellant’s case distinguishable from other capital cases that have comebefore this court and prove that Appellant’s state and federal constitutional rights were violated by Livermorepoliceofficers. 1. Appellant Properly Invoked his Rights Under Miranda andthe Fifth Amendment by Unequivocally Requesting the Presence of Counsel. Underboth state and federal constitutional Jaw, when a suspectis in custody and indicates that he wishes to consult with an attorney, the interrogation must cease. (Miranda, supra, 384 U.S. at 444-45; and People v. Johnson (1993) 6 Cal.4th 1, 27). In fact, it is a “bright-line” rule that oncethe right to counsel has been invoked, all questioning must cease. (Edwards v. Arizona (1981) 451 U.S. 477, 484-85). This protection is guaranteed by the Constitution in order to protect criminal suspects from “badgering” by law enforcement, which is intended to “wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsels’ assistance.” (Smith v. Illinois (1984) 469 U.S. 91, 98). As Respondent recognizes, the standard to determine the invocation of Fifth Amendmentrights is whether a suspect’s requests for counsel would lead a “reasonable police officer in the circumstances[to] understand the statement to be a request for an attorney.” (RB 125 (citing Davis v. United States (1994) 512 U.S. 452)). Respondent fails to recognize that this Court has held that, in order to invoke the defendants Fifth and Sixth Amendmentrights, “no particular form of words or conductis necessary. A suspect may indicate such a wish in many ways.” (People v. Randall (1970) 1 Cal.3d 948, 955). Here, Respondent’s misguided analysis would 75 have this Court contradict its prior rulings by holding that a criminal suspect mustassert his rights “with unmistakable clarity” and resolving any ambiguity against the defendant. (Contra Cahill, supra, 5 Cal.4th at 510 n. 17). In effect, Respondent would have this Court “subvert Miranda’s prophylactic intent.” (/bid.). Appellant unequivocally asserted his rights by requesting counsel’s assistance. Appellant stated: 1) “I think it would behoove meto consult a lawyer;” 2) “I think it would bebest if I consult a lawyer;” and 3) “That’s right. I don’t know,that’s why I’d like to talk to somebody who does [now].” (People’s Trial Exhibit 5D, at 73). There is no trace of ambiguity in these three successive and polite requests for the assistance of counsel. Based on Appellant’s words and conduct, a reasonable officer would have recognized the “bright-line” invocation of his rights under the Fifth, Sixth Eighth and Fourteenth Amendments. Moreover, the Livermore Police officers’ response to Appellant’s requests for counsel exhibited recognition that he had invoked his constitutional rights. They no longer threatened Appellant with the lie- detector test.”° They halted the interrogation and took a fifteen minute © In the past four years, this Court has not been presented with a case involving similarly threatening use ofpolygraphs orotherlie-detectortests. In Smith, supra, 40 Cal.4th 483 the defendantalleged that incriminating statements were coerced andresulted from policethreats to use a fake “Neutron - Proton Negligence Intelligence Test.” (Ud. at 501). This Court denied his claims that his Miranda rights were violated andthathis confession was involuntary due to the questionable police tactics. In Martinez, supra, 47 Cal.4th 911, the defendant claimeda violation ofhis Mirandarights resulting from threats by police officers to use a polygraph machine during the interrogation. In response, the defendant hadstated that “I think I should talk to a lawyer before I decide to take a polygraph.”(id. at 946). Nevertheless, this Court found that the Defendantfailed to fully invokehis right to counsel. (bid.). Neither case is controlling here. First, the threat of a lie detectortest was used by Alamedacountyofficials to coerce Appellant into confessing 76 break. (RT 117; see also Trial Exhibit 5D at 74). They made a substitution and inserted Officer Trudeau into the interrogation lineup. They utilized the false rapport Officer Trudeau had established with Appellant when previously, on March 7, 1987, Officer Trudeau had spuriously promised to keep confidential personal information about Appellant (a promise that he had never intended to keep). After the short break they reinitiated the interrogation knowing that Appellant had previously invokedhis rights. In no way did the officers respect the invocation of Appellant’s nights. In a failed effort to defeat Appellant’s unequivocal requests for counsel, Respondent mischaracterizes Appellant’s statements. According to Respondent, “context [] shows that Appellant meant he wanted counsel before submitting to any polygraph questions.” (RB 126 (quotations and emphasis omitted)). Respondent puts words in Appellant’s mouth and diverts from the clear language in the record. Appellant said, “I think it would be best if I consult a lawyer.” Appellant did not say “I think it wouldbe best if I consult a lawyer (concerning polygraph questions).” Appellant said: “I think it would behoove meto consult a lawyer,” without adding “about taking a polygraph exam.” Appellant did explain that he “didn’t know (about polygraph)” and again invoked his right to counsel and by expressing “I’d like to talk to somebody whodoes.” (People’s Trial Exhibit 5D at 73). to the Olsson homicide. This is dissimilar to Martinez where, as this Court found, the detectives respected the defendant’s invocation for over a day and “did not ask defendant aboutthe case again until the following morning, December6, 1996, about 9:00 a.m.” (Martinez, supra, 47 Cal.4th at 946). Second, Appellant was peppered by questionable police tactics. When Appellant invokedhis right to an attorney, in responseto threats of the use of polygraph machine, the Alameda county officers took a brief break before reinitiating the interrogation moments later with new interrogators. Third, Appellant’s repeated requests for counsel cannot be characterized as ambiguousor conditional. Indeed, unlike in Martinez, in three successive statements Appellant invoked his right to counsel. 77 Following the break, Livermore Police officers reinitiated the interrogation around 10 p.m. Bythis time, Appellant had been detained for ten (10) hours and had been interrogated for over four hours - without shirt or shoes. He knewthat the same officers had previously interrogated his wife. A reasonable person in Appellant’s position would havebelieved that their invocation of rights did not matter, or was meaninglessin light of the continued andpersistent “badgering” by law enforcement. With no prospectofend in sight, Appellant gave in because the officers had badgered him to his limit. Respondentclaimsthat the officers’ continuing violations of Miranda occurred because the context surrounding Appellant’s invocations of his rights was ambiguous. The Supreme Court has stressed thatit is the statement requesting counselitself that must be ambiguous or equivocal for any “clarifying” questioning to continue. Where nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease. In_ these circumstances, an accused’s subsequent statements are relevant only to the question whether the accused waived the right he had invoked. Invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging them together. (Smith, supra, 469 U.S. at 98 (emphasis added)). Appellant clearly invokedhis right to counselpriorto the break. Whenthe officers came back and again beganthe interrogation, they were constitutionally requiredto limit their inquiry to Appellant’s invocation. Instead, the officers, using Officer Trudeau’s relationship, cajoled Appellantinto reversing his prior invocations and continue talking. Respondent’s arguments attemptto blur Appellant’s invocations with his later waiver, and neglect to mention or adequately defend the police tactics 78 used to start all over in the interrogation of Appellant. This Court has recently decided several capital cases where California police officers persisted in interrogations after the defendant invokedhis right to counselor silence. In Dykes, supra, 46 Cal.4th at 751, this Court denied the Appellant’s claim that, in response to police interrogation, he invokedhis rights under the Fifth Amendment by unequivocally requesting an attorney. This Court recognized that it was not presented with plausible evidence that the defendant had invokedhis right to counsel. In People v. Williams, this Court was presented with a claim that Los Angeles police officers failed to respect the defendant’s invocation of counsel or silence on four occasions. (See Williams, supra, 49 Cal.4th at 429). As to each incident, this Court found that the post-interrogation invocations would not have led a reasonable officer to conclude that the defendant had invokedhis rights. (/bid.). This Court also foundthat the police had notactively “badgered” the defendant into waivinghisrights. (Ibid. (citing Michigan v. Harvey (1990) 494 U.S. 344, 350)). The circumstances in Dykes and Williams are quite different than those in Appellant’s case. Here, Appellant explicitly referred to his need for counsel, three times, and, in order to circumvent his invocation. Livermore Police officers responded by momentarily halting the interrogation before beginning again with new interrogators. Similarly, Livermore Police officers sought to cajole the defendant into notasserting his rights by diverting the focus of the interrogation following defendant’s invocation, and by failing to immediately readvise Appellant of his rights following the momentary timeout. Likewise, and unlike in Williams, the evidence indicates that a reasonable officer would have clearly understood Appellant’s repeated assertions for counsel as invoking his rights under the Fifth Amendment. Substantial evidence does not support the trial court’s determination 79 that Appellant failed to unequivocally invokehis constitutional rights and Respondent’s arguments fail. Appellant clearly expressed his desire to speak with counsel- three times - and the LivermorePolice blatantly disregarded those requests. All statements made after Appellant’s invocation on March 27 violated Miranda and were involuntary. Their admissionat trial violated Appellant’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments, as well as, under Article I, sections 7, 15, and 24 of the California constitution. 2. Appellant’s Statements on March 27, 1987 were Involuntarily Coerced and his Purported Waiver wasInvalid. EvenifAppellant did not invokehis right to counsel on March 27, underthe totality of circumstances, Appellant’s statements were not the product of free will. They were coerced by the offensive interrogation techniques of the Livermore Police. Appellant’s requests for counsel were ignored. Without providing access to counsel, police interrogation tactics coerced Appellant into making involuntary statements. By responding to offensive interrogation tactics, Appellant did not knowingly,intelligently and voluntarily waivehis right to counsel. Instead, he was involuntarily forced to speak based on coercive police tactics used during an interrogation that appeared to have no endinsight. Respondentcontradicts its arguments that Appellant’s waiver was voluntary by conceding that Livermore Police used several coercive and unlawful interrogation tactics. As Respondent acknowledges, during Appellant’s interrogation on March 27, the police used threats (against Appellant and his wife), unlawful inducements (related to Appellant’s enrollment in the state’s Witness protection program) and coercive conduct that included keeping Appellant in custody for twelve (12) hours; and conducting a six hourinterrogation. (RB 110-120). Throughout the twelve 80 (12) hours Appellant was detained by the Livermorepolice, he was never given a shirt or shoes. LivermorePolice purposefully deceived Appellant by arresting him on narcotics charges and questioning him before revealing the basis for the arrest - suspicion of homicide - two to three hoursinto the interrogation. Officer Robertson lied to Appellant by telling him that five Departmentof Justice experts had traced his fingerprints to the murder weapon.” Livermore police officers implied that his wife Vicky would be arrested for check fraud if he did not cooperate. The officers gave Appellant cigarettes, pizza, coca-cola, water and candy, but did not immediately offer him clothes to cover his body. When Appellant clearly invoked his rights, they substituted in Officer Trudeau who had developed a false rapport with Appellant. Later, Appellant was shackled with ankle chains and Vicky was used as an agent by Livermore police. An interrogation based on these tactics can only yield an involuntary statement. This Court has recently denied a case involving the use of the defendant’s family by police officers in order to obtain a confession. (See Tate, supra, 49 Cal.4th at 635). In Tate, the Alameda Police Department was also involved and the defendantalleged that the police used his girlfriend as a police agent. (/d. at 726). This Court rejected the contention because the police did not plan to use the defendant’s girlfriend to speak with the defendant and did not suggest a subject matter for the girlfriend to discuss with the defendant. (/bid.). *1 In DePriest, supra, 42 Cal.4th at 35, this Court rejected the claim that misleading statements by detectives, concerning the scope and operation of the exclusionary rule, were material enough to constitute a violation of the defendant’s constitutional rights Here, in contrast, the detectives misleading and false statements to Appellant concerned evidence material to the Olsson homicide and the offender’s identity. The statements by LivermorePolice officers not only contaminated the interrogation, but also served to misdirect and mislead Appellant. 81 Here, in contrast, Livermore detectives repeatedly utilized Vicky Tully, Appellant’s wife, to get Appellant to speak to detectives and speak about the crime. In fact, the officers went as far as to transport her, twice, to the jail in order to speak with Appellant, a tactic strategically planned by the police. Furthermore, they also informed Vicky about the nature of her husband’s prior statements. Thesetactics were calculated to get Appellant to further incriminate himself, and were not designed to conduct an interrogation in line with the protections against compelled and involuntary statements mandated by the Constitution. Respondenttries to explain away these circumstancesas being innocuous. According to Respondent, norelief is warranted despite the constitutional violations, since Appellant’s statements do not show “a beaten-down manspeakingagainsthis will.” (RB 130). Respondent argues that in order to create a coercive environment, Livermore Police officers would have to use “the traditional methods of intimidation which result in involuntary statements or confessions,” including: “promises,” “yell[ing],” “display[ing] a weapon,” “threaten[ing] in any other way,” “over[] aggressi[on],” or a “confrontational [style].” (RB 129-30). Respondent’s “beaten-down man”testis not the standard for determining voluntariness.”® Instead, this Court mustlook to the totality of circumstances,as laid out above, to determine the voluntariness of Appellant’s waiver and statements. Undoubtedly, a reasonable man would have been compelled to incriminate himself after: 1) having been detained without shoesor shirt for twelve (12) hours; 2) having been interrogated for 28 This Court has held that the test for involuntariness is whether the totality of influences on the accused were “such as to overbear petitioner’s will to resist and bring about confessionsnotfreely self- determined.” (People v. Hogan (1982) 31 Cal.3d 815, 841 (citations omitted)). A confession maybe found involuntary if extracted by coercive threats, inducements, promises or conduct. (See People v. Benson (1990) 52 Cal.3d 754, 778). 82 six of those twelve (12) hours; 3) having been interrogated by three officers; 4) having been interrogated in three separate sessions; 5) having threats lodged against his wife; 6) having been implicitly offered enrollmentin the witness protection program; 7) having attempted to invokehis right to counsel three times; and 8) having the police ignore each invocation of counsel. Appellant’s statements sought to deflect the continuous stream of questions and to terminate a never-ending interrogation. As result, Appellant made incriminating statements, based on lies told to him by Livermore police officers and in counsel’s absence. This Court has not recently been presented with a case involving the length and breadth of the interrogation seen in Appellant’s case. In Rundle, supra, 43 Cal.4th at 122, the defendant claimedthat “a series of relatively short interviews by variousofficers about different crimes, often with significant breaks in between,” renderedhis subsequent confessions involuntary because, in the cumulative, they totaled twelve (12) hours. This Court rejected the claim finding that it was procedurally defaulted and that the defendantfailed to proffer any indicia of evidence “suggesting that the authorities exploited the ‘slowly mounting fatigue’ resulting from prolonged questioning,or that such fatigue occurred or played anyrole in defendant's decision to confess.” (/d. at 123). Here, in contrast, Appellant was extensively interrogated and detained for over twelve (12) hours onhis first night in custody, as Respondent concedes. (See RB 110 and 115). Livermore Police tactics sought to wear down Appellant, including the substitution of interrogators after the invocation ofhis right to an attorney; the refusal to give him shoesor shirt; and chaining Appellant to the floor. Nevertheless, Appellant has shownthat his coercive interrogation actually included several of Respondent’s “coercive”factors (false promises of membership in the Witness protection program, yelling, threats to harm Appellant’s family). Respondent cannot deny that Appellant was 83 held for twelve (12) hours, without shirt and shoes, and wassubject to a barrage of interrogative questions. During this time, Appellant’s will to resist was overborne by these impermissible tactics. Moreover, the Livermorepolice officer’s unlawful interrogation techniques also overbore Appellant’s rights under the Fifth and Fourteenth Amendments. E. The Trial Court Erredin Failing to Suppress Appellant’s Coerced and Involuntary Statements on March 30, 1987 Since they were Gainedin Violation of his Rights Under the Fifth, Sixth, and Fourteenth Amendments and Article I of the California Constitution. The secondinterrogation of Appellant on March 30, 1987, and the resulting incriminating statements were as coercive, unlawful and involuntary as his March 27interrogation and statements. This time, Livermore Police officers failed to tape record their initial meeting with Appellant. During thesecritical thirty (30) minutes, where Appellant was not provided Miranda warnings, he wasinducedto waive his constitutional rights. During this time, the officers induced Appellant to speak by offering the state’s Witness protection program and making false promises of leniency. (RT 226-27). But perhaps most offensively, the officers utilized Vicky Tully as their agent. They allowed her and Appellant to speak, after he had elected to enforce his constitutionalrightto silence. They took her away after he had become convincedofhis need to speak with police to protect her and his family, by providing a statementto police and enrolling in the state’s witness protection program. 1. Appellant Unequivocally Invoked his Rights under the Fifth and Fourteenth Amendments. Prior to interrogating Appellant on March 30, Livermore police officers failed to recommunicate Miranda warnings to him. Nevertheless, when confronted by the interrogative situation, Appellant again invoked his Fifth Amendment rights. (RT 70, 130). This time, having previously failed 84 to gain the assistance of counsel despite his unequivocal requests, Appellant continued to honorhis invocation ofhis right to remain silent by refusing to answer questions during the initial and unrecorded meeting with Livermore police officers on March 30, 1987. However, like the previous encounter, instead of honoring Appellant’s silence, Livermore police officers cajoled, badgered, and induced Appellant to impliedly waive his rights and talk further about Doubting Thomas’role in the Olsson homicide. 2. Appellant Unequivocally Invoked his Right to RemainSilent. Appellant’s invoked his right to right to remain silent by refusing to answerquestions asked Livermore Police officers. Appellant maintained his constitutional right to silence even after discussing with the officers his and his family’s enrollment in the witness protection program. (See Miranda, supra, 384 U.S. at 445 (“[the suspect] may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.”’)). Appellant’s discussion of topics did not voluntarily waive his Miranda rights. (See Miranda, supra, 384 U.S. at 445 (“The mere fact that [a criminal defendant] may have answered some questions... does not deprive him ofthe right to refrain from answering any further inquiries.”’)). Asa result, the trial court was required to prohibit the introduction of testimony or arguments detailing Appellant’s invocation of his right to remain silent. (See Hurd v. Terhune (9th Cir. 2010) -- F.3d --, *6). Prosecutor Burr violated this duty when he urged the jury to consider Appellant’s out of court statements, and silence, as if he had testified. (RT 3194-95). “Tf an individual indicates in any manner, at any timeprior to or during questioning, that he wishes to remainsilent, the interrogation must 85 cease.” (Miranda,supra, 384 U.S.at 473). In Berghuis v. Thompkinsthe High Court recently noted that for a criminal defendant to invokehis right to remain silent, the suspect must affirmatively and unambiguously invoke his right. (See Thompkins, (2010) 130 S.Ct. 2250, 2260). Though, the Court also noted that the right to silence mayalso be invokedifthe suspect refuses to answer a question. (/bid.). Importantly, however,“[t]he Supreme Court’s decision in Thompkins doesnotalter its holding in Miranda.” (Hurd, supra, -- F.3d at *6). “It is enough if the suspect says that he wants to remainsilentorthat he does not want to answer that question.” (Ibid.). Thompkins merely _ standsfor the proposition that “a voluntary confession should not be suppressed just because a defendanthasrefrained from answering other questions,” and “doesnotalter the fundamentalprinciple that a suspect's silence in the face of questioning cannot be used as evidence against him at trial, whetherthat silence would constitute a valid invocation of the “right to cut off questioning”or not.” (Ibid.). Here, documentary evidence doesnotfully establish how Appellant invokedhis right to remain silent. *? All the witnesses, however, are in agreementthat on March30, Appellantinitially invokedthe right to remain silent by electing to remain silent and by not answering manyofthe *? Unlike in Thompkins or Hurd, here, Appeliant’s interrogatorsfailed to document how Appellant invokedhis right to remain silent by failing to record the first thirty (30) minutes of the March 30 interrogation. (RT 70- 71, 103-104, 125). However,the officers agree that Appellant invokedhis right to remain silent. (/bid.). In Appellant’s case, then,it should be assumedthat Appellant clearly and unambiguously invokedhis right to silence It was thus misconduct anderror for the trial court to allow the prosecutor to urge the jury to consider Appellant’s out of court statements as if he had testified and for thetrial court to admit the officer’s testimony regarding Appellant’s initial refusal to answer questions on March 30, 1987. (See Hurd, supra, -- F.3d at *6). 86 officers’ questions. Whenthe officers asked if his wife’s incriminating statements were true, Appellant responded with silence. In response, as Respondent concedes, the Livermorepolice persisted and upped the ante by offering Appellant placement in the Witness protection program. (RB 131). In the face of Appellant’s silence, officers asked several questions concerned with why Appellant had elected silence. (RT 130, 203-04). The officers insinuated that they had heard about “Doubting Thomas’s”role in the crime. They cajoled and induced Appellant to speak by promising leniency and favors. And they were able to do so with impunity, since they had refusedto record the first 30 minutes of the March30 interrogation.*” All this was broughtforth at trial during the officer’s testimony, which detailed Appellant’s prior statements andinitial silence. (See RT 70-71, 103-104, 125). As a result, the trial court’s failure to suppress the statements, as well as Appellant’s invocation ofhis right to remain silent, violated Appellant’s rights under the Fifth Amendment and Miranda. Moreover, the prosecutor’s comments on Appellant’s silence during closing argument urged the jury to infer Appellant’s guilt from invocation ofhis constitutional rights. (See Claim IX - The Prosecutor Committed °° In Thompkins, the Supreme Court held that a suspect must expressly state that they are adheringto their right to remain silent in order to invokethe right under the Fifth Amendment, and may implicitly waive the right by later speaking. The Supreme Court noted that the situation in Thompkins wasnot inherently coercive. (Thompkins, supra, 120 S.Ct. at 2263). In contrast, in Appellant’s case, the March 30 interrogation was inherently coercive. (Cf. Colorado v. Connelly (1986) 479 U.S. 157, 163- 64 n. 1). First, the officers had already interrogated Appellant for oversix hours on March 27. Second, the officers had already interrogated Appellant’s wife. Third, the Officers had threatened prosecution of Appellant’s wife. Fourth, the officer’s had promised Appellant enrollment in the witness protection program if he cooperated. Fifth, the officers refused to recognize Appellant’s silence, for at least up to the initial thirty (30) minute unrecorded portion of the interrogation. In sum, the factual situation in Appellant’s case is distinguishable from Thompkins. 87 Misconduct During the Guilt Phase Closing Arguments; and Claim XXII - Appellant Was Sentenced to Death Based on The Non-Statutory, Improper and Materially Inaccurate Aggravating Factor of Absence of Remorse).*4 Respondent argues that Appellant’s silence was “a pause to think and to strategize about his next statement, and was notan invocation ofhis right to remain silent.” (RB 131-32). Respondent’s allegations are wild speculation as there is no recordofthe actual interview. And, a 30 minute silence is too long to be a “nause.””” Likewise, Respondentis wrong since all sides conceded during the suppression hearing that Appellant had invoked hisright to silence before ultimately discussing the state’s Witness protection program. (See I AOB 72 (citing RT 122)). Even if Appellant’s invocation ofthe right to remainsilent could be deemed ambiguous,the police could continue to question him only for the limited purpose ofclarifying whether he was waiving or invoking his rights. (See People v. Box (2000) 23 Cal.4th 1153, 1194; People v. Wash 3! By impermissibly commenting on Appellant’s failureto testify, and urging the jury to review Appellant’s out of court statements as ifhe hadtestified, the prosecutor violated the Fifth and Fourteenth Amendments stressing “an inference of guilt to the jury” based on Appellant’s invocation of his right to remain silent. (See Hurd, supra, — F.3d at *9). In Hurd, the defendant moved to suppress statements madeat his interrogation as involuntary based upon the detective’s false promises of leniency and threats regarding the use of a polygraph machine. (/d. at *2). The trial court incorrectly failed to suppress the statements, and asa result, the prosecutor used the statements, and the defendant’s refusal to take a polygraphor reenact the shooting, “as affirmative evidenceofhis guilt.” (Ibid.). Like in Hurd, hereto thetrial court improperly denied Appellant's motion to suppress the involuntary and incriminating statements he made in responseto false promises and threats regarding the use of a polygraph machineby police. Similarly, like in Hurd, hereto the prosecutorstressed Appellant’s silence, and failure to testify, during his opening and closing arguments. (See Jd. at *9). >? Webster’s defines pause as “[a] temporary stop orrest in speech or action.” (Webster’s New World Dictionary (3College Ed. 1988)). 88 (1993) 6 Cal.4th 215, 239; Johnson, supra, 6 Cal.4th at 27). They could notpersist “in repeated efforts to wear downhis resistance and make him change his mind.” (Michigan v. Mosley (1975) 423 U.S. 96, 105-106). Continuing to question Appellant about Doubting Thomas’s involvement did exactly that and the officers’ use of Vicky, to cajole Appellant into speaking, contributed to the wearing downofhis resistance. (I AOB 72 (citing RT 220-21)). Respondent spendsthe bulk of its time attempting to distinguish the cases relied upon by Appellant in his Opening Brief. (I AOB 82(citing United States v. Wallace (9th Cir. 1988) 848 F.2d 1464, 1475; United States v. Hernandez (5th Cir. 1978) 574 F.2d 1362, 1368 n. 9; and Watson v, state (Tex. Crim. 1988) 762 S.W.2d 591, 598)). However, Respondent’s interpretation of these cases is untenable. According to Respondent, Wallace is not controlling. Respondent believes that in Wallace there was no evidence that the “defendant expressly waived her rights” and because “she remained silent for perhaps as manyas ten minutes.” (RB 132). Respondentdoesnot include the more significant similarities between Appellant’s case and Wallace. In both cases, police obtained an implied waiver by cajoling the suspectthroughthe use of false promises of leniency and enrollmentin witness protection. (See Wallace, supra, 848 F.2d at 1475) The misconduct in Appellant’s case is worse however. Here, law enforcement utilized Vicky and her fear of criminal prosecution, as well as false promises of enrollment in the witness protection program for Appellant and his wife, to leverage incriminating statements... Respondent’s arguments to the contrary fail to distinguish Wallace and run against Miranda’s principle that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession wasin fact eventually obtained.” (Wallace, supra, 848 F.2d at 1475 (citing 89 Miranda, supra, 384 U.S. at 475)). Respondent’s attempts to distinguish Hernandez are unavailing even if there were seven separate interrogations in that case. (See RB 132). In Hernandez, as in Appellant’s case, both defendants were given their rights and invokedtheir right to remain silent through refusals to cooperate. (Hernandez, supra, 574 F.2d at 1368). In both instances, the inculpatory statements were secured without the benefit of assistance of counselin a room with more than twoofficers present. (/bid.). In addition, the identity of the interrogating officer or officers was also significant in each case. Twoofthe officers in Hernandez had on several prior occasions interrogated the defendant. (Hernandez, supra, 574 F.2d at 1369-70). In Appellant’s case, Officer Trudeau had had prior interactions with Appellant; a fact used by the Livermorepolice officers to induce Appellant to speak through a false trust in the officer. As the Court in Hernandez recognized, “such police conduct is tantamount to coercive pressure applied to the accused to force him to reconsiderhis invocation of his right to silence.” (/bid.). In both cases,“it is patently obviousthat the police ignored Hernandez’s [the defendant’s] repeated invocation ofhis right to remain silent.” (Hernandez, supra, 574 F.2d at 1368-69). In both instances the police attempted to induce their suspects to speak through the use of promises of leniency. Respondentthusfails to rebut the Fifth Circuit’s finding, in a case with facts analogousto this case - that promises of leniency “further aggravate the compulsive atmosphereofthis situation.” (Id. at 1370). Appellant’s facts are worse than the facts in Hernandez. Here, the police used false promises of leniency, as well as threats of prosecution against Appellant and his wife, to leverage their suspect into waiving his constitutional rights. Finally, Respondent argues that Watsonis distinguishable because 90 Watson wasinterrogated four separate times, and remainedsilent for up to twenty (20) minutes. (RB 132-33 (citing Watson, supra, 762 S.W.2d at 599)). Respondent argues that here, “Appellant was not peppered with questions on multiple occasions nor did he remainsilent on multiple occasions. He remainedsilent for a very short period while thinking of the best way to ask the officers what Witness protection program promises they could make him and his family.” (RB 133). In truth though, and as Respondentcites elsewhere in contradiction, it was Officer “Newton [who] told Appellant that they knew he might be frightened of ‘Doubting Thomas’ and that he might needassistance from the witness protection program if he (appellant), was telling the truth.” (RB 117 (citing RT 130)). Respondent, in attempting to aggrandize the misconduct in Watson, loses track of the Court’s basic points and the clear analogies to Appellant’s case. Here, as in Watson, Appellant gave a clear indication to police officers of his intent to remain silent, over the course of a 30 minute interview, where he did not answer any questions aboutthe crime the officer’s were investigating. Under both “circumstances[,] appellant was not cooperating with the police and had demonstrated to them that he wished to remain silent in accordance with theparticular and express Miranda warnings...by not answering questions.” (Watson, supra, 762 S.W.2d at 599). In both situations: the officers were under no impression that Appellant wanted to speak to them. They were not misled. There is nothing to show the officer considered his action ambiguous. They were put on notice their questioning should cease. To fault the Appellant for not explicitly stating his objection to further interrogation would be illogical when he responded in the manner he was warned he could employ in exercising his right to silence...and the record showsthe officers had gotten the message and understoodit. (Watson, supra, 762 S.W.2d at 598). 91 Under Respondent’s analysis, the right to remainsilent can only be invoked and violated if a criminal defendant refused to answer questions over several separate interrogations that spanned hours. This reading requires too muchforthe exercise of a suspect’s rights under the Fifth Amendment. When LivermorePolice officers refused to honor Appellant’s persistent silence, and instead openedthe discussion,all resulting statements were earned in violation of Appellant’s Fifth Amendmentrights. Respondent’s arguments to the contrary ignore the basic precept of Miranda: Once warnings have been given, the subsequent procedureis clear. If the individual indicates in any manner, at any time prior to or during questioning that he wishes to remain silent, the interrogation must cease. At this point he has shownthat he intends to exercise his Fifth Amendmentprivilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in- custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. (Miranda, supra, 384 U.S.at 473-74). 3. Appellant’s Statements, and the Purported Waiver of His Constitutional Rights on March 30, were Involuntary. Appellant’s waiver of his constitutional rights and his subsequent incriminating statements were the product of a coercive interrogation and the termination of Appellant’s free will on March 30, 1987. Respondent concedesthat“if a defendant is given to understand that he or she might reasonably expect benefits in the nature of more lenient treatmentat the hands ofthe police, prosecution or the court in consideration of making the statement, even a truthful one, such motivation may render the statement involuntary and inadmissible.” (RB 136 (citing People v. Cahill (1994) 22 92 Cal.App.4th 296, 309-17)). Respondent, is in error to argue that Livermore Police officers’ promises did not render Appellant’s statements involuntary. During the March 30, 1987 session, the interrogation centered upon the Tully family’s enrollment in the state’s witness protection program. Indeed, Respondent concedes that Appellant, in response to questions about the witness protection program, was inducedto impliedly waive his constitutional rights by electing to speak with the police officers. (RB 131). However, Respondent wrongly feels that “Appellant [] could not have reasonably believed that the police were promising him participation in the Witness protection program for himself and his family if he made a statement.” (RB 137). Duringthe thirty (30) minute unrecorded meeting on March 30, Appellant had invokedhis right to remain silent. He talked only in consideration of his and his family’s enrollment in the witness protection program. The nature ofthe entire exchange hinged on Appellant’s enrollment in the witness protection program. There is no transcript of the interview which would authenticate the testimony of Officer Newton describing what he believed to be a waiverofrights. (RT 70 and 130). Instead, inconsistencieslitter the officer’s testimony.*? At the *? Respondent argues that under People v. Barnes (1986) 42 Cal.3d 284, 306, Appellant’s testimony at the suppression hearing, namely that he gave his March 30 statements out of fear that Vicky would be prosecuted, cannot be entertained because it wasrejected bythetrial court. (See RB 135. n.16). Respondent confuses the principles enunciated in Barnes and the arguments raised by Appellant. Appellant has argued, and supplied facts within context, that the trial court’s determination that Appellant was not coerced into making the March 30 remarks was erroneous. This argument doesnotrest solely upon Appellant’s testimony. Instead, it is based upon an analysis of the totality of facts, which provethat the officers’ testimony was inherently improbable and that Appellant was coerced into falsely incriminating himself in the Olsson homicide. Moreover, Respondent is wrong to assert that the only evidence that Vicky Tully had been threatened with criminal charges was based on Appellant’s testimony. (/bid.). In truth, 93 most, the only conclusion that can be reached is that Appellant had invoked his right to remain silent, but exchangedthat right based on the prospect of enrollment in the witness protection program, now promised to both him and his wife. Further, there was never any evidence that such promises were truthful. No one from the Livermore Police Departmentor the District Attorney’s Office evertestified or made any reports that they looked into the witness protection program for Appellant. Thus, like on March 7, Appellant was induced to speak based on a false promise of leniency and protection. Similarly, like before, the promise, this time madein front of an attorney, was so attractive it rendered the resulting statement involuntary. (See Streetman v. Lynaugh (5th Cir. 1987) 812 F. 2d 950, 957 (citation omitted)). This Court should hold assistantdistrict attorneys to equal orthe sameethical standards as other law enforcementofficials in making such fundamentally unfair representations,. (See People v. Andersen (1980) 101 Cal. App. 3d 563, 576 (“[I]n carrying outtheir interrogations the police [] must avoid false promises of leniency as a reward for admission or confession.”)). The promisesof leniency made to Appellant were misleading,false, and more outrageousthan in cases recently presentedto this Court. In Carrington, supra, 47 Cal.4th 145, the defendant claimedthat statements were involuntarily made in response to police inducements and promises of lenience. This Court rejected the claim because the police did not make any promises to the defendant, but instead, urged her to confess based on the officers had testified that during their initial interrogation of Vicky Tully on March 27, 1987 they hadthreatened her with arrest and prosecution with charges based upon check fraud. (See I AOB 66 (citing RT 85, 87)). Here, the record demonstrates, without inference that Appellant elected to speak with the officers based on knowledge that doing so would protect his wife from a criminal prosecution. 94 her feelings of religious guilt. (/d. at 173). In contrast, here, police officials urged Appellant to incriminate himself by proffering his enrollment in the witness protection program. They then called a meeting with a memberof the Alameda County District Attorney’s Office who made similar offers to Appellant - though couched in ambiguously conditional language. The officials then made similar offers to his wife. Finally, they offered Appellant, enrollment of his family in the witness protection program. These promises of leniency stand in stark contrast to the persuasive references to religion in Carrington. Worse, law enforcementagents utilized their charging and interrogative powers to induce Appellant to speak based on fear that his refusal to cooperate would result in Vicky’s arrest. From the start, Vicky‘s involvementin the case was engineered to induce Appellant to speak. Twice, during the course of the interrogation, Vicky was allowed to speak with her husband in orderto relay fears that she would be arrested if he did not cooperate. So unique wasthis tactic that Officer Robertsontestified that he could not remembera prior occasion where a family relative was allowed to speak to a first-degree murder suspect prior, during andafter police interrogations. (RT 98). Respondentdefendsthe “lies” told by Livermorepolice officers to Vicky Tully by trying to diminish Appellant’s testimony. Respondent thus argues that “if Appellant wastelling the truth that “Doubting Thomas” committed the murder while appellant was simply presentat the scene, things would have been easier for him than for Thomas.” (RB 135). Throughouthis interrogation on March 30, Appellant made several references to promises made by Livermorepolice to Vicky Tully. In fact, Vicky Tully’s placementin a witness protection program washis primary concern and he waivedhis right to remain silent in exchange for discussing her protection by the program. Respondent argues that Appellant would 95 have understoodthe “contingencies” placed on Vicky’s enrollmentin the program. (See RB 136-37). However, this understanding assumesthat the officers had fully and clearly explained those contingencies to Vicky Tully and Appellantin a consistent manner. With no evidence in support, and only glaring inconsistencies based onthe transcript, Respondentfails to substantiate the state’s assertions that Appellant would have reasonably understood the police officer’s discussion of his enrollment in the Witness protection program as anything other than a promiseofleniency. F. Substantial Evidence does not Support the Trial Court’s Ruling on Appellant’s Suppression Motion. Thetrial court denied Appellant’s motion to suppress “‘onall grounds promulgated.” (RT 1928-29). In particular, the Court foundthat: 1) the statements were preceded by adequate warning ofconstitutional rights and that Appellant subsequently made valid waiverofhis rights; 2) that Appellant did not unequivocally invoke his right to counsel on March 27; 3) that Appellant did not invokehis right to remain silent on March 30; and 4) that all of the statements were validly madeandthat the use of Vicky Tully as an agent ofthe state did not violate Appellant’s rights under the Fifth Amendment. (/bid.). Respondentarguesthat “[s]ubstantial evidence supports the trial court’s finding that appellant did not unequivocally request counsel during the March 27, 1987 interrogation...” (RB 127), and that “substantial evidence supportsthetrial court’s findings that Appellant did not invoke his right to remain silent during the first March 30, 1987 interrogation, and therefore, the police did not violate his rights by continuing to question him.” (/d. at 131). Respondent wrongly asserts that “[t]he trial court ruled correctly in refusing to find that Appellant invokedhis right to remain silent.” (Ud. at 133). 96 Respondentbelieves that “the essence of the trial court’s ruling,” is that police do not make an “improper inducementto a witness when they tell him or her that they will try to get the witness into a protection program if the witnesstells them the truth and the witness otherwise qualifies protection.” (RB 137). The assumptions on which Respondentbasesits conclusions are not supported by substantial evidence. Livermore Police told Appellant he would be placed in the Witness protection program, not that they would “try” or that other qualifications would impede their ability to place him in the program. It cannot reasonably besaid that Appellant understood the hidden contingencies in the Livermore Police officers’ offers to enroll the Tully family in the Witness protection program. As on March 7 with Officer Trudeau, Appellant took the officer’s promises at face value and exchangedhis right to counsel and to remainsilent in consideration for his family’s protection. Similarly, the credibility of these promises was bolstered by the presence of a memberofthe District Attorney’s Office. Here, in front of a prosecutor, Appellant was cajoled into repeating the statements by false promises of leniency, which no memberoflaw enforcementintended to keep. The effect of this prejudicial means ofinterrogation is best seen in Appellant’s disclaimer, given just prior to the second set of statements on March 30, 1987: I’m gonnabelieve in what those two told me (Officers Robertson and Trudeau). And uh,I hopelike hell that, you know,they’re telling me the truth and I’m sure they are so li go ahead and go on with whatI had said earlier andtell you whatI got here. (People’s Trial Exhibit 9C, at 3-4). Finally, and most dramatically, the trial court’s ruling runs in the face of the compulsion applied to Appellant through the officers’ threats against his wife, and ultimately, his family. Appellant had been told that 97 Vicky would be charged with accessory to murder and/or fraud charges. (RT 220-21). When Appellant invoked his rightto silence, his wife Vicky was used to scare Appellantinto believing that if he did not confess to knowledge about the crime he would notbe able to protect his wife from goingto jail. Thetrial court’s ruling fails to account for the extremely coercive nature of punitive threats against family members. A reasonable person here would have understood that if he did not cooperate with law enforcement he would remain in jail, and his spouse, would be criminally charged and taken tojail. Contrary to the trial court’s rulings, substantial evidence supportsthe fact that Appellant was coerced into making involuntary and incriminating statements on March 27 and March 30, 1987. Law enforcement and prosecutorial officials used false promises of leniency and leverage gained through threats of criminal charges against Appellant and his wife in order to get their suspect to waivehis constitutional rights and incriminate himself. Here, the reliability of Appellant’s statements about the crimes, andofthe court orders admitting those statements, are suspect; especially given direct and glaring contradictions between the statements and the physical evidence at the Olsson homicide . (See Claim VI- Insufficient Evidence Supports Appellant’s Convictions of Capital Murder, The Burglary-Murder Special Circumstance, or His Conviction for Assault With Intent to Commit Rape). Thetrial court’s decision lack’s substantial evidence andstandsas a violation of Appellant’s constitutional rights. G. The Trial Court’s Ruling was not Harmless Error. Respondenthasfailed to establish that the trial court’s error in admitting Appellant’s prejudicial and incriminating statements was harmless beyond a reasonable doubt. Under Chapman, supra, 386 U.S.at 24, the trial court’s errors in admitting the statements from March 27 and 98 March 30, 1987 prejudiced Appellant’s ability to receive a fair trial and introduced prejudicial and unreliable evidence indicating Appellant’s presenceat the crime scene. Asthe state conceded, the statements were the only evidence available to prove the intent-to-rape element of the burglary- murder, the burglary-murder special circumstances and the separate charge of assault with intent to rape charge. (RT 3069-70). Respondent wrongly concludesthat “[s]imply put, the fingerprint evidence on the murder weapon overwhelmingly established that appellant burglarized victim Olsson’s home,and stabbed her to death.” (RB 138). First, the fingerprint evidence was gained in violation of Appellant’s rights under the Fourth Amendmentand thus should have properly been excluded. Nevertheless, Respondent must concede,that the fingerprint evidence would be insufficient for a conviction in itself. (See People v. Jenkins (1979) 91 Cal.App.3d 579, 586-88). The admission of the incriminating statements was thus anything but harmlessand,instead, violated Appellant’s rights under the Fifth, Sixth, and Fourteenth Amendments,as well as, Article I of the California Constitution. As a result, Appellant’s conviction and death sentence must be reversed. Additionally, the prosecution used Appellant’s statements in ways that thwarted the interests ofjustice and made the admission of the involuntary statements more than harmless. Throughoutthe guilt and penalty phases, the prosecution argued the case throughthe filter of Appellant’s statements. Indeed, there is no wayto separate the prosecution theory of the case from those statements because the prosecutor strenuously argued that Appellant was both a murderer anda liar, and essentially sought conviction on these grounds. Asa result, the prosecutor treated Appellant’s statements, which the prosecution had fought to get admitted, as though they wereactually Appellant’s testimony under oath. (See Claim IX — The Prosecutor 99 Committed Misconduct During the Guilt Phase Closing Arguments) The prosecutor told the jury when considering the veracity of Mr. Tully’s post- arrest statements, it should consider “his demeanor whiletestifying, and the “existence of nonexistence offacttestified to by him.” (RT 3194)). The prosecutor then proceededto attack the veracity of the statements, as though the defense had proffered those statements, or as if Appellant had testified in court. This was brought homebythe prosecutor’s closing argument, which waslaced with references to Appellant’s statements and attacks on Appellant’s veracity. The prosecutor called Appellant “a sucker,” and referred to his statementsas“lies”or “figments”or“stories,” again and again. (Claim IX - Prosecutorial Misconduct at Closing Argument). By doingso, the prosecutor made the statements a crucial piece of the state’s theory of the case and the erroneous admissionofthe statements more than harmless. H. Conclusion. Mr. Tully’s March 27 and March 30 statements were involuntary and wereobtainedin violation of the Fifth and Fourteenth Amendments and Article I, sections 7 and 24 of the California Constitution. The use of these improper and unreliable statements by the prosecution to secure a conviction and death sentence in this capital case violated the Eighth Amendment and Article I sections 13, 17, and 24 of the California Constitution. Given the importance of the statements to the prosecution case, the erroneous admissionofthe statements — individually and collectively — prejudiced Appellant and cannot be deemed harmless beyond a reasonable doubt. Appellant’s convictions and sentence must therefore be reversed. 100 IV. THE TRIAL COURT ERRED BY IMPROPERLY DISMISSING FOR CAUSE CAPITAL JURORS QUALIFIED TO SIT ON APPELLANT’S JURY. A. Introduction. In the last four years, this Court has issued opinionsin thirty-five (35) capital cases involving claims premised on the erroneous dismissal or retention of a juror.’ Duringthis four year span, this Court affirmed the * See People v. Mills (2010) 48 Cal.4th 158 (upholding the refusal to dismiss three jurors for cause based on defendant’s motion); People v. Butler (2009) 46 Cal.4th 847 (upholdingthetrial court’s refusal to dismiss three jurors for cause based on defendant’s motion); People v. Martinez (2009) 47 Cal.4th 399 (upholding the trial court’s dismissal of two jurors for cause based on the prosecutions motion, and refusal to excuse three jurors for cause based on the defendant's motion); People v. McWhorter (2009) 47 Cal.4th 318, (upholding the dismissal of two jurors for cause based on the prosecution’s motion); (2009) 47 Cal.4th 1 (upholding the dismissal of nine jurors for cause based on the prosecution's motion); People v. Bramit (2009) 46 Cal.4th 1221 (upholding the dismissal of one juror for cause based on the prosecution's motion); People v. Farley (2009) 46 Cal.4th 1053 (upholding the dismissal of seven jurors for cause based on the prosecution's motion); Hawthorne, supra, 46 Cal.4th at 67 (upholding the dismissal of two jurors for cause based on the prosecution's motion); People v. Hamilton (2009) 45 Cal.4th 863 (upholding the dismissal of seven jurors for cause based on the prosecution's motion); People v. Bunyard(2009) 45 Cal.4th 836 (upholding the dismissal of one juror for cause based on the prosecution's motion); DePriest, supra, 42 Cal.4th 1 (upholding the dismissal of five jurors for cause based on the prosecution's motion); People v. Hoyos (2007) 41 Cal.4th 872 (upholding the refusal to excuse five jurors based on the defense's motion and the dismissal of two jurors based on the prosecution's motion); People v. Thornton (2007) 41 Cal.4th 391 (upholding the dismissal of four jurors for cause based on the prosecutions motion); People v. Abilez (2007) 41 Cal.4th 472 (upholding the excusal of one juror for cause based on the prosecution’s motion); People v. Bonilla (2007) 41 Cal.4th 313 (upholdingthe trial court’s refusal to strike two jurors based on the defendant's motion); People v. Carey (2007) 41 Cal.4th 109 (upholding the dismissal of one juror for cause based on the prosecution’s motion); People v. Lancaster (2007) 41 Cal.4th 50 (upholding the dismissal of two jurors for cause based on the prosecution’s motion); People v. Beames (2007) 40 Cal.4th 907 (upholding 101 dismissal of ninety-four (94) jurors over defense objections and based on prosecutorial motions. Similarly, during the samespan,this Court affirmed trial court determinations not to dismiss forty-one (41) jurors based on the defense’s motion. Needless to say, these statistics reveal that the Witt- Witherspoonstandard is being disparately applied between prosecutorial and defense challenges for cause. Similarly, these statistics may reveal the dismissal of six jurors for cause based on the prosecution’s motion); People v. Carasi (2008) 44 Cal.4th 1263 (upholding the dismissal of two jurors based on the prosecution’s motion); People v. Wallace (2008) 44 Cal.4th 1032 (upholding the trial court’s refusal to excuse seven jurors based on the defense's motion); People v. Wilson (2008) 44 Cal.4th 758 (upholding the dismissal of three jurors for cause based on the prosecution’s motion); People v. Cruz (2008) 44 Cal.4th 636 (upholding the trial court’s refusal to excuse eleven jurors, based on the defendant's motion, and excusal of two jurors based on the prosecution's motion), People v. Riggs (2008) 44 Cal.4th 248 (upholding the trial court’s dismissal of two jurors for cause, based onthe prosecution's motion, andrefusal to excuse one juror based on the defense's motion); People v. Salcido (2008) 44 Cal.4th 93 (upholding the dismissal of two jurors for cause based on the prosecution’s motion); People v. Whisenhunt, (2008) 44 Cal.4th 174 (upholding the refusal to excuse three jurors based on the defendant's motion); People v. Harris (2008) 43 Cal.4th 1269 (upholding the trial court’s refusal to excuse a juror on the defense’s motion); Richardson, supra, 43 Cal.4th 959 (upholding the trial court’s excusalof eight jurors for cause, based on the prosecution's motion, and refusal to excuse one juror for cause based on the defendant's motion); People v. Lewis (2008) 43 Cal.4th 415 (upholding the trial court’s dismissal of twojurors for cause, based on the prosecution’s motion, and refusal to excuse onejuror for cause based on the defendant’s motion); People v. Zamudio (2008) 43 Cal.4th 327 (upholding the dismissal of one juror based onthe prosecution’s motion); Tate, supra, 49 Cal.4th 635 (upholding the dismissal of seven jurors based onthe prosecution’s motion); Lomax, supra, 49 Cal.4th 530 (upholding the exclusion of two jurors basedon the prosecution’s motion); Solomon, supra, 49 Cal.4th at 792 (upholding the dismissal offive jurors based on the prosecution’s motion); People v. Cowan (2010) 50 Cal.4th 401 (upholdingthe dismissal of two prospective jurors based onthe prosecution’s motion); and People v. Lynch (2010) — Cal.Rptr.3d — (upholding the dismissal of four prospective jurors based ontheir views about the death penalty and over defense objections). 102 that, as a matter of course, this Court denies claims premised on the erroneous excusal ofjurors, as assuredly, in four years time and cases involving the excusal of eighty-eight (88) jurors, at least one of these dismissals would be found to be erroneous. Yet no such finding of an erroneous dismissal has been made bythis Court. This response has earned at least one recent dissent questioning the individual excusal ofjurors for cause and the courseofthis Court’s death qualification jurisprudence. (See People v. Martinez (2009) 47 Cal.4th 399, 457-67 (concurring and dissenting opn. of Moreno,J)). B. Respondent Does Not Defend the Trial Court’s Systemic Errors during Jury Selection in Appellant’s Case. The prosecution challenged five jurors for cause based on their viewson the death penalty. None of the jurors had viewsorbeliefs against capital punishment that would have prevented or impaired their ability to serve as a Capital juror. Each expressed that they would be able to set aside any beliefs that might impede their ability to follow the trial court’s instructions. Each said they could abide by their oath. Thetrial court improperly granted the prosecution’s challenges for cause; thus violating Appellant’s rights to a fair and impartial jury, due process, and to a fair and reliable penalty determination under the Sixth, Eighth, and Fourteenth Amendments and Article I of the California Constitution. Thetrial court’s erroneous decisions resulted in a miscarriage ofjustice and Appellant’s convictions and death sentence must be reversed. Respondent did not address Appellant’s arguments that the jury selection system violated his rights under the United States and California Constitutions. Instead, Respondent discusses the excusal of individual jurors, (See RB 140, 149, 150, 153, and 156 ), and arguesthatthetrial court’s jury selection system was valid based on three very long string quotes, each citing Wainwright v. Witt (1985) 469 U.S. 412, 424. (See RB 103 139-40). Respondent omits any discussion of the unconstitutional jury selection system that leads to the improper removal of the five jurors, and fails to address the six arguments raised by Appellant in his Opening Brief regarding the jury selection system, admonitions, questions, and legal errors committed by the trial court.*? (Compare I AOB 103-133; with RB 139- 40). Thus, Respondentrests its defense of the trial court’s jury selection system without everactually addressing the flawed system. In truth, it was the trial court’s jury selection protocols, admonitions, and questions that led to the systematic exclusion ofthe five jurors, and others, as raised in the Opening Brief. (I AOB 133, 139, 144, 152, and 157). C. The Trial Court Improperly Dismissed Five Jurors for Cause. 1. The Trial Court Improperly Dismissed M.D. Respondentarguesthatthe trial court’s dismissal of M.D. was “fairly supported by the record.” (RB 143). In his Opening Brief, Appellant raised five argumentsto the trial court’s dismissal of M.D. *° Respondentdid not address the following arguments: 1) Thetrial court failed to limit the prosecution’s challenges for cause and “granted prosecution challenges for cause without substantial evidence to support the challenge.” (See I AOB 108-11); 2) No juror expressed views about capital punishmentthat could prevent or substantially impair their ability to perform their duties as jurors and “their dismissal was improper understate and federal constitutional law.” (See I AOB 111-16); 3) Thetrial court erred by particularly describing Appellant’s case, and then “improperly dismiss[ing] jurors based on their attitudes regarding the particular facts of this case.” (See I AOB 116-123); 4) Thetrial court’s limited description of the crime led to the improper dismissal of many jurors. (See I AOB 124- 27); 5) Thetrial court’s dismissal ofjurors based on their response to particular and case specific facts led to the improperdismissal of many . jurors without the court having evaluated their ability, in the abstract, to impose a death sentence. (See I AOB 127-30); and 6) Thetrial court failed to fulfill its responsibilities and follow constitutional protocols for selecting ajury. (See I AOB 130-33). 104 Respondent respondsto three of the arguments raised by Appellant and fails to address Appellant’s allegationsthat the trial court improperly excused M.D: 1) despite his non-existent views on the death penalty; 2) despite the fact that he requested to hear more facts before making up his mind; and 3) M.D. should not have been excused because, he never “indicate[d] any philosophical, moral, or religious opposition to the death penalty....” (I AOB 135). Respondent says that M.D. possessed “ambivalent views.” (RB 143). This argument does not rebut Appellant’s claim that M.D.’s lack of views on the death penalty ensuredhis ability to follow the law, nor does it defeat Appellant’s showing that “[M.D.] said that he could reach a death verdict under certain circumstances.” (I AOB 134 (citing RT 785-87)). Respondentdoes not address Appellant’s argumentthatthetrial court improperly dismissed M.D.after stating he would need to hear more evidence before deciding if he could vote for death. (RT 793). Respondent | does not counter that M.D. “demonstrated his ability and willingness ‘to follow the court’s instructions and obey[his] oaths.’” (I AOB 138 (citing Adamsv. Texas (1980) 448 U.S.38, 50)). Respondent does not counter the fact that the trial court and prosecutor failed to show that M.D. would . “invariably vote [ ] against the death penalty...” or “harborbias...that would cause him notto follow an instruction directing him to determine the penalty...” (I AOB 138 (citing People v. Kirkpatrick (1994) 7 Cal.4" 988, 1005; and People v. Cash (2002) 28 Cal.4th 703, 720-21)). Ultimately, Respondenthasfailed to rebut Appellant’s showing that, as a result of the trial court’s failure to properly examine M.D.’s viewsand biases towards the death penalty, Appellant’s federal and state constitutional rights have beenviolated. 105 a. Substantial Evidence Doesn’t Support the Trial Court’s Determination that Juror M.D.’s Views on Capital Punishment Would Have Prevented or Substantially Impaired his Ability to Perform as a Juror in Appellant’s Capital Case. Respondenttries to defendthetrial court’s decision to dismiss M.D. based on his exhibited “discomfort about the death penalty,” and because “M.D.stated that he could be swayed by ‘something,” [but] he did not know whatthat might be.” (RB 143). Based on these scantpoints, Respondent concludesthat “M.D.’s views on the death penalty would preventor substantially impair his duty to return averdict of death in the case before him.” (RB 144). This line of reasoning is an unpersuasive justification for M.D.’s excusal for cause becauseit fails to provide substantial evidence in support ofthe trial court’s erroneous decision. It is just a conclusion, nothing more. M.D.never exhibited bias against the death penalty. Early on, M.D. described himself as “tend[ing] against the death penalty, but that doesn’t meanI would definitely vote against the death penalty.” (RT 785). M.D. never said anythingto indicate that his normative or moral views would impede him from weighing the aggravating and mitigating circumstances, or abide by existing law which madehis challenge for cause unsuitable. (See Bolden v. Holman (1969) 394 U.S. 478, 484). Instead, M.D. answered all the trial court’s questionsin the affirmative and stated, without equivocation, that he could follow the court’s instructions. (RT 785-87). This affirmation is all that is required to serve on a capital jury and the trial court’s ruling to the contrary is not supported by substantial evidence. Respondent’s brief arguments and conclusory reasoning do nothing to provethat there is substantial evidence in support ofthetrial court’s determination. 106 b. The Court Impermissibly Dismissed M.D. Basedon his Evaluation of the Facts of the Case and nothis Ability to Impose the Death Penalty. Respondent concedes that during M.D.’s voir dire thetrial court questioned the juror about his views on the death penalty based upon a set of facts “hypothetically” taken from the circumstances of Appellant’s case. (RB 140). The trial court had M.D. imaginethat he had convicted Appellant of burglarizing, assaulting with intent to rape, and “intentionally kill[ing] by way of multiple stab wounds,” (M.D.wastold that it was 25 stab wounds) “a woman by the nameof Shirley Olsson.” (/bid.). This line of questioning runs contrary to this Court’s holdings and violated Appellant’s constitutional rights. Respondenttries to justify the trial court’s “case specific hypothetical” by analogizing to Pinholster, supra, 1 Cal.4th at 918. Respondentarguesthat “the voir dire questions focused on examining M.D.’s views on the applicable legal doctrines and the death penalty in the abstract.” (RB 145). Respondentarguesthat, “[a]s in Pinholster, the questions regarding the facts in the case led to the crucial question of whether M.D. could vote for the death penalty in any burglary-murder case...where one person waskilled during a burglary ‘gone awry.’” (RB 145 (citing RT 790-91)). Respondent does not explain the fact that the jurors in Pinholster were asked abouttheir attitudes “toward a case phrased in terms ofthe facts of this case, but the answerto these questions led to the ultimate and crucial question whetherthe juror could vote for the death penalty in any burglary- murdercase.” (Pinholster, supra, | Cal.4th at 918). Here, in contrast, the jurors were told about facts in Appellant’s case and askedifthey could vote for the death penalty in Appellant’s case. The prosecutor andtrial court 107 inducedthe jurors into prejudging the case. It is little wonderthen that Respondentdoes not mention that, in Pinholster, this Court recognizedthat: [clertainly, we have cautioned that the trial court may limit voir dire couched in terms of the facts expected to be proved, in order to avoid the danger of indoctrinating the jury on a particular view of the facts. We have also commented that the death-qualifying voir dire shouldfocus on jurorattitudes toward the death penalty in the abstract, and should not be used to seek a prejudgmentofthefacts to be presented at the trial. (Pinholster, supra, | Cal.4th at 915 (emphasis added)(citations omitted)). Respondent’s argument- that M.D.’s views on the death penalty in the abstract were explored bythetrial court and prosecutor’s questions- is not based on substantial evidence in the record. M.D. wasprimarily questioned onfacts specific to Appellant’s case. (RT 790-91). In response to the prosecutor’s brief questions about the death penalty in the abstract, M.D.stated he was “moderately”in favor of the use of the punishment and though, “I would tend against the death penalty...that doesn’t mean J would definitely vote against the death penalty.” (J AOB 134 (citing RT 785)). M.D.did not state that he could never impose the death penalty, in the abstract, or in a case involving a burglary-murder special circumstance. The bulk of the prosecutor and court’s voir dire focused on the hypothetical set of facts that mirrored Appellant’s case. (RT 789-94). In response to these questions, M.D. repeatedly stated that he could not decide how he would vote based on the hypothetical homicide described thus far and asked for more information. (Jd. at 793). However, “based only on the information [he had] gotten today”(/d. at 792), M.D. stated he could not impose the death penalty in the hypothetical “burglary gone awry...and [where] a single person [was] killed” proposed by the trial court and prosecutor. (Id. at 793). The prosecutor’s case specific focus during voir dire in this case is distinguishable from the examination at question in 108 Pinholster. The prosecutor’s focus here, in asking case-specific questions, wasnot to evaluate M.D.’s viewsin the abstract. Instead, he was attempting to indoctrinate the otherwise qualified juror and to get M.D. to prejudge the facts to be presentedat the trial in violation ofPeople v. Clark (1990) 50 Cal.3d 597. Worse, manyofthe facts told to M.D. would not resemble the full picture, known by and, later presented by the prosecutorat trial in violation ofPeople v. Mason (1991) 52 Cal.3d 909, 940. Thetrial court and prosecutor should have provided more information to the juror- consistent with what was presentedattrial - or simply evaluated, onits face, M.D.’s view onthe death penalty in the abstract. Respondentoffers no evidence in support of its argument that M.D. could not “vote for the death penalty in any burglary-murdercase.” (RB 145). c. The Trial Court Unequally Applied the Witt Standard Between Jurors M.D. and Alternate Juror D.R. Alternate juror D.R. and dismissed prospective juror M.D. were virtually identical in the strength of their views, although on different sides of the equation. Since D.R. qualified under Witt, the trial court was also required to find M.D. equally qualified. (See I AOB 162). Respondent’s arguments do not establish substantial evidence that the trial court treated jurors, challenges for cause, or the parties in an equal manner. Respondent argues that D.R.’s “remarks [show] that he would be able to put aside his personal views anddeliberate fairly under the death penalty law.” (RB 148). Respondent argues that D.R. “continued to assert that he was open to listening to mitigation evidence.” (/bid.). Respondent attempts to back these conclusions with cites to the record that characterize D.R. as holding “strong [] personal beliefs in favor of the death penalty, and that people should be accountable for their acts.” (/bid.). However, Respondent must, and indeed does, concedethatthetrial 109 court did not give M.D.specific examples of aggravating and mitigating examples, like it did with D.R. (RB 148). Respondent arguesthat “M.D.’s answers did not warrant the court explaining things and questioning him in further detail....” (Ibid.). Respondent’s curt response does not change the fact that an unequal amountof hypothetical information was given to each juror. (See I AOB at 163). Respondentfails to defeat Appellant’s argument that D.R. and M.D.gave “very similar responses to the questions put to them,”or that “both men demonstrated a willingness to remain open.” (I AOB 166). Respondentthus fails to explain why only M.D. was dismissed for cause and its arguments do nothing to redress the disparate treatment the Court exercised between individual jurors, as well as, between the prosecution and the defense. During the last four years, this Court has been confronted by claims premised onthe violation of the Fourteenth Amendment’s equal protection clause bythe trial court’s disparate treatment ofjurors in two cases. (See Mills, supra, 48 Cal.4th 158; and Thornton, supra, 41 Cal.4th 391).*° In Mills, the defendant alleged that“the trial court committed judicial misconduct by conducting its inquiries of prospective jurors in a disparate mannerthat betrayed a pro-death-penalty bias.” (/d. at 187). This Court denied the claim because “[t]he exact nature of defendant's claim is unclear” and “because nothing in the record suggeststhetrial court lacked 36 In Thornton, the defendantalleged that“the trial court focused on whether the death penalty adherents were committed to following his instructions regarding aggravating and mitigating evidence and did not examinecritically whether they could be fair on the issue of sentence, whereas with death penalty skeptics, the court did the reverse, not concerningitself with whether prospective jurors would commit to followingits instructions, but examining critically whether they could be fair to the People.” (Thornton, supra, 41 Cal4th at 419). This is not Appellant’s contention. Instead, Appellant alleges that his trial court failed to equally apply the Witt-Witherspoon standard in challenges brought by the defense and prosecution respectively. (See I AOB 162). 110 impartiality when it conducted voir dire, the court did not commit misconduct.” (/d. at 190). In contrast to Mills, Appellant’s claim of disparate treatment between jurors is premised on the Fourteenth Amendment’s guarantee of equal protection, not the violation ofjudicial ethical canons. Similarly, Appellant’s claim is supported by the record which amply demonstrates that “[a]lternate juror da Roza and dismissed prospective juror [M.D.] were virtually identical in the strength of their views, although on different sides of the equation,” and that since D.R. qualified under Witt, the trial court was also required to find M.D. equally qualified. (I AOB 165). 2. The Trial Court Improperly Dismissed Juror E.H. In his Opening Brief, Appellant explained whythetrial court’s determination to excuse E.H. was wrong. E.H.entertained no conscientious objections or views against the death penalty and stated without equivocation that she could follow the trial court’s instructions. (I AOB141(citing RT 1287-90)). E.H. never indicated an abstract inability to vote for a death sentence in any felony-murderor burglary-murdercase. E.H.’s responseto the trial court’s truncated and misleading description of the crime did not provide sufficient justification for her removal. (I AOB 142). Herein, Appellant demonstrates why Respondent’s equally brief arguments in support ofthe trial court’s determination do nothing to address the constitutional claims raised by Appellant in response to E.H.’s erroneous dismissal or support the trial court’s determination with substantial evidence. Respondent premises the state’s arguments on the point that E.H. “believed that the death penalty should only be imposed for crimeslike mass murder... [and this] view precluded her from following the court’s instructions.” (RB 150). These arguments both misstate the record andfail 111 to address Appellant’s arguments in his Opening Brief. First, EH. never indicated that she could only impose the death penalty in a case involving mass murders. Instead, she said that an example of a crime warranting death would be a case “involving a ‘mass murderer.’” (See RB 149). She was neveraskedif she could vote for a death sentence in the type of case that would be portrayed by the prosecution during Appellant’s penalty phase. In fact, Respondent concedes that E.H. was fully capable of following the law and was“open to the possibility of imposingthe[ ] death penalty orlife in prison without possibility of [release].” ([bid.). In the face of the prosecution’s truncated description ofthe crime, E.H. ultimately answered “right” to the court’s question “this is not the type of case in which youfeel that the death penalty might be an appropriate penalty, is that right?” (RT 1292-93). Had E.H.actually been exposed to the “type of case” that the prosecution would present, her answer would have undoubtedly been different. E.H. was never asked, and never indicated, if she would “invariably votefor life.” If so, her prior answers indicate that she would have answeredin the negative and Respondent concedes as much. (RB 149). E.H. was mislead as to the nature of the prosecution’s case and was ultimately excluded without substantial evidence indicating that her views on the death penalty would impede her from fairly and impartially following an instruction directing her to determine the penalty after considering aggravating and mitigating evidence. She was never told what type of penalty phase evidence would be presented; thus, Respondentis wrong to conclude that “her statements validate the trial court’s decision to removeher for cause.” (RB 150). 112 3. The Trial Court Improperly Dismissed Juror M.K. (M.K). a. RespondentFails to Address Prosecutorial Misconduct Committed during M.K.’s Examination. In his Opening Brief, Appellant argued that thetrial court’s dismissal of Juror M.K. was erroneous for seven separate reasons. These grounds included several objections to improper prosecutorial questions asked during her voir dire. (I AOB 146-52 (citing RT 521-22)). Appellant also showedthat there was not substantial evidence to support thetrial court’s determination that M.K. could not make an impartial decision as to Appellant’s guilt and sentence. Respondent musters a response to only one of Appellant’s arguments; though notably,it is that the trial court’s determination is substantially supported by the record. (RB 152). However, in neglecting the six other arguments, Respondent exposesthe indefensible conduct committed by the prosecutor during Juror M.K.’s examination.°” °7 Respondenthasnotrespondedto these six arguments: 1) Thetrial court’s decision to dismiss M.K. was based on her response to improper prosecutorial questions that misstated the law as to her duty to be a jury foreman. (See I AOB 147); 2) Thetrial court’s determination to dismiss M.K. was based on her response to improper prosecutorial questions concerning the execution of a death sentence that were irrelevant and inadmissible as a matter of law. (See Jd.at 148); 3) The trial court’s determination to dismiss M.K. was based on her response to improper prosecutorial questions that misstated the “Judgment of Death.” (See /d. at 148-49); 4) The trial court’s determination wasnot based on M.K.’s viewsof the death penalty in the abstract. (See /d. at 149); 5) Thetrial court’s determination to dismiss M.K. was impermissibly based on herreaction to prejudicial descriptions of the gas chamberby the prosecutor. (See Jd. at 150); and 6) Thetrial court’s determination was based on M.K.’sreaction to prejudicial prosecutorial questions that misstated the use of the gas chamberin California at the time. (See Jd. at 151). 113 b. Substantial Evidence Doesn’t Support the Trial Court’s Determination that Juror M.K.’s Views on Capital Punishment Would Have Prevented or Substantially Impaired his Ability to Perform as a Jurorin Appellant’s Capital Case. Respondent concedesthat prior to being questioned about the “gas chamber” and methods of execution, M.K.stated that she was “lean[ing] toward the death penalty,” and did not have conscientious objections against the death penalty. (RB 151 (citing RT 513)). To createits argument, Respondent picks quotes by Juror MLK.that tend to indicate that she didn’t think that “she could [ ] impose the death penalty.” (RB 152 (citing RT 523)). Understandably, M.K. made these commentsafter being scared by the prosecutor who had argued that“the death of that man over there with glasses,” will be by “put[ting him] into that gas chamber, strapped into that chair and forced to breath poisonousgas until he[‘s] dead.” (RT 521-522). Respondent characterizes these questionsas, “walk[ing] M.K. through the penalty phase...” (RB 152). Nothing could be farther from the legal and factual truth. Respondenttries to justify the trial court’s determination because, “It]o repeat, [M.K.] stated that it would not‘be an easy thing to do’ to vote for the death penalty in this case.”” (RB 152-53). However, Respondent’s argument doesnot prove M.K.’s biasor partiality. This is especially true given the context, created by the prejudicial prosecutorial questionsthat surrounded M.K.’s answers. Even within that context, M.K. indicated that imposing a death sentence “would not be an easy thing to do,” which hardly provesthat she was incapableof followingthe court’s instructions. Here, M.K.wasfully qualified to serve as a juror because she had demonstrated that she would have a hard time imposing a death sentence on a “real person,” but wouldconsiderall the evidence fairly, impartially and in 114 accordance with the court’s instructions. (See Adams, supra, 448 U.S.at 50). Respondent’s citations to People v. Roldan are unpersuasive. (RB 153 (citing Roldan (2005) 35 Cal.4th 646, 697)). In Roldan, this Court noted that the phrase “hard time” does not consist of “magic words.” (Ibid.). Moreover, this Court was not addressing prosecutorial questions that misstated facts and law and constituted misconduct. Similarly, in Roldan this Court cited to Pinholster, it was not considering a case,as here, where the prosecutor soughtto indoctrinate the juror. (See Pinholster, supra, | Cal.4th at 918). Also in Roldan, this Court was not considering a situation where,as here, a prosecutor sought to use voir dire to obtain a prejudgmentofthe facts to be presentedat the trial. Additionally, in Appellant’s case, the prosecutor sought to inflamejuror passions by using voir dire to describe in gory detail the method of Appellant’s execution, as if the prospective juror herself were to be doing the executing. Thetactic allowed the prosecutor to identify and expel jurors with scruples who understandably reacted to his classless techniques. Respondent concedes that M.K. admitted that, after hearing the court’s hypothetical (including the description of 25 stab wounds), she could be open minded during the penalty phase though she was leaning towardsthe death penalty. (RB 151). The prosecutor then askeda series of inflammatory and irrelevant questions detailing the methods used to execute an individual, and the pain experienced bythat individual. (RT 521-522). Respondent also admits that it was only after these prejudicial questions that M.K.said, “I don’t think I could” impose the death penalty. (RB 152 (citing RT 523)). Here, but for this prosecutorial misconduct, M.K. would have been deemed a qualified juror and likely sat on Appellant’s trial. Moreover, but for M.K.’s reactions to prosecutorial misconduct, substantial evidence of her impartiality or bias does not exist to 115 justify the trial court’s decision. 4. The Trial Court Improperly Dismissed Juror B.D. a. RespondentFails To Address All Claims Raised By Appellant In His OpeningBrief. In his Opening Brief, Appellant raised three arguments regarding the insubstantiality or lack of the evidence that supports the trial court’s determination to dismiss Juror B.D. In rebuttal, Respondentoffers little or no argumentin support ofthe trial court’s determination, but, insteadrelies uponthe state’s characterization of the record. Respondent does not provide substantial evidence of B.D.’s partiality and does not provide persuasive argumentsto counter the argumentsraised in Appellant’s Opening Brief. Appellant challenged the trial court’s dismissal of B.D. on the basis that: 1) the trial court’s decision was not supported by substantial evidence of B.D.’s inability to be impartial 2) B.D. was dismissed based on her reaction to a series of prejudicial questions by the prosecution which again focused on the gas chamber and3) thetrial court erred byfailing to ask a follow up question to an ambiguous answer by B.D. (See J AOB 154-56). In opposition, Respondent addresses oneof these arguments, and fails to provide substantial evidencein support ofthe trial court’s ruling. Herein, Appellant demonstrates that no evidence of B.D.’s inability to be impartial exists and that the trial court erred, in violation of Appellant’s constitutional rights, by dismissing B.D. 116 b. Substantial Evidence Doesn’t Support the Trial Court’s Determination that Juror B.D.’s Views on Capital Punishment Would Have Substantially Impaired her Ability to Perform as a Juror in Appellant’s Capital Case. Respondent concedesthat B.D. admitted that she would have an open mind after convicting Appellant and entering the penalty phase, and that she would seriously consider the options of death and life without the possibility of parole. (RB 153 (citing RT 636-57)). Respondentalso concedesthat B.D. admitted only a “20% doubt”in her ability to impose a death sentence. (RB 154). Respondent further admits that B.D. stated that the “death penalty is appropriate in certain cases - althoughit is heartbreaking.” (RB 153). However, Respondent, fails to address misconduct committed when the prosecutor questioned B.D. about the gas chamber, which by then was no longer operative, and which madethe prospective juror feel “shaky.” (See I AOB 153 (citing RT 647)). Respondent does not defendthetrial court’s error in failing to ask a follow up question to B.D. when she answered “no” to the court’s question: “Is the death verdict a verdict you couldn ’t return in this case.” (/d. at 650-51). Likewise, Respondent does not argue against the fact that the double negative in this colloquy equates to a positive answer by B.D.that she could return a death verdict in this case. Here, the Court had a duty, whichit failed to fulfill, to clarify B.D.’s answerto the court’s own confusing question. Instead, the trial court dismissed B.D. because she had “given arguably inconsistent or equivocal answers at some point.” (RT 651-52). The trial court’s reasoning exhibits an indefensible deviation from the standard for evaluating juror capital eligibility under Witt and Witherspoon. A juror whostates that they would 117 have a hard time imposing a “death sentence”on real person, but could considerall the evidence fairly, impartially, and in accordance with the court’s instructions, is qualified to serve on a capital jury under Witt. (See Adams, supra, 448 U.S. at 50). Respondentfails to understandthat the Constitution does not permit: the exclusion of jurors...if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would bein the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or sheis entitled underthe law. (Adams, supra, 448 U.S.at 50). Respondent doesnot offer evidence that B.D. ever stated she could not impartially serve on Appellant’s jury or could not impartially adjudicate a death sentence. Moreover, thetrial court’s determination is not supported by substantial evidence of B.D.’s inability to be impartial. As a result, Appellant’s state and constitutional rights were violated by B.D.’s improper dismissal. 5. The Trial Court Improperly Dismissed Juror T.L. a. Respondent Fails to Address All of Appellant’s Arguments and Several Incidents of Trial Court Error. In his Opening Brief, Appellant challenged the trial court’s dismissal of T.L. on five separate grounds. (See I AOB 157-59). In rebuttal, Respondentfails to counter each of the arguments raised by Appellant with the exception of Appellant’s challenge to the sufficiency of the evidence 118 supporting thetrial court’s determination.*® Herein, Appellant demonstrates how Respondent’s error underminestheir argumentthat “substantial evidence justif[ies] the trial court’s decision to excuse [T.L.] for cause.” (RB 157). Particularly significant is Respondent’s silence as to the procedural and substantive errors committed by the trial court during T.L.’s examination. Repeatedly,the trial court inappropriately silenced the juror, and failed to resolve ambiguous answers to confusing questions. (I AOB 157 (citing RT 1663-66)). In doing so,the trial court impeded the construction of a complete record of T.L.’s views on the death penalty in the abstract and as applied to Appellant’s case. (See People v. Heard (2003) 31 Cal.4th 946, 967 n.9). Respondent’s failure to address these reversible errors and the violation of Appellant’s constitutional rights underminesthe state’s claim that T.L. was properly excluded from Appellant’s capital jury. b. Substantial Evidence does not Support the Trial Court’s Determination that Juror T.L. Could Not Impartially Serve On Appellant’s Capital Jury. Respondent provides only one sentence regardingthetrial court’s determination to dismiss the juror T.L. “T.L.’s foregoing answersto the court during voir dire provide the substantial evidence justifying the trial court’s decision to excuse him for cause.” (RB 157). Instead of argument, *8 Respondentfails to counter the following four arguments: 1) Thetrial court failed to follow proper voir dire protocols as required by this Court in Heard, supra, 31 Cal.4th at 967 n.9 (See I AOB 158); 2) The trial court asked confusing questions that caused ambiguous answers (See Jd. at 149); 3) Thetrial court erred in failing to ask sufficient clarifying questions to clear up ambiguity surrounding T.L.’s final answers (See Jd. at 159); and 4) Thetrial court failed to ensure that a complete record was made to support the prosecution’s challenge for cause of T.L (See Jd. at 160). 119 Respondenthinges their position upon a mischaracterization of T.L.’s answers as indicating an significant degree of equivocation. Respondent also cites a lengthy quote taken from Roldan, supra, 35 Cal.4th at 697-98, in support of their view that T.L.’s equivocations provedhis bias. (See RB 158). Neither Respondent’s brief argumentnorthe state’s citation to Roldan persuasively justifies the trial court’s decision to dismiss T.L. Respondent concedes that T.L.’s philosophical views regarding the death penalty were neutral and that he admitted to being able to keep an open mindto all sentencing options during the penalty phase. (RB 156). However, Respondentclaims that T.L.’s equivocation justified his dismissal. Respondent cannotoffer any direct or express proof of T.L.’s partiality and must thus rely on his alleged equivocation. T.L. stated he would keep an open mind. (I AOB 157 (citing RT 163)). He stated his views on the death penalty varied on a “case by case basis.” (Jbid. (citing RT 157)). Respondent’s showing does nothing to prove T.L.’s partiality. This is especially true in light of the fact that Respondentagreesthat T.L. had already indicated support for the death penalty and an ability to follow directions. (RB 156 (See RT 164-66)). Likewise, Respondent’s citation to Roldan, supra, 35 Cal.4th at 697, does nothing to address Appellant’s arguments that the trial court failed to create a complete record of T.L.’s examination. In Roldan,the trial court repeatedly followed up onthe juror’s ambiguous responses. (Jd. at 698). This critical fact allowed this Court to thoroughly review the juror’s answers andassess the juror’s degree of equivocation. In Appellant’s case, based on the lack of record andthetrial court’s failure to follow up on ambiguous answers, Respondentis wrong to assert that T.L. was not qualified to serve on Appellant’s capital jury. In sum, Respondent has failed to show that substantial evidence supports the trial court’s ruling that T.L. could not impartially serve on Appellant’s jury. 120 D. Conclusion. The improper exclusion of even one prospective juror in violation of Witherspoon and Witt mandates an automatic reversal of Appellant’s death sentence. (See People v. Ashmus (1991) 54 Cal.3d 932, 962). Here, the trial court improperly dismissed five jurors without substantial evidence in support of its determinations. Thetrial court’s erroneous determinations do not deserve deferenceasthe trial court repeatedly violated this Court’s constitutional protocols for voir dire in capital cases, failed to correct prosecutorial misconduct, asked ambiguous questions, failed to ask clarifying questions, and failed to make an adequate record for review of the prosecutor challenges for cause. Instead, thetrial court read a boilerplate resolution as to the dismissal of each juror, which did not specifically correspond to the answers and demeanorofeach individual that it dismissed. For these reasons,the trial court’s decision to institute a prejudicial jury selection system and dismiss the five jurors discussed in this claim violated Appellant’s rights to a fair and impartial jury at both guilt and penalty phases as guaranteed by the Sixth, Eighth, and Fourteenth Amendments and Article I of the California Constitution. 121 V. THE TRIAL COURT IMPROPERLY DENIED THE DEFENSE MOTION TO EXCLUDE ALL WITNESSES FROM THE GUILT PHASE. A. Introduction. Prior to the guilt phase opening statements,the trial court denied a defense motion to exclude all witnesses from the courtroom. (RT 1938). The court denied the motion and allowed: 1) penalty phase witnesses to watch the entire proceedings; 2) guilt phase witnesses to watch the proceedingsaftertestifying; and 3) guilt and penalty phase witnesses to testify in the penalty phase to events and memories now distorted and manipulated by the prosecution’s guilt phase case in chief. As result, Ms.Olsson’s father, sister, daughter and son witnessed muchofthe guilt phase testimony.”” Thetrial court “exercised its discretion in an arbitrary, capricious or patently absurd mannerthatresulted in a manifest miscarriage ofjustice.” (People v. Jordan (1986) 42 Cal.3d 308, 316). The trial court abusedits discretion because its order: 1) was arbitrary and without reason; 2) did not cite the controlling law or governing standards for analyzing Appellant’s request; 3) allowed four members ofthe victim’s family member to watch guilt phase testimony and thentestify at the penalty phase; and 4) created a substantial risk of influencing or affecting the content of the witnesses’ penalty phase testimony. Thetrial court’s ruling deprived Appellant ofhis rights to due process under the Fourteenth Amendment, a fair trial and to confront witnesses under the Sixth Amendment,reliable sentencing under the Eighth Amendment, and corresponding parallel rights under Article I of the California Constitution and resulted in a miscarriage ofjustice. 3° The four witnesses were: 1) Ms. Olsson’s Father, Clifford Sandberg; 2) Ms. Olsson’s Sister, Jan Dietrich; 3) Ms. Olsson’s daughter, Sandra Walters; 4) Ms. Olsson’s Son, Elbert Walters. 122 B. RespondentFails to Addressall the Claims Raised by Appellant in His Opening Brief. In his Opening Brief, Appellant argued that the trial court’s denial of his motion to exclude all witnesses from the courtroom waserroneous for ten reasons. (I AOB 169-83). Appellant proffered evidence of prejudice resulting from the trial court’s order. Appellant also proposedthat this Court adopt a standard to evaluate the effects of that prejudice in accordance with the standard utilized by the majority of federal circuits and state courts. (I AOB 179). Respondent argues against four, or half, of the arguments raised by Appellant and fails to argue against the proposed standard for evaluating prejudice under former Evidence Codesection 1102.6.*° Respondentfails to discuss the lack of a legally justifiable rationale cited by the trial court to support the denial of Appellant’s motion. Respondentfails to address the trial court’s deviation from applicable law. Thestate’s failure to counterall of Appellant’s claims exposesthetrial court’s abuse of discretion and the resulting prejudice. Appellant’s motion to exclude witnesses was based on constitutional and statutory grounds, whichthetrial court did not address in denying the motion. Thetrial court failed to identify authorities or articulate any logical “° Respondent failed to address the following four arguments: 1) Thetrial court’s ruling violated Appellant’s rights to a fair and reliable sentencing determination as guaranteed under the Eighth Amendment. (I AOB 179); 2) The trial court issued a deficient ruling that failed to providearticulable legal rationale or cite controlling authorities. (/d. at 176); 3) The trial court committed reversible error by violating applicable standards and placing the burden on Appellant to anticipate testimonyandresulting prejudice on a “session by session basis.” (/d. at 177); and 4) Thetrial court committed reversible error becauseits denial of the motion was based on misleading information from the prosecutor. (Ibid.). 123 rationale for denying Appellant’s motion. In a capital case, where four testifying witnesses heardthe entire guilt phase proceedings,detailing the murderof their beloved daughter, sister and mother, the trial court’s erroneousruling violated Appellant’s constitutional rights to due process, a fair trial, to confront witnesses in his defense, and to have his sentencing proceedings conducted in a reliable manner as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments, as well as, Article I of the California Constitution.*! *! Respondent wrongly construesthe violations of Appellant’s Sixth, Eighth, and Fourteenth Amendments asresulting from thetrial court’s abuse of discretion. (See RB 162 n. 17). In truth, the constitutional amendments also compelled thetrial court to exclude the four witnesses in a capital case where distortion of the witnesses’ testimony posed a significant risk. Had the trial court correctly evaluated, not only the substantial risks posed by the witnesses’ presence, but also the effect of the witnesses’ presence on Appellant’s constitutional rights to a fair trial and impartial jury, it would not have issued its arbitrary and erroneous ruling. Asa result, the trial court’s ruling both violated Appellant’s rights and provedarbitrary in failing to consider constitutional standards that justified the exclusion of the witnesses during the capital proceedings. Respondentbelievesthat the latter arguments have been forfeited on appeal. However, Respondent’s citations to People v. Avila are misplaced. Under Avila, an appellate argumentis not forfeited if the new arguments do not invokefacts or legal standards different from those the trial court itself was asked to apply. (See Avila, supra, 38 Cal. 4th at 527 n.22). Thisis true so long as, the trial court’s act in admitting the evidence, insofar as it was wrong for the reasons actually presented to that court, had the additional /egal consequence of violating the federal Constitution. (/bid.). Here, in moving to exclude the witnesses, Appellant’s motion specifically included reference to his constitutional rights and the legal consequences ofthe trial court’s arbitrary ruling violated those constitutional rights. Thus, Appellant’s arguments have been preserved for review on appeal. 124 C. RespondentFails to Show that the Trial Court Didn’t Abuse Its Discretion When It Denied Appellant’s Motion to Exclude All Witnesses From the Trial Proceedings. Respondentargues that there was “nothing arbitrary or capricious in the trial court’s ruling...,” (RB 163) based on two assumptions. Respondent assumesthat“there was[ ] norisk of ‘tailored’ or less-than- candid testimony.” And, Respondent assumesthat it was “unlikely that [the witnesses] learned anything from sitting through the guilt phase that they did not already know.” (RB 163). In sum, Respondentfeels that at their “best, Appellant’s contrary arguments [ ] evince a reasonable disagreementwith thetrial court.” (RB 170). Respondentis wrong. Appellant more than “reasonably disagrees” with the violations of his constitutional rights. He raised ten arguments challengingthetrial court’s errors, and showedthat the trial court’s ruling was erroneous and not based on anyidentifiable rationale. (See I AOB 174). Thetrial court failed to cite applicable law in justification of its order. (Jbid.). Appellant has shownthat the ruling produced a substantiallikelihood of influencing the witnesses’ penalty phase testimony. (See I AOB 177). 1, RespondentFails to Rebut Proof that the state Prosecutor Misled the Trial Court into Denying Appellant’s Motion to Exclude All Witnesses. After filing the motion and prior to the prosecution’s opening statement, defense counsel argued for aper se exclusion of witnesses from the proceedings because it would be impossible to know whatfacts at the guilt phase would influence the witnesses’ testimony at the penalty phase. He also argued that their current presence in the audience, during the prosecution’s opening arguments, posed a substantial risk of influencing their testimony and prejudicing Appellant’s constitutional rights. (See RT 1937-38). In response, the court asked the prosecutor whether family 125 witnesses would testify to the circumstancesofthe crime. The prosecution incorrectly responded:“No.”(/d. at 1939). The Court then issuedits order denying the defense’s motion because it was “not going to issue an omnibusorderat this time.” (See Jd. at 1940). Respondentarguesthat the prosecutor’s reference to “‘circumstances of the crime’ in the witness exclusion discussion did not include victim impact evidence.” (RB 169). Totry to justify this idea, Respondent adds wordsto the record by arguingthat thetrial court was actually questioning about “circumstances of the commission of the crime.” (dd. at 170). Respondentthen arguesthat “[b]y answering ‘no,’ the prosecutor was actually and indirectly indicating that these penalty phase witnesses would nottestify about the facts of the crime, but would give ‘victim impact testimonyinstead.” (Ibid.). According to Respondent’s parsed definition of “circumstancesofthe crime,” the state’s negative response to the Court’s request wastruthful. (See /bid.). However,in reality, the prosecutorcalled four testifying witnesses who had witnessed the guilt proceedingstotestify to the circumstances of the crime evidence and victim impact evidence in the penalty proceedings. This purpose was constitutionally prohibited as the admission of victim impact evidence through “family members’ characterizations and opinions aboutthe crime, the defendant, and the appropriate sentence violate the Eighth Amendment.” (Payne v. Tennessee (1991) 501 U.S.808, 830 n. 2). In accepting the prosecution’s representations, the trial court allowed the witnesses to gain knowledge aboutthe circumstances of the crime since the prosecutor hadassured that such knowledge would be irrelevantto their ” Tn answering “no”to the Court’s question, the prosecutor misled the court as to the evidence and testimony it would introduce during the guilt and penalty phases. (See Claim VIII - The Trial Court’s Error and Prosecutorial Misconduct Resulted in the Improper Introduction of Victim Impact Evidenceat the Guilt Phase). 126 victim impact testimony. In reality, the witnesses’ detailed knowledge of the crime, gained in the courtroom, waslater exploited by the prosecutor who usedthe witnesses’ understandably emotional responsesto the proceedingsto violate evidentiary rules andthe trial court’s orders. (See Claim VIII —The Trial Court’s Error and Prosecutorial Misconduct Resulted in The Improper Introduction of Victim Impact Evidenceat the Guilt Phase). This opportunity was created bythetrial court’s arbitrary ruling, which allowed the family membersto testify in response to the state’s evidence and arguments that they had just witnessedin their entirety. Hadthe statements of the state prosecutor held true, the Court’s erroneous ruling would not have so prejudiced Appellant’s constitutional rights. Instead, the Court issued a deficient ruling, absent any legal standards, which wasultimately materially used to violate Appellant’s state and federal constitutional rights. 2. RespondentFails to Show that the Trial Court Adequately Considered Controlling Law orthe Constitutional Effects that Would Result from the Denial of Appellant’s Motion. Respondent arguesthat the trial court’s ruling is valid because the court “listened to both parties and attempted to accommodate the interests of all. And it did so reasonably.” (RB 163). Respondent arguesthat in ruling on a motion under former Evidence Codesection 1102.6, the “trial court need not expressly cite to a specific code sectionor to particular factors, or expressly state that it is weighing the risks.” (/d. at 168). Respondentbelieves the violations of Appellant’s constitutional rights were ameliorated bythe trial court’s “generous”offer “to work with defense counsel ‘session by session’ to help him determineif any testimony by the upcoming prosecution witnesses would give defense counsel reason. ..to exclude those two family members or any other particular witnesses during 127 any particular testimony.” (/d. at 169). Respondentdoes not respond to Appellant’s arguments. Respondent does not counter Appellant’s assertion that since the trial court did not mention applicable law (Evidence Code § 777 and former § 1102.6), “[i]t cannot besaid that the court properly considered application ofits discretion under thosestatutes.” (I AOB 174). The record lacks any showingthat the trial court considered whether the witnesses’ presence “pose[d] a substantial risk of influencing or affecting the content of any testimony,” and lacks evidencethat the court referenced or considered Appellant’s constitutional rights or the effects ofits ruling on those rights. The court’s order did not demonstrate any knowledge of the witnesses’ proposed testimonyorcite any rationale whatsoever; the judge only said: “In terms of an omnibus order excluding family members for the duration ofthe trial, at this point, I would not be inclined to issue such an order.” (RT 1940). Thus, the Court did not articulate the proper standard under former Evidence Code section 1102.6. The court’s decision accommodated only the prosecution’s interest in allowing its witnesses to hear the entire guilt phase proceedings and arguments bythe state. The court abusedits discretion by considering only the state’s interests and ruling without guidance from controlling law. Respondentattempts to divert the focus from the court’s improper ruling by arguing that “[i]f Appellant thought [the court’s ruling] posed a problem, he should have madeit clear at the time.” (RB 163). Appellant did just that. In the clearest of terms, defense counsel filed a motion to exclude all witnesses from the proceedings. Respondent cannottruly argue that Appellant failed to make his argument“clear at the time.” (/bid.). Respondentargues that because the Court offered to work with defense counsel“session by session,” the “record clearly supports an inference that the trial court was well aware ofits obligation pursuant to 128 Evidence Code section 777 and formersection 1102.6, and performedthe requisite analysis.” (RB 169). The court’s methodfor its ruling ran contrary to controlling standards under former Evidence Code section 1102.6, which required the court to identify the controlling statutes and whether the witnesses’ presence would pose a substantial risk of influencing or affecting the content of any testimony. (See I AOB 174). Additionally, the court failed to address other important factors including: 1) when the request was made(prior to opening statement; 2) the relationship between the witnesses (family members); 3) the nature, relevance, and importance ofthe testimony given by the witnesses to be excluded; and 4) whetherthere was any likelihood that the witnesses testimony would be shaped by what they heard the other witnessessay. (See /bid.). Thetrial court did not mention the statutes, and offered no substantive support for its decision that demonstrated how it weighed these factors. Respondenttries to lay fault on Appellant by arguing that he ultimately failed to utilize the trial court’s “offer[] to work with defense counsel.” (See RB 169). Respondent arguesthat the trial court was more than gracious in requiring the prosecution to divulge the testimony of witnesses so “that defense counsel could determine whether he wanted to request the exclusion of any potential witness.” (See Jd. at 164). Respondentarguesthat it was Appellant’s fault that he did not “reasonably anticipate[] what each prosecution witness was goingto testify to, and thus [did] not [take] up the trial court’s offer to work together on possible witness exclusion.” (/bid.). Respondentcan only makethese argumentssincethe trial court violated Evidence Code section 1102.6 by placing a “session by session” burden on defense counsel to request the exclusion of witnesses. (RB 164). Defense counsel had objected to the court’s order, and had told the court 129 that predicting testimony by penalty witnesses at a later date was unreasonable and unworkable. (RT 1938-39). Moreover, it was impossible for the defense to presciently predict the prosecution’s evidence since the state did not make an offer ofproof concerning the witnesses’ penalty phase testimony until two days before the penalty phase. In such a circumstance, no “experienced capital counsel” could predict the discretion of the state’s prosecutor and “reasonably anticipate[] what each prosecution witness was goingtotestify to.” (RB 164). Here, the court’s unlawful ruling and requirement that Appellant’s counsel shoulder this impossible burden disproves Respondent’s argumentthatthe trial court was correct to require Appellant’s counsel to “work with the Court.” 3. RespondentFails to Show that the Trial Court Considered Whether the Witnesses’ Presence Posed a Substantial Risk of Altering or Influencing their Testimony. Respondent must concedethatthe trial court failed to acknowledge defense counsel’s objection that the presence of the witnesses “pose[s] a substantial risk of influencing or affecting the content of any testimony,” and did notcite any controlling legal standard (RB 165 (quoting RT 571- 72); see also Cal. Evidence Code § 1102.6). Respondentarguesthat the “the court knew it hadto factor in whetherthe presenceofthe victim’s family in the courtroom would pose a substantial risk of influencing or affecting the content of any testimony” because it offered to work with defense counsel on a “session by session basis.” (RB 169). Even if Respondent’s assumptionis true,it is not a clear and express statementandorder by the court under Evidence Code Section 1102.6. Moreover, the law did not authorize the court to issue a ruling on a “session by session”basis, doing so did not consider the “substantial risks of influence”that allowing testifying witnesses to attend capital 130 proceedings posed to the witnesses’ testimony. The record does not support an “inference” that the trial court recognized (and applied) its duties under Evidence Code § 777 and former § 1102.6. (RB 169). Evenatits best, the trial court failed to acknowledge any standards, and instead ruled on Appellant’s motion without reasoning other than “I am not going to issue an omnibus orderat this time.” (RT 1940). These facts and reasons distinguish People v. Bradford (1997) 15 Cal.4th 1229 and Griffin, supra, 33 Cal.4th at 574, cases relied on by the Respondent, wherethe trial courts properly and expressly considered the motions undersection sections 1102.6 andits “substantial risk” standard. (See Bradford, supra, 15 Cal.4th at 1321; and Griffin, supra, 33 Cal.4th at 574. Respondentargues that Griffin is applicable becauseit “is not the type of testimony the witness g[ives]...but the factors that showed the reasonablenessofthe court’s ruling.” (RB 167). Respondent argues that Bradshawis applicable here due to factual similarities between the cases and because in both cases the witnesses’ “testimony would not have been influenced by testimony given during the guilt phase which focused on the circumstances ofhow the crime was committed.” (/d. at 168). Respondent’s arguments are unconvincing. Bradfordis not factually similar because it involved the presence of witnesses only during opening statements. Here, the witnessessat throughout the two weeks of guilt phase proceedings; including through the pathologist testimony, several crime scene descriptions, as well as during other family members’ testimony, opening statements, the prosecution’s case in chief, the defense’s case-in-chief, the prosecution’s case in rebuttal, and the closing arguments. Likewise, Griffin is similarly factually distinguishable from Appellant’s case. In Griffin, two witnesses were allowedto attend the proceedings, (Griffin, supra, 33 Cal.4th at 574); 131 unlike in Appellant’s case, where four witnesses were present throughout the entire trial. Moreover, in neither Griffin nor Bradshaw did the excludable witnesses improperlytestify as to victim-impact testimony during the guilt phase, or circumstancesofthe crime evidence duringthe penalty phase In the last four years, this Court has been presented with only one other case alleging error basedon thetrial court’s abuseof discretion in allowing a victim impact witness to attend guilt phase proceedings. (See Wallace, supra, 44 Cal.4th at 1053). In Wallace, the defendantalleged that it was error for the trial court to allow one victim impact witness, the victim’s “step grandson,”to listen to the guilt phase evidence. In evaluating the claim, this Court sought to determine “whether the trial court abusedits discretion in concluding that Darlington's presence would not pose a substantial risk that he wouldtailor his testimony to that of other witnesses, or that he would cause other witnessesto tailor their testimonyto his.” (Jd. at 1054). Ultimately, this Court found that “the defendant offers no evidence that would suggest Darlington's presence posed such risk, and upon our independent review ofthe relevant portions of the record, we find none.”(Ibid.). In contrast to the defendant’s claims in Wallace, Appellant’s claims are premised on thetrial court’s decision to allowfour prosecution witnesses to attend court throughout the proceedings. (AOB 174). Unlike in Wallace, Appellant has demonstrated that the witnesses’ attendance during the proceedings affected their subsequent testimony andtailored [their] testimony to conform to what [they] had learned from being present at trial...” (Wallace, supra, 44 Cal.4th at 1054).” Specifically, in * In Wallace, the witness who was allowed to witness the prosecution’s case-in-chief only testified, as this Court recognized, to menial issues and facts. (See Wallace, supra, 44 Cal.4th at 1054-55). 132 Appellant’s case, the prosecution urged the four witnesses to discuss circumstances of the crime and victim impact testimony. Undoubtedly, the former testimony was influenced by the physical evidence and witness testimony presented by the prosecutionin its case in chief, including the medical examiner, criminologists, and other circumstantial and eye- witnesses. This testimony likely disturbed the witnesses and caused emotional distress, which was exhibited in their victim impact testimony. Here, unlike in Wallace, Appellant has alleged prosecutorial misconduct in tandem withthe trial court’s erroneous determination. Here, the prosecution actively sought to goad the four witnessesinto reciting emotionally charged testimony by asking them to recall the circumstances of the crime while presenting their victim impact testimony. In sum,the allegations at the root of Appellant’s claim are more serious than any case that has comebefore this court in recent years. The record does not support Respondent’s argumentthat the trial court reasonably exercised its discretion in denying Appellant’s motion to exclude witnesses from the proceedings. The court never identified controlling law and, instead, issued a capricious and whimsical ruling against all “omnibus” motions. Moreover,the trial court’s abuse of discretion resulted in a miscarriage ofjustice in violation of Appellant’s state and federal constitutional rights when the excludable witnesses improperly provided victim impact testimony during the guilt phase, and then provided circumstances of the crime testimony during the penalty phase. (See Claim VIII - The Trial Court’s Error and Prosecutorial Misconduct Resulted in the Improper Introduction ofVictim Impact Evidence at the Guilt Phase). 133 D. Respondenthasfailed to Show that the Trial Court’s Abuseof Discretion wasnot Prejudicial. In his Opening Brief,in the absence of a standard for evaluating prejudice resulting from abuseof discretion under formersection 1102.6, Appellant urged this Court to adopt a presumption of prejudice standard. (J AOB181-83). As outlined by Appellant, numerouscircuits and states that apply the presumption ofprejudice in witness exclusionsituations. (See Jd. at 180). Here a presumption of prejudice would stand unless the prosecution demonstrated that the error arising from thetrial court’s abuse of discretion was harmless. Respondent has failed to show that the trial court’s abuse of discretion here was harmless. Moreover, Respondent has failed to offer persuasive justifications against adopting Appellant’s requested standard since,in their brief, Respondentfailed to argue against its application. E. Conclusion. Appellant has demonstrated that the trial court’s abuse of discretion in denying his motion under former Evidence Codesection 1102.6 prejudiced his constitutional rights. Allowing penalty phase witnesses to improperly hear section 190.3(a) aggravating evidence at the guilt phase subjects them to the very harmsthat section 1102.6 was designed to prevent. Thetrial court’s abuse ofdiscretion, and neglect of controlling authorities, constituted a violation of Appellant’s rights to due process, a fair guilt trial, to confront witnesses, and to be reliably sentenced under the Sixth, Eighth and Fourteenth Amendments, as well as, Article I of the California Constitution. 134 VI. INSUFFICIENT EVIDENCE SUPPORTS APPELLANT’S CONVICTIONS OF CAPITAL MURDER, THE BURGLARY- MURDER SPECIAL CIRCUMSTANCE, OR HIS CONVICTION FOR ASSAULT WITH INTENT TO COMMIT RAPE. A, Introduction. The evidence in Appellant’s case is not sufficient to support his conviction for capital murder, the burglary-murder special circumstance, or his conviction for assault with intent to commit rape. Appellant’s first- degree murderand assault with intent to commit rape convictions rest on two items of evidence: 1) the criminalist’s testimony that Appellant’s fingerprints matched those left on the murder weapon; and 2) Appellant’s coerced and incriminating statements given on March 27, 1987. Respondent admits as muchby repeatedly relying on these two itemsto try to justify the trial court’s rulings. (See e.g., RB 173, 174, 177-78, 179, 180, and 181). In the end, but for juror confusion, a Final Information lacking particularization, and prosecutorial misconduct, no rationaltrier of fact would have found sufficient evidence of premeditation, felony-murder, the burglary-murder special circumstance,or assault with intent to commit rape. In their Brief, Respondent declares that Appellant’s arguments are “unpersuasive” and his convictions are supported by more than “‘scant’ and ‘minimal’ evidence.” (RB 172). Respondent has erred in summarily arguing that “Appellant’s argument6 is without merit in all respects.” (RB 183). Appellant has shown that his convictions must be reversed since they are supported by insufficient evidence. (See Jackson v. Virginia, (1979) 443 U.S. 307, 313-324; and People v. Anderson (1968) 70 Cal.2d 15, 26- 27). 135 Early on, the prosecution recognized thatit had insufficient evidence to convict Appellant of burglary. Before Appellant’s trial, the prosecutor decided notto file separate burglary charges. (I AOB 185). Likewise, the court recognized the insufficiency of the evidence supporting a rape or attempted rape charge whenit prohibited the prosecution from charging either crime separately. (I AOB 185 (citing CT 1103-04)). The evidence in the state’s case against Appellant was notsufficient to establish his convictions. In the absence of the prosecution’s proof of every element of his capital offense beyond a reasonable doubt, Appellant’s constitutional right, under the due process clause of the Fourteenth Amendment, was violated. (See Jackson, supra, 443 U.S. at 313-324; and People v Staten (2000) 24 Cal.4th 434, 460) B. Insufficient Evidence Supports Appellant’s Capital Murder Conviction Based on a Premeditation and Deliberation Theory. In his Opening Brief, Appellant showedthat the prosecutorfailed to establish premeditation and deliberation. Respondentsaysthat there is “sufficient evidence to support a jury finding that appellant premeditated and deliberated his murder of Olsson.” (RB 172). Respondenttries to distinguish People v. Anderson as merely “summarizing the types of evidence appellate courts have considered in weighing the sufficiency of a first-degree murder conviction based on premeditation and deliberation,” (Ibid.). Respondent argues that there was “strong evidence of planning,” andthat at “for motive evidence,the record reflects a plausible motive.” (Id. at 174). Respondentargues that “the mannerofkilling demonstrates willful premeditation and deliberation on Appellant’s part.” (/d. at 175). Finally, Respondent says that “[t]he prosecutor’s argument was proper and consistent with the instructionsthe trial court eventually read to the jury.” (Id. at 178). 136 In order to support its position, Respondent must minimize the importance of this Court’s precedent under Anderson. Respondent thus argues that People v. Bolin, (1998) 18 Cal.4th 297;People v. Pride (1992) 3 Cal.4th 195;and People v. Mayfield (1997) 14 Cal.4th 668, 767,*° have limited the use of the three factors listed in Anderson for a finding of premeditation. In Respondent’s view,“the process of premeditation and “* Each caseis factually distinguishable. Each involved multiple murders or murdersthat are factually dissimilar to Appellant’s case. In Bolin, two witnessestestified that the defendant shot and killed two persons and then openedfire on two others. (Bolin, supra, 18 Cal.4th at 331). From this evidence, this Court found it reasonable to conclude that the defendant had premeditated the murders to protect his marijuana crop, near where the murders occurred, and to preventthe victims from turning him into the authorities. In Appellant’s case, however, no witnesses placed Appellantat the scene of the crime. Similarly, Appellant did not know Ms. Olsson and had noreasonto attack her. *° In Pride, the defendant was convicted of murdering two women where he andthe victims worked. (Pride, supra, 3 Cal.4th at 247-48). The murders occurred while the defendant and the women werethe last people knownto be in the building. (U/bid.). Both bodies had traces of the defendant’s semen. (/bid.). This Court found sufficient evidence of premeditation on these facts. Here, however, there is no connection between Appellant and Ms. Olson and thus no showing ofpremeditation. Similarly, Appellant was never seen near the scene of the Olsson homicide on the night in question. Finally, the only physical evidence foundat the scene of the Olsson homicide, a black hair, indicated that a person other than Appellant was at the scene of the crime and committed the murder. “© In Mayfield, this Court found that since the defendant physically attempted to avoid arrest and had killed three police officers, an inference that the killings were premeditated and perpetrated to avoid arrest was proper. (Mayfield, supra, 14 Cal.4th at 769). These facts are clearly distinguishable from Appellant’s case. In Mayfield, there was noissue as to the killer’s identity. Here, the prosecution has no direct evidence tying Appellant to the Olsson homicide and thus no proof of premeditation. The prosecution’s case rested solely on circumstantial evidence, unlike in Mayfield where the evidence directly tied the defendantto three killings. 137 deliberation does not require any extended timeperiod... [and] the truetest is...the extent of the reflection.” (RB 172 (citing Bolin, supra, 18 Cal.4th at 332)). In Respondent’s mind, this Court has substituted the “extent of reflection” test for Anderson’s factor test, which sought to show premeditation by proof of “careful thought and weighing of the considerations.” (Ibid. (citing Anderson, supra, 70 Cal.2d at 27)). Respondent's is wrong. Bolin and Anderson endorse the sametest to prove the same quantum of mensrea establishing premeditation. Respondent’s efforts are merely an attempt to divert this Court’s attention from thestate’s weak showing under Anderson’s three factors. Respondent cannot show that Appellant premeditated the murder based onhis “extent of reflection”or “weighing of the considerations.” (RB 172). Respondentargues that premeditation is proven because: 1) the murder occurred early in the morning;*’ 2) the murderer used a knife;** and 3) there are signs of a forced entry into Ms. Olsson’s home.” This “” There was no evidence presented by the prosecution that Appellant waited for anything. Respondent’s argument amounts to an argument that the time of the crime can establish state of mind. This is faulty and an unreasonable inferenceas there is no evidencethat Appellant decided to commit an act earlier and then waited. “8 Respondent’s argumentthat premeditation is proven because Appellant carried a buck knife - is specious. (RB 173). The evidence that Appellant boughtthe knife at the same time as he purchased a hunting license shows an innocent purpose. Moreover, carrying a buck knife is legal and quite common,while carrying a loaded gun, as in Miranda and Williams, is not. Thus, a showing ofpremeditation requires more than a showing that the defendantcarried a knife. (See People v. Miranda (2008) 44 Cal.3d 46, 87; and People v. Williams (1995) 40 Cal.App.4th 446, 455). ” Respondent asserts that premeditation is also shown by the fact that the screen to Ms. Olsson’s window had been removed. (See RB 173). To the contrary, the evidenceis irrelevantas to the issue of premeditation andthe attacker’s identity. There was no evidence 138 evidence, however, does not prove “premeditation”or the “identity” of the murderer. (/d. at 173). Respondent recognizes as much when,just like the prosecutorattrial, it relies on Appellant’s involuntary and coerced March 27 statements. (/bid.). Respondent does so even though Appellant’s mvoluntary statements directly conflict with the physical evidence cited by Respondent in support of the state’s argument. For example, in the March 27 statement, Appellant denies yielding the knife or forcibly entering the home. (See People’s Trial Exhibit 6C; and RT 2900)). However, Respondentasserts that premeditation can be shownbyfacts indicating that the intruder forcibly entered the home and murdered Ms. Olsson with a knife. The contradictory facts obtained by police through Appellant’s involuntary statements provide no support for Respondent’s argument. Likewise, the fingerprint evidence was based on the secondset of Appellant’s fingerprints, which were “hand-delivered” to DOJ by the Livermore police after his March 7 arrest. The fact that fingerprints, purportedly matching Appellant’s, were found on the knife does not substantially prove that Appellant harbored premeditation prior to the murder. This is because carrying a buck knife is quite common and proof ofpremeditation requires more than evidencethat a knife was used in a homicide. This Court recognized as muchin People v. Steele. There, the defendant was convicted of two capital murders. This Court found that: Asto planning, the jury could infer that defendant carried the fatal knife into the victim’s homein his pocket...because the presented by the prosecution that Appellant removed the window screen. There was no evidence presented as to when the screen had been removed. It cannot reasonably be inferred that the perpetrator tried to enter that way and failed after removing the screen. Similarly, it cannot reasonably be inferred that the perpetratortried to leave that wayto avoid being seen in front of the house. Respondentassertions to the contrary are speculative. Additionally, Respondent’s assertions contradict the prosecution’s theory that the assailant made a force entry through the front door. (/bid.). 139 defendant had already stabbed another woman to death. When a person stabs a womanto death, then leads another woman into her apartment with a knife in the pocket, the jury can readily infer that the person possessed the knife for the same purpose. Additionally...Richard Blakeslee testified that...he heard defendant say, ‘Put the phone downor I'll kill you.’ This evidence suggests a plannedkilling. (People v. Steele (2002) 27 Cal.4th 1230, 1250). Here, however, no evidencedirectly links Appellant to the Olsson homicidelet alone another murder involving the same knife. Similarly, Appellant was never heard threatening Ms. Olsson and no evidence shows that they had anyprior contact. In the absence of any evidence to the contrary, it is unreasonable to conclude that Appellant premeditated Ms. Olsson’s murder, simply because a buck knife, once owned by Appellant, but later stolen from his car, was used in the Olsson homicide. Respondentargues that the evidence of Appellant’s motive is “plausible.” (RB 174). Respondentfails to rebut Appellant’s argument that the state failed to establish motive by failing to present any evidence of prior contact or relationship between Ms. Olsson and Appellant. Here again, Respondentrelies on Appellant’s incriminating statements from March 27, the same statements discredited by Respondentin this appeal and the prosecutorduringtrial. Respondent argues that because Appellant lived near Ms. Olsson “[a] reasonable inference from this is that Olsson knew Appellant from the neighborhood....” (RB 174).° Far from Respondent’s sense of reasonableness, this evidence merelyraises a suspicion of motive, whichis an insufficient basis to prove premeditation. °° Respondent’s argument that Appellant movedout of the neighborhood four weeks before the murder, contradicts the Statement of Facts, where Respondentstates that Appellant lived with Mr. Chandler until a few days before the crime. (Compare RB 6; with RB 174). 140 (See I AOB 193 (citing CALJIC 2.01; People v. Redmond (1969) 71 Cal.2d 745, 755; and In re Leanna W. (2004) 120 Cal App.4th 735, 741)). Moreover, under California evidencerules, an inference is not reasonably drawn from factif it is based only on speculation. (See Cal. Evidence Code § 600(b); and People v. Raley (1992) 2 Cal.4th 870, 891). Respondent next argues that the mannerofkilling - twenty-eight (28) stab wounds - demonstrates “willful premeditation.” (RB 175). In doing so, Respondent recites some of the more horrific crime circumstances in a failed attempt to justify premeditation by unnecessary gore. However, Respondentbasesits argumententirely upon facts that occurred after the murder, arguing that a “preconceived design” can be inferred from: 1) the blood stains on the bed sheets; and 2) Appellant’s statement that he went to his car to get some gloves after Doubting Thomas murdered Ms.Olsson. (Jbid.). These facts fail to prove premeditation -- that is mental state -- before the homicide, or that Appellant committed the homicide. Respondent again utilizes Appellant’s unreliable statements, despite the facts that: 1) at other times Respondent, in this appeal, and the prosecutor, during Appellant’s trial, attacked the veracity of the statements; 2) if given full credit, Appellant’s statements exonerate him of the Olsson homicide; and 3) Appellant’s statements materially contradict the physical evidence foundat the scene of the Olsson homicide. Second, Respondent’s proposition runs contrary to this Court’s precedent, which requires more than a showing of “many stab wounds were randomly inflicted” in order to prove premeditation. (See People v. Haskett (1982) 30 Cal.3d 841, 850; and Anderson, supra, 70 Cal.2d at 31). Since no additional evidence ofplanning and motive has been established in this case, the state has failed to sustain a reasonable showing of a preconceived design of murder based Ms. Olsson’s woundsalone. 141 Respondentsaysthat after reviewing the record “in context with the prosecutor’s argumentpertaining to malice aforethought, premeditation, and deliberation, we find noerror.” (RB 176). Respondent arguesthat Appellantis “wrong in claiming that the prosecutor simply arguedthat ‘thinking aboutit’ was sufficient to prove premeditation, deliberation and malice aforethought beyond a reasonable doubt.” (/d. at 178 (citing I AOB 190)). Respondent cites a lengthy quotation from the prosecutor’s argument in the guilt phase where the prosecutor defines “[d]eliberate” by saying “Whatit basically meansis that the person thought aboutit.” (RB 177 (citing RT 3080-3083)). Likewise, within Respondent’s lengthy quote, the prosecutor defines “malice aforethought”as having to “do with the idea that this mentalstate, ‘I plan to kill.”” (RB 177). In the same text quoted by Respondent, the prosecution defines “premeditation”as “thinking ofit beforehand.” (/d. at 178). Respondent’s quote of the prosecutor does not disprove Appellant’s allegations that the prosecutor conflated the meaning of premeditation, malice aforethought and deliberation. Instead, Respondenthas proven that the prosecutor committed error and misconduct by defining premeditation, malice aforethought and deliberation based on the identical factual element that Appellant “thought about it”! This explains the juror’s confusion in returning a first-degree murder conviction without sufficient evidence of premeditation.” >! Moreover, this description of the elements directly conflicts with the instructions given in this case. (See CALJIC Nos.8.10, 8.11, and 8.20). °* Respondent chastises Appellant for assigning the prosecution’s misstatementofthe law aserror, sincehis trial counsel never objected to the argument. (RB 176-78). In his OpeningBrief, Appellant did not assign the arguments aserror, but rather, cited the improper argumentas evincing the weaknessof the evidencethe prosecutor was relying on andto explain reasonable juror confusion 142 In sum, Respondent posesno effective opposition to the arguments raised in Appellant’s Opening Brief. Under Anderson or Bolin, Respondent has failed to show sufficient evidence of the “extent of [Appellant’s] reflection” or “weighing of considerations”to justify his first degree murder conviction under a premeditation theory. There was no evidence of planning and the methodofkilling was not a “preconceived design.” Respondent’s arguments thus do not “furnish a reasonable foundation for an inference of premeditation and deliberation.” (Anderson, supra, 70 Cal.2d at 25, 27). Under these circumstances, no rational trier of fact could have found that Appellant premeditated or deliberated with malice aforethought and intent to kill beyond a reasonable doubt. The evidence presented by the state was insufficient to support a first-degree murder conviction based on premeditated and deliberated murder. (See Jackson, supra, 443 U.S. at 319). C. Insufficient Evidence Supports the First Degree Murder Conviction on a Felony Murder Theory. 1. Insufficient Evidence Supports Felony-Murder Theory. In his Opening Brief, Appellant established that state prosecutors failed to provide sufficient evidence to support a finding offirst degree murder based on a theory of felony-murder. The state presented no evidencethat he had entered Ms. Olsson’s house with either the intent to rape or the intent to steal. Moreover, the state’s failure to provide specific notice as to their theory of the casein the final information allowed for the jury to return a verdict finding the burglary-murder special circumstance and convicting Appellant of intent to commit rape withoutthe state having presented sufficient evidence of either charge. (See J AOB 185) stemming from the prosecution’s erroneous statements of law. (See I AOB 190 and 192). 143 In response, Respondent merely says that there is sufficient evidence “that appellant entered Olsson’s home with [a] specific intentto steal or commit rape.” (RB 179). Respondent argues that the prosecution’s arguments and information gave Appellant “sufficient notification of what he had to defend against,” and did not confuse the jury and that Appellant’s challengesto the particularization ofthe final information are “without basis.” (Jd. at 182). Respondentallegesthat “the jury was not confused, given th[e] [prosecution’s] argumentsandthat instruction.” (/bid.). Finally, Respondent claims that Appellant “[had] sufficient notification of whathe had to defend against,” in terms of prosecution’s theory of murder and the underlying felonies to be charged,“at the preliminary hearing or the indictment proceedings.” (Jbid.). Respondent’s arguments are unpersuasive, conclusory, and fail to prove that there wassufficient evidence of Appellant’s intent to commit burglary based onintent to commit assault or theft. First, Respondentfails to recognizethat the prosecutor and the court found insufficient evidence to charge Appellant with a separate count of rape. Errors created by the state’s lack of notice and particularizationin its theory of felony-murder prohibited the jury from reasonably adjudging the sufficiency of the evidence. In its final information, the state failed to specify the theory of first-degree murderand thusfailed to separately charge premeditated murder and felony murder. The result allowed the prosecutorto forge proof of what underlying felony implicated the theory of felony murder,as well as, the burglary-murder special circumstance.”° Thefinal information failed to specify, with any degree of particularization, the charges against Appellant. The final information did °3 This is especially true since the jury was instructed “you are not required to agree as to whichparticular crime the defendant intended to commitat the time of his entry into the victim’s home.” (CALJIC 14.59, CT 2907). 144 not specify the theory offirst-degree murder(i.e. whether it was premeditated or felony-murder), and did not specify the nature of the intended felony for the burglary-murderspecial circumstanceallegation (whetherit was based ontheft or assault with intent to commit rape). Here, lack of detail in the accusatory pleadings, (see RB 182) allowed the prosecution to utilize insufficient evidence for a finding of felony-murder and the burglary-murder enhancement. Respondentfails to acknowledge that, according to this Court: “The Sixth Amendment guarantees a criminal defendant a fundamentalright to be clearly informed of the nature and cause of the charges in order to permit adequate preparation of a defense.” (People v. Gallego (1990) 52 Cal.3d 115, 189 (citing Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234, 1236) (citations and footnote omitted)). This important caveat immediately follows Respondent’s short cite to (People v. Diaz (1992) 3 Cal.4th 495, 557) (“There are situations in which the United States Constitution may require greater specificity. Generally, the accused will receive adequate notice of the prosecution’s theory of the case from the testimony presented at the preliminary hearing or at the indictment proceedings.”). Moreover, compliance with Penal Code section 952 does not necessarily overcome a due process attack. (See Choung v. People ofstate of California (D.C. Cal. 1970) 320 F.Supp. 625, 629). Respondent’s justification that when sufficient notice is provided at the preliminary hearing, constitutional concerns are obviated, does not fully state the law. California courts have foundthe violation of constitutional requirements when the prosecution: 1. “Ampbush[es]” a defendant by submitting a new theory of the case following the preliminary hearing. (See Gallego, supra, 52 Cal.3d at 189); 2. When adequate notice of the charges is not provided 145 within the indictment. (See People v. Jordan (1971) 19 Cal.App.3d 362, 369); or 3. If the violation of the charged offense depended upon violation of another statute - both statutes must be set out. (See People v. Clenney (1958) 165 Cal.App.2d 241). Here,the state’s final information failed to fully describe the counts within the felony-murder count. Respondent’s inability to clearly distinguish between the counts doomsthe state’s accusatory pleading. (Jordan, supra, 19 Cal.App.3d at 368). The final information provided inadequate notice that the prosecution would be utilizing both allegations of larceny and assault with intent to commit rape to prove the burglary-murder special circumstance. This is especially true in light of the prosecution andtrial court’s restrictions on using the charges as separate offenses following the preliminary hearing. Attrial, the prosecution “ambush[ed]” Appellant with a new theory of felony murder based on a burglary with intent to commit either larceny or assault with intent to commit rape. (See e.g., Gallego, supra, 52 Cal.3d at 189). Thus, because Appellant was alleged to have violated upto four statutes in committing the felony-murder,(first-degree murder, burglary, larceny, and assault with intent to commit rape) the state was constitutionally required to plead the offenses with greater specificity than in the final Information. Thestate’s failure to do so violated Appellant’s Fifth, Sixth, and Fourteenth Amendment rights and allowedfor the prosecutors to earn a capital conviction based on insufficient evidence of felony-murder and the burglary-murder. Respondent’scitation to People v. Morris is misplaced. While Respondentcorrectly notesthat the prosecution does not have to charge “the underlying special circumstance felony as a separate offense” (RB 146 182), it neglects to mention that the above outlined constitutional requirements equally apply to special circumstance allegations. (Peoplev. Morris (1988) 46 Cal.3d 1, 18). In practice, Morris is more applicable to Appellant’s case when evaluating the sufficiency of the evidence, because in both cases, the special circumstance alleged was based on wholly circumstantial evidence. In Morris, like here, the defendant was convicted of the special circumstance without any eye-witness testimony. (/d. at 21). Similar to Morris, based on the scant record in Appellant’s case, there is no wayofproving that the murder occurred to advance an independent felonious purpose. (Ibid.). The results, in both cases, are a first-degree murder conviction and special circumstance findings based on a lack of sufficient evidence. The prosecutor committed misconduct throughoutthe guilt proceedings, and during closing argument, conflated the meanings of premeditation, deliberation, and intent necessary to commit felony-murder. This misconductexplains the jury’s unreasonable findings, in the absence of sufficient and convincing evidence that either underlying felony occurred. The state’s failure to specify the charges and present sufficient evidence that Appellant committed capital murder violated Appellant’s right to have the prosecution prove every elementofhis capital offense beyonda reasonable doubt. (See Jackson, supra, 443 U.S. at 313-324). 2. Insufficient Evidence Supports the Burglary MurderSpecial Circumstances. To prevail on this issue, Respondent must argue that the underlying felony supporting the burglary-murder special circumstance and the theory of felony murder was theft. This is due to the merger doctrine. As articulated by this Court, the merger doctrine prohibits the state from utilizing assault, a lesser included offense of murder, as the intended felony for the burglary-murder special circumstance. (See People v. Ireland 147 (1969) 70 Cal.2d 522, 539-541). However,at trial and in Respondent’s brief, insufficient evidence has been produced that Appellant intended to commit larceny upon entering Ms. Olsson’s home. Respondentfails to offer substantial evidence in support oftheft as the underlying crime for the burglary-murder special circumstance. Respondentargues that since $3.95 was taken from Ms. Olsson’s purse,this fact proves that Appellant burglarized the home with intent to steal. (See RB 180). However, this evidence does not prove: 1) that Appellant took the purse; 2) that the purse was taken aspart of a plan that originated before Appellant entered the house;or 3) that the purse was not taken as part of an “afterthought” following the assailant’s entry into the home. Furthermore, there were no signs that any other valuables had been taken, or that the house had been searched for valuables, and the evidence only indicated that the purse contained $3.95, not that the money was taken. (See RT 2918 and 3044). Again, Respondentrelies solely upon Appellant’s involuntary and incredible statements from March 27 to prove theft as underlying the burglary-murder special circumstance. (RB 179). In doing so, Respondent must reconcile inconsistencies between Appellant’s involuntary statements and the physical evidence, a task the state cannot accomplish. Thus, Respondent argues that because Appellant told the police he entered Ms. Olsson’s home with Doubting Thomas so Thomascould get drugs, “the jury could have reasonably rejected the ‘Doubting Thomas’part of[the] statement, but believed from it that Appellant...broke into [the] home in the early morning with intent to steal money to support his drug habit.” (bid.). The voluntariness of Appellant’s statements is suspect and thetrial court’s ruling to the contrary has been challenged by Appellant on appeal. (See Claim III — The Trial Court Improperly Denied Appellant’s Motion to Suppress Statements That Were Unlawfully and Involuntarily Obtained By 148 Livermore Law Enforcement). Respondent’s efforts to reconcile the statements with the physical evidence andthe state’s theory of murder further prove the unreliability of the involuntary confession. Moreover, a reasonable jurist could not listen to Appellant’s statements and discount the presence of Doubting Thomas while inferring criminal intent on behalf of Appellant. In fact, the scenario Respondentarticulates would require the jury to wholly reject Appellant’s statements and instead infer, without any factual basisat all, that he entered the house alone, not in pursuit of drugs, in order to commit larceny. In Appellant’s Opening Brief, he provided a morerational, substantial, and plausible explanation for the jury’s finding of the burglary- murder special circumstance. Duringtrial, the prosecution had, improperly and prejudicially, asked the jury to infer an intent to steal based on evidence of Appellant’s unemployment. (See Claim VII - The Trial Court Erred In Admitting Evidence of Appellant’s Unemployment As Facts Probative of His Intent To Steal). This inadmissible evidence worked to prejudice Appellant’s right to a fair trial by establishing a false motive for the robbery or theft. (People v. Wilson (1992) 3 Cal.4th 926, 939). It was also used by the prosecution to argue for a finding of larceny to support the burglary- murder special circumstance. Respondentfailed to addressthis allegation in its brief. In sum, Respondenthas failed to show that the evidence used to justify the burglary-murder circumstanceis solid and credible. (See People v. Rodriguez (1999) 20 Cal.4th 1, 11). Moreover, Respondenthasfailed to show that a reasonable juror could have foundthe existence of the burglary- murderspecial circumstance based upon the scant evidence presented of _Appellant’s intent to commit larceny. (Jackson, supra, 443 U.S.at 313). 149 3. Insufficient Evidence Supports Appellant’s Conviction Under Count 2, Assault with Intent to Commit Rape. Priorto trial, the court found that the state’s evidence of rape was insufficient to charge Appellant with rape or attempted rape as a separate offense, or to charge him with a rape-murderspecial circumstance. Indeed, the physical evidence submitted by the prosecution at both the preliminary hearing andattrial includes no direct evidence that a rape occurred. (RT 2689). In absenceofany biological, physical, or medical evidence tending to show that a rape occurred, the only pieceof evidence submitted by the prosecution to justify the charges was the fact that Ms. Olsson’s body was found nude and atop her pajamas. (CT 1005-86). Based on this evidence, the trial court erred in allowing the prosecution to charge a separate offense of assault with intent to commit rape as Count 2. Attrial, the prosecution, failed to produce different, new, or more persuasive evidence that Ms. Olsson had been raped than what had been presented preliminarily. Logically, the evidence was then insufficient to provethe lesser included offense of assault with intent to commit rape. Thus, despite Respondent’s protestations, that the evidence that Ms. Olsson was “a single woman [wholived] in his neighborhood”and was “alone and vulnerable,” does nothing to prove Appellant’s intent to commit rape. (RB 180). Respondent recognizes as much bybasingthe entirety ofits argument onthe involuntary and highly unreliable statements made by Appellant on March 27in response to coercive and unlawful police interrogation tactics. Respondent, on three separate occasions, tries to counter arguments raised by Appellant in his Opening Brief by referencing Appellant’s involuntary statements from March 27. (See RB 180). Respondent argues that “[as] for the evidence of Appellant’s intent to commit rape, the 150 evidence showsthat he told police that he had intercourse with Olsson.” (Ibid.). Respondent arguesthat it is of no matter that no physical evidence proves that Ms. Olsson wasraped, since “Appellant ignores his own statement to police that he had sex with Olsson.” (/bid.). Finally, Respondentarguesthat, in itself, the March 27 statements were sufficient to prove the assault with intent to commit rape charge since they were “corroborated by evidence that Olsson’s pajamas had been removed....” (Id. at 181). First, Appellant’s statements are not sufficient for a finding of intent to commit sexual assault because they are incredible and were coerced based on twoseparate days of interrogation and in consideration for false promises of enrollment in the witness protection program. (See Claim III — The Trial Court Improperly Denied Appellant’s Motion to Suppress Statements That Were Unlawfully And Involuntarily Obtained by Livermore Law Enforcement). Second, Appellant’s statements exonerate him of the Olsson homicide. If given full credit they show that another _ person killed Ms. Olsson and that any sexual encounter between Ms. Olsson and Appellant was consensual. Third, Respondent has repeatedly attacked the validity of Appellant’s statements, but endorses them where needed. Unfortunately for Appellant,this is the same technique that the trial prosecutor used to earn a capital murder verdict based on insufficient evidence. This Court should not rely upon Appellant’s coerced statements whenevaluating the sufficiency of the evidence. Fourth, contrary to Respondent’s assertions, Appellant’s statements are not corroborated by physical evidence at the scene of the crime. Instead, the evidence there indicates that a wholly different turn of events took place. Many aspects of Appellant’s statement are irreconcilable with the crime scene.” ** Appellant’s incriminating statements were made involuntarily and in response to duress, threats against his family, and in reliance 151 The weakness of Respondent’s argumentis exposedbyits efforts to distinguish Johnson, supra, 6 Cal.4th 1; People v. Craig (1957) 49 Cal.2d 313: Anderson, supra, 70 Cal.2d 15; and People v. Granados (1957) 49 Cal.2d 490. Respondenttries to distinguish these cases because in each there was “insufficient evidence that the respective defendants had intended to rape...and thus there existed insufficient evidence to support a finding of felony-murder.” (RB 181). Respondent poses that Appellant’s caseis to the contrary, based entirely upon Appellant’s involuntary statements. | (Ibid.). However, Johnson, Anderson, Craig, and Granados, are distinguishable from this case basedon the fact that only circumstantial evidence of rape and no direct evidence of rape exists in Appellant’s case. Moreover, in each cited case, there was more evidence of a sexual act or interest than in Appellant’s case. Specifically, in Johnson, supra, 6 Cal.4th at 41, the defendant hadearlier raped the victim’s daughter, suggesting a sexual motivation. In Craig, supra,, 49 Cal.2d at 316, the defendant had uponfalse promises of leniency. The statements materially conflict | with the physical evidence at the Olsson homicide. Nevertheless, Respondentandthe prosecutor haveutilized the statements to argue and obtain, with absolutely no physical evidence, a conviction for assault with intent to commit rape, a capital murder conviction based on a faulty burglary-murder special circumstance, and ultimately a death sentence. The corroborating evidence referred to by Respondent was recognized by the prosecutor, in his closing argument, as insufficient to serve as a separate charge of rape. (RT 3070). The prosecutorultimately committed misconductby arguing a charge not included within the final information and confusingthe jurors. Respondentfailed to rebut Appellant’s argumentthatthe state prosecutor’s misstated the law by referring, during guilt phase closing arguments, to the doctrine of corpus delecti as a “technicality” that prevented him from separately filing rape charges, though “he raped her.” (Jbid.). This is important because prosecutorial arguments cajoled and confusedthe jurors into reaching a verdict not supported by sufficient evidence. 152 earlier in the evening expressedhis general desire to “havea little loving,” and subsequently quarreled with a womanin a bar where the victim worked whorefused to dance with him. Respondent can proffer no argument drawing similarities between Appellant’s case and this Court’s precedents. Moreover,this caseis readily distinguishable from cases decided after Johnson in which an inference of intent to rape was upheld based in part on the state of the victim’s clothing. Specifically, evidence has been found sufficient to prove intent to commit sexual assault where the victim’s underwearwastorn off, or pulled or rolled down around her knees. However, this Court has required that such crime scene evidence be coupled with other specific evidence of the defendant’s intent to commit sexual assault. In People v. Marshall (1997) 15 Cal.4th 1, 36, sufficient evidence of attempted rape included the fact that the victim was found with her underwearand pants pulled down, but only when considered together with a surviving victim’s testimony that the defendant had told her he intendedto rape her before the sexual assault. In People v. Osband (1996) 13 Cal.4th 622, 691, the evidence included the defendant’s semen on or near the body in addition to the victim’s ripped underwear. In Peoplev. Cain (1995) 10 Cal.4th 1, 45, hair consistent with the defendant’s pubic hair, which wasof a rare type, was found, and the victim’s pants were pulled down,her legs spread to expose her genitals, and her blouse was pulled up. In the present case, other than the facts that the victim was on her bed undressed, and her clothes were underneath her, there was no evidence to suggest a sexual assault. Further, there was substantial evidence inconsistent with a sexual assault. Evidence showed nogenital trauma, and Appellant’s pubic hairs were not found. No semen was foundlinking Appellant to the homicide. Appellant’s blood was not foundat the scene of the crime. Moreover, unlike the cases discussed above, here, the victim 153 was completely naked in her bed. Partial undress is more consistent with sexual intent than complete nudity, especially when the victim is in her own bed on a warm July evening in Livermore, and the air conditioning is turned off. (See RT 2123 and 2171). Additionally, the prosecutor’s use of the assault with intent to commit rape as the underlying felony for the burglary-murderspecial circumstance violated the merger doctrine as enunciated by this Court in Ireland, supra, 70 Cal.2dat 522, because assault is a lesser included offense of murder. Respondent arguesthat the prosecutiondid not rely on the “’assault’ to support the burglary murderspecial circumstance, but argued that Appellant committed burglary with intent to commit rape and theft.” (RB 183). Respondent’s effort to parse the prosecutor’s argument and the chargesincluded within the Final Informationisfutile. Here, the Final Information did not require the jury to specify the theft charge as underlying the burglary-murderspecial circumstance and felony murder conviction. Instead, because the prosecution was never required to specify the charges with any degree ofparticularization, the state was permitted to introduce highly inflammatory andprejudicial evidence of a nonexistent rape as the underlying felony for the burglary murder circumstance and felony-murderfirst degree murder theory. This decision wasallowed by the trial court in contravention of the merger doctrine. The results violated Jreland and Appellant’s right to have the burglary murder-special circumstance and felony-murdertheory separately proved beyond a reasonable doubtunder the Fourteenth Amendment. (See Jackson, supra, 443 U.S.at 313). 154 D. The Insufficiency of the Facts Supporting Appellant’s Guilt Conviction is Demonstrated by this Court’s Recent Case Law. The insufficiency of the evidence supporting Appellant’s capital murder conviction and special circumstances findings is demonstrated by comparing it to the evidence underlying capital convictions in this Court’s recent precedent. In five recent cases, this Court has been presented with insufficiency of the evidence claims challenging first-degree murder convictions premised on felony-murder and premeditation theories with special circumstance allegations that the murder occurred in the course of rape, attempted rape, or robbery. (See Prince, supra, 40 Cal.4th at 1179; Lewis, supra, 46 Cal.4th at 1255; Tafoya, supra, 42 Cal.4th at 147; Wallace, supra, 44 Cal.4th 1032; and Rundle, supra, 43 Cal.4th at 76; and People v. Solomon (2010) 49 Cal.4th 792). Review ofthe dissimilarities proves that Appellant’s first-degree murder conviction and burglary-murder special circumstance are based on insufficient evidence. In Prince, this Court found that the admission of four knives found in the defendant’s car was proper, without evidence that they were the murder weapon, since it was probable “that defendant carried the weapons to the six murders and burglaries he committed.” (Prince, supra, 40 Cal.4th at 1247). In fact, one of the knives had been stolen from the residence of one of the murdervictims. (/d. at 1246). This Court found that the evidence was probative of intent and premeditation because the defendant’s possession of the knives supported an inference that he “came armed with his own knife, and the subsequently committed burglaries and attempted burglaries bore enoughsimilarities to those murders (and the burglaries related to those murders) to enable the jury to reasonably conclude he was armed with his own knife (perhaps one of the knives discovered in his automobile) when he committed someofthe charged 155 burglaries and attempted burglaries.” (/d. at 1248). In Appellant’s case, however, there was no evidence indicating that Appellant used the murder weapon to kill Ms. Olsson. Unlike in Prince, the knife was not found in Appellant’s possession. Also unlike in Prince, the knife allegedly used by Appellant was not stolen from the victim’s home and found in Appellant’s possession.” (Jbid.). Finally, unlike in Prince,the fact that Appellant once owned the murder weaponprior to the murder only indicates circumstantial evidence of his guilt and has no bearing on whetheror notthekiller harbored premeditation by carrying the weapon with him to Ms. Olsson’s murder. In Rundle, the defendant arguedthatthetrial court erred by denying his motion to dismiss the charge of attempted forcible rape and the associated attempted-rape felony-murder charge and special circumstance allegation on the groundofinsufficiency of the evidence. (Rundle, supra, 43 Cal.4th at 139). This Court denied the claim because the defendant had confessed to the crime and the circumstancesofthe crime indicated defendant’s guilt. (See Jd. at 138-140). Here, however, Appellant neither confessedto the crime nor was seen with the victim. Similarly, the victim was found in her home, alone, and not along the highway that the defendant had driven. Moreover, insufficient evidence existed for the jury to determine that Appellant specifically intended to have vaginal intercourse as part of the felony-murder theory. (See People v. Holt (1997) 15 Cal.4th 619, 676,; and Raley, supra, 2 Cal.4th at 889-891). In Lewis, the defendant challenged the sufficiency of his rape- murder special circumstance. This Court denied the claim because sperm °° (See Prince, supra, 40 Cal.4th at 1248 (“The court noted evidence establishing that defendant sometimes removedkitchen knives from drawers while committing his crimes and that he used kitchen knives “similar to the one taken from the defendant's vehicle in these homicides.”)). 156 was found on the victim. (See Lewis, supra, 46 Cal.4th at 1291). In Lewis, just prior to the murder, the defendant had made overt sexual remarksto the victim in a public place, and eye-witnesses had identified the defendant as the last person seen with the victim. Further, the defendant’s sperm was not inconsistent with that found in the victim. In contrast, no eye-witness identified Appellant at the scene of the crimeor in the companyofMs. Olsson, no semen was foundat the scene of Ms. Olsson’s homicide, and Appellant had never been seen in Ms. Olsson’s company. In Wallace, the defendant challenged the attempted rape conviction, attempted rape-murderspecial circumstance and attempted robbery-murder special circumstance as not supported by sufficient evidence. (Wallace, supra, 44 Cal.4th at 1077). This Court denied the claim because the defendant was foundby police at the scene of the crime at the victim’s house with his “belt [] unfastened, and his pants [] buttoned only at the top.” (Ud. at 1078). Here, Appellant was neveridentified at the scene, nor washis state of dress observed. In Tafoya, the defendant argued that there was insufficient evidence to support his conviction for premeditated murder with a robbery-murder special circumstance: his primary defense wasthat the robbery was an afterthought of the murder. (Tafoya, supra, 42 Cal.4th at 172). This Court denied the claim because eye-witnesses saw the defendant force his way into the home before the murder, and leave the homecarrying a canvas bag that he had not been holding upon entry. (See Tafoya, supra, 42 Cal.4th at 171). In contrast, in Appellant’s case, no witness identified Appellant at the scene of the crime or entering the house. More importantly, no evidence indicated that the murderer robbed Ms. Olsson prior to her murder. 157 E. Conclusion. In light of the absence ofsufficient evidence ofeither premeditated or felony murder, this Court must reverse Appellant’s first-degree murder conviction. Likewise, because there was insufficient evidence of felonious intent, there was also insufficient evidence of the burglary-murder special circumstance. Upholding these charges, in the face of insufficient evidence, relieves state prosecutors of their duty to prove the existence of each criminal element beyond a reasonable doubt and violates Appellant’s constitutional rights to due process,a fair trial, and a reliable penalty determination underthe Fifth, Sixth, Eighth and Fourteenth Amendments, as well as, parallel provisions under Article I of the California Constitution. 158 Vil. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF APPELLANT’S UNEMPLOYMENTAS FACTS PROBATIVEOF HIS INTENT TO STEAL. A, Introduction. This Court has recognized that evidence of a defendant’s poverty or indebtednessis inadmissible to establish motive to commit robbery ortheft and should have been excluded as moreprejudicial than probative. In the face ofthis authority,the trial court’s arbitrary decision to admit evidence of Appellant’s lack of employment to prove “motive” constituted an abuse of discretion. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1125). Moreover,in a capital case where the sole special circumstance rested on a finding of larceny,the trial court’s decision to admit the unduly prejudicial evidence was a miscarriage ofjustice and violated Appellant’s rights to due process, equal protection,a fair trial, and reliable sentencing under the Sixth, Eighth, and Fourteenth Amendments,as well as, Article I of the California Constitution.” During the guilt phase of Appellant’s trial, the prosecution introduced, and exploited, prejudicial evidence of Appellant’s unemployment. According to the prosecutor, the evidence was introduced solely to prove “motive.” (RT 2522).°’ Thetrial court overruled defense °° In recent history, this Court has not addressed an error based on the introduction of the defendant’s economicstatus to prove the intent necessary for a robbery conviction. Thelast time the Court addressed the matter was in Wilson, supra, 3 Cal.4th at 939; and People v. Edelbacher (1989) 47 Cal.3d 983, 1024. Appellant thus presents a novel issue to this Court. °7 Respondenthas also impermissibly used this prejudicial evidenceto try to establish Appellant’s motive and intent to commit larceny in arguing that sufficient evidence supports his capital murder conviction and burglary-murderspecial circumstance. (See Claim VI — Insufficient Evidence Supports Appellant’s Convictions of Capital 159 objections and admitted the evidence to prove “motive.””* Thetrial court’s ruling violated this Court’s precedent and, given its context within a capital murder case alleging a theft based special circumstance, prejudiced Appellant. In his Opening Brief, Appellant set forth authorities prohibiting the introduction of evidence of poverty to establish a criminal defendant’s motive for theft or robbery based crimes. (I AOB 202-03 (citing Wilson, supra, 3 Cal.4th at 926; Edelbacher, supra, 47 Cal.3d at 1024; United States v. Mitchell (9th Cir. 1999) 172 F.3d 1104, 1108-1109; and United States v. Bensimon (9th Cir. 1999) 172 F.3d 1121, 1129)). Appellant also relied on evidentiary treatises to demonstrate the wide- spread ban on evidence of poverty to prove motive in property based crimes. (I AOB 203 (citing 2 Wigmore, Evidence (3d ed. 1940) § 392, at 34)). In opposition, Respondentarguesthat “no abuse oftrial court discretion appears” (RB Murder, the Burglary Murder Special Circumstance, or His Conviction for Assault With Intent to Commit Rape). °8 Thetrial court failed to record the critical bench conference called in response to defense objections. (See RT 2522). The prejudicial effects emanating from thetrial court’s failure to properly record the proceedings in this case is shown by the missing transcript regarding introduction of evidencerelative to Appellant’s economic status. (See Claim I — The Missing Portions of the Record Deprive Appellant of Meaningful Appellant Review). While the court would later make a post hoc record of the conference inter alia and state that the discussion was based on issues of relevancy,there is no actual record of what objections were lodged by defense counsel. (RT 2536). The lack of record here should defeat Respondent’s argument that Appellant failed to raise his constitutional argumentsattrial. Deficiencies in the record which impede meaningful review and a determination whether Appellant’s counsel made the requisite contemporaneous objection waive the contemporaneousobjectionrule. (Cf. Young, supra, 34 Cal.4th at 1203 (“becauseit cannot be ascertained whether defense counsel specifically requested clarification [of an instruction], we shall give defendant the benefit of the doubt and find the issue preserved for appeal.”’)). 160 187) or that the error alleged by Appellant does notrise “to the level of a federal constitutional violation.” (RB 189). Respondent’s arguments conflict with the authorities on the subject and Respondent cites no authorities in opposition to those cited by Appellant. B. Appellant’s Claims have not been Procedurally Defaulted. Respondentinsists that “Appellant objected at trial to the unemploymentevidence on relevancy grounds only.” (RB 187 n. 18). Respondentarguesthat “[i]f appellant is alleging the state and federal constitutional [grounds] as providing a theory of inadmissibility in addition to relevancy, those arguments are forfeited,” (/bid.), as is his claim “that the trial court should have excluded the unemploymentevidence underthe Evidence Code section 1101.” (Zbid.). Previously, Respondent insisted that Appellant failed to show that the missing record for unrecorded hearings, proceedings and conferencesin his case, affected or prejudiced his appeal. (See Claim I - An Inadequate Record Exists For Meaningful Review of Appellant’s Case on Appeal). Now, Respondent argues that Appellant’s claims have been forfeited for failure to object at trial when the bench conference held in response to defense counsel’s objections were unrecorded and there is no record of whatobjections were lodgedat that time. (RT 2536). Respondentutilizes that record, and the trial court’s post hoc summary of the ruling, which does not include the party’s objections, to argue that Appellant’s claims have been forfeited. In doing so, Respondent shows why this Court cannot conduct a meaningful review of Appellant’s case based on the record at hand. *° If Appellant’s Evidence Code section 1101 argumentor constitutional arguments are deemed forfeited because the ad hoc record does notindicate all the grounds of the objection, then he has demonstrated prejudice to support a reversal of his conviction for an 161 The record does not prove that Appellant’s claims are forfeited and the state’s invocation of procedural bars is without merit. (Cf. Young, supra, 34 Cal.4th at 1203). The introduction of the inadmissible and prejudicial evidence wasprohibited on state and federal constitutional grounds. The constitutional rights served as a measure against the admission of the evidence andthe constitutional violations flow from the evidence’s admission. Respondent’s claims to the contrary are unpersuasive. Respondent mischaracterizes People v. Avila. Pursuant to Avila, an appellate argumentis notforfeited if: the new arguments do not invoke facts or legal standards different from those thetrial court itself was asked to apply, but merely assert that the trial court's act [in admitting the evidence], insofar as it was wrong for the reasons actually presented to that court, had the additional legal consequence of violating the federal Constitution. (Avila, supra, 38 Cal. 4th at 527 n.22). Thus, where an objection made on state law grounds wasoverruled by thetrial court, the objection may be raised on appeal arguing both state law and federal constitutional grounds if the initial state law grounds were valid. Here, the trial court’s decision was in violation of state law, this Court’s authorities and defense counsel’s objections. Appellant may thusraise the constitutional objection on appeal as groundsforreversalof thetrial court’s decision. inadequate record. (See ArgumentI - An Inadequate Record Exists For Meaningful Review of Appellant’s Case on Appeal). 162 C. The Trial Court Abused Its Discretion by Admitting Evidence of Appellant’s Poverty as Indicia of his Motive for the Burglary-Murder Special Circumstance. The evidence that Appellant was unemployed wasnotprobative of Appellant’s mental state under California and federal authorities. (See Cal. Evidence Code § 1101; Wilson, supra, 3 Cal.4th at 939; Bensimon, supra, 172 F.3d at 1129; and Edelbacher, supra, 47 Cal.3d at 1024). Nevertheless, it was used by the prosecutor to establish a motive for the commission of a violent offense and special circumstance. The impermissible use of this evidence substantially prejudiced Appellant’s constitutional rights. By ignoring applicable law andissuing an orderthat ultimately resulted in a miscarriage ofjustice, the trial court abusedits discretion in admitting evidence of Appellant’ state of poverty. Respondent argues that “no abuseoftrial court discretion appears” (RB 187), and tries to distinguish this Court’s precedent under Wilson and Edelbacher as meaningthat“it is unfair to make poverty alone a ground for suspicion or evidence to establish a motive to commit poverty [(sic)] robberyortheft.” (/d. at 187-88). Respondent argues that the trial court did not abuseits discretion because the “evidence was probative [ ] of Appellant’s living status.” (/d. at 188). Respondent’s citations and arguments are misplaced. In Wilson, the Court held that the only acceptable purpose for introducing evidence of a defendant’s poverty is to “refute a defendant's claim that he did not commit the robbery because he did not need the money.” (Wilson, supra, 3 Cal.4th at 939). There, like here, there was no need to present evidence of Appellant’s unemployment because he had nevertestified to the fact that he did not need money. In Edelbacher, the state submitted evidence of defendant’s indebtednessto establish a creditor-debtor relationship between the victim and the defendant. (Edelbacher, supra, 47 Cal.3d at 1024). 163 Here, there was no such relationship between Appellant and Ms. Olsson. Instead, the prosecution submitted the evidence of Appellant’s poverty solely for the impermissible and prejudicial purpose ofprovinghis intent to commit a theft-based crime. (RT 2522). Similarly, Respondent has argued that the evidence proves Appellant’s motive for committing the capital homicide and burglary-murderspecial circumstance. (RB 179). In this argument, however, Respondentcloaks its position by redefining “motive” as “living status.” (/d. at 188). Respondent fails to show that the jury would have used the evidence for anything else than establishing Appellant’s motive during the capital homicide.” Respondent argues that the evidence was admissible because the state had already presented other evidence, in the form of Appellant’s drug addiction, establishing that he “had a hard time keeping a job.” (RB 188). Respondent’s argumentis specious. Respondentdoes not explain how evidence of Appellant’s drug addiction cures the improper and prejudicial admission of evidence of Appellant’s unemployment. In fact, the prosecutorial arguments cited by Respondentrevealthe prejudice resulting from thetrial court’s error. (Ibid. (“’He’s using drugs. Well, where do you get moneyforthat if you can’t keep a job”....I mean we’re nottalking about keeping a roof over your head.””) (citing RT 3049)). °° Tn fact, the prosecutor urged the jury to consider Appellant’s financial state as indicative of his motive when he arguedin the guilt phase closing arguments, “Now, why would he go into her home,aside to dothat and to steal, whether he thought there might be drugsor just take a few dollars that she had in herpurse, thinking that maybe there would be more? Now,John Chandlerdidtell us a few things about the defendant, he couldn't keep ajobfor six months before he movedoutofthe house in July, couldn’t keep ajob. He’s living with John Chandler. What else do you know about the defendant? Well, the defendanttells us he’s using drugs. Well, where do you get the moneyfor that ifyou can’t keep ajob? How do you support that? I mean we’renottalking about keeping a roof over your head.” (RT 3049.) 164 Respondent argues that the evidence “was probative...of Appellant’s living status.” (RB 188), and “helped establish that Appellant was living in the immediate vicinity when the murder, burglary, and assault with intent to commit rape occurred.” (/d. at 189). Respondent argues that the evidence contradicted John Chandler’s testimony and Appellant’s statements on March 27 and 30, 1987. (d. at 188). Respondenttries to create a material dispute of facts, concerning when Appellant moved out of Mr. Chandler’s house,that does not exist in the record. At trial, there was no real dispute that Appellant had been living with Mr. Chandler some time before the crime, and that Appellant occasionally came back to Mr. Chandler’s to get his mail and telephone messages. Accordingly, the unemployment evidence wasnotnecessary to refute any dispute over the timing of Appellant’s visits or stays with Mr. Chandler. Moreover, the fact that Appellant was unemployed supports an inference that he was living at Mr. Chandler’s house as muchas an inference that he was homeless,transient, or lived in a shelter.” Respondentfails to adequately defend the admission ofthis evidence to prove Appellant’s “motives.” Respondent’s characterization of the evidenceasrelative to “living status,” while novel, is not supported by the record since the prosecutor explicitly stated that the evidence was admitted for “motive.” (RT 2522). Respondent’s efforts to create a factual dispute to the contrary fail. The state has done nothing to show that the evidence of Appellant’s unemployment was admitted for any other purpose than the improper attempt to prove his motive for a theft based capital homicide. °! Indeed, the prosecution would later argue that a life sentence would be too good for Appellant because he would “always have a house,a roof over his head, food on thetable....” (RT 3814-15). 165 D. Conclusion. Respondent donates a remarkably small amountofits time trying to rebut Appellant’s allegations that the admission of evidence concerninghis poverty prejudiced his constitutional rights. Respondent expends only one sentence in reference to Appellant’s constitutional rights: “because the evidence was admissible on multiple grounds[this] refutes Appellant’s claim that the admission of the evidenceroseto the level of a federal constitutional violation.” (RB 189). Respondent wrongly overlooksthe prejudice resulting from thetrial court’s abuse of discretion. The introduction and use of evidence of Appellant’s poverty by state prosecutors obliterated his chances of receiving fair trial for the theft based allegations of capital homicide. Both the discrimination on the basis of poverty and the use of such prejudicial evidenceto establish a quantum of Appellant’s mens rea violated his rights to a fair trial, due process,reliable sentencing and equal protection underthe Fifth, Sixth, Eighth and Fourteenth Amendments. (See Estelle v. McGuire, (1991) 502 U.S. 62; and Griffin, supra, 351 U.S.at 17- 18). Appellant has shown howthe evidence, which served as an elementof his burglary-homicide special circumstance, prejudiced his chances ofa fair trial. In the absenceofthis prejudicial evidence Appellant would not have been convicted of capital murder. Appellant had a “substantial and legitimate expectation” that he would not be convicted or deprived ofhis life in violation ofstate rules. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346). Appellant was arbitrarily denied the protections ofstate law andhis constitutional rights as a result of the trial court’s abuse of discretion and the manner by which the prosecution used evidence ofhis poverty. As a result, Appellant’s conviction and death sentence must be reversed to remedy the violations of 166 his rights to due process,a fairtrial, reliable sentencing, and equal protection underthe Fifth, Sixth, Eighth and Fourteenth Amendments,as well as, parallel rights under Article I of the California Constitution. 167 VIII. THE TRIAL COURT’S ERROR AND PROSECUTORIAL MISCONDUCT RESULTEDIN THE IMPROPER INTRODUCTION OF VICTIM IMPACT EVIDENCE AT THE GUILT PHASE. A. Introduction. Unduefocuson the victim’s suffering is generally improper at the guilt phase. Here, the trial court abusedits discretion by arbitrarily failing to enforce prior court orders and allowing the guilt phase proceedings to be permeated by victim impact evidence. (See Rodrigues, supra, 8 Cal.4"at 1124-25). The prosecutor committed misconduct because, at every stage of the guiltphase proceedings,he intentionally violated court orders and urged the jury to base its verdicts on inflammatory and wholly irrelevant evidence concerning Ms. Olsson’s professional reputation and the impermissible evidence regarding the impact of her death on family, friends, coworkers, and her community. Appellant’s criminal convictions arise from a combinationoflegal errors by the trial court and misconduct by the state prosecutor. Both allowed for the improper admission of irrelevant and prejudicial victim impact evidence at the guilt phase proceedings. (See People v. Stansbury (1993) 4 Cal.4th 1017, 1057; People v. Kipp (2001) 26 Cal.4th 1100, 1130; People v. Millwee (1998)18 cal.4th 96, 137; and Frye, supra, 18 Cal.4th at 894. The prosecutor’s manipulation of the evidence and misconduct“so infected thetrial with unfairness as to makethe resulting conviction a denial of due process” and fundamental fairness. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643; and Darden v. Wainwright (1986) 477 U.S. 168, 182-83). In the end, the prosecutor earned Appellant’s convictions through “deceptive or reprehensible means.” (Peoplev. Samayoa (1997) 15 Cal.4th 795, 841). Herein, Appellant showsthat the prosecutor“intentionally elicited] inadmissible” victim impact testimony 168 and intentionally failed “to comply with [court orders].” (People v. Bonin (1988) 46 Cal.3d 659, 689; see also People v. Hill (1998) 17 Cal.4th 800, 832). The jury was required to objectively evaluate the evidence and the elements of the crime when considering whether the prosecution established, beyond a reasonable doubt, first-degree murder, the burglary- murderspecial circumstance, and the separate count of assault with intent to commit rape. The law does not permit the jury’s determination to be swayed by sympathyfor the victim and her family, or coworkers. (See People v. Taylor (2001) 26 Cal.4th 1155, 1182). Instead of complying with the law, and despite repeated defense objections, the prosecutor urged the jury to convict Appellant based on sympathy for the victim starting with the very first words uttered in Appellant’s case.” Thetrial court failed to correct the resulting prejudice, despite its prior orders, and, ultimately, the prosecutor flouted the court’s rulings while introducing impermissible and highly prejudicial evidence. Respondentsaysthat: “Appellant’s multiple claims in argument8 of prejudicial prosecutorial misconductandtrial court errorall fail.” (RB 209). Respondenttries to justify the introduction of the prejudicial victim impact testimony becauseit “was contrary to the wild life of drinking, sex, ° Intentionality is not required. (See Hill, supra, 17 CalAth at 822). This Court noted that “injury to Appellant is nonetheless an injury because it was committed inadvertently rather than intentionally.” (People v. Bolton (1979) 23 Cal.3d 208, 213-214 (quoting Directors of the Columbia Law Review Association, “The Nature and ConsequencesofForensic Misconduct in the Prosecution of a Criminal Case” (1954) 54 Colum. L.Rev. 946, 975)). Respondent’s brief misinterprets People v. Smithey whenit says that this Court “has also established thatit is the prosecutor's intentional elicitation of inadmissible evidence that constitutes misconduct.” (RB 263). People v. Smithey emphasizesthat“it is, of course, misconduct for a prosecutor to intentionally elicit inadmissible testimony,” but it does not require a showingof intentionality. (People v. Smithey (1990) 20 Cal.4th 936, 960). 169 and selling drugs that was the lifestyle Appellant gave to Olsson in his statements to police.” (/d. at 204). This was not a groundprofferedattrial by the prosecution for admittance of the evidence. Respondent now argues that becausethetrial court accepted the prosecutor’s explanations and “overruled the defense objection[s] to the challenged remarks[] further demonstrates no prosecutorial misconduct, but [ ] a reasonable ruling....” (Id. at 196 (citing I AOB 235-37)). In Respondent’s mind,itis “ The arguments not rebutted by respondent are: 1) The prosecutor committed misconduct and prejudiced Appellant’s constitutional rights by forcing defense counsel to repeatedly object to the prosecutor’s objections. (See II AOB 386); 2) The prosecutor implied to the jury that the state had relevant information and defense counsel sought to withhold that information from the jury. (See Jd. at 365); 3) The prosecutor improperly asked questionscalling for the witness to engage in speculation about 280 failure to address these thirteen (13) specific arguments underminesits “conclusion”that the prosecutor did not commit misconduct and Appellant’s constitutional rights were not violated. As shown in the Opening Brief and below,the prosecutor asked the witnesses impermissible questions that sought testimony expressly ruled inadmissible bythetrial court, including: 1) opinions about the nature of the crime; 2) speculation about the victim’s thoughts in the last minutes of her death; 3) expressions of fear about the witnesses’ personal safety; and 4) the victim’s specific travel plans. The prosecutor continued to delve into these areas even after objections had been sustained and exacerbated the misconduct. The prosecutor was looking for any opportunity to parade these items before the jury regardless of their admissibility. B. Appellant’s Arguments are not Procedurally Defaulted. Appellant recognizes that as a general rule he “may not complain on appeal of prosecutorial misconduct unless in a timely fashion -— and on the emotional but irrelevant matters. (See /d. at 367); 4) Thetrial court erred by failing to instruct the witnesses to limit the scope of their testimony. (See Id. at 371); 5) The prosecutor acted unethically by failing to control his witnesses, through the use of leading questions, despite his affirmative duty to do so. (See IT AOB 372); 6) The prosecutor impermissibly asked irrelevant questions that called for hearsay in order to cajole defense objections. (See Jd. at 375-76); 7) The prosecutor’s questions went well beyondtheir offer ofproof regarding the victim impact testimony. (See Jd. at 376); 8) The prosecutor improperly refused to follow the trial court’s requirement that he ask leading questions. (See /d. at 378); 9) The defense should not have been penalized because the prosecution failed to control their witnesses. (See Id. at 380); 10) The prosecutor improperly engaged in a pattern or course of misconduct, which cumulatively, violated Appellant’s right to a fair trial. (See /d. at 382); 11) Thetrial court did not apply the proper standard in denying Appellant’s mistrial motions. (See /d. at 384); 12) The prosecutor willfully violated court orders by refusing to instruct witnesses as to inadmissible areas of testimony. (See Jd. at 385); and 13) The prosecutor exacerbated the prejudice resulting from the victim impact testimony by using it during his closing argumentin the penalty phase. (See Id. at 387). 281 same ground —— the defendant made an assignment of misconduct and requested that the jury be admonishedto disregard the impropriety. (See People v. Berryman (1993) 6 Cal.4th 1048, 1072 (citations omitted)). However, as this Court noted in People v. Hill: The foregoing...is only the general rule. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. In addition, failure to request the jury be admonished doesnot forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct. Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request. (Hill, supra, 17 Cal.4th at 820-821 (citations omitted)). Here, as in Hill, there was rampantprosecutorial misconduct aimed at forcing defense counsel into an “obstructionist” position by requiring repeated objections to prosecutorial questions. In Appellant’s case, the prosecutor, from guilt phase opening arguments to penalty phase surrebuttal, sought to underminethe fairness of the proceedings and portray Appellant as obstructionist. The prosecutor's intentional course of misconduct forced Appellant to cast tens of objections per witness and tens of objections during each ofthe prosecution’s arguments. In response, the trial court erroneously overruled the objections or failed to respond to Appellant’s objections with a ruling. The Court entirely failed to correct the prosecutor’s pervasive misconduct. In sum, Appellant’s case represents an extreme example of pervasive and corrosive prosecutorial misconduct that persisted throughoutthe trial. (See Riel, supra, 22 Cal.4th at 1212). Respondent mischaracterizes Appellant’s arguments and the importance ofPeople v. Hill in this case. Respondent contends that Appellant’s arguments are based on the premise “that it matters not that the 282 prosecutor did not intendto elicit inadmissible evidence.” (RB 263 (citing Hill, supra, 17 Cal.4th at 822-23 n. 1)). Respondent contendsthatthis Court requires a showingthat the prosecutor “intentional[ly] elicit[ed] [] inadmissible evidence” for a showing of prosecutorial misconduct. (RB 263). Respondent is wrong In actuality, Appellant’s assertions of misconduct are based on bad- faith conduct, intentional misconduct, and inadvertent misconduct by the prosecutor. Under People v. Hill, 17 Cal.4th 800, 822-23 n. 1, while bad- faith conductis not required for a showing of prosecutorial misconduct, and this Court madeclearthat a showing of prosecutorial error, in overstepping prior court orders or constitutional limitations will suffice for a showing of misconduct. (/bid.). Contrary to Respondent’s assertions, Peoplev. Smithey does nothing to rearrange the required showing for prosecutorial misconduct. (See Smithey, supra, 20 Cal.4th at 961 (citations omitted)). Respondentis simply wrongto argue that Appellant’s claim fails because no showing of prosecutorial intent has been made because: 1) Appellant has proffered sufficient evidence demonstrating malfeasant prosecutorial intent; and 2) only a showing ofprosecutorial error is required. C. The Prosecutor Committed Pervasive and Continuous Misconduct during Presentation of the Victim Impact Witnesses. This Court has not been presented with a case involving the degree of rampant misconduct as evinced in Appellant’s case. (Compare Riggs, supra, 44 Cal.4th at 248, and Leonard, supra, 40 Cal.4th at 1370). In Riggs and Leonard, the defendants’ misconduct claims were based on allegations that the prosecution committed misconduct during the penalty phase by exploiting victim impact evidence. (See Riggs, supra, 44 Cal.4th at 322; and Leonard, supra, 40 Cal.4th at 1416). Here, in Appellant’s case however, the misconduct occurred during the taking ofvictim impact 283 testimony and despite contemporaneous objections made by defense counsel. Respondentargues that Appellant “is simply wrong when he contendsthe prosecutor‘deliberately’ and ‘willfully’ ‘committed pervasive and continuous misconduct’ by asking questions of certain of his penalty phase witnesses involving areas expressly ruled inadmissibleby thetrial court.” (RB 252). According to Respondent, “‘a review of the record refutes Appellant’s assertions that the prosecutor ‘deliberately,’ ‘pervasively’ and ‘continuously’ soughtto elicit inadmissible victim impact evidence at the penalty phase.” (Jd. at 264). Respondent arguesthat: (1) the court ameliorated any prejudice by striking the witnesses’ answer (2) no prejudice occurred because the court sustained defense objections and the witness did not answer and (3) the prosecution cannot be held responsible for nonresponsive answers. (See Jd. at 253, 256, 257, 262, and 263). First, notwithstanding Respondent’s penchant for blaming the witnesses for being nonresponsive,the state’s arguments do not rebut Appellant’s assertion that the prosecutor intended to commit misconduct. Respondent’s argumentsinstead, seek to minimize the prejudice resulting from the prosecutor’s inflammatory course of misconduct. Moreover, ina case involving a prosecutor’s systematic attempts to prejudice the criminal defendant and earn objections, none of Respondent’s arguments have merit. During the prosecutor’s examination of the Olsson family, the defense was forced to object twenty-eight (28) times. Twenty five (25) of the defense’s objections were sustained. (See II AOB 382). Under such circumstances, the court’s instructions to the jury, indicating that they should ignore the prejudicial answers elicited by the prosecution,failed to ameliorate the prejudice stemming from the prosecution’s course of conduct. The testimonythat the prosecutor managed toelicit despite the defense objections was extremely prejudicial. Even where objections were 284 sustained, it would be difficult for the jurors to put the witnesses’ testimony out of their minds. By the time of closing argument, it would have been impossible for them to recall which testimony had beenstricken outofall that was presented. Second, the prosecution’s actions prejudiced Appellant by requiring defense counsel to take an “obstructionist” position. As recognized bythis Court in Hill, the prosecutor’s conduct thrust Appellant upon “the horns of the dilemma”by requiring him to repeatedly object, and risk provoking the trial court and jury’s wrath, or fail to object to the prosecutor’s clear misconduct. (Hill, supra, 17 Cal.4th at 820-821). Third, Respondent’s argumentthat every witness presented by the prosecution was “nonresponsive” unfairly blames the witnesses for a situation that the prosecutor created and could have corrected. Either the prosecutor talked to his witnesses beforehand and knew what the witnesses would say, or he did not prepare them adequately to know what they would say and to caution them about the scope of the court’s ruling. However, the prosecutor never stated that he had counseled the witnesses about the scope of permissible testimony or cautioned them about impermissible areas of testimony. Thus, as defense counsel correctly argued, Appellant “should not be penalized because[the prosecutor] puts witnesses on and does not control them.” (RT 3493). Instead,it is the prosecutor whobears the burden andrisk should the state’s witnesses fail to comply with thetrial court’s limiting orders: The district attorney knew, or should have known, the testimony the officer was going to give and should have warned him not to make the statement. Every prosecutor who offers a witness to testify to a conversation with an accused should know what the witness will relate if given a free hand. The prosecutor has the duty to see that the witness volunteers no statement that would be inadmissible and especially careful to guard against statements that would 285 also be prejudicial. (Baker, supra, 147 Cal.App.2d at 324 (quoting People v. Bentley (1955) 131 Cal.App.2d 687, 690)). In this case, thetrial judge specifically told the prosecutor to make sure that his witnesses would not volunteer inadmissible statements. (RT 3403). The prosecutordid not follow the trial court’s orders, and the witnesses made statementsthat the judge had already ruled inadmissible because they wereprejudicial. Respondent says that the prosecutor could not have known whathis witnesses would say. This, however, is not a valid excuse when a prosecutor's witness makes inadmissible prejudicial statements. (See Baker, supra, 147 Cal.App.2d at 324-25 (“A claim of ignorance onthe part ofthe prosecutoras to the testimony the witness would give cannotbe reconciled with the affirmative duty of fairness in the trial to which prosecutors mustbealert at all times.”)). Regardless of whether the prosecutor intentionally elicited inadmissible testimony, he was responsible for what his witness said and his actions constituted misconduct. 1. The Examination of Sandra Walters. According to Respondent’s count, during the prosecution’s examination of Sandra Walters, defense counsel lodged eleven (11) objections. Respondentarguesthat only five of these objections may be heard on appealbecausetheyare related to objections based on prosecutorial misconduct. (See RB 252). In either case, the frequency of these objections proves the prosecutor’s pattern of misconductandintent to circumvent court orders and inflame the jury. (See II AOB 364-67). Moreover, the frequency proves that Appellant has correctly invoked the exception under Hill to the contemporaneousobjection rule based on the prosecution’s repeated course of misconduct. (See Hill, supra, 17 Cal.4th at 286 820-821. Respondent is wrong to argue that Appellant’s objections to four incidents of misconduct have been waivedfor failure to object attrial. Respondentincorrectly argues that Appellant’s challenges to the following prosecutorial questions are barred: 1) “When you say she madeyou the person you are today, what do you mean bythat?;” 2) “Has her murder had an impact on your relationships with people?;” 3) “In what way has the manner of your mother’s death had an impact on yourrelationships with other people?;” and 4) “In what way has your mother’s death impacted you even after all these years?” (See Jd. at 254-55). Respondent’s forfeiture argument does not discuss Appellant’s citations and reliance upon Peoplev. Hill. Throughoutthe victim impact testimony, the prosecutor sought to make the defense object and appear callous to the family membersas well as obstructionist to the court, and most importantly, the jury. Under these circumstances, Appellant is excused from the legal obligation to continually object, state the grounds of his objection, and ask that the jury be admonished. (See Hill, supra, 17 Cal.4th at 820-821; Arias, supra, 13 Cal.4th at 159; and Noguera, supra, 4 Cal.4th at 638). Respondent argues that prosecutorial questions to Sandra Walters regarding her mother’s desire for grandchildren did not constitute misconductor prejudice based onits belief that “[h]ow Olsson felt about the possibility of grandchildren wasnot a prohibited victim impact subject.” (RB 252 (citing RT 3401-02)). If the evidence was not prohibited, Respondent fails to explain whythetrial court sustained a defense objection for relevancy. (RT 3427). Moreover, Respondentfails to rebut Appellant’s showing of prejudice resulting from this specific incident, particularly when the prosecutor’s later exploitation of the witnesses’ feelings of guilt during his closing argumentis considered. Respondentargues that the prosecutor’s questions to Walters 287 regardingher “relationships with others after her mother’s death” did not constitute misconduct or cause prejudice based on its view that “the prosecutor was exploring a permissible subject; the impact to a child caused by the loss ofa parent,” and no prejudice occurred since the witness did not answerthe question. (RB 253). Far from exploring a permissible subject of inquiry, the particular question at issue here soughtto interject value laden testimony about the witness’ sense of safety for herself and her family in violation ofthe trial court’s order. (RT 3401-02). Moreover, Respondent does not address Appellant’s argumentthat the fact that the prosecutor purposefully returnedto this prohibited themein his redirect examination proves his intent to circumventthe court’s orders and commit misconduct.'’° Respondentarguesthat the prosecutor’s questions, seeking to get “any more information about...what had happened to your mother,”did not constitute misconductor prejudice Appellant’s constitutional rights because there is no “misconduct in asking Walters to describe the events leading her to the discovery of the circumstances surrounding her mother’s death,” and no prejudice accrued to Appellant becausethetrial court struck the answer. (RB 253). Here again, however, Respondentignoresthe fact that the question was well beyondthe court’s orders, since the trial court sustained defense objections(timeafter time). Respondentalso ignores the prosecutor’s exploitive use of the inflammatory evidence duringthe closing arguments in the penalty phase.'!” "6 Onredirect, the prosecutor asked: “You indicated that you had some difficulty being intimate. What do you mean by that?” Walter’s answered:“It’s very hard for me to be close with somebody. I prevent myself to be close enough to love somebody becauseI’m afraid they’ re going to go away like my motherdid.” (RT 3439). 7 The prosecutor also read Walter’s testimony about her fear for her ownsafety to the jury during his argument, even though it was 288 Finally, Respondent argues that prosecutorial questions about Ms. Olsson’s breast cancer and biopsy were not misconduct and did not prejudice Appellant’s constitutional rights because the “context makes clear that the prosecutor had not attempted to elicit inadmissible evidence but merely posed questions concerning, the impact of the nature of the death here as distinguished from accidental death or death from other causes.” (RB 254). By asking these questions, the prosecutorelicited inadmissible testimony. The invitation for Walters to speculate about whether she would have preferred to see her mother die of cancer was not designedto elicit the impact of what actually happened. Furthermore, the testimony does not describe the impact the death of Ms. Olsson had on Sandra Walters. 2. The Examination of Trip Walters. According to Respondent’s count, defense counsel lodged nine (9) objections during the direct examination of Trip Walters, six (6) of which included objections on groundsrelated to misconduct. (RB 255). In truth, all of Appellant’s objections may be considered in evaluating the prosecutor’s pattern of misconduct andintent to circumventthetrial court’s orders whetheror not they are preserved for Appellate review. That includes the thirty-seven (37) instances where objections were raised and (the bulk of which were sustained by thetrial court) during the presentation of the state’s victim impact evidence. (See IT AOB 362). Respondentclaims that one of Appellant’s objections and arguments on appeal has been forfeited for failure to object on groundsrelated to misconductat trial. Respondentthus feels that Appellant cannot argue that the prosecutor committed misconduct whenhe asked,“Is there any difference if you hadlost her as a result of that cancer or someotherillness as opposedto the fact that she was murdered?” (RB 257 (citing RT 3448- expressly outside the court’s ruling on admissible victim impact testimony. (RT 3745). 289 49)). Here, as above, Respondent’s forfeiture argument whollyfails to discuss People v. Hill. Underthe circumstances of Appellant’s case, the pervasivenessofthe prosecutorial misconducthas excused his defense counsel from the legal obligation to continually object, state the grounds of his objection, and ask that the jury be admonished. (See Hill, supra, 17 Cal.4th at 820-821). Respondent says that no misconduct occurred when the prosecutor asked Trip Walters about “how hefelt going into his mother’s home for the first time after her murder.” (RB 256). Walters’ testimony in response provided a particularly harrowing description of the circumstancesofthe crime. Respondent wrongly blames the witness for the prejudicial answer and defense counselfor failure to request that the answerbe stricken. (Ibid.). Walters’ testimony was unrelated to victim impact evidence or factors unrelated to the impact the loss of Ms. Olsson had on herlife or Ms. Olsson’s character. Walter’s response was duplicative of the prosecution’s guilt phase case and unduly prejudicial. More importantly, it did not match the proffer offered by the prosecutoror fit within the trial court’s victim impact orders. Respondentclaims that no misconduct occurred when the prosecutor asked Trip Walters about moving from Greenville, Mississippi to Marin, California. (RB 256). Respondent concedesthat the answer “touched on the inadmissible area of Olsson’s military service.” (Ibid.).""® Respondent concedesthatthetrial court sustained two relevancy objectionsto related 18 Respondent concedesthat, in response to the prosecutor’s questions, Mr. Walters testified about several areas of inadmissible evidence before an objection could be voiced. For example, the jury learned that Ms. Olsson collected dolls when she was “stationed over in Japan and Koreainthe service,” and that Elbert had given her a collection of over 200 turtles throughouthis childhood. (RT 3443). 290 questions here. (/bid.). However, Respondent again wrongly blames defense counsel for not having the irrelevant evidence stricken from the record. (/bid.). The trial court’s ruling, sustaining defense objections on grounds of relevancy, validates Appellant’s arguments that the prosecutor repeatedly sought to commit misconductandthus,this case is analogousto People v. Hill, where the prosecutor’s pattern of misconduct rendered a curative instruction meaningless to cure the prejudice resulting from the prosecutor’s questions and the witness’s answers. (See Hill, supra, 17 Cal.4th at 820-821). The prosecutor’s question soughtto elicit testimony regarding several areas of inadmissible evidence before an objection could be voiced. In particular, the question sought to introduce evidence about Ms. Olsson’s military service and leisure time. This was despite the trial court’s express ruling prohibiting such evidence. (RT 3401). These instances reveal the prosecutor’s persistent attempts to place highly prejudicial evidencein front of the jury. This was despite the fact that the prosecutor knew that the subject matter had been expressly excluded bythetrial court. Respondentargues that the prosecutor did not commit misconduct when heasked Trip Walters “is there any difference if you hadlost her as a result of that cancer or someotherillness as opposedto the fact she was murdered?” (RB 257 (citing RT 3448)). Respondent wrongly asserts that “Appellant is challenging only the answer, not the question. (RB 257). Respondentblames Trip for giving a “nonresponsive answer.” (/bid.). The fact that the prosecution repeatedly asked this question of witnesses demonstrates the prosecutor’s efforts to have witnessestestify as to the circumstances of Ms. Olsson’s death. Here, like above, the prosecutor was responsible for controlling his witnesses and preventing their prejudicial answers. (See Baker, supra, 147 Cal.App.2d at 324). This situation could have been cured had the prosecutor communicatedthetrial court’s orders to 291 the witnessesprior to the examination. Even in the absence of any restrictions, questions seeking to goad the victim impact witnesses into providing emotional responsesto the circumstancesof the crimeare highly prejudicial, inadmissible, and indicative of prosecutorial misconduct. 3. The Examination of Jan Dietrich. According to Respondent’s count, Appellant lodged seventeen (17) objections during the prosecution’s examination of Jan Dietrich. (RB 258). Ofthese objections, Respondentfeels that only ten (10) were on grounds related to misconduct. (/bid.). Respondenterrs in its count and analysis. Moreover,although notall incidents were alleged as misconduct on appeal, in Appellant’s openingbrief, twenty-four (24) instances of misconduct were referenced as proof ofa pattern or prosecutorial misconduct and prosecutorial intent to circumventthe trial court’s orders. (See II AOB 370-76). Respondentsays that Appellant’s first arguments of misconduct, which stem from the prosecutor’s questions urging Dietrich to “answerthat she had beenafraid her father would die from shock upon learning of Olsson’s murder” shouldfail due to lack of a contemporaneous objection. (RB 262 (citing RT 3461-63)). Respondent continues to wholly ignore the similarities between Appellant’s case and People v. Hill, where, as here, the pervasivenessof the prosecutorial misconductat hand excuses defense counselfrom the legal obligation to continually object, state the grounds of his objection, and ask that the jury be admonished. (See Hill, supra, 17 Cal.4th at 820-821). Respondentargues that the prosecutor did not commit misconduct by asking Dietrich: “Did you get a sense of the professional esteem [Ms. Olsson] was held in?” (RB 258). Respondent wrongly claimsthat the trial court’s prior rulings allowed the question. (/bid.). In Respondent’s view, 292 the fact that the trial court sustained the objectionis irrelevant and “inexplicable.” (/bid.). Moreover, Respondent argues that because the question went unanswered, Appellant did not suffer any prejudice. (Jbid.). Respondent’s attacks on thetrial court’s ruling are unavailing. The prosecutor’s question clearly soughtto violate the trial court’s guilt phase and penalty phase orders. (See Claim VIII - The Trial Court’s Error and Prosecutorial Misconduct Resulted in the ImproperIntroduction of Victim Impact Evidence at the Guilt Phase). Similarly, the fact that the question went unanswered does not cure prejudice to Appellant’s constitutional rights. First, the question itself presupposes a positive answer, so the questionitself offered evidence regarding a topic already declared outside of the limits of victim impact testimony. Second, defense counsel wasstill required to object and cause prejudiceto his client by appearing obstructionist towards the court and callous towards the victim family members. Respondentsaysthat the prosecutor did not commit misconduct by asking Dietrich “when you go to your father’s home in Topeka, Kansas, the concerns that you had, what was he doing when you saw him?”and “aside from finding a funeral parlor, what else did that entail?” (RB 258 (citing RT 3462)). Respondenttries to justify its conclusion because “no answer was given to the question means no prejudice flowed to Appellant...” (Zbid.). Respondentalso uses this faulty reasoning to wrongly argue that no misconduct occurred when the prosecutor asked Dietrich about the presence ofpolice at her mother’s funeral, and asked: “On Wednesday, following your father’s birthday, what transpired at that point?” (RB 259 (citing RT 3467-68)). Not only did misconduct occur in each of these instances, but also the prejudice to Appellant increased. By requiring the defense to make repeated objections in response to each of these questions, the prosecutor caused particular harm to Appellant’s constitutional rights. The 293 prosecution’s tactic directed the jury’s attention to the objectionable testimony “serv[ing] to impress uponthe jury its damaging force.” (People v. Kirkes (1952) 39 Cal.2d 719, 726; see also People v. Pitts (1990) 223 Cal.App.3d 606, 809). Respondentclaimsthat the prosecutor did not commit misconduct by asking Dietrich: “With regard to your sister, given the manner in which she died, are there any thoughts that constantly reoccur?” (RB 259 (citing RT 3472)). Respondent concedesthat the question “referenced matter deemed inadmissiblebythetrial court.” (/bid. (citing RT 3402)). Respondentsays that the “question did not ask for the victim’s thoughts, but permissibly asked for the witness ’s thoughts on how her sister’s murder, as opposedto anothertype of death, had impactedher.”(bid.). Respondent says that the prosecutor’s question is too vague to convey intent. (/bid.). Respondent’s arguments mimic those offered by the prosecutorin responseto the defense motionfor mistrial. (Compare RB 259; with RT 3480). There, the prosecutor“indignantly” claimed that he had notviolated the order because he had asked what “[the witness] thought the thoughts wereofthe victim,” rather than asking what the victim’s thoughts were. (Ibid.). The prosecutor then attempted to justify asking about the victim’s “snirit” leaving her body, arguing that it had “nothing to do with asking for the thoughts of the victim,” but rather had to do “with when she could no longer be experiencing what she was experiencing at the handsofthis defendant.” (/bid.). These arguments makeplain the subterfuge of the trial prosecutor. Whetheror not the question addressed the witness’ thoughts,it still required impermissible speculation into the victim’s thoughts. Asking a witness what she thought about someoneelse’s thoughts is even more speculative and objectionable than asking a witness what someoneelse’s 294 thoughts were at some pointin time.''? Although both questions were objectionable and impermissible, the latter question calls for an opinion or judgmentin addition to pure speculation. The prosecutor’s intent to commit misconduct andviolate the trial court’s orders is further proven here by the prosecutor’s closing argument and exploitation of the highly prejudicial testimony. (See RT 3630-3634). Respondent says that the prosecutor did not commit misconduct during the conclusion of his examination of Dietrich. (RB 261). Respondent concedes that the witness’s answers “ventured into areas foreclosed bythetrial court’s earlier ruling,” but it again wrongly blames the witness for giving nonresponsive answers. (RB 261-62). Respondent’s lengthy citation to the record provesthe validity of Appellant’s arguments. (RB 259-61 (citing RT 3473-76)). There, on four separate occasions, defense counsel objected to the prosecutor’s line of questioning. Nevertheless, the prosecutor continued his course of misconduct, attempting to goad the witness into emotional outbursts by repeatedly asking her what she thought Ms. Olsson went through “‘in the last fifteen minutes ofher life.” (/d. at 3476). The prosecutor sought to interject emotional testimony into the proceedings despite the fact that the trial court had previously and repeatedly foundthe state’s line of questioning irrelevant and beyond the court’s orders. Dietrich’s emotional response wasplainly outside the scope of the court’s ruling on admissible testimony "9 Although he could not present evidence about Ms. Olsson’s thoughts, the prosecutor argued to the jury: “You have to imagine the terror and pain and the horror and the fear and the anguish and the revulsion, all those emotions she went through; you have to do that... . The manner in which she died and what was going through her head, you have a duty to mentally visualize what he put her through. You have a duty to vicariously feel what was going on in those minutes that she was forced to be with him. You have to do that. You haveto do that in order to do justice in this case. You absolutely have to... .” (RT 3726-27). 295 and misled the jury into voting on the penalty based on their emotional response to the homicide. 4, The Examination of Clifford Sandberg. Respondent concedesthat all defense objections raised during Mr. Sandberg’s testimony incorporated arguments of misconduct andthatall of Appellant’s assignmentsoferror related to Mr. Sandberg’s testimony have been properly preserved. (See RB 262-63). However, Respondent wrongfully argues that none of the objections have merit. Respondentsaysthat the prosecutor did not commit misconduct by asking Mr. Sandberg: “Basically you were in the stage of - was it a car you were going to buy, or someother, like a van...” (RB 262-63 (citing RT 3486)). Respondentsays that because the question wasinterrupted by an objection, which wassustained bythe court, no prejudice resulted to Appellant. (/d. at 263). Respondent is wrong. “It is, of course, misconduct for a prosecutor to ‘intentionally elicit inadmissible testimony” (Bonin, supra, 46 Cal.3d at 689 (overruled on other grounds in Hill, supra, 17 Cal.4th at 823 n. 1) (citations omitted)). It is far worse where the prosecutor continuesto attemptto elicit the evidence after defense counsel has successfully objected. (See Bell, supra, 49 Cal.3d at 532). Here, as part of a pattern of ongoing misconduct the prosecutor intentionally soughtto elicit inadmissible testimony from Mr. Sandberg. Respondenterrs in saying that the prosecutor did not commit misconduct by asking Mr. Sandberg: “With regard to losing [Ms. Olsson] has her death been differentin its effect on you, given how she died?” (RB 263 (citing RT 3487)). Respondent concedesthat the witness, in response,stated that his daughter had been “tortured” (/bid.), but claims that no prejudice inured to Appellant due to the question becausethetrial court sustained defense counsel’s objections and struck the witness’ answer. (/bid.). Respondent 296 argues that there “is no indication [the prosecutor] purposefully elicited the “torture” answer” and that the prosecutor’s “line of inquiry” wasjustified by thetrial court’s orders. (Jbid.). The state did not present evidence to show that Ms. Olsson was tortured. Moreover, Appellant had not been charged with torture, the torture special circumstance had not been alleged, and the torture murder theory had not beenpled or argued at the guilt phase.'”° Because he had seen no evidence of torture, Sandberg could only have hadthis idea suggested to him by someone whohadinformation about how the murder was committed. The jurors likely inferred from Sandberg’s statements that the police and prosecutor knew that this was what happenedandthat information about how the crime was committed was being kept from them due to a legal technicality. | D. Appellant’s Constitutional Rights were Prejudiced by the Repeated and Flagrant Prosecutorial Misconduct. The prosecutor’s misconduct wasreprehensible, violated state law, and “so infected the trial with unfairness as to makethe resulting [death sentence] a denial of [federal] due process.” (Contra Donnelly, supra, 416 U.S.at 643). Prosecutorial misconductat the penalty phase constitutes reversible error under state law where there is a reasonably possibility that, absent the misconduct, the jury would not have sentenced the defendantto death. (See Brown, supra, 46 Cal.3d at 448). Where, as here, federal constitutional error is involved, the burden shifts to the state ‘to prove beyond a reasonable doubtthat the error complained of did not contribute '20 Defense counselalso raised several additional objections to Sandberg’s testimony:(1) that “torture” has a specific legal meaning; (2) that there was no evidenceoftorture in the legal sense; and (3)that the witnesses’ statement that he “knows” his daughter was “tortured to death” would suggest to the jury that, in the absenceoftrial evidence, he had learned this information from the police or the prosecutor. (RT 3493 and 3496). 297 to the verdict obtained.” (Bolton, supra, 23 Cal.3d at 214 (citing Chapman, supra, 386 U.S.at 24)). Respondentsays that Appellant wasnot“prejudiced, either singly or cumulatively.” (RB 264). Respondentfeels that “[b]y parity of reason, in no waydid the misconductrise to the level of a due process violation in that the prosecutor’s challenged questions rendered Appellant’s penalty trial fundamentally unfair.” (Ibid.). Respondent claimsthat “manyofthe prosecutor’s questions upon which Appellant focuses yielded no answer. Noharm nofoul.” (RB 264). Respondent believes that the court cured any prejudice by striking witnesses’ answers and instructing the jury. (/d. at 264-65). Respondentasserts that “there is no merit to Appellant’s contention that the prosecutorplaced the defense ‘in the position of constantly interrupting the already sympathetic and vulnerable family members ofthe victim.” (/d. at 265). Respondent concludes that because the “aggravation evidenceclearly outweighed the defense casein mitigation,” there “exists no reasonable possibility the jury would have reacheda different penalty verdict....” (Ibid.). Respondent is wrong in all respects. First, Respondent wronglycites to People v. Valdez in support ofits argumentthat the “no harm no foultest controls.” In People v. Valdez, this Court reiterated the holding ofDarden v. Wainwright, andalsostated that “conduct by a prosecutorthat does not render a criminaltrial fundamentally unfair is prosecutorial misconduct understate law only if it involves the use of deceptive or reprehensible methods to attempt to persuadeeither the court or the jury.” (Valdez, supra, 32 Cal.4th at 122). Therefore, whether conduct bya prosecutorrises to the level of misconduct has a twofold analysis. Thefirst is whether the conduct denied the defendant due process. (See Darden, supra, 477 U.S.at 181). If the defendant was not denied due process, the second inquiry — under California state law - is whether the 298 conduct was reprehensible on the part of the prosecutor. (See Valdez, supra, 32 Cal.4th at 122). Here, the misconductby the prosecutor prohibited Appellant from receiving a fundamentally fair trial and violated the due process clause of the Fifth and Fourteenth Amendments, as well as, Article I of the California Constitution. The trial prosecutor’s misconduct infected the penalty phase proceedings with prejudice. The prosecutor utilized inadmissible and damning testimony in argumentand further exacerbated the inflammatory nature of the evidence.” Second, the conduct on the part of the prosecutor was malicious. The prosecutor repeatedly disregarded the judge's ruling to ask leading questions. (RT 3424, 3426, 3427, 3428, 3430, 3433, 3434, 3446, 3448, 3449, 3458, 3460, 3462, 3462, 3466, 3469, 3470, 3473, and 3475). The prosecutor expressed a lack of care for the numberoftimestrial counsel had to object. (See II AOB 384). The prosecutor repeatedly sought to introduce inadmissible evidence, including hearsay evidence and evidence the trial court had already excluded, in order to get defense counsel to '?! The prosecutor reinforced the powerofthis prohibited evidence by expressly and repeatedly bringingit to the jury’s attention during his closing argument: 1) Mondayis the funeral, a time for family and friends to get together . . . there should at least be a sense of privacy. But the police are there. I mean, evenat her funeral, you can’t really forget what happened. (RT 3750); 2) And again, can you just group to yourselves and have support? Well you’ve got the news camera outthere on the third tee or third hole . . . The news camera out there with the big telephoto lens, and it’s zoomingright into the house to see what they can see. Evenif it is not filming, the fact that it’s there, just is this constant — I meanthere is nothing natural about this. And it can’t be ignored. (RT 3652); 3) Not only do you start the packing, you clean up. Do you everthink aboutthat? A crime occurs in somebody’s home,andthe police have to go there; right? ... You know they put fingerprint powder over everything, everything. (/bid.); and 4) Do you ever think, who cleans up his mess? He’s the onethat doesall this. He’s the one that created it. Who cleans up his mess? Not him.It’s the family. (RT 3753). 299 object. Time and time again defense counsel objected andthetrial court sustained the objection. (See e.g., II AOB 362-81). | Undaunted, the prosecutor continued asking broad, open-ended questions -- questions that were designed to draw objections and make the defense appearcallous, cruel and without regard for the victim and her family.” Defense counselpointedout that “it is extremely destructive” to be in the position of objecting constantly during the testimony of the victim’s family. (RT 3483). During the prosecutor’s examination ofthe four Olsson family members, the defense was forced to object no fewer than twenty-eight (28) times. Twenty-five (25) of these defense objections were sustained. (See II AOB 382). The objections were based on both the form of the questions, and the prosecutor’s violation of the court’s prior orders requiring leading questions, as well as, to the content of the questions andthe answers they were designedto elicit. Althoughvirtually all of the defense objections were sustained, the prosecutor put the defense in the extremely prejudicial position of having to constantly interrupt the emotional testimony of Ms. Olsson’s family with objections, thereby alienating the jury against Appellant and highlighting the very evidenceit sought to exclude. Significantly, Respondenterrs in arguing that the weight of the evidence in aggravation so significantly outweighed the evidence in mitigation that no material prejudice is cognizable. Here, again, Respondent fails to take note of the evident fact that Appellantis not “the worstof the 122 The prosecutor highlighted this point when hereferred to the defense during his closing argument. He argued that: “You know,this filth took everything, everything that Sandy Olsson had. Hetook everything, and he took everything that she ever would have. And you know he’s still not finishedtaking, hestill wants more from her. Through his attorneys, he wants to take awayfrom her, her status as a victim in this case... . Ifyou do give him his life, justice will weep, just as thefamily ofSandy Olsson has weptfor the last 6 years.” (RT 3635 (emphasis added)). 300 worst” on California’s death row. In fact, Appellant is not the worst of the worst sentenced to death in Alameda County in cases recently decided by this Court. (See Zambrano, supra,, 41 Cal.4th at 1082 (defendant convicted of one murder and two attempted murders); Bonilla, supra, 41 Cal.4th at 313 (defendant convicted of one murderfor financial gain with lying in wait special circumstance); Stevens, supra, 41 Cal.4th at 182 (defendant convicted of four murders and six attempted murders); Martinez, supra, 47 Cal.4th at 399 (defendant convicted of two murders and committing a lewd act with a child); Friend, supra, 47 Cal.4th at 1 (defendant convicted of one murder with twenty-nine matters in aggravation separately alleged); Dykes, supra, 46 Cal.4th at 731 (defendant convicted of one murder and one attempted murder); Tate, supra, 49 Cal.4th at 635 (defendant convicted of robbery-murder and twoprior incidents of assault on police officers), and Lynch, supraCal.Rptr.3d -- (defendant convicted of three counts offirst degree murder with special circumstances, five counts of burglary, four counts of robbery based on incidents involving elderly suspects)). Respondent wholly fails to recognize that the prosecution’s entire penalty phase case rested upon the victim impact evidence, the direct examination of which comprises forty-six (46) pages of the fifty-four (54) pagesthe state’s entire direct penalty phase presentation. (See II AOB 364). Victim impact testimony consisted of eighty-five (85%) of the state’s penalty phase case. Thus, inflammatory and prejudicial victim impact evidenceelicited by the prosecutor served as the strength and basis of the state’s penalty phase case. E. The Trial Court Erred by Denying Appellant’s Motion for Mistrial. After the testimonyofthe first two victim impact witnesses, the defense requested a conference outside the presence of the jury. The defense complainedto the trial court that the prosecutor was forcing them 301 to make a continuing series of objections to open-ended questionscalling for narrative answers. (RT 3483). The defense objected to the cumulative nature of the questions. (RT 3453). Defense counsel requested that the prosecutor ask narrower questionsor that he ask leading questions,as previously instructed by thetrial court. Thetrial court concluded with this warning: So all I am goingto do atthis point is reiterate what I already asked you in terms of my ruling where certain areas have been ruled inadmissible, and where a question very naturally and inadvertently, on the part of a witness, could invite a response that would be inconsistent with my rulings, it is in those areas that we have covered at some length that I am requesting that you ask leading questions wherever possible, subject to objection by the other side. (RT 3457). Following Dietrich’s testimony, the defense moved for a mistrial based on the prosecutor’s repeated questions asking for the thoughts of the victim in the last momentsofher life. (RT 3478). The defense arguedthat the court had ruled such testimony inadmissible, and that the questions were so prejudicial that they could not be cured by admonition. The prosecutor argued that the witness was nonresponsive. While the trial court acknowledged they werein a “difficult” situation, it accepted the 9 e prosecutor’s “explanation” and found that there was no “deliberate disregard”ofits rulings. (RT 3481). It noted that the defense had timely objected and that it believed the jury had been admonishedto disregard each answer, as reflected on the record. (Jbid.). In fact, the court had not instructed the jurors to disregard Dietrich’s answers. It then denied the mistrial motion. (/bid.). This ruling was erroneous. The defense renewed its motion for a mistrial following Sandberg’s testimony. (RT 3490). The motion was based on the question thatelicited 302 Sandberg’s opinion that his daughter had been tortured before her death, and the cumulative harm caused by the prosecutor’s refusal to follow the court’s order. (See RT 3490-3491). The defense argued that the prosecutor’s conduct“flew in the teeth of the court’s ruling.” (/d. at 3490). Although the court struck Mr. Sandberg’s testimony sua sponte, defense counsel said he had not requested an admonition because it would not cure the harm. (Ud. at 3490). He noted that, up until the very conclusion of Sandberg’s testimony, the prosecutor had not asked leading questions, and his failure to do so wasparticularly suspect of intentional misconduct. The trial court denied the defense motion for a mistrial “based onthe totality of the circumstances here— yourrecordis certainly clear at this time— I deny the motion for mistrial.” (/d. at 3498). First, Respondenttries to justify the trial court’s denial of Appellant’s motion for mistrial by blaming prosecutorial witnesses for giving “nonresponsive answers.” (RB 262). Here,like before, the prosecutor is responsible for those answers, despite Respondent’s claim of ignorance. (See Baker, supra, 147 Cal.App.2d at 324). Further, Respondent misinterprets People v. Smithey in arguing that “it is the prosecutor's intentional elicitation of inadmissible evidence that constitutes misconduct.” (RB 263) Smithey actually emphasizesthat “it is, of course, misconduct for a prosecutor to intentionally elicit inadmissible testimony,” but misconduct may comein several forms. (See Smithey, supra, 20 Cal.4th at 960). Therefore, the defense does not need to show that the prosecutor acted intentionally in this case, beyond its showing that the prosecutor failed to abide by thetrial court’s orders or direct the state’s witnesses to abide bythetrial court’s orders. Second,the trial court did not make a finding regarding the prosecutor’s intent, (See RT 3497-3498), and Respondent does not quote any language in the court’s mistrial ruling that so indicates. (RB 250-66). 303 In failing to do so, the trial court did not apply the proper standard in denying the mistrial motions under People v. Hill and People v. Smithey. Thetrial court never addressed the defense’s argumentthat the prosecutor had failed to follow its orders to ask narrow or leading questions, or to otherwise control his witnesses. In sum,the trial court failed to hold the prosecutionto its prior orders despite the repeated instances of misconduct. In so doing,the trial court’s order denying Appellant’s motion for mistrial wastherefore madein error. F. Conclusion. The prosecutor’s misconductplayed large part in the jury’s verdict. Thejury deliberated for three days, a strong sign that, absent the state’s misconduct, a life verdict was likely. Viewed alone, or in conjunction with the numerousother acts of misconduct committed by the prosecutor during the penalty phase, the prosecutorial misconduct here was pervasive, egregious, reprehensible, andprejudicial. It violated Appellant’s rights to due process,a fair trial, and a fair and reliable penalty verdict, in violation of state law, Article I of the California Constitution, and the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Appellant’s death sentence must be reversed. 304 XVI. THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT DURING THE PENALTY PHASE ARGUMENTS. A, Introduction. During the penalty phase arguments, the prosecutor deliberately strayed from his constitutional and ethical duties by repeatedly engaging in misconduct. (See Kirkes, supra, 39 Cal.2d at 726; and Hill, supra, 17 Cal.4th at 831 n. 3). The misconduct began during his opening statement and extended through the final words of his closing argument. By the end of the prosecutor’s argument, the circumstances of the crime as he described them bore no resemblanceto the guilt phase evidence, the penalty phaseevidence,or the facts as described to the jurors during voir dire. Respondentclaims that “many of Appellant’s allegations of misconduct are forfeited, without merit, or both.” (RB 267). Respondent asserts that “no conduct by the prosecutor prejudiced Appellant understate law orrose to the level of a prejudicial federal constitutional violation.” (bid.). Respondentsays that the acts, which occurred during the penalty phase opening argument, penalty phase opening summation,penalty phase closing argument, and penalty phase closing rebuttal were not misconduct. (Ud. at 271). Respondenttries to argue against fifteen (15) instances of misconduct, and does not mention or defend against numerousother instances of misconductraised by Appellantraised in his Opening Brief.’ '3 Tn support of his assertion that the prosecutorial misconduct during the penalty phase arguments violated his state and federal constitutional rights, Appellant raised thirteen (13) argumentsthat Respondent did not address: 1) The prosecutor committed prejudicial misconductby referring to mitigation evidence as “all this garbage about the defendant” and,after the court sustained defense objections, referring to factor (k) evidence as an “open garbage can.” (See II AOB 391); 2) The prosecutor violated ethical rules by failing to confine the assertions of fact in his opening Statementto those he intended to prove during the penalty 305 Respondent’s omissions are significant. For example,as to item #5, a rape was never charged, alleged or provenin this case because the evidence wasnotsufficient to do so. According to the prosecutor, however,it was a fact proven beyondall doubt. The prosecutor graphically phase. (See Jd. at 393 (citing NATIONAL DISTRICT ATTORNEY’S ASSOCIATION,National Prosecution Standards (2d. ed 1991) Commentary, stds. 76.1 & 2)); 3) The prosecutor committed misconduct and prejudiced Appellant’s constitutional rights by improperly seeking to force repeated defense objections and make Appellant appear contentious, combative and secretive. (See II AOB 395); 4) The prosecutor committed prejudicial misconduct by arguing that Appellant’s “callousness” should be considered as a faux “aggravating factor.” (See Jd. at 398); 5) The prosecutor committed misconduct by repeatedly arguing that Appellant should be sentenced to death for rape, though the allegation was not chargedin the Final Information, as a special circumstance, in the notice of aggravation, or supported by any direct-physical evidence. (See Jd. at 406); 6) The prosecutor committed misconduct by repeatedly arguing that Ms. Olsson “bargained” with Appellant even though the court had sustained objections to that theme aslisted on the prosecutor’s charts. (See Jd. at 410); 7) The prosecutor committed prejudicial misconduct by arguing future dangerousnessandspecifically arguing that “You have to keep him on death row where heis isolated because he gets on the main line with all the otherprisoners, with his life sentence, he has an American Express Platinum card to do violenceat will.” (See /d. at 415); 8) The prosecutor committed misconduct by arguing post-crime evidence of lack of remorse as a faux aggravatingfactor. (See Jd. at 425); 9) The prosecutor committed misconduct and misstated the law by stating that remorse was a condition precedent to finding any mitigation. (See Jd. at 425); 10) The prosecutor committed misconduct and misstated the law by converting the absence of a mitigating factor (lack of remorse) into an aggravating factor; (See Jd.at 426); 11) The prosecutor’s creation of two uncharged aggravating factors (callousness andlack of remorse) violated Appellant’s rights to due process and a reliable penalty determination by injecting irrelevant and prejudicial evidenceinto the sentencing equation. (See Jd. at 426 (citing Wainwrightv. Goode (1983) 464 U.S. 78)); 12) The prosecutor committed misconduct by using Appellant’s decision notto testify, and express remorse, as a reason to sentence him to death. (See II AOB 426); and 13) The prosecutor committed misconductbytelling the jury that Appellant did not wish to express remorse, when he knew that Appellant had profferedto allocute and to express remorse. (See Jd. at 427 (citing Napuev. Illinois (1959) 360 U.S. 264, 270)). 306 invokedthe “rape” as a factor aggravating the crime,telling the jurors: “You smell him; his body odor; his foul breath. Heis on top of you grunting away, and he rams himself inside,” and “you have to be conscious of whatheis doing as he rams himself inside of you and defiles you” (3632-3633). Asto item #6 Respondentfails to rebut Appellant’s showing that throughout the penalty phase, the prosecutor committed serious - and intentional - misconduct, andthat the trial court erred by not taking actions to mitigate the prejudice to Appellant. For example, the prosecutor displayed a chart entitled “You Can’t Forget Sandy Olsson,”and including the caption “Did She Try to Bargain With Him” (Court’s Exhibit #5). Asto item #7, the prosecutor’s argumenton the dangerof sentencing Appellant to life was improperfor several reasons. First, there was no evidence presented concerning the level of isolation afforded death row prisoners comparedtolife prisoners. Second, this Court has held that evidence of the conditions of confinementis irrelevant to California’s capital sentencing scheme. (See People v. Coddington (2000) 23 Cal.4th 529, 636; Ray, supra, 13 Cal.4th at 352; Osband, supra, 13 Cal.4th at 713; and People v. Lucas (1995) 12 Cal.4th 415, 499). Third, it is misconductto invoke considerations outside the proper weighing of proper statutory factors. (See Gardner, supra, 430 U.S. at 349; and Miranda, supra, 44 Cal.3d at 110). Fourth, the argument wentfar beyond any evidence that was presented — which was limited to testimony concerning two minor scuffles in the county jail. Respondentalso failed to address a numberoftrial court errors during the penalty phase argumentsalleged by Appellant. '** These '24 Respondentfailed to address seven arguments raised by Appellant challenging the trial court’s erroneousactions: 1) After sustaining an objection to the prosecution’s prejudicial statementthat “what 307 arguments challenged overruled defense objections,the trial court’s failure to provide constitutionally effective admonishments, andthetrial court’s failure to enforce its prior orders or impede the prosecutorial misconduct. Respondent’slack of effort to respond to Appellant’s arguments underminesits conclusion that this claim Jacks merit. It also undermines Respondent’s assertion that any misconduct was amelioratedby thetrial court’s admonitions. In fact, Respondentfails to address Appellant’s arguments that the trial court’s admonishments were insufficient. This Court requires carefully and sharply worded admonitions to curb prosecutorial misconduct and to avoid the need for reversal. The Court held: [W]hen the defense counsel requests cautionary instructions, the trial judge certainly must give them if he agrees misconduct has occurred. He should aim to makea statement brings us here today is for you to decide if this man should die...” the trial court erred by not admonishingthe jury, as requested, that the prosecutor’s statement of law wasincorrect. (See II AOB 393-94); 2) The trial court erred by repeatedly instructing the prosecutorto “proceedin the fashion of opening argument.” (See Jd. at 394); 3) Thetrial court failed to rule on many objections thereby permitting the prosecutor to commit act after act of misconduct without judicial admonishmentin violation of Appellant’s rights to due process, a fair trial, and reliable penalty phase determination under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article I of the California Constitution. (See Jd. at 395); 4) Thetrial court, after sustaining defense objections, erred by refusing defense requests to admonishthe jury after the prosecutor speculated that, at the time of the crime, Appellantstated, “You just take your clothesoff, take your clothes off, do whatI tell you and you won'tget hurt.” (See Jd. at 397 (citing RT 3713)); 5) The trial court erred by denying, without comment, Appellant’s motion for mistrial at the first recess, on the basis of prosecutorial misconduct, following the prosecution’s closing argumentsin the penalty phase. (See II AOB 399); 6) Thetrial court erred by incorrectly admonishing the jury regarding their consideration of the prosecution’s charts (Jd. at 402-03); and 7) Thetrial court erred byfailing to admonishthe jury that the uncharged rape repeatedly alluded to by the prosecutor wasnot a separate aggravating factor and could not be weighed againstthe evidence in mitigation. (/d. at 423). 308 to the jury that will counteract fully whatever prejudice to the defendant resulted from the prosecutor’s remarks. (Bolton, supra, 23 Cal. 3d at 215 n. 5). Thetrial court’s admonitionsin this case fell far below this standard. This Court has held that where improper comments andassertions are interspersed throughouttrial and/or closing argument, repeated objections might well serve to impress uponthe jury the damaging force of the misconduct, and a series of admonitions will not generally cure the harmful effect of such misconduct. (See Kirkes, supra, 39 Cal.2d at 726; and Hill, supra, 17 Cal.4th at 831 n. 3). Respondent’s failure to rebut these multiple instances of misconduct andtrial court error undermines Respondent’s conclusion that the prosecutor did not commit misconduct during the argumentsin the penalty phase closing argument. Similarly, Respondent’s decision not to defend thirteen (13) instances of misconduct andten (10) instancesoftrial court error underminesits conclusion that Appellant’s constitutional rights were not materially prejudiced by the prosecutorial misconduct during penalty phase arguments. In sum, Respondenthasfailed to rebut Appellant’s showing that throughoutthe penalty phase, the prosecutor committed misconduct with impunity, and to the detriment of Appellant’s state and federal constitutional rights. B. Appellant’s Claims of Misconduct are not Forfeited. Respondentis wrongin asserting that Appellant’s claims of misconductare forfeited. (See Kirkes, supra, 39 Cal.2d at 726; and Hill, supra, 17 Cal.4th at 831 n. 3). Appellant’s objections were included in his arguments on appeal, which documented defense counsels repeated objections throughout the proceedings. Defense counsel’s objections covered a variety of legal grounds, including: 1) stating facts not in evidence; 2) outright misconduct; 3) speculative arguments; 4) interjecting 309 personalviewsof the evidence; 5) use of inflammatory andprejudicial rhetoric; and 6) violation of the trial court’s orders. Respondenthas read this Court’s requirements too narrowly and failed to acknowledge the unique circumstancesofthis case, which provide an exception to the requirementthat defense counsel must always request an admonition. In this case, such admonitions would have been useless. Respondentargues that on appeal, defendants “may not changethe theory behind theirtrial objections.” (RB 268(citing Thomas, supra, 2 Cal.4th at 519-20)). Respondent says that Appellant was thus required to specifically say “attempt to mislead,” or “irrelevant matter” when he objected to “facts not in evidence,” in order to preserve argument on appeal that the prosecutor committed misconduct. (/d. at 268-69). Respondent is wrong. Appellant’s objections covered every conceivable basis for error and misconduct. Thetrial court’s failure to enforce its prior rulings, admonish the prosecutor or curb the misconduct exempts Appellant from the demands of the contemporaneousobjectionrule. Respondent contends that the prosecutor did not seek to inflamethe jury and urge them to engagein speculation when hestated “the stab woundsto the front of the body ... When I say front of the body talking about 1, 2, 3,4, and 5. 1, 2,3, 4.1, 2,3, and4and5. Which ofthese occurred first? We don’t know.” (RB 277 (citing RT 3731)). Respondent argues that no request for admonition was madeattrial and Appellant’s arguments of misconduct are forfeited for failure to make such a request. (Ibid.). Respondent is wrong. Appellant did raise an objection at trial and the court, though not ruling on the objection, told the prosecutor to move his argumentalong. (RT 3731). Appellant never had a chance to request an admonition. Even if he had, the admonition would have donelittle more than the many other admonitions that riddle the prosecutor’s closing argument. This is 310 especially true, as here, when the request of an admonition could have,in fact, damaged the defense, as the prosecutor’s repeated misconduct sought to goad defense counsel into repeatedly objecting and madethe defense attorneys, and Appellant himself, appear contentious, combative and secretive. (See Kirkes, supra, 39 Cal.2d at 726; and Hill, supra, 17 Cal.4th at 831 n. 3).’” Likewise, Respondent’s citation to People v. Montiel and Peoplev. Frye are not helpful on this issue. Neither case addresses the prejudicial circumstancesof the crime that the prosecutor speculated aboutin Appellant’s case. Neither case deals with arguments held in the penalty phase ofa capital trial. Instead, Montiel dealt with arguments during voir dire regarding the defendant’s appearance and Frye dealt with guilt phase closing arguments. (See Frye, supra, 18 Cal.4th at 970 and Montiel, supra, 5 Cal.4th at 914). In neither case would the defendant have appeared combative or overly aggressive for raising several objections. Thus, the failure to object in those cases, where the prosecutor was not attempting to portray the defendant as obstructionist was inexcusable. However, in cases like Appellant’s, and as noted by this Court in Frye, Respondent’s arguments are obviated since “the record... disclose[s] grounds for applying [an] exception to the general rule requiring both an objection and a request for a curative instruction.” (Frye, supra, 18 Cal.4th at 969 (citing Hill, supra, 17 Cal4th at 820-821); see also Stansbury, supra, 4 Cal.4th at 1056)). Here, due to the prosecutor’s blatant course ofmisconduct, under Hill, grounds for an exception to the normalrule existed, and there was therefore no requirement that counsel request what would have ultimately '2° The defense was forced to interrupt the testimonyofthe victim impact witnesses time and time again in orderto curtail the prosecutor; thus setting themselves up for the prosecutor’s later accusationsthat “through his attorneys, Appellant] wants to take away from Ms. Olsson,her status as a victim in this case....” (RT 3635 (emphasis added)). ° 311 been a useless admonition. C. The Prosecutor, in Violation of Court Orders, Sought to Interject Misleading and Irrelevant Arguments, Unsubstantiated by Evidence in the Record, Into the Penalty Phase Proceedings. The prosecutor committed grave misconduct when he attempted to provide testimony in the form of misleading questions concerning irrelevant evidence. This Court has held that a prosecutor may not refer to facts outside the evidence because such statements “‘tend[] to make the prosecutor his own witness- offering unsworn testimony notsubject to cross-examination.’” (Hill, supra, 17 Cal.4th at 828 (quoting Bolton, supra, 23 Cal.3d at 213); see also Benson, supra, 52 Cal.3d at 794). A prosecutor maynotcall upon the jury to speculate, nor may heor she argue beyond a reasonable inference. (See Kirkes, supra, 39 Cal.2d at 724). Nor maya prosecutor use invective or other argumentcalculated to cause prejudice or to evoke an emotional response from the jury. (See People v. Love (1961) 56 Cal.2d 720, 731). Likewise,it is misconduct for a prosecutor to make an argument “that diverts the jury’s attention from its duty,” because the prosecutor’s role in argumentis to assist the jury in assessing the evidence, notto obscure the jury’s view with personal opinion, emotion, and non-record evidence.” (Thomas, supra, 2 Cal.4th at 537; see also AMERICAN BAR ASSOCIATION, Standardsfor Criminal Justice, Standard 3-5.9; available at: http://new.abanet.org/sections/ criminaljustice /Pages/ Standards.aspx(last visited Sept. 2, 2010)). As noted, such statements “can be dynamite” and “are a highly prejudicial form of misconduct, and a frequent basis for reversal.” (Thomas, supra, 2 Cal.4th at 537 (quoting 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Trial, § 2901, at 3550)). 312 In the last four years, this Court has addressed claims of prosecutorial misconduct during the penalty phase closing arguments in several cases. (See e.g., Jackson, supra, 45 Cal.4th at 662; and Alfaro, supra, 41 Cal.4th at 1277). Appellant’s counsel has found twenty-five (25) cases in the last four years with plausible assertions of prosecutorial misconduct that this Court has denied or dismissed.!° However, the prosecutorial misconduct presented in Appellant’s case should not be tolerated or sanctioned. Respondentclaims that the prosecutor did not mislead the jury. (See RB 268). Respondentfeels that “nothing the prosecutor said was inappropriate.” (Jbid.). Respondent characterizes the prosecutor’s argument as “colloquial.” (bid.). Rather, in fact, it was misconductthat misled the jury. The jury’s task at the penalty phaseis not to simply determine whetherthe penalty is suited to the charged offense, but to also make an individualized assessment of the defendant and the circumstancesof the crime. (See Eddings, supra, 455 U.S. at 112). By stating that: “what brings us here today is for you to decide whether this man should die for what he did to Sandy Olsson or spendthe rest ofhis life in prison,” (RB 268), the prosecutor sought to mislead the jury, and impeded them from considering '°6 (See Gamache, supra, 48 Cal.4th at 347; Martinez, supra, 47 Cal.4th at 911; Friend, supra, 47 Cal.4th at 1; Bramit, supra, 46 Cal.4th at 1221; Dykes, supra, 46 Cal.4th at 731; Avila, supra, 46 Cal.4th at 680; Hamilton, supra, 45 CalAth at 863; Jackson, supra, 45 Cal.4th at 662; Bennett, supra, 45 Cal.4th at 577; Doolin, supra, 45 Cal.4th at 390; Mendoza, supra, 42 Cal.4th at 686; Tafoya, supra, 42 Cal.4th at 147; Alfaro, supra, 41 Cal.4th at 1277; Zambrano, supra, 41 Cal.4th at 1082; Thornton, supra, 41 Cal.4th at 391; Stevens, supra, 41 Cal.4th at 182; Leonard, supra, 40 Cal.4th at 1370; Carasi, supra, 44 Cal.4th at 1263; Wallace, supra, 44 Cal.4th at 1032; Loker, supra, 44 Cal.4th at 691; Parson, supra, 44 Cal.4th at 332; Riggs, supra, 44 Cal.4th at 248; Salcido, supra, 44 Cal.4th at 93; Valencia, supra, 43 Cal.4th at 268; and Rundle, supra, 43 Cal.4th at 76). 313 Appellant’s individual nature as required by the Eighth Amendment. Respondent’s efforts to recharacterize the misconduct as simply “colloquial” does not address Appellant’s legitimate objection that the statement misled the jury and wasprejudicial in nature. The prosecutor’s disregard for these constitutional commands, andhis patent disrespect for “the uniqueness” of Appellant’s individual characteristics, was reprehensible. Respondent nextclaims that the prosecutordid not reference “irrelevant matters” whenhetold the jury to make the determination as whatthe penalty should be:“death, in the gas chamber, or now by legal [sic] injection, at the first of the year...” (RB 269). Respondentfeels “that the jurors would have understoodthat the prosecutor wasnotputting a method-of-execution issue before them....” (Jbid.). Respondent characterizes the argumentas speaking in “plain terms.” (/bid.). These alleged plain terms wereplainly improper. The methodofexecutionis irrelevant to the jury’s penalty consideration. (See e.g., Lucas, supra, 12 Cal.4th at 499; see also People v. Fudge(1994) 7 Cal. 4th 1075, 1123-24 (cases cited therein)). Moreover, the prosecutor would have knownthat the actual death warrant issued in this, or any, case, does not refer to the method of execution. It reads that the death sentence will be imposed “as prescribed by [state] Jaw.” (RT 3918). The jurors would not have understoodthat the prosecutor was not putting method ofexecution in front of them, since the prosecutor had also discussed the method of execution during jury selection. (See Claim IV - The Trial Court Erred By Dismissing for Cause Prospective Jurors Qualified to Sit on Appellant’s Jury). Respondent’s argumentthat the prosecutor was “speaking in plain terms” does nothing to defend against the prosecutor committing misconduct by urging the jury to consider those inflammatory andirrelevant subjects. 314 Respondentsays the prosecutor did not commit misconduct by repeatedly arguing facts not adducedat the penalty phase and by challenging the integrity of the defense. (RB 269-70). Here, three defense objections were sustained in a row asthe prosecutor repeatedly attempted to recall the circumstances of the crime, and then comparatively diminish the evidence in mitigation. Respondent concedesthat the prosecutor’s arguments were not “technically prop[er].” (/d. at 270). However, Respondentfeels that no prejudice could have stemmed from the misconduct because the prosecutor did not use deceptive or reprehensible means. (/bid.). Respondenttries to argue that the “jury ultimately knew that it had to decide the case based on the evidence andthe law as given to it by the court....” (Ud. at 271 (citations omitted)). The prosecutor’s duty during opening statements was to inform the jury of the evidence the state intended to present, according to the evidence and based on reasonable inferencesrelated to the prosecution’s theory of the case. (See Millwee, supra, 18 Cal.4th at 136). Here, the prosecution’s theory of the case was based on minimal evidence in aggravation and the impermissible use of victim impact evidence. The prosecutor’s arguments thus sought to exploit the inflammatory nature of the crime and victim impact evidence in order cover the lack of evidence in their case in aggravation. The arguments were a smokescreen used to confuse the jurors about the information on which they were permitted to base their decision. The prosecutor’s failure to stay within clearly identified boundaries was deliberate misconduct, calculated to bring improper and inflammatory material before the jury. | D. The Prosecutor Prejudicially Argued Facts not in Evidence During the Penalty Phase Closing Arguments. This Court has limited the jury’s penalty determination to a review of the statutory aggravating factors. (See Boyd, supra, 38 Cal.3d at 773- 315 74). Evidence that is notrelated to the statutory factors is not relevant. Here, the prosecutor violated Appellant’s rights to due process of law and a reliable penalty verdict whenheinjected irrelevant and prejudicial evidence into the sentencing equation. The inflammatory arguments infected the jury’s proper balancing process crafted by thestate statute, especially in light of the prosecution’s weak case in aggravation. (See Barclay, supra, 463 U.S. at 939; and Goode, supra, 464 U.S. at 78). The prosecutor’s misstatement of the law, argument based on facts not in evidence, and the creation of faux aggravators violated the Eighth and Fourteenth Amendments and Article I of the California Constitution. Respondent arguesthat the prosecutor did not commit misconduct when he described what “you can do[] with a knife that you couldn’t do if you had a baseball bat or even a gun.” (RB 271-72). The prosecutor’s lurid arguments described using a knife to “run it down the side of face,” and “play[] with buttons,” and “put[ting] the knife in places that are terribly intimidating and threatening.” (RT 3707-08). Respondentfeels that no misconduct occurred because the prosecutor was “referenc[ing] matters of common knowledge.” (RB 272 (citing People v. Wharton, (1991) 53 Cal.3d 522, 567-68)). Respondentclaims that it is “unfathomable”that the evidence did not support the prosecutor’s argument since Ms. Olsson suffered 28 stab wounds. Respondent then recalls some of the morelurid details of the crime, as portrayed by Prosecutor Burr, to support his argument. '”’ Respondent’s argumentis illogical: “Here the prosecutor did not argue that Appellant used the knife in these ways, but was makingthe point that because a knife can be used in that manner- that it has that potential- 27 tt is unfortunate that in orderto justify its arguments, Respondent feels the need to compare Ms. Olsson’s injuries to stabbing a knife through a “three- to four-inch raw steak.” (RB 273). 316 Appellant’s resort to it becameall the more intimidating.” (RB 272). Respondent cannot defend the speculative nature of the prosecutor’s argumentsso it tries to rely upon the circumstancesof the crime. There was no evidencethat a knife had been used in any fashion as argued by the prosecutor. Whether or not the prosecutor’s argument had “common sense” meaning does not address whether the argument was supported by facts and evidencein the record. Respondentsays that the prosecutor argued facts in evidence when he told the jury that “Appellant told Olsson he was only going to rape her and not kill her, and...You just take your clothes off, take your clothes off, do whatI tell you and you won’t get hurt.” (RB 273-74 (quotations omitted)). Respondent concedes that the prosecutor went on to describe how,in his view, Appellant “h[e]ld up that element of hopethatall I want to do is rape you “ (/bid.). Respondent, however, feels that the prosecutor’s arguments “were based on a reasonable view of the evidence and inferences reasonably drawn therefrom.” (/d. at 274). In fact, Respondentargues that “the evidence showeda lack of disturbance in the bedroom,a circumstancethat suggests the encounter between Appellant and the victim was notinitially violent....” (RB 274). Tellingly, this argument contradicts Respondent’s premeditation argument. (See Claim VI - Insufficient Evidence Supports Appellant’s Convictions of Capital Murder, The Burglary-Murder Special Circumstance, or His Conviction for Assault With Intent to Commit Rape). Rather than support the prosecutor’s assumption that a rape had occurred- a crime that was never chargedin the case - the evidence indicated there was no suchinteraction. The prosecutor’s statements thus were speculation not reasonably based on the evidence. 317 In the end, the entire case “in aggravation,” as argued by the prosecutor, was based on speculation and emotional appeal.'”® It was not based on the aggravation evidence presented during the penalty phase, and the prosecution’s dedication to describing the crime proves this fact. The prosecutor constructed an inflammatory, and entirely speculative scenario in orderto arouse the passions of the jury to sentence Appellant to death for “rape.” No rape was chargedin the Information,noralleged as a special circumstance, nor evenlisted in the prosecutor’s notice of aggravation. There was no reasonable inference that Ms. Olsson had been raped, since there was no direct evidence introducedattrial of a rape. Because no evidence supported his improper arguments, the prosecutor dwelt on a collection of speculative details and created a piece of lurid fiction about Ms.Olsson’s death. He completed the inflammation with made-upsadistic dialogue andgestures that had no support in the evidence. Respondent’s '28 The degree of speculation utilized by the prosecutor in closing argument in Appellant’s case has not been seen by this Court in recent capital cases, or, for that matter, in older cases as surveyed by Appellant in his Opening Brief. In Martinez, supra, 47 Cal.4th at 911 the prosecutor speculated as to the victim's and the defendant's hopes, and contrasted the victim's “hopes” against the defendant's “hopes”if sentencedto life in prison withoutthe possibility of parole. (/d. at 966). This Court denied the argument. Appellant's argument presents more pressing concerns than in Martinez, as evident by the fact that the trial court sustained Appellant's objection to the prosecutor's comments that LWOPwasto goodfor Appellant since he couldstill “hope.” Similarly, unlike in Martinez, the prosecutor's comments covered a wide range of “conditions of confinement:” from conjugalvisits, to security classifications, to the possession of VCRs,to the conditions of execution. In sum,the facts in Martinez are not comparable to Appellant's. This Court should take the opportunity to resolve the conflict between this Court's holding in Martinez and prior precedent where it has held that evidence ofthe conditions of confinementis irrelevant to a capital sentencing scheme. (See Coddington, supra, 23 Cal.4th at 636; Ray, supra, 13 Cal.4th at 352; Osband, supra, 13 Cal.4th at 713; and People v. Lucas (1995) 12 Cal.4th 415, 499). 318 efforts to defend the prosecutor’s misconduct do nothing to show that the prosecutor wasnot intentionally seeking to inflamethe jury by recreating a crime scene simply notreflected by the evidence. Respondentsays that the prosecutor did not seek to “inflame the jury” whenhetold the jury “You can’t forget Sandy Olsson. That’s what this is all about, at this phase...That’s what you’ve got to do here, the manner in which she died and what was going through her head during the time she was forced to be with this thing.” (RB 275). Respondent attempts to transform the prosecutor’s argument as “reasonable inference[s]” from the “evidence of the manner in which he assaulted and killed her.” (/bid.). Respondentgoesso far as to call the prosecution’s argument “part of the aggravation of this crime.” (Jbid. (citing RT 3632)). However, this Court has limited the jury’s penalty determination to a review of the statutory aggravating factors. (See Boyd, supra, 38 Cal.3d at 773-74). Here, the prosecutor argued what Ms.Olsson thought at her moment of death. No evidence shed light on her hopes and no reasonable inference about them could be drawn from the evidence. Worse, by arguing evidencethat is not related to the statutory factors, the prosecutor interjected irrelevant matters into the jury’s considerations. In so doing, the prosecutor violated Appellant’s right to due process of law and a reliable penalty verdict. Respondent’s argumentthat the prosecutor’s statements were supported by the aggravation of the crime masks the impropriety of the prosecutor’s conduct, which actually sought to recreate a more lurid reenactment of the crime than the evidence suggested. Respondent then argues that the prosecutor did not seek to “inflame the passionsofthe jury” when hecalled Appellant less than a “man,” 99 66lacking “manliness,” “an insult to the animal kingdom” “because animals, in the animal world, don’t do the things that he did...the way he treated Sandy Olsson...I mean the animal world kills, they kill, they kill - see, to 319 eat.” (RB 275-76 (citing RT 3726)). Respondentbelieves that since the “prosecutor used similar epithets” during the guilt phase, that “[n]Jo misconduct occurred here.” (RB 276). First, the prosecutor’s prior use of epithets and misconduct committed during the guilt phase is not a justification for later misconduct. Put simply, two wrongs do not makea right. This is especially true when the prosecutor’s epithets here are compared to those used by other prosecutors in capital cases that have recently come before this Court or addressed in Appellant’s Opening Brief. Second, Respondentfails to address or rebut Appellant’s allegation of cumulative prejudice resulting from the prosecutor’s repeated use of epithets to describe Appellant. Respondent thus wholly fails in arguing that the prosecutor’s conduct was not prejudicial. Proofofthe prosecutor’s misconduct can be madebydistinguishing the cases Respondenterroneously relies on for support of the proposition that “[n]o misconduct occurred here.” (RB 276). In People v. Hawkins (1995) 10 Cal.4th 920, 961, the defendant had eight felony convictions of violence and the prosecutor’s arguments and epithets focused on the defendant’s tendency to use violence. (/bid.). This Court madeit clear that ““ve do not condonethe use of such terms in argument.” (/bid.). However, this Court reasoned that“we have consistently heldthat it is not misconduct for a prosecutor to argue at the penalty phasethat if a defendant were sentenced to prison he might kill another prisoner... In this case, the prosecutor's argument on future dangerousness wasbased on defendant's extensive record of violence rather than expert opinion and wasfairly supported by the evidence.” (/bid. (citations omitted)). To the contrary, in Appellant’s case, the prosecutor’s epithets focused on Appellant’s moral worth, denigrated Appellant’s character and existence, and sought to compelthe jury to devaluethe ultimate sentencing 320 decision before them. In Hawkins, the prosecutor’s argumentat least correspondedto evidencethat the defendant was violent. Here, there was no support for the argument that Appellant embodied the “less than human” character the prosecutor desperately tried to portray. No evidence had been submitted that Appellant was lesser than a memberofthe animal kingdom,that he wasless than a man,or, for that matter, that animals do not kill for reasons other than to eat. There is no rational basis in the Court’s precedents to justify the prosecutor’s blatant and shameful misconduct in denigrating a person facing a sentence of death and urging the jury to minimizea sentence of death.'”’ This Court and the federal courts have held that, it is improper for the prosecutor to refer to the defendant as an “animal,” or to use other derogatory epithets. (See Darden, supra, 477 U.S. at 179; People v. Fosselman (1983) 33 Cal.3d 572, 580-81; and Mayfield, supra, 14 Cal.4th at 803). As the United States Supreme Court observed, this type of prosecutorial argument “deserves the condemnation it has received from every court to review it....” (Darden, supra, 477 U.S. at 179). The prosecutor’s comments here were unnecessary,particularly inflammatory, and hadnothing to do with any evidence presentedattrial. '*° "9 ikewise, in Thomas, supra, 2 Cal.4th at 537, the prosecutor referred to the defendant as a “mass murderer,rapist,” “perverted murderous cancer,” and “walking depraved cancer” during closing arguments. This Court held that the epithets correspondedto the fact that the defendant had been convicted of prior murders and rapes. (/bid.). In this fact alone, Thomasis distinguishable from Appellant’s case where no evidence of animal behavior or that Appellant was an “animal” and less than a man was submitted at trial. This Court should in line with its more recent discussion in Hawkins, repudiate the use of terms such as “perverted murderous cancer,” and “walking depraved cancer,” by prosecutor’s when making closing penalty phase arguments. '°°The denigration of capital defense counsel, anduse ofepithets to describe capital defendants, has also consistently arose in this Court’s 321 Respondent further arguesthat the prosecutor did not seek to inflame the juror’s passions by urging the jury to speculate about the extent of Ms. Olsson’s “physical[], emotional{], and psychological|]...” suffering. (RB 276 (citing RT 3726-27)). Respondent concedesthat the court sustained defense objections and called a bench conference to discuss the use ofthis language with the prosecutor. (RB 277). Respondenttries to justify the line of argumentsolely by citation to this Court’s decision in People v. Slaughter (2002) 27 Cal.4th 1187, 1212. First, undoubtedly, the prosecutor urged the jury to consider wholly speculative material by asking them to consider Ms. Olsson’s “physical, emotional, and psychological” suffering. Second, Respondent’s argument that no misconduct occurred is meritless since the misconduct was substantial enoughforthetrial court to sustain Appellant’s objections and call a bench conference in response. (RT 3758). The prosecutor urged the jury to consider wholly speculative material by asking them to consider Ms. Olsson’s suffering. The prosecutor cannot properly testify as to what the victim’s last thoughts were before she waskilled. Third, although this Court has generally held that the prosecutor may suggest that the jury place themselves in the victim’s shoes, the misuse of this argument by the prosecutor in this case demonstrates whythis type of argument should be prohibited outright. (See Slaughter, supra, 7 Cal.4th 1187 (cases cited therein); Jackson, supra, 45 Cal.4th at 691; and Mendoza, supra, 42 Cal4th at 704). Respondent’s authorities provide support for Appellant. In at least recent case law. In fivecasesin the last four years, capital defendants have alleged that the prosecutor’s denigrating statements towards counsel or themselves constituted prejudicial and therefore reversible misconduct in five cases. (See Friend, supra, 47 Cal.4th at 1; Hamilton, supra, 45 Cal.4th at 863; People v. Doolin (2009) 45 Cal.4th 390; Mendoza, supra, 42 Cal.4th at 686; and Parson, supra, 44 Cal.4th at 332). The denigration suffered in these cases does not compareto that suffered by Appellant. 322 three respects, the prosecutor’s arguments in People v. Slaughter are simply not analogousto the prosecutor’s arguments in Appellant’s case. (See Slaughter, supra, 27 Cal.4th at 1212). First, in Slaughter, the prosecutor’s arguments were notably fact- based and involved evidentiary descriptions of the circumstances of the crime. In Appellant’s case, the prosecutor urged the jury to speculate as to any “physical, psychological, or emotional” stimulus present at the crime scene without specific reference to any facts presented, such as the circumstanceofthe crimefacts. Second, the prosecutor’s argument in S/aughter adopted the view of various actors at the scene of the crime. In Appellant’s case, the state asked the jurors to rely upon the prosecutor’s description of the crime scene (which resembled an omnipotent narrator’s view) and demandedthat the jury “do justice in this case” based on the prosecution’s view of the crime. Third, in Appellant’s case, the prosecutor’s argument was based on speculation, not evidence submitted at trial, including Appellant’s and the victim’s psychological states at the time of the crime. To the contrary, in Slaughter, the prosecutor’s arguments were based on evidence introducedattrial regarding the trajectory of the bullet. Fourth, the prosecutor in Slaughter did not demandthat the jury “vicariously feel what was going on in those minutes,” with the victim. The prosecutor instead urged the jury to relive the moments surrounding the crime in order to understand how the crime occurred, who committed the crime and the defendant’s culpability. Respondent attempts to defend repeated incidents of misconduct during the close of the prosecutor’s rebuttal penalty phase summation. First, the prosecutor committed misconduct when he urged the jury to speculate as to “Sandy Olsson’s last hopes” and suggested that her last hopes “were [] that all he wanted to do wasrape her.” (RB 278-79). Respondent concedesthat during this line of argument, two defense objections were sustained and that the prosecutor continued“in the same 323 vein.” (Ibid.). Respondent, however, argues that the prosecutor’s arguments were based on “reasonable inferences” of the evidence and that “commonsensetells us that Olsson would have hoped Appellant only wanted moneyafter he broke into her house and pulled a knife on her.” (RB 279). Like before, the prosecutor’s arguments were not supported by reasonable inferences gleaned from the evidence. No evidence introduced by the state supported its argument concerning Olsson’s last hopes. In fact, the only evidence submitted by the state that shed light on the final moments ofthe incident, Appellant’s March 27 and 30, 1987 statements, directly contradicted the prosecutor’s description of the crime and his speculation as to Ms. Olsson’s last thoughts. (See I AOB 73(citing People’s Trial Exhibit 6C)). Respondent's resort to “commonsense” does nothing to cure the fact that the argument was whollyirrelevant, not supported by the evidence and soughtto inflamethe jury. Respondent concedesthat the prosecutor urged the jury to speculate whenhe referenced Appellant’s brother’s testimony andstated: “It’s his responsibility. Whatis it that was ticking in Roger that he sees in the defendant, that he doesn’t say, “spare my brother?” (RT 3694-95). Respondent, however, says that no prejudice resulted from the prosecutor’s statements because the remark was “fleeting,” “not easily understandable,” and the trial court admonishedthe jury after sustaining defense objections. (RB 280). Respondent’s attempt to minimize the prejudice admits that the prosecutor engaged in misconduct. Respondent cannot deny that the prosecutor’s argumentwasa direct call to the jury to engage in speculation as to Roger Tully’s mind set. The fact that Respondentcharacterizes the arguments as “not easily understandable,” only further proves the lack of evidentiary foundation supporting the prosecutor’s speculative arguments. Moreover, the prosecutor’s insinuation that Appellant’s own family 324 supported a death sentence wasclearly understood by the jury, and was prejudicial, inflammatory,and irrelevantto the jury’s penalty phase determination. Respondenttries unsuccessfully to contest allegations that the prosecutor argued facts not in evidence, and urged the jury to speculate by arguing that life without the possibility of parole “was too good”for Appellant because he was previously unemployed and,in prison, would “have a house, a roof over his head, food on the table and medicalcare....” (RB 281-82). Respondent says that it was not misconduct for the prosecutor to argue that life without the possibility of parole was too good for Appellant because he could hopethat “there might be an earthquake and the jail falls apart and the prison falls apart.” (Ibid.). Respondentfeels that because Appellant only objected to “improper argument,” his arguments of misconduct are waived. Respondent concedes,thetrial court recognized the behavior as misconduct, sustained Appellant’s objection and admonishedthe jury “to disregard that last statement.” (/d. at 281). In the alternative, Respondent argues that the prosecutor’s remarks were based off commonsense and“the gist of the prosecutors’ argument wasthat Appellant...deserved death.” (RB 282). The prosecutor’s arguments were not supported by “common knowledge,” and even “common knowledge” maybe unduly prejudicial. This Court has held that evidence of the conditions of confinementis irrelevant to a capital sentencing scheme. (See Coddington, supra, 23 Cal.4th at 636; Ray, supra, 13 Cal.4th at 352; Osband, supra, 13 Cal.4th at 713; and Lucas, supra, 12 Cal.4th at 499). Raising the matter in the setting of a penalty argument, without any factual support, is far worse than admitting evidence on the issue. The argument was factually wrong because there are punishments within the prison system for misconduct by prisoners, from loss of privileges to transfer to a Secured Housing Unit 325 within a high security facility, like Pelican Bay State Prison. Respondent errs in arguing that Appellant’s argumentsrelative to this point have been forfeited. Appellant’s “improper argument” objection included both misconductand facts not in evidence objections. (See RT 3814-15). Whenthe prosecutorfirst spoke about prison conditions during closing arguments, the court admonishedthe jury,to “disregard that last comment.” (RT 3815). The prosecutor then finished his argument.'*! This entire argument was “improper,” not just “the last comment.” No evidence regarding prison conditions had been presented, nor would any have been permitted. Yet, the prosecution again discussed prison conditionsafter the admonishment. In addition to again arguing about prison conditions, which there had been no evidencepresented, the prosecutor falsely painted prison life. He told the jury that state prisoners have VCR’s. He told them Appellant would get conjugalvisits, when prisoners serving life without parole do not get such visits or VCRs. In sum,the prosecutor’s statements were not supported by reasonable inferences from the evidencein the record and wereactually factual misstatements. The prosecutor committed repeated misconduct when he invoked considerations outside the proper weighing ofstatutory factors. (See Gardner, supra, 430 U.S.at 349; and Miranda, supra, 44 Cal.3d at 110). It was improperfor the prosecutor to state “facts not in evidence unless such facts were subject to judicial notice or are “matters of common knowledge or illustrations drawn from experience, history, or literature.” (Boyette, supra, 29 Cal 4th at 463-64 (quotations omitted)). The facts stated by the prosecution did not fall under this exception. The specific prosecutorial misconduct was both reprehensible and “so infected the trial with unfairness as to makethe resulting [death sentence] a denial of due '3! The prosecutor’s statements are presented in full to demonstrate the full extent of his behavior in Appellant’s trial. 326 process.” (Donnelly, supra, 416 U.S. at 637). Under either the standard set forth in Brown, supra, 46 Cal.3d at 448, or the Chapman harmless error standard, the death sentence cannot stand. E. The Prosecutor Prejudicially Misstated the Law during the Penalty Phase Closing Arguments. Throughouthis closing arguments, the prosecutor “misstate[d] the law generally ..., and particularly to attempt to absolve the prosecution from its prima facie obligation” to meet its burden of proof. (See Marshall, supra, 13 Cal.4th at 831; and Hill, supra, 17 Cal.4th at 829-830). His comments misstated the law regarding mitigation, and also served to lighten the prosecution’s burden at the penalty phase. The prosecutor sought to mislead the jury as to their constitutional duties under the Eighth Amendment. Respondentasserts that the prosecutor did not misstate the law when he told the jury that they could not consider, as a mitigating factor or “aspect of [Appellant’s] character,” their sympathy forhis sister, brother, and children. (RB 283). In support, Respondent only provides a lengthy quote lifted from Smithey, supra, 20 Cal.4th at 1000-01. (RB 283-84). Respondent confuses the nature of Appellant’s challenge to the prosecutor’s misstatement of the law regarding sympathy. The prosecutor’s arguments soughtto limit the jury’s consideration of their sympathy for Appellant by limiting the jury’s consideration of their sympathy for his family. This line of argument runs contrary to the Court’s holdings in Smithey and Ochoa as cited by Respondent. Those cases make it clear that the jury may consider sympathy for the defendant’s family, and their love for the defendant,as indirect evidence of the defendant’s character. (See Ochoa, supra, 19 Cal.4th at 456. By lambasting and prohibiting all sympathy the jury may have held for Appellant and his family, the prosecutor misstated the law as to what the juror’s may consider in 327 mitigation and as evidence of Appellant’s character. (See Jd. at 456). The prosecutor’s argument in Smithey attempted to neatly distinguish between juror sympathy for the defendant and for the defendant’s family, (Smithey, supra, 20 Cal.4th at 1000-01), while in Appellant’s case the prosecutor bludgeonedanydistinction between permissible use of all aspects of sympathy during the penalty phase and prohibited considerations. Here, the prosecutor argued: {what it really comes downtois this issue of sympathy, the sympathy issue. Sympathetic [for] any aspect of his character or record. And it’s not sympathy for his sister. It is not sympathy for his brother. It is not sympathy for his children. It is sympathy for him. (RT 3659). The prosecutor’s attitude that the jury’s sympathy for Appellant through his family was “irrelevant” ran afoul of due process and a constitutional death penalty scheme. Respondent’s lack of argumentto the contrary is revealing. According to the United States Supreme Court, juries must consider “as a mitigating factor, any aspect of a defendant's character or record and anyofthe circumstancesofthe offense that the defendant proffers as a basis for a sentence less than death.” (Lockett v. Ohio (1978) 438 U.S. 586, 604-605). The Supreme Court stressed that “t]he need for treating each defendantin a capital case with that degree of respect due the uniquenessof the individual is far more important than in noncapital cases.” (Jbid.). Respondent does not, and cannot, argue that the prosecutor’s statements were madein line with these principles. Respondent contends that the prosecutordid not askthe jury to disregard mitigating evidence when he argued that because “this is a horrendouscrimeinitself,” there is “no justice” in Appellant’s background. (RB 284). Respondent contends that the prosecutor did not commit misconduct by arguing that Appellant must prove that there is “anything about his character and backgroundthat offsets the crime[.]” (Jbid.). 328 Respondentfeels that a reasonable juror would not have understood the prosecutor’s remarksascalling for them to disregard the evidence in mitigation. (Jd. at 285). Respondent says that the prosecutor’s remarks were too “fleeting and confusing”to carry “the import Appellant wants to ascribe to them.” (/bid.). Respondent argues that any prejudice from the remarks was corrected by the court’s admonition. (/d. at 285-86). In the alternative, Respondent argues that the claims were forfeited because Appellant did not make an objection below. Respondent’s argumentcontains several weak points. First, the harm wasnot cured bytrial court admonitions. The jury wasnotinstructed that there is no presumption of death under any circumstances. Nor were they instructed that the mitigating circumstances need not“offset” the aggravating circumstancesin order to imposea life sentence. They were told that, in fact, the defendant need not show any mitigating circumstances that “offset” the facts of the crime in order to receive a life sentence. (See Brown, supra, 40 Cal. 3d at 540). Respondent’s arguments to the contrary are baseless. Second,telling the jurors to just look at the facts of the crime in determining whether death is warranted improperly directs them to disregard the case in mitigation, a direction that is not permitted by the state and federal Constitutions. (See Easley, supra, 34 Cal.3d at 875-876). Contrary to the prosecutor’s misleading misstatement of law, the penalty phase does not begin with a presumption that, because of the crimeitself, death is the appropriate penalty that must be “offset” by mitigating evidence. The jury instructions state just the opposite; a death sentence may only be imposedifthe aggravating circumstancesso substantially outweigh the mitigating circumstances that death is warranted, and even then, only under certain circumstances. (See CALJIC 8.88). The prosecutor’s arguments to the jury completely mischaracterized their duties 329 in the penalty phase. Third, Appellant’s arguments have not been waived. Appellant raised valid objections throughout the arguments to the prosecutor’s mischaracterization of the mitigation evidence. He objectedthat the prosecutor was asking the jurors to disregard mitigation evidence. (See RT 3803). Finally, Respondent says that the prosecutor did not attempt to mislead the jury into believing that it could consider Appellant’s force and violence against victim Olssonas factor (b) aggravation. (RB 286 (citing RT 36, 44, 3645, 3662)). Respondent argues that the jury would have reasonably understood the remarksas including use of force under “factor (a), not factor (b).” (RB 286). In the alternative, Respondent argues that Appellant’s claims are forfeited for failure to interpose any objection at trial. ([bid.). Here, the prosecutor misstated his burden of proof with regard to Section 190.3 (b). The defense was forced to object on three separate occasions when the prosecutorfailed to tell the jury that the acts of violence referred to under 190.3(b) had to be separate from those for which Appellant had been convicted. (RT 3644, 3645, and 3662). The third objection was made whenthe prosecutordisplayed a chart containing the language of 190.3(b) to the jury. (RT 3662 (discussing Court Exhibit 5)). The jury would not have reasonably believed that the prosecutor was referring to factor evidence, since the prosecutor’s case rested on an “uncharged”crime of violence, the “rape” of Sandy Olsson. Throughout both the guilt and penalty phases, the prosecutor lamented that the jury could not convict Appellant of rape due to “a technicality,” and an “instruction,” despite his assertion that Appellant “actually raped” her. He listed the “rape” on his chart showing what aggravated the crime, and in placing the jury in Ms. Olsson’s shoes, 330 described this “rape” over and overagain. But Appellant wasnottried for rape. The prosecutor’s argument misled the jury into believing the uncharged rape was a separate aggravating factor to weigh against the evidence in mitigation. F. Conclusion. Respondentthus feels that Appellant is not entitled to any relief “based onhis allegation of penalty phase opening statement and summation prosecutorial misconduct.” (RB 286). Respondent argues that though “the prosecutor arguably misstepped, any error was, as demonstrated, harmless.” (Id. at 287). According to Respondent, the prosecutor did not “engage in deceptive or reprehensible methods ofpersuading the court or jury.” (Ibid.). Respondentalso feels that the prosecutor’s repeated instances of misconductdid not “infect the trial with such unfairness as to render Appellant’s death judgment unconstitutional.” (/bid.). These facts show Respondent to be wrong. The specific repetitive and severe prosecutorial misconduct committed during the penalty phase was both reprehensible and “so infected the trial with unfairness as to deny Appellant due process. (Donnelly, supra, 416 U.S.at 637). Whenthe defense objected, the trial court often failed to rule on the objection directly, thereby permitting the prosecutor to commit act after act of misconduct without judicial admonition or explanation to the jury, exacerbating the prejudice to Appellant. On the few occasions when the court did addressthe jury following defense objection,the trial court’s comments were insufficient to cure the significant harm that had already been caused. The prosecutor’s rampant misconductviolated the federal Constitution as well as state law and the state Constitution. Whetherthe misconduct is deemed to be misconduct understate law or federal constitutional law, the penalty verdict must be reversed. Undereither the 331 standard set forth in Brown, supra, 46 Cal.3d at 448 (reasonablepossibility that, absent the misconduct, the jury would not have sentenced defendantto death), or the Chapman harmlesserror standard, the death sentence cannot stand. Readin the context of the entire prosecution closing argument, the misconduct did not representbrief isolated attempts to inflame the jury. Rather it was part of a calculated strategy to divert the jury’s attention from the evidence presented, and urge them to speculate about an uncharged and unproven crime,in order to unfairly persuadethe jury to choose a death verdict. In the context of the entire argument, this misconduct had a significant influence on the jury’s death verdict. The prosecutor inflamed the jury by stressing an unproventheoryofthe crime to obtain a death sentence. It is highly probable that, had this misconductnot occurred, Appellant would not have been sentencedto death. 332 XVII. THE PROSECUTOR’S RELIGIOUS ARGUMENTS PERMEATED THE PENALTY PHASE ARGUMENTS AND PREJUDICED APPELLANT. A, Introduction. During penalty phase arguments, the prosecutor repeatedly told the jury that God “sanctioned capital punishment,” and usedreligion to diminish the jury’s consideration of “the specific factors [they are] to consider in reaching a verdict.” (Godfrey, supra, 446 U.S. at 428). The prosecutor’s fervent arguments ensuredthat the jury’s deliberations were permeated with religious considerations and violated the Constitution’s commandthat the death penalty may be imposed only whenthe jury carefully focuses on the specific factors relevant to their sentencing determination. (See Lockett, supra, 438 U.S. at 602-605; see also Zant, supra, 462 U.S. at 885; and Brown, supra, 40 Cal.3d at 540 n. 10). The prosecutor’s religious arguments pushed thejury into a role that was fundamentally incompatible with the Eighth Amendment’s heightened “need for reliability in the determination that death is the appropriate punishment....” (Woodson v. North Carolina (1976) 428 U.S. 280, 305). B. Appellant’s Claims have not Been Forfeited. Respondentclaimsthat “Appellant has failed to preserve the current claims of misconduct for review.” (RB 290). Respondentbasesthis assertion on the argumentthat “at trial Appellant made nota single “religious reference” objection or request for admonition to anything the prosecutor argued.” (/bid. (citations omitted)). Respondent’s arguments all fail because of the prejudicial nature of the dilemmathat the prosecutor foisted upon Appellant by repeatedly calling for his execution based on religious mandates. This Court has recognized that in such situations: A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either 333 would be futile. In addition, failure to request the jury be admonished does not forfeit the issue for appeal if ‘an admonition would not have cured the harm caused by the misconduct. (Hill, supra, 17 Cal.4th at 820-821 (citations omitted)). Respondent concedesthat this Court doesnot require defense counsel to object and request an admonishment when remedying prosecutorial misconduct would provefutile or prejudicial to the defendant. (RB 290). Respondent, however, argues that Hill is not applicable here. According to Respondent, during penalty phase arguments in Appellant’s capitaltrial, “none of the prosecutor’s alleged religious reference transgressions involved misconduct so severe that an objection and curative admonition would not have cured the harm.” (/bid.). Respondent argues that Hill is further distinguishable because there,the trial court committed errorby failing “to reign in the prosecutor’s excesses whenthe defense did object and...made comments before the jury suggesting defense counsel was an obstructionist....” (Ibid. (citing Hill, supra, 17 Cal.4th at 821)). Respondent’s arguments fail to persuadefor three reasons. First, undoubtedly the prosecutor’s use ofa large billboard and arguments to convince the jury that “THE BIBLE SANCTIONS CAPITAL PUNISHMENT”constituted prejudicial misconduct. Worse, the prosecutor went on to repeatedly quote from scripture and analogized Appellant to the badthief at Christ’s crucifixion, who turnedhis nose at Christ and did not earn salvation. These facts are egregious. Virtually every state and federal court to address the question hasheld that involving the Bibleor religious rhetoric as authority for imposing a death sentence is unconstitutional.'?” Here, the trial court failed to correct the misconduct. 132. (See e.g., Sandoval v. Calderon (9th Cir. 2001) 241 F.3d 765, 716-777; Bennett v. Angelone, (4th Cir.1996) 92 F.3d 1336, 1346; 334 And, no objection or instruction, especially after completion of the arguments, could have corrected the jurors’ religious impressions of whether or not Appellant deserved a sentence of death. Second,justlike in Hill, Appellant’s counsel was “thrust upon the horns of the dilemma”by the prosecutor’s repeated instances of misconduct. (Hill, supra, 17 Cal.4th at 821). The record clearly establishes that defense counsel objected time and time again to a “barrageof[the] prosecutor[‘s] unethical conduct.” (/bid.). Like in Hill, this misconduct included disparaging remarks towards defense counsel’s integrity, misstating the evidence,as well as, sarcastic comments. In response, defense counsel made several objections to the prosecutor’s repeated misconduct. (See Claim XVI - The Prosecutor Committed Prejudicial Misconduct During the Penalty Phase Arguments). Thetrial court, however, had largely refused to acknowledge the objections, enforce its prior orders or sustained objections and explicitly refused to admonish the prosecutorin front of the jury. Finally, Respondent fails to acknowledgethat this Court may review this argument because “a defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights[, including] ... the constitutional right to a jury trial.” (Vera, supra, 15 Cal.4th at 276). Here, the religious arguments by the prosecution and the defense, as a whole, violated Appellant’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments andthe parallel provisions of the California Constitution. The prosecutor’s argument also violated the First Amendment’s Cunningham v. Zant (11th Cir.1991) 928 F.2d 1006, 1019-1020; United States v. Giry (Ast Cir.1987) 818 F.2d 120, 133; State v. Middlebrooks (Tenn. 1999) 995 S.W.2d 550, 559; Commonwealth v. Chambers (1991) 528 Pa. 558; People v. Eckles (1980) 83 Ill.App.3d 292; State v. Wangberg (1965) 136 N.W.2d 853, 854-55)). 335 Establishment Clause and the required separation of church andstate as well as the California state Constitution. Thus, because these fundamental and constitutional claims were at issue, Appellant may raise for the first time on appeal, his claims asserting the deprivation of these fundamental and constitutionalrights. OF The Prosecutor Forced Defense Counsel to Respond to the State’s Religious References. Respondentattempts to divert this Court’s focus from the prosecutor’s wrongdoing by blaming defense counsel for respondingto the state’s prejudicial religious arguments instead of objecting. (RB 290 and 299). Respondentcites to Wash, supra, 6 Cal.4th at 260, arguing that defense counsel’s conduct ameliorates any prejudice resulting from the prosecutor’s infusionofreligious themes into the penalty phase proceedings. ([bid.). Respondent characterizes the prosecutor’s religious references as a “response to some of defense counsel’s religious references.” (RB 295). Respondent believes that this characterization “cuts againsta finding ofprejudice.” (/d. at 296). Respondent neglects to mention that the prosecutor opened the discussion by introducing religious themes, through arguments and charts, during its summation in the penalty phase. The fact that both attorneys engagedin religious arguments, without restraint from thetrial court, exacerbated rather than ameliorated the prejudice to Appellant. When counsel engagesin a religious debate, instead of relying on the facts and the law, they increased the potentialthat the jury’s deliberations would be focused uponirrelevant andinflammatory religious considerations. Instead of a reasoned response to the crime, or a reasoned weighing of aggravating and mitigating factors, counsel encouragedthe jury to return a verdict based upontheir consideration of: 1) religious authority; 2) counsel’s religious views; and 3) the juror’s own 336 religious views. Counsel’s conduct ensured that their religious ideals and the persuasiveness of their Biblical interpretations controlled the fate of Appellant’s life. Respondentalso fails to recognize, as this Court has,that prosecutorsare held to a higher standard than defense counsel. The prosecutor’s improper arguments regarding material not in the record, which“thereby effectively circumvent[ed] the rules of evidence” had the 999force of “dynamite’” to the jury due to the special regard prosecutor’s carry with the jury. (Hill, supra, 17 Cal.4th at 828 (quoting Bolton, supra, 23 Cal. 3d at 213) (other citations omitted)). When the prosecutorrelies on “biblical” or “scriptural” facts outside the evidence, as the prosecutor did here, the jury will hear him - not only as the voice of the governmental authority, but also as the voice of religious authority. Becauseofthis, defense counsel’s attempted responsesto the initial, improper arguments by the prosecutor were futile, at best, and did not ameliorate any prejudice running to Appellant. Finally, Respondent’s efforts to lambast defense counsel’s religious argument maskthe state’s inability to respondto all of Appellant’s arguments underthis claim. In what has become a pattern, Respondent has yet again failed to addressall of the arguments raised by Appellantin his Opening Brief, this time neglecting sixteen (16) separate arguments. '** 3 Respondentdoes not address or rebut the following sixteen (16) arguments raised by Appellant under this groundin his opening brief: 1) The prosecutor committed misconduct and prejudiced Appellant’s rights by utilizing a large billboard to quote Biblical passages from Genesis, Numbers, and Exodusin support of the state’s argument that “THE BIBLE SANCTIONS CAPITAL PUNISHMENT.”(See II AOB 430-31); 2) The trial court erred by allowing religious arguments to permeate the penalty phaseproceedingsand, by allowing both sidesto interpretreligious texts, the trial court turned the closing arguments into a battle over who could win in the “ecclesiastical Court.” (See Jd. at 431); 3) The prosecutor committed prejudicial misconduct, in violation of the Eighth Amendment, 337 by creating a faux aggravating factor out of the fact that Appellant was not religious and urging the jury to consider this fact during their sentencing deliberations. (See Id. at 442); 4) By arguing for a death sentence because Appellant was notreligious, the prosecutor committed prejudicial misconductandviolated prior court orders prohibiting arguments that Appellant had not “found God and repented.” (See Jbid.); 5) The prosecutor’s religious arguments were irrelevant and constituted prejudicial misconduct because they were not supported by any evidence in the record concerning Biblical interpretations or the views of “world religions” concerningtheir take on the propriety of the death penalty. (See Id. at 443); 6) The prosecutorfalsely told the jury that he was quoting the Bible “on point,” when in fact he was quoting two separate parts of the Bible, (See /d. at 444 (citing Numbers 35:16; and Genesis 9:6)); 7) The prosecutor misrepresented passages from the bible in support of his argumentthat “THE BIBLE SANCTIONS CAPITAL PUNISHMENT.” (See II AOB 444 (citing Numbers 35:16; Numbers 35:10)); 8) The prosecutor created a religious straw man andutilized the rhetorical device of paraleipsis to reinforce the jury’s consideration of religiousideals during their sentencing determination. (See II AOB 446); 9) The inflammatory nature ofthe prosecutor’s arguments forced defense counsel to withhold objections and, instead, engage in equally irrelevant and prejudicial religious discourse. (See Jd. at 447); 10) The prosecutor improperly and prejudicially implied that he knew more about the New Testament than defense counsel. (See /d. at 448); 11) The prosecutor committed prejudicial misconduct by quoting from Romans 13:1-5, which has been expressly condemned,as unduly prejudicial, by this Court and the Court of Appeals for the Ninth Circuit. (See Jd. at 449); 12) The prosecutor violated the state and federal constitutions by impermissibly stating his ownreligious beliefs and engaging in improperreligious “vouching” during his argument. (See Jd. at 449-50 (citing United States v. Potter (9th Cir. 1979) 616 F.2d 384, 392,cert. denied (1980) 449 US. 832; People v. Padilla (1995) 11 Cal. 4th 891, 946)); 13) By arguing religious references, the prosecutor violated the First Amendment’s Establishment Clause, which prohibits the ‘imprimatur of state approval’ to be conferred on any particular religion or any religion generally. (SeeII AOB 450-51 (citing Widemar v. Vincent (1981) 454 U.S. 263, 274; and State v. Ceballos (2003) 832 A.2. 14, 35 n. 36)); 14) The prosecutor committed prejudicial misconduct by urging the jury to exhort vengeance and ignore Appellant’s individual characteristics. (See IIT AOB 454); 15) Thetrial court’s failure to intervene and preventreligious ideals from dominating the penalty phase arguments constituted a miscarriage of justice and allowed the prosecutor to violate Appellant’s rights to due 338 Respondent’s failure to do so can beattributed to the indefensible nature of the prosecutor’s misconduct here. Far from blaming defense counsel,this Court should not tolerate arguments by the state that seek to earn a death sentence based on religious interpretation and which cannot be adequately or fully defended on appeal. D. The Prosecutor’s Religious References during the State’s Opening Penalty Phase Summation Created a Fundamentally Unfair Sentencing Phase. This Court has held that the prosecutor’s invocation ofthe religious authority is “patent misconduct.” (Roldan, supra, 35 Cal.4th 646, 743; see also Hill, supra, 17 Cal.4th at 836 n. 6). This principle “cannot[be] emphasize[d] too strongly.” (bid.). Additionally, this Court has recognized that when prosecutors use religious arguments, they “create and encourage an intolerable risk that the jury will abandon logic and reason and instead condemn an offender for reasons having no place in ourjudicial system.” (Roldan, supra, 35 Cal.4th at 743). It is improper for a prosecutor to reference religion beliefs as a factor in the sentencing process. (See e.g., Giry, supra, 818 F.2d at 133; and Evans v. Thigpen (Sth Cir.1987) 809 F.2d 239). Whether made by the prosecution or defense, efforts to obtain a death sentence based onbiblical or religious doctrine are constitutionally unacceptable. (See Wash, supra, 6 Cal. 4th at 283 (conc. & dis. opn. of Kennard, J.) (“[a] religious argument against the death penalty is no more acceptable at the penalty phase of a capital case than a religious argument in favor of the death penalty. Our process,a fair trial, an impartial jury, and reliable sentencing under the Fifth, Sixth, Eighth, and Fourteenth Amendments,as well as, Article I of the California Constitution. (See Jd. at 455-56); and 16) In a capital case requiring heightenedreliability, the trial court failed to fulfill its duties under the Eighth Amendmentto control the proceedings, courtroom decorum, and “ensure the most scrupulous regard for fair and correct procedure.” (See /d. at 456-57). 339 courts are not ecclesiastical courts, and our juries do not base their decisions on religious law no matter whom such law maybesaid to favor.”) (citations omitted)). This is especially true where, as here, the prosecutor repeatedly invokesreligious text to advocate for Appellant’s death. Religious-based arguments have noplace in the penalty phase of a capital trial. Neither the prosecutor, defense counsel, nor the trial court can properly instruct the jury as to the meaning ofBiblical scripture. Respondent acknowledgesthatit is “well settled” that “biblical law has no properrole in the sentencing process.” (RB 289). Respondent admits that “reference to religious authority in support of the death penalty is ‘patent misconduct’ andstate and federal constitutional error.” (Jbid.). In Appellant’s case, Respondent concedes that the prosecutor repeatedly referenced religious materials and displayed a billboard that demonstratively quoted the Bible as “SANCTION[ING] CAPITAL PUNISHMENT.” (dd. at 292). Finally, Respondent admits that the prosecutor quoted religious references andinterpreted religious sources during both his opening summation and rebuttal summation in the penalty phase. (/d. at 290 and 295). Despite the concessions, Respondentstill tries to argue that applicable law does not control this case. In the state’s view “Appellant’s penalty phasetrial took place in the fall of 1992, well before this Court handed downall of the decisions cited above.” (RB 289). In the alternative, Respondentbelieves that Appellant “overstates the problem|s]” resulting from the prosecutor’s use ofreligious references. (/bid.). Respondenttries to argue that “Appellant was not prejudiced by the religious references, andhis assignments of prosecutorial misconduct to them are otherwise forfeited.” (Jbid.). However, Respondent’s failure to rebut sixteen (16) arguments raised by Appellant in his Opening Brief supports Appellant’s argumentthat the use ofreligious references to earn 340 Appellant’s sentence of death was improperand constituted misconduct. Respondent’s argumentis further weakened by Respondent’sincorrect conclusion that the case law is inapplicable here, and bythe failure to addressall of the issues raised in Appellant’s Opening Brief. Respondent is wrong to conclude that Wash, Roldan, Roybal, Sandovaland Lenart are not applicable to Appellant’s case. Appellant’s case has been pending on direct appeal since 1992. Thus, his conviction wasnotfinal at the time that the opinions in Sandoval (1992), Wash (1993), Roybal, (1998), Ervin (2000), Lenart (2004), and Roldan (2005) were issued. The cited authorities are binding precedent in Appellant’s case. Moreover, in 1992, the same yearas petitioner’s trial, this Court condemnedthe consideration ofreligious authority in sentencing proceedings, explaining: [w/hat is objectionable is reliance on religious authority as supporting or opposing the death penalty. The penalty determination is to be madebyreliance on the legal instructions given by the court, not by recourse to extraneous authority. (Sandoval, supra, 4 Cal.4th at 194 (emphasis added) (citing Jones v. Kemp (N.D.GA 1989) 706 F.Supp. 1534, 1559)). Respondent concedesthat the prosecutor discussed, at length, Roger Tully’s [Appellant’s brother] religious conversion during the penalty phase opening argument. Respondent admits that the prosecutor contrasted Roger’s religious conversion to Appellant’s lifestyle. (RB 290). Respondent concedesthat the prosecutor blamed Appellant for not following his brother’s religious conversion. (/d. at 291). Respondent also concedesthat the prosecutor went on to quote at length from his chart, “THE BIBLE SANCTIONS CAPITAL PUNISHMENT.” (See Court Exhibit 5). Finally, Respondent admits that these quotes included verbatim readings of Genesis Chapter 9, Verse 6 and Numbers Chapter 35, Verse 16. 341 (RB 291-92). '34 Respondent, however,tries to argue that the prosecutor’s “referenceto [] Bible passages that support[] capital punishment”did not prejudice Appellant. (/d. at 292). Respondentbelieves that a reasonable jury would have understood the argument as conveying that “the death penalty [is] not [an] usurpation of God’s authority, but a legitimate carrying out of California law.” ([bid.). Respondent thus concludesthat the ? oc prosecutor’s “allusions to biblical law” emphasized “that the jurors should instead judge the defendantprimarily by his acts.” (Ibid. (quoting Roybal, supra, 19 Cal.4th at 521)). Respondent’s arguments are baselessin at least five respects, and its failed arguments highlight the problem. First, by invoking arguments indicating that “THE BIBLE SANCTIONS CAPITAL PUNISHMENT,”the prosecutor sought to show that California law andreligious law are synonymous. This had the ultimate prejudicial effect on Appellant’s case since the prosecutor argued that both the state and religion compelled Appellant’s death sentence. Second, by mustering a defense only as to the prejudicial nature of the prosecutor’s statements, and not addressing the ethical nature of the prosecutor’s actual conduct, Respondent has concededthat the prosecutor engaged in misconduct. Indeed, given this Court’s controlling authorities, Respondent must recognize the prosecutor’s conduct as unethical. (See e.g., Lenart, supra, 32 Cal.4th at 1129). Third, Respondent stretches logic in an attempt to ameliorate the 134 Numbers 35; 16-18 reads, “And if he smite him with an instrumentofiron, so that he die, he is a murderer: the murderershall surely be put to death. And if he smite him with throwing stone, wherewith he may die, and hedie, he is a murderer: the murderer shall surely be put to death. Orifhe smite him with a hand weapon of wood, wherewith he may die, and hedie, he is a murderer: the murderer shall surely be put to death.” (The Holy Bible, King James Version. New York: American Bible Society: 1999). Genesis Chapter 9, Verse 6 reads: “Whoever sheds the blood of man, by manshall his blood be shed; for in the image of God has God made man.”(/bid.). 342 prejudice resulting from the prosecutor’s misconduct. It is incredulous for Respondentto argue that the prosecutor’s repeated quotations from Genesis, Numbers and Exodus amounted to “commonplace” remarks that askedthe jury to judge the “defendant primarily by his actions.” (RB 292). Religious arguments are not to be a guiding force in deciding whether a man should be put to death, or a factorat all, in the jury’s decision making process. (Roldan, supra, 35 Cal. 4th at 743). The jurors are supposed to follow and apply the law, and make their penalty determination based on that law. Theyare not to consider higher Christian authority. The Biblical passages quoted bythe prosecutor did not urge the jury to judge Appellant by his actions, as much as, condemn him to death for having been convicted of murder.'*° Fourth, no reasonable juror would have recognized the prosecutions’ repeated quotations from the Bible mandating that “THE MURDERER WILL BE PUT TO DEATH,”as anything other than a religious mandate to sentence Appellant to death. Respondenterrs in arguing that Numbers Chapter 35, Verse 16 does not “mandate a death sentence.” (RB 292). The plain terms of the passage unequivocally urge the jury to select death. Moreover, the biblical passage expressly states that a person who commits murder must be sentenced to death lest “God’s authority” be usurped. The prosecutor’s religious references indicatedthat, if the jury did not sentence Appellant to death, they would effectively “usurp God’s authority,” which coincides with California law. (RT 3728-29). Fifth, the facts of Appellant’s case, and the extent of religious argument that took place, are worse than in Roybal, Sandoval, or in any '3° Tn fact, the prosecutor admitted that his arguments were designed to evoke a responseofpassion in the jury, rather than reasoned application of the law to the facts when he argued: “And when wetalk aboutpassion, isn’t that what we're talking about with the death penalty? Isn’t that what it’s about?” (RT 3728-3729 (emphasis added)). 343 other case that this Court has faced and in which it has found misconduct. In Roybal, this Court recognized that the prosecutor’s quotations from the Bible were clear misconduct. (See Roybal, supra, 19 Cal. 4th at 519-20). However, in Roybal, the prosecutor only quoted from the Bible once near the end of closing arguments. (Jbid.). Here, not only did the prosecutor quote the same passages asthe prosecutor in Roybal, he also displayed a large placard reading “THE BIBLE SANCTIONS CAPITAL PUNISHMENT:;”displayed several quotes from the Bible; discussed several biblical passages spread over eight pages of transcript'”*° quoted directly from the bible eight times, and analogized Appellant’s fate and the jury’s ultimate decision to the bad thief at Christ’s crucifixion. (See RT 3691-93; 3797-98; and 3799-801). Similarly, in Sandoval, the prosecutor’s arguments came in rebuttal to defense counsel’s allusion that, in order to return a death sentence the jury must “play God.” (Sandoval, supra, 4 Cal.4th at 1914). Here, the prosecutorinitiated the ecclesiastic arguments and made the arguments during his opening summation and rebuttal summation. Moreover,in Sandoval, the prosecutor paraphrased Biblical passages, while in Appellant’s case; the prosecutor directly quoted passages on seven occasions and also displayed a placard clearly citing biblical passages that “SANCTION[ | CAPITAL PUNISHMENT.” '36 Tt is clearly disingenuous for Respondentto assert that the prosecutor’s religious references here were brief (See RB 292); especially in light of the fact that quotes taken from the prosecutor’s religious arguments spread acrossfive pagesofthe fifteen (15) pages Respondent donates in defense of this claim. 344 E. The Prosecutor’s Religious References in Penalty Phase Rebuttal Prejudiced Appellant’s Right to a Fundamentally Fair Trial. Respondent concedes that during the state’s penalty phase rebuttal argument, the prosecutor again quoted biblical passages, focusing in particular on descriptions from the Old Testament. (RB 295 (citing RT 3797-98)). Respondent admits that the prosecutor went through a detailed description of Jesus Christ’s crucifixion. Respondent concedesthat the prosecutor compared Appellant to the bad thief, who did not earn salvation, because he refused to repent, and, whoinstead, “cussed at Christ, turned his nose, whatever.” (RB 297 (citing RT 3799-801)). Respondentalso acknowledgesthat the prosecutor referenced the Mosaic Law of“Jex talionis,” or an eye for an eye, when he urgedthe jury that “there are some [crimes] that [are] so heinous, so vicious, so violent that they outrage us and they say this person has forfeited their right not to justlive in society, but to live, to live.” (RB 298 (citing RT 3808-09)). Despite these key concessions, Respondenttries to argue that no prejudice inured to Appellant. Respondent bases this conclusion onits view that the prosecution’s remarks were “hardly matters of clarity,” and as such, “no reasonable juror would have understood them as appeals to extraneous authority or invitations to ignore what occurredin the courtroom.” (RB 296). Respondent argues that the prosecutor ameliorated any prejudice by supplying the disclaimerthat “he did not wantjurors to ‘bouncereligions back and forth.’” (bid.). First, Respondent’s lengthy quotations of the prosecutor’s religiously infused arguments provethe ineffectiveness of the disclaimer. Moreover, the record demonstrates that the prosecutor’s invocation of religion caused defense counsel and the state to “bouncereligions back and forth.” The prosecutorthus clearly initiated a religious debate that 345 prejudiced Appellant’s ability to receive a fundamentally fair sentencing proceeding. Second, like above, Respondent’s failure to defend the prosecutor’s conduct during the state’s penalty phase rebuttal is a concessionthat the prosecutor committed misconduct. Here, no disclaimer could correct the prosecutor’s repeated invocationsofreligious authorities. In fact, the disclaimer directly conflicted with the prosecutor’s lengthy religious argumentsand billboard arguing that “THE BIBLE SANCTIONS CAPITAL PUNISHMENT.” Thedisclaimer also conflicted with the fact that the prosecutortold the jury, in no uncertain terms,that religion “hasto be discussed in this type ofsetting” because it would give the jury fortitude to impose the death penalty. (RT 3692). The fact that the prosecutor’s argumentslacked “clarity” only further goes to prove their irrelevant and prejudicial nature. Respondent’s efforts to minimize the prejudice emanating from the prosecutor’s misconduct whollyfail. Third, Respondentfails when attempting to defend the prosecutor’s “good thief/bad thief” analogy as other than “a biblical reference in support of the death penalty or an invocation to a ‘higher law,” but simply expressionsofthe prosecutor’s view that repentanceis a precursorto salvation.” (RB 297). In either instance, the prosecutor committed misconduct.'*’ It is improperfor a prosecutorto invoke higher law, which is assuredly accomplished by an analogy comparing Appellant to the bad thief undeserving of salvation. Similarly, it is improper for a prosecutorto inject his own personalbeliefs into an argument, (see Medina, supra, 11 Cal.4th at 776), and doubly prejudicial when those arguments concern his '37 Additionally, the argument was improper becauseit relied upon facts not presented to the jury for support. Noreligious expert wascalled to verify the prosecutor’s interpretation of the Bible. Indeed, Respondent notes that “religious question[s] w[ere] not the issue before the jury.” (RB 298). 346 views ofthe defendant, ofreligion, and ofthe properpunishment. Even if the biblical story only related to the prosecutor’s view of the path to salvation, the story functionedas religious instruction,telling the jury that Appellant would not be saved in Heaven and deserved a death sentence. It is irrelevant whetheror not the prosecutor was appealing to religious authorities or reciting his own interpretation of religious authorities. In both instances, the prosecutor’s religious interpretations or opinions interjected prejudicial, impermissible and irrelevant considerations into the jury’s sentencing determination. (See Sandoval, supra, 241 F.3d at 776). Fourth, Respondent’s arguments in defense of the prosecutor’s misconductstretch the bounds of reason. Respondent arguesthat the comparison ofAppellant to the bad thief, who did not deserve salvation,is a “remind[er] to the jurors to follow and apply the law the court would give them, and maketheir penalty determination based on the law.” (RB 298). However, a comparison of Christ’s crucifixion to Appellant’s penalty phase could not further stray from applicable law. In truth, the prosecutor could not design a more prejudicial or inflammatory allusion to lead the jury away from their constitutional duties. Finally, Respondentfails in its attempt to defend the prosecutor’s references to the law of“lex talionis.” Respondentfeels that the prosecutor’s arguments were “secular in tone” and remindedthe jury of “proportionality in punishment; i.e., that the punishmentmustfit the crime.” (RB 298). Respondent argues that the prosecutor did not tell the jurors that “they could shift their sentencing responsibility somewhere else.” (Jbid.). Respondent feels that a reasonable juror would not have understood the argumentas one “suggesting that religious authority sanctified or compelled imposition of the death penalty for Appellant.” (Ibid.). The prosecutor’s reference to retribution and “/ex talionis” was not 347 merely a reference to the “proportionality in punishment.” Instead, the prosecutorclearly intended to appeal to the juror’s sense of vengeance when he urged them to sentence Appellant to death based on Mosaic and retributive law, instead of thefacts in evidence. The prosecutor’s appeal to retribution, as well as to biblical authorities to assure the jury of the righteousness of a death sentence for Appellant constitutes a clear attempt to “shift sentencing responsibility.” (See Caldwell, supra, 472 U.S.at 328- 329). In arguing suchreligious concepts, the prosecutor intended to impute to the jury that they would not be accountable for Appellant’s execution, but instead, would be following God andthe state’s law. Telling the jurors to turn to religion to find the fortitude to execute Appellant and to find solace in religion for their death verdict served the purpose of “diminish[ing| the jury’s personal sense of responsibility for the verdict.” (Hill, supra, 17 Cal.4th at 836). The jury was thus impermissiblyled “to believe that the responsibility for determining the appropriatenessofthe defendant’s death rests elsewhere.” (Caldwell, supra, 472 U.S. at 328-29). F. Cumulative Prejudice from Counsels’ Repeated References to Religion Violated Appellant’s Constitutional Rights. Here, the cumulative effect of the prosecutor’s repeated invocations ofreligious authority caused the jury to rely on religious arguments in their penalty verdict and impose the death penalty. The aggregated prejudice from the sum ofthe prosecutor’s sum course of misconduct rendered Appellant’s penalty phase proceedings fundamentally unfair. Respondentarguesthat the Chapman “harmless beyond a reasonable doubt”test controls review ofreligious reference misconduct. (RB 300 (citing Lenart, supra, 32 Cal.4th at 1130)). Under this standard, Respondentfeels that “the religious references, even if viewed “cumulatively, were harmless beyond a reasonable doubt.” (RB 301). 348 Respondentfeels that the closing argument comprised “just a small part of the hundreds of pages of closing argument.” (Jbid.). Respondent characterizes “the overwhelming majority” of the prosecutor’s arguments as “detail[ing] recitation of the factors in aggravation in the case, particularly the brutal circumstancesof the crime.” (/bid.). Respondent argues that “nothing the prosecutor (or defense counsel) said aboutreligion would have led a reasonable juror to believe he or she was not required to follow the court’s instructions but could instead follow God’s law....” (/bid.). These arguments fail in at least three ways. First, Respondenthas set forth no persuasive justification whythis Court should not follow the Pennsylvania Supreme Court’s lead and adopt a prejudice per se standard in capital cases involving religious arguments. (See Chambers, supra, 528 Pa. at 586). Thetrial court’s error in not preventing the misconduct, and the prosecutor’s exploitive and inflammatory useofreligious references, constituted a “defect affecting the framework within whichthetrial proceeds.” (See Arizona v. Fulminante (1991) 499 U.S. 279, 309-310; People v. Flood (1998) 18 Cal.4th 470, 500; and People v. Sarazzawski (1945) 27 Cal.2d 7, 18-19). This Court should adopt the per se standard andfind the prosecutor’s religious references prejudicial. Second, Respondenttries to diminish the prosecutor’s reliance upon religious arguments in an attempt to diminish the prosecutor’s violations of Appellant’s constitutional rights. In fact, contrary to Respondent’s assertions, the prosecutor’s repeated and lengthy referencesto religion were moreintense than the record can reflect. The prosecutor’s religious arguments cover eight pages of transcript. (See RT 3691-93; 3797-98; 3799-801). The prosecutor urged Appellant’s capital jurors, after having witnessed the guilt phase proceedingsin a grisly crime, to select a death sentence because: “THE BIBLE SANCTIONS CAPITAL 349 PUNISHMENT.” Theprosecutor’s allusion to Appellant as the badthief, who“cussed out Christ,” directly implored the jury not to grant Appellant salvation through a life sentence. Moreover, the fact that the prosecutor, during his closing argument, combinedreligious analogies with many other forms of misconduct only exacerbated the degree of prejudice in Appellant’s case. (See Claim XVI - The Prosecutor Committed Prejudicial Misconduct During the Penalty Phase Arguments). A reasonable juror, in the face of the prosecution’s overwhelmingreligious pressure, would have assumed that God’s law required a death sentence andthat religious ideals were a permissible consideration when determining Appellant’s fate. In recent years, this Court has increasingly seen a numberofcapital cases where prosecutor’s, during penalty phase summations, have resorted to biblical references in lieu of legal arguments and facts developedattrial. (See Zambrano, supra, 41 Cal.4th at 1082; Avila, supra, 46 Cal.4th at 680; People v. Williams (2010) 49 Cal.4th 405; and Brady, supra, — Cal.4th at *1).'°8. This Court has yet to see, however, the all out religious war such as 8 In Avila, the prosecutor argued: “Youare nothereto forgive. That is for some other authority. You are here to impose punishment- the appropriate punishment based on whatthis defendant deserves by his conduct, by his actions.” (Avila, supra, 46 Cal.4th at 721). This Court rejected the defendants claim that this argument constituted misconduct and foundthat “[nJothing in these statements misled the jury as to its role in the sentencing process in a way that allow[ed] the jury to feel less responsible than it should for the sentencing decision.” (/bid. (quotations omitted)). In Zambrano, the prosecutor madeseveral references to the Bible and quoted biblical text. In response, defense counsel rebutted with his ownreligious allusions. Despite the extensive religious arguments this Court heldthat the prosecutor’s arguments were not erroneous andthat the “defendant suffered no prejudice. In this regard, we note that the prosecutor's biblical comments were part of a longer argumentthat properly focused uponthe factors in aggravation and mitigation.” (Zambrano, supra, 41 Cal.4th at 1170). In Williams the prosecutor quoted from Genesis and argued that jurors with religious scruples to the death penalty should realize that the Bible unambiguously commandsthat murderers be put to death. (See Williams, 350 wasinitiated by the prosecutor in Appellant’s case.’* This Court’s response to prosecutorial use of religious texts for arguments is not unified. This Court’s decision in Zambrano drew a dissent from Justice Kennard. (See e.g., Zambrano, supra, 41 Cal.4th at 1198 (dissenting opn. J., Kennard) (“error occurred when,in closing argumentat the penalty phase, the prosecutor quoted passages from the Bible as authority for the death penalty.”)). There, Justice Kennard noted supra, 49 Cal.4th at 479). The defense responded with three distinct religious arguments condemning the death penalty. (/bid.). This Court recognized that the prosecutor’s arguments were misconduct. (/d. at 481). Nevertheless, this Court found that the challenged remarks did not incur any prejudice to the defendant dueto their brevity, the court’s jury instructions, the defendant’s criminal history, and the overwhelming nature of the facts in aggravation. (/d. at 481-82). In Brady the prosecutor referred to the fact that the victim “died while wearing her cross.” (Brady, supra, -- Cal.Rptr.3d at *27). This Court rejected the argument because the prosecutor did not appeal to religious authority in urging the jury to return a death verdict. '3° The prosecutor’s commentsin Appellant’s case are more egregious than the comments in Avila, Zambrano, and Williams. First, throughout his argument, as Respondent concedes, the prosecutor openly displayed a placard that quoted the Bible as “SANCTIONING CAPITAL PUNISHMENT.(RB 292). Second, the prosecutor in over six instances during his penalty phase closing argument, referred to religious authorities for support in arguing that Appellant’s case warranted a death sentence. Third, the prosecutor’s religious analogies, particularly his comparison of Appellant to the bad thief at Christ’s crucifixion, were tasteless and wholly intended to incite the jury’s passions. Fourth, unlike in Williams, here the prosecutor’s remarksclearly caused prejudice in light of their longevity, the court’s ineffective jury instructions, Appellant’s lack of a prior criminal record, and the strength of Appellant’s evidence in mitigation. Fifth, unlike in Brady, in Appellant’s case, the prosecutor repeatedly and extensively discussed religious authorities. More prejudicially, in Appellant’s case, Prosecutor Burr utilized religious authorities to urge the jury to return a death verdict. Simply put, in neither Zambrano, Avila, Williams, nor Brady did the prosecutorrely on religious authorities are commit prejudicial misconduct as muchasProsecutor did in Appellant’s case. 351 that the prosecutor’s argumentinvariably misled the jury and shifted the responsibility of their sentencing determination. (Zambrano,supra, 41 Cal.4th at 1170 (dissenting opn. Kennard, J.). Justice Kennard noted that “counsel's failure to object violated defendant's constitutionalright to the effective assistance of counsel. Defense counsel may have decidednot to object becauseheintendedto reply to the prosecutor's argument with a biblical argument of his own; however,that is not a legitimate tactical purposeforfailing to object.” (/bid.). Ultimately, she concluded that: [T]he prosecutor's appeal to biblical authority invited the penalty phase jurors to disregard their duty to follow thetrial court's instructions to weigh the mitigating and aggravating evidence in deciding penalty, whether death or life without parole. Accordingly, the prosecutor's improper biblical argument may well have permitted one or more jurors to overlook the defense evidence in mitigation, causing the juror or jurors to vote for death without weighing that mitigating evidence against the prosecution's evidence in aggravation. Thus, the prosecutor's improper reliance on biblical authority prejudiced defendant. (Zambrano, supra, 41 Cal.4th at 1203 (dissenting opn.J., Kennard)). Here, this Court should not sanction the prosecutor’s blatant misconduct and invocation ofreligious authorities during the penalty phase argument in Appellant’s case. Unlike other cases where this Court has found religious argument harmless, here the religious references were extensive, rather than brief or undeveloped and the prosecutor returned to religious themes over and over. (See e.g., Wash, supra, 6 Cal.4th at 261). Prosecutor Burr’s unethical tactics and outrageous arguments were misconduct, prejudicedthe jury andincited their passions. Given the weaknessofthe state’s case in aggravation and the length of the jury’s penalty deliberations,religion certainly influenced the jury’s verdict, and tipped the scales toward the death penalty. 352 G. Conclusion. In a capital case, the prosecution’s invocation of higher law or extra-judicial authority violates the Eighth Amendmentprinciple that the death penalty process must be neutral and principled so as to guard against bias or caprice in the sentencing decision andto assure that a sentencer’s discretion is informed by “clear and objective standards. (Gregg, supra, 428 US. at 198 (quoting Coley v. state (1974) 231 Ga. 829, 834)). Here, the prosecutor invoked vengeance and improperly exhorted the jury to automatically impose death based onreligious considerations, without consideration of an examination of Appellant’s individual characteristics. As a matter of constitutional principle, the prosecutor’s inflammatory arguments perverted the penalty phase proceedings andthe juror’s considerations. (See Godfrey, supra, 446 U.S.at 428; Lockett, supra, 438 U.S.at 602-605; Jones, supra, 706 F.Supp. at 1559-60; Tison, supra, 481 U.S. at 180-81; and Coker v. Georgia (1977) 433 U.S. 584, 620). In sum, the religious arguments of the prosecution and defense, as a whole, violated Appellant’s rights under the First, Fifth, Sixth, Eighth and Fourteenth Amendment’s and the parallel provisions of the California Constitution. 353 XVIII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING THE PROSECUTOR TO ARGUE FUTURE DANGEROUSNESS. . A. Introduction. The evidence submitted by the state to show that Appellant would pose a dangerin the future was that Appellant was involved in twoscuffles in jail with the other inmates during the five years while he was awaiting trial. Relying solely on this evidence, the prosecutor speculatedthat Appellant would be a dangerif given life in prison. The jailhouse evidence was not probative of Appellant’s future dangerousness. It did not support a reasonable inference that Appellant wouldposea threat of future danger if sentencedto life without parole instead of death. The trial court’s ruling, allowing the admission ofthe evidence,and the trial court’s failure to sustain objections to the prosecutor’s future dangerousness arguments were error. (See Claim XVI - The Prosecutor Committed Prejudicial Misconduct During the Penalty Phase Arguments). Respondent has failed to prove the error was not harmless beyond a reasonable doubt. B. The Trial Court’s Determination was not Supported by Substantial Evidence of Appellant’s Future Dangerousness. Respondent concedesthat the prosecutor argued: “You have to keep him on death row where heis isolated because he gets on the mainline with all the other prisoners...some other prisoner, some other guard, some hospital or somejail prison nurse or social worker does somethingthat he doesn’t like, and he acts out violently, hits, maims, hurts, he can doit at will.” (RB 303 (citing RT 3696)). Respondent concedes that defense counsel objectedto this line of argument as “improper” under “both federal andstate” constitutions. (RB 302). Respondent, however, argues that “(njo misconduct occurred” here. (Ibid.). 354 Respondentsays that the prosecutor’s arguments were supported by substantial evidence of Appellant’s future dangerousness. According to Respondent,“actual violence while in custody, such as Appellant’s two fights with other inmates, logically and reasonably supports an inference of future dangerousness.” (RB 303). Respondentthus attacks Appellant’s assertion that the fights “lacked probative value” because “whether the jailhouse ‘scuffles’ were ‘trivial’ or probative of future dangerousness was a jury question.” (/bid.). Respondent ultimately feels that “the trial court wascorrect in ruling ‘there can be appropriate arguments on the subject matter of future dangerousness based on the evidence that was presented in this case.” (/d. at 303-04 (citing RT 3675)). Thus, Respondent deems the prosecutor’s arguments permissible. Respondent’s argumentsare erroneous. First, the probative value of the jailhouse scuffles, as well as the substantiality of the evidence supporting the incidents, was not only a decision for the jury, but moreinitially and more importantly, a consideration that the trial court was required to evaluate as a prerequisite in determining whether to admit the evidence andto allow future dangerousness arguments. (See Phillips, supra, 41 Cal. 3d at 72 n. 25). The trial court’s determination was not supported by substantial evidence and wastherefore error. (/bid.). Thetrial court’s decision was arbitrary and contradicted material elements of battery as defined by Cal. Penal Code Section 240. The result injected irrelevant and prejudicial evidence into the sentencing equation violation of constitutional mandates. (See Barclay, supra, 463 U.S.at 939). Second,thetrial court’s ruling wasnot “logically and reasonably” justified by evidence of Appellant’s future dangerousness. (See Claim XIII - The Admission of Two Uncharged Misdemeanor Batteries as Aggravating Factors in the Penalty Phase Violated state Law and Appellant’s 355 Constitutional Rights). In fact, the prosecutor’s argument, by including nurses and social workers, did not even reflect the future dangerousness evidence presented during the penalty phase. There was no evidence Appellant had ever injured a prisoner, a prison guard, a prison nurse or social worker. Third, the trial court’s failure to delineate what constituted “appropriate argument” allowed the prosecutor to exploit the minimal future dangerousness evidence presented during the penalty phase. The prosecutorinflated these incidents into “proof” that Appellant would have to be executed to keep him from committing further acts of violence in prison. Finally, Respondent fails to address eight arguments raised by Appellant in his Opening Brief.“ Respondent’s failure to address these '40 Respondent doesnot address or rebut Appellant’s arguments: 1) Appellant’s due process rights were violated, under the Fourteenth Amendmentand Article I of the California Constitution, whenthe trial court allowed the prosecutorto argue that Appellant posed a future danger whenno evidence supported a reasonable inference offuture dangerousness. (See II AOB 467); 2) The prosecutor’s arguments created an unacceptable risk that the jury voted to execute Appellant “to avoid improbable and speculative danger.” (See Jd. at 468); 3) This Court has incorrectly held thatit is less prejudicial for the prosecutor to present himself as an expert and argue their own opinions about future dangerousness, than it would be to present expert testimony on the same topic. (See Id. at 469); 4) The prosecutor’s arguments were improper because they allowedthe state to introduce facts outside the evidence and madethe prosecutor his own witness. (See Jbid. (citing 5 Witkin & Epstein, supra, Trial at 3550)); 5) This Court’s requirementthat evidence of future dangerousness must be culled from past conduct does not eliminate prejudice from allowing the prosecutor to speculate as to the defendant’s future behavior. (See II AOB 470 (citing People v. Hayes (1990) 52 Cal.3d 577, 635-36)); 6) The evidence usedby thetrial court to justify its order did not support a reasonable inference that Appellant would pose a future danger becauseit did not accountfor the dissimilarity in conditions and security between county jails and the maximum security prisons in which an inmate serving life without parole would be housed. 356 arguments underminesits conclusion thatthe trial court did not commit reversible error and the prosecutor did not commit misconduct. Respondent’s failure to address Appellant’s arguments addressingthis Court’s precedents proves the indefensible nature of the problems posed by the current state of the law. Respondent’s failure to address prejudice stemming from thetrial court’s error and the prosecutor’s improper arguments meansthe state has failed to shoulder the burden of showing that the error was harmless beyond a reasonable doubt. (See Chapman, supra, 386 US.at 23). C. The Trial Court’s Ruling and the Prosecutor’s Conduct Violated This Court’s Precedents. Respondenttries to distinguish Murtishaw, supra, 29 Cal.3d at 779, as inapplicable to this case. The state argues that this Court has limited the use of“future dangerousness” experts, but has notlimited the use of future dangerousness arguments if supported by the evidence. (RB 303 (citing People v. Michaels (2002) 28 Cal.4th 486, 540; and People v. Champion (1995) 9 Cal.4th 879)). Respondent contends that “Appellant is simply incorrect when he claimsthe prosecutor violated Murtishaw.” (RB 303). First, Respondent confuses many of Appellant’s arguments alleging trial court error with arguments alleging prosecutor misconduct. (See RB 303). Respondent focuses on defending the prosecutor’s arguments, but only briefly acknowledgesthe role of the court in permitting the argument. Here, the prosecutor’s misconduct stem from the trial court’s erroneous ruling allowing argument of future dangerousness based on scant evidence (See II AOB 471); 7) The prosecutor misled the jury and took advantage of the lack of evidence concerning prison security by falsely arguing that prison officials could not “do anything” to Appellant if he was sentenced to life in prison and committed future acts of violence. (See /d. at 472); and 8) The prosecutor’s arguments were extremely prejudicial andthetrial court’s error in allowing the future dangerousness arguments was not harmless beyonda reasonable doubt. (See Jd. at 473). 357 of two uncharged misdemeanorbatteries. Appellant challengesthetrial court’s decision to allow future dangerousness arguments in thefirst instance, as well as, the prosecutor’s exploitation of the trial court’s erroneousruling. | Second, the prosecutor’s “argument” was no morethan thinly disguised “expert” opinion testimony of the sort prohibited by Murtishaw. The prosecutor “predicted” that Appellant would “act out violently” and hurt or maim nursesor prison social workers if he was placed on the mainline, rather than on death row. The prosecutor’s argument thus violatedthe principlesset forth in Murtishaw because- justlike the expert testimony rejected by this Court in Murtishaw - the prosecutor’s opinion here was “uncertain and conjectural.” Third, his forecast of Appellant’s future violence created an unacceptablerisk that the jury voted to execute Appellant “to avoid improbable and speculative danger.” (Murtishaw, supra, 29 Cal.3d at 770) There wasnot a sufficient amount of evidence to allow prosecutorial argument on the subject. (See Claim XIII - The Admission of Two Uncharged MisdemeanorBatteries as Aggravating Factors in the Penalty Phase Violated state Law and Appellant’s Constitutional Rights). Accordingly, the prosecutor should not have been permitted to arguethis point. D. Conclusion. The trial court improperly allowed the prosecutorto tell the jury, during his penalty phase argument, that Appellant would pose a danger in the future if sentencedto life in prison. Thetrial court’s ruling was erroneous because there was no evidence that supported a reasonable inference of future dangerousness. It is unconstitutional to allow the prosecutor to argue as fact something that wasneither proved nor provable by the evidence. The prosecutor further exploited this erroneous ruling by 358 making speculative predictions about Appellant’s dangerousnessif sentencedto life in prison. Thetrial court’s ruling and the prosecutor’s argumentviolated Appellant’s rights to due process anda fair trial, and his Eighth Amendmentrights. Because federal constitutional error occurred, pursuant to Chapman, supra, 386 U.S.at 23, the state must prove the error was not harmless beyond a reasonable doubt. It cannot do so here. But even applying the standard of prejudice for penalty phaseerrors of state law errors set forth in Brown, supra, 46 Cal.3d at 448, there is a reasonable possibility that the jury would not have sentenced defendant to death if the trial court had prohibited the prosecutor from arguing future dangerousness. Thetrial court committed error in allowing argument regarding future dangerousness, andthe error violated Appellant’s constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendments andArticle I of the California Constitution. His death sentence must be reversed. 359 XIX. THE TRIAL COURT ERRED BY ALLOWING THE PROSECUTOR TO DISPLAY INFLAMMATORYCHARTS TO THE JURY. A. Introduction. The prosecutor’s chart and arguments, displayed during the opening morning of his penalty phase closing arguments, improperly directed the jury to convert the absence of possible mitigating factors into aggravating factors.'*’ (See Davenport, supra, 41 Cal.3d at 288-290). Because the absence of mitigators is not a statutory factor in aggravation, any argument relating to the absence of mitigation is irrelevant and prejudicial. (See Boyd, supra, 38 Cal.3d at 773-74). A “prosecutoris not permitted to argue that the absenceof[a] mitigating factor[] is itself an aggravating factor justifying the death penalty.” (People v. Cox (1991) 53 Cal.3d 618, 685 (citations and quotations omitted)). Thetrial court erred whenit permitted the prosecutor to argue about and invoke considerations outside the proper weighing of statutory factors. Both the prosecutor’s charts and arguments,and the trial court’s errors violated due processprinciples and the Eighth Amendment’s reliability concerns.'” (See Gardner, supra, 430 U.S. at 349; and Miranda, supra, 44 Cal.3d at 110). '41 (See Court Exhibit 5 (the six charts were: Chart 1: “Factors for Consideration;” Chart 2: “Battery;” Chart 3: “Aggravating Factor, Increases Guilt/Enormity/Injurious Consequences;” Chart 4: “What Didn’t You Hear About Richard Christopher Tully;” Chart 5: “What Have You Heard about Richard Christopher Tully;” and Chart 6: “The Bible Sanctions Capital Punishment.”’)). ‘4 Appellant recognizesthat this argument incorporates elements of prosecutorial misconductandtrial court error. (See Riggs, supra, 44 Cal.4th at 317 n. 40). For this reason it should be evaluated under the Darden materiality standard and reviewed for abusedofdiscretion. 360 B. Appellant’s Arguments Have not been Forfeited. Respondent concedes that Appellant objected to the prosecutor’s failure to show the charts to the defense before displaying them to the jury and to captions on Charts 3 and 4. (RB 306-07).'” In truth, defense counsel lodged several objections to the charts including: 1) relevance; 2) misconduct; 3) prejudice; 4) misstatement of facts in evidence; and; 5) misstatementofthe law. (RT 367-73) Respondent concedesthatthetrial court sustained many defenseobjections, (RB 306), and that thetrial court ultimately prohibited the continued display of several captions on Chart 4 “What Didn’t You Hear About Richard Christopher Tully.” (RB '® The defense objected and the parties discussed the charts off the record. The fact of the unrecorded conference waslater noted on the record. (RT 3670). The defenseinitially objected to the prosecutor having shownthe charts to the jury without first showing them to the defense. (RT 3667-3669). The defense then objected to several captions on Chart 4:°What Didn’t You Hear About Richard Christopher Tully.” The defense argued that the jury would regard the absence ofanylisted mitigating factor as additional factors in aggravation. Defense counsel argued “you expect to hear this, you didn’t, therefore he is a bad man.” (RT 3763). The defense explainedthat this conclusion was improper, and arguedthat the charts were irrelevant and immaterial for any permissible prosecutorial argument. Finally, the defense argued that the charts misstated the evidence with regard to whether Appellant was “a good provider.” (RT 3672). '* Thetrial court correctly prohibited the prosecutor from further showing certain portions of the chart to the jury because: 1) the danger of going beyond any evidence presented regarding future dangerousness; 2) the possibility the jury would conclude that the absence of these factors were aggravating factors, and 3) the danger of misleading the jury regarding to Appellant’s decision notto testify. (RT 3674-76). Thetrial court, however, did not: 1) correctly admonish the jury regarding the previousdisplay of the signs; 2) correctly prohibit the prosecutor from further displaying any portions of the demonstrative evidence;or 3) correctly admonish the prosecutorfor the state’s flagrant misconduct and lack of notice to the trial court and defense counsel. 361 306).' However, in Respondent’s opinion,“[i]t is unclear whether Appellant nowallegestrial court error and prosecutorial misconductto all of the prosecutor’s charts...” (RB 307). Respondentarguesthat“to the extent Appellantis challenging all of the charts in addition to Chart 4,his assignmentoferroris forfeited for the failure to object below.” (/bid.). Oddly, in support of their argument, Respondent then concedesthat Appellant also objected to captions in Chart 3 and that thetrial court sustained Appellant’s objections. (/d. at 307 n. 29.16 First, Respondent does not mention that, in response to defense objectionsto the charts, the trial court held an unrecorded bench conferenceto sort out the parties’ objections. Here again, the inadequacy of the record threatens forfeiture of Appellant’s arguments and constitutional rights. (See Claim I - The Missing Portions of the Record Deprived Appellant of Meaningful Appellate Review). Respondent cannot prove the nature of the arguments or objections raised during this '*> The four prohibited captions read: “He Is Not Violent in a Prison Setting;” “That this ViolenceIs out of Character for Him;” “That HeIs Remorseful, Sorry for What He Did;” and “That He Found God and Repented.” (RT 3674-3676). 146 To the extent Respondent argues that Appellant has forfeited his claims attacking the validity of the court’s admonishment, the state’s reliance upon Abbott v. Cavelli (1931) 114 Cal.App. 379, 383 is misplaced (See RB 307 n. 29). First, the case involvedinstructions regarding “gross negligence” submitted by an appellantat trial and challenged by appellant on appeal. (Ibid.). Second, the case standsfor the proposition “that a party must abide by the consequencesof his own acts and cannotseeka reversal on appeal for errors which he has committed or invited.” (/bid.). Appellant has notinvited the error, however, since he is now challenging lack of an instruction by thetrial court. Respondentis thus in error to blame Appellant for the trial court’s failure to admonishthejury, sinceit was not Appellant’s conductthat incited the commissionoferror, but rather, the prosecution’s failure to seek prior approvalandthetrial court’s discretion. 362 unrecorded bench conference and, therefore, this Court should consider Appellant’s meritorious arguments. Appellant’s arguments cannot be forfeited because the record does not demonstrate whetheror not a contemporaneousobjection was properly lodged. The contemporaneous objection rule is waived when deficiencies in the record impede meaningful review and a determination as to whether the requisite contemporaneous objection was raised. (Cf. Young, supra, 34 Cal.4th at 1203 (“becauseit cannot be ascertained whether defense counsel specifically requested clarification [of an instruction], we shall give defendant the benefit of the doubt and find the issue preserved for appeal’’)). Second, this Court may review this claim because “a defendantis not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights....” (Vera, supra, 15 Cal.4th at 276). Here, the trial court’s error and the prosecution’s use of inflammatory charts and related arguments violated Appellant’s rights under the Sixth, Eighth and Fourteenth Amendments andthe parallel provisions of the California Constitution. Thus, it is possible, if this Court finds that Appellant has raised this claim for the first time on appeal, for Appellant to nevertheless assert this claim based on the deprivation ofhis fundamental and constitutional rights. | OF The Prosecutor’s Use of the Charts and His related Arguments Violated Appellant’s Constitutional Rights. Respondentincorrectly characterizes “Appellant’s position [a]s simply that the prosecutor’s charts and arguments improperly directed the jury to convert the absence of possible mitigating factors into aggravating factors.” (RB 307 (citing II AOB 477-81)). Respondent says that Appellant’s claims are obviated because the prosecutordid not “tell the jury that the absence of a mitigating factor was not a factor in aggravation.” (RB 308). Respondent argues that Appellant’s claims are meritless because 363 “the trial court instructed the jury to the sameeffect.” (/d. at 307-308). Respondentrests its opposition on the presumption that the jury followsthe instructions it is given. (See Jones, supra, 15 Cal.4th at 168; Wash, supra, 6 Cal.4th at 263; and Yoder, supra, 100 Cal.App.3dat 338). First, Respondent’s arguments fail to address the fact that the prosecution initially displayed all of the charts to the jury, including subcaptionslater stricken. (See RT 3670-76). The charts, and prejudicial subcaptions, were freely displayed throughout the morning of the prosecutor’s opening summation and until the lunch recess when defense counselobjected. (/d. at 3670). By displaying the charts withoutprior consent from the court, and without giving defense counsel an opportunity to object, the prosecutor willfully failed to provide notice ofhis intent to use highly inflammatory demonstrative evidence. Second, while the prosecutor did not expressly state that the absence of a mitigating factor was a factor in aggravation, he did use the “highly- effective” rhetorical device ofparaleipsis - to drive homethe point he could not argue directly. (See Wrest, supra, 3 Cal.4th at 1107).'*’ The prosecutor listed possible mitigating factors that the jury did not hear about, and then told the jury to consider the absenceofthose factors in weighing the aggravating factors against the mitigating factors. (RT 3682-3697). Thisis entirely different from simply arguing that no evidence in mitigation had been presented, but is equally as prejudicial and inappropriate. Third, the use of Chart 4 and the prosecutor’s related argument was interpreted by the jury to meanthat the absenceofeach listed mitigating 147 Recently, in Valencia, supra, 43 Cal.4th at 268, this Court rejected a claim that the prosecutor committed error by using the rhetorical technique ofparaleipsis because defense counsel did not makea paraleipsis objection. Such a requirement is undoubtedly out of line. Any objection, based on prosecutorial misconduct shouldbe sufficient to preserve claims that the prosecutor inappropriately used misleading rhetoric to prejudice the defendant and confuse the jury. (Wrest, supra, 3 Cal.4th at 1107). 364 factor was a factor in aggravation. Asa result, at least nine potential mitigating factors were converted into aggravating factors. (See Court Exhibit 5). While a prosecutor mayfairly argue why the mitigating evidence that was presented was nottruly mitigating, he may not argue that the absence of other mitigating evidence that was not presented has any relevance. (See Davenport, supra, 41 Cal.3d at 288-90). This is because the jury is likely, as they did here, to understand the prosecutor’s arguments as inferring that the lack of evidence in support of a possible mitigating factor constitutes evidence in aggravation, or counts against the strength of the mitigation evidence presented by the defendant, and is to be weighed accordingly during the sentencing deliberations. Fourth, while often this Court presumesthat juries follow trial court instructions, (See Jones, supra, 15 Cal.4th at 168), the misconduct exhibited here, in Prosecutor Burr’s arguments and charts, could not be ameliorated by a simple instruction. In fact, the trial court’s failure to provide an instruction on point distinguishes this case from the cases Respondentcites in support of its proposition that any prejudice to Appellant by the prosecutor’s misconduct wasalleviated by instruction. (See RB 307-08). For example, in People v. Wash, this Court found that an instruction concerning the definition of life without the possibility of parole sufficiently ameliorated any prejudice stemming from the prosecutor’s misstatements of law concerning the definition of life without the possibility of parole. (See Wash, supra, 6 Cal.4th at 265). An identical conclusion wasreached in Yoder, supra, 100 Cal.App.3d at 338. Here, however, Appellant’s claim does notinvolve misstatementsofthe meaning of life without the possibility of parole. Instead, the case involves highly prejudicial and inflammatory references to biblical passages, and an implied moral imperative that conflicted with and undermined the jury instructions. This is not a situation where trial court’s instruction 365 addressed misstatements oflaw by supplying the correct /egal definition. Instead, this case involves a failure to provide instructions necessary to ameliorate prejudice from overt misconduct. (See RT 3676). Similarly, in Appellant’s case no pinpoint instruction was given regarding the prosecutor’s placard or whetherthe jury could consider whetherthe “BIBLE SANCTIONS CAPITAL PUNISHMENT.” D. The Trial Court Committed Prejudicial Error by Allowing the Prosecutor to Use the Charts and Argue that the Lack of a Mitigating Factor Constituted An Ageravating Factor. Thetrial court wrongly held that the other captions on the prosecution’s charts were not improperper se. The court held: “[{I]t can be appropriate to argue the absence of mitigating factors and to comment on the mitigating evidence that has been presented, providing that there be no reference madeto the idea that lack of evidence proving statutory mitigating factors does not provide additional aggravating factors.” (RT 3676). Following this ruling, during argument, the charts were displayed to the jury by the prosecutor. He argued each item onthe charts in detail. (RT 3682-3697). Respondentfails to muster a defense to Appellant’s allegations of trial court error in allowing the prosecutorto use the inflammatory and prejudicial charts. In truth, it wasthe trial court’s error which facilitated the prosecution’s misconduct. Byfailing to strike all of the captions and charts, the trial court permitted the prosecutor to argue that the lack of mitigating factors constituted evidence in aggravation. The trial court effectively failed to heed this Court’s holding that: ‘Ageravation’ is by definition a circumstance above and beyond the essential constituents of a crime which increases its guilt or enormity or adds to its injurious consequences. (Citing to Black's Law Dict. (4th rev. ed. 1968)). Mitigating circumstances, on the other hand, are ones which although not 366 constituting an excusefororjustification of the crime, may be considered as extenuating or reducing the degree of moral culpability. (/d.). Thus, the absence of mitigation would not automatically render the crime more offensive than any other murder of the same general character. (Davenport, supra, 41 Cal.3d at 289). The prosecutor in Davenport argued that the absenceofcertain potential mitigating factors showed that Appellant acted “calmly, deliberately and of his own free will when he committed the murder. The lack of mitigating evidence pertaining to these factors thus rendered each of them an aggravating factor in the Appellant's case.” (Ibid.). The Court in Davenport concludedthat the form of the prosecutor's argument waslikely to confuse the jury as to the meaning of “aggravation” and “mitigation” under the statute. It was therefore held improper undersection 190.3 and this Court declared that “it should notin the future be permitted.” (Jbid.). | Here, the trial court wrongly held that the other captions in chart 4, as well as Charts 1, 2, 3, and 5, were not improper per se. Respondent's position is simply that since the prosecutor andthetrial court told the jury that the absence of a mitigating factor was not a factor in aggravation, then there was notrial error. (RB 307-08). However, the prosecutor's arguments and presentation of the charts: 1) manipulated the meaning of “aggravation” and “mitigation”; 2) misled the jury as to the weight they wereto assign the absence ofcertain mitigating factors; 3) thoroughly outlined the absenceofcertain mitigating factors not presented to the jury by the defense; and 4) interjected prejudicial considerations into the jury’s deliberations as a result of this absence. In the last four years, this Court has dealt with only two cases where the defendant alleged that the trial court committed error and the prosecutor committed misconduct by admitting and displaying inappropriate charts to the jury. (See e.g., People v. Cook (2007) 40 Cal.4th 1334; and Riggs, 367 supra, 44 Cal.4th at 248). In neither of these cases did this Court find error or prejudice. (See Cook, supra, 40 Cal.4th at 1340; and Riggs, supra, 44 Cal.4th at 335-36). In neither case was this Court presented with the highly inflammatory, prejudicial and egregious charts that were presented in Appellant’s case. This Court has thus not previously dealt with the degree of trial court error and prosecutorial misconduct as presented by Appellant’s case. '*8 Respondentneglects to mention or rebut several other arguments raised in Appellant’s Opening Brief. ' Respondent’sfailure to address 148 Tn contrast to Cooke and Riggs, Appellant’s claim is premised on trial court error and prosecutorial misconduct which prejudiced appellant’s chancesofreceiving a fair trial beyondall reasonable doubt. First, unlike in Cooke,the trial court refused to sustain Appellant’s objections and allowed the prosecutorto display the charts throughouttheir argument. This critical abuse of discretion manifested error throughout the prosecutor’s arguments which wasnot corrected by an admonishment. Second,like the religious analogy in Riggs, the prosecutor’s chart, which contained a biblical allusion, shifted the jury’s responsibility in sentencing. Third, here, unlike in either Cook or Riggs, the prosecutor exploited the inflammatory and prejudicial charts by repeatedly referencing the terms, including the religious arguments. In sum, in Appellant’s case, this Court should concludethat the trial court abusedits discretion and the prosecutor committed misconduct. Indeed, unlike in Riggs, the prosecutor’s charts had no “legitimate, probative value.” (Riggs, supra, 44 Cal.4th at 326). ‘49 Respondentdoes not addressor rebutthe following eight arguments: 1) The prosecutor committed misconduct byfailing to notify the defense or seeking court approval before displaying six large charts to the jury during his opening summation in the penalty phase. (See If AOB 475); 2) Thetrial court wronglyheld that all the captions on Chart 4 and the other charts were not improperper se. (See Id. at 477); 3) The prosecutor’s arguments invoked considerations outside the proper weighing of statutory factors and violated Appellant’s rights to due process and reliable sentencing under the Eighth and Fourteenth amendments. (See Id. at 477); 4) The prosecutor committed misconduct by using the rhetorical device of paraleipsis to convert nine potential mitigating factors into aggravating factors. (See Id. at 478); 5) Thetrial court committed error by allowingthe prosecutor to argue the absence of mitigating factors 368 these arguments underminesits argument that the prosecutor did not commit misconduct. Respondentalso fails to address Appellant’s assertion that the trial court committed error. Respondentfails to address the prejudice to Appellant’s constitutional rights resulting from the prosecutor’s misconductandthe trial court’s errors. Under these circumstances, Respondenthas failed to show, beyond a reasonable doubt, that the prosecutor’s use of inflammatory charts constituted harmlesserror. (See Chapman,supra, 386 U.S.at 23). E. Conclusion. Appellant’s rights to due process, and a fair andreliable penalty determination underthe Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article I, of the California Constitution were violated by the use of these charts and the prosecutor’s related argument that the jury should consider the absenceofparticular mitigating factors when sentencing Appellant. In light of the emphasis placed on Chart 4 by the prosecution, and the prosecutor’s related arguments regarding the informationin the chart, the error was prejudicial under California, supra, 386 U.S. at 23, and Appellant’s conviction should be reversed. that were not relevant, accompanied by evidence, or guided by the court’s instructions. (See Jd. at 477-78; 6) The prosecutor committed misconduct by inviting the juror’s to compare Appellant’s life history with other hypothetical capital defendants and contending that they should show him less mercy than other defendants who had been morehorribly abused. (See Id. at 480); 7) The prejudice from the prosecutor’s misconduct was especially pernicious because Appellant could not have countered the illogical syllogism by disproving the absence of terms. (See Jd. at 481); and 8) The prosecutor’s improperuse of charts and arguments cannot be deemed harmless within the prosecutor’s course of misconduct during the penalty phase arguments. (See /d. at 482). 369 XX. THE TRIAL COURT ERREDBY FAILING TO ANSWER THE JURY’S REQUEST FOR “THE LEGAL DEFINITION OF LIFE WITHOUT THEPOSSIBILITY OF PAROLE.” A, Introduction. During deliberations, the jury asked for the “legal definition oflife in prison withoutpossibility of parole.” (CT 2172.2E). If at trial a capital defendant’s future dangerousnessis placed in issue, and the only sentencing alternative to death is life imprisonment without possibility of parole,the Constitution requires that the jury specifically be informed that parole is not available.'*° (See Simmonsv. South Carolina (1994) 512 U.S. 154; see also Silva v. Woodford (9th Cir. 2000) 279 F.3d 825, 850 n. 20). When constitutional requirements are implicated, the trial court’s duty is to ensure that the defendantis afforded due process of law as guaranteed by the Fourteenth Amendment. (See McGuire, supra, 502 U.S.at 72). Appellant’s capital jury deliberated for three days before requesting the “legal definition oflife without the possibility of parole.” (CT 2172.2E). Thetrial court failed to inform the jury that Appellant would not qualify for parole if given a life sentence orthat life without the possibility ofparole '°0 Here, Appellant’s future dangerousness wasput at issue by the prosecutor. The prosecutor’s opening penalty argumentvividly and repeatedly described Appellant’s criminal behavioras acts of“cruelty, viciousness,[and] vileness. . . .” (See e.g., RT 3632). The prosecutor also presented acts of purported “violence” committed by Appellant while in jail, though these acts lacked sufficient evidentiary basis. (See Claim XIII — The Admission of Two Uncharged MisdemeanorBatteries as Agegravating Factors in the Penalty Phase Violated state Law and Appellant’s Constitutional Rights). Later, he inappropriately and prejudicially argued that Appellant posed a future danger, though the argument was not supported by the record. (See Claim XVIII - The Trial Court Committed Reversible Error In Allowing the Prosecutor To Argue Future Dangerousness). There is no doubt that Appellant’s future dangerousness wasplaced at issue. (Cf. Shafer v. South Carolina (2001) 532 U.S 36, 55). 370 did not have a special meaning. Instead, the trial court averted the jury’s question and unnecessarily raised the question that a life sentence might not be carried out. (See RT 3891). This distracted the jurors from their constitutional duty to provide Appellant a “reasoned and informed choice between a sentenceoflife imprisonment without possibility of parole and a sentence of death.” (Calderon v. Coleman (1998) 525 U.S. 141, 149 n.2 (quoting Hamilton v. Vasquez (9th Cir. 1994) 17 F.3d 1149, 1164); see also McLain v. Calderon (9th Cir. 1998) 134 F.3d 1383, 1385-86)). B. Appellant’s Arguments Is Not Forfeited. Respondentstates that “the problem with [Appellant’s claims] is that he makes them for thefirst time on appeal” and argues that Appellant has waivedthis claim for review on appeal. (RB 312 (citing Rodrigues, supra, 8 Cal.4th at 1193; and People v. Bohana (2000) 84 Cal.App.4th 360, 372- 73)). Respondent is wrong. Appellant’s argument has not been forfeited because: 1) deficiencies in the record prevent Respondent from provingthat an objection wasnotraised; 2) errors affecting fundamental constitutional rights may beraised for the first time on appeal; and 3) this Court may hear pure questions of law for the first time on appeal. First, prior to raising the contemporaneousobjection defense, Respondentfails to consider its prior concession that on September 16, 1992, in response to the jury’s question,the trial court held an unrecorded conference and proceeding. (RB 65-66). During this proceeding the court heard argument, sorted out the parties’ objections, heard proposed answers to the jury’s instructions, and madean order concerning the proper response to the jury. In fact, as Respondent admits, the trial court did not memorialize the discussion in the record until the next day September 17, 1992. (bid.). | Here again, the inadequacyofthe record threatens forfeiture of Appellant’s meritorious argument. (See Claim I - The Missing Portions of 371 the Record Deprived Appellant of Meaningful Appellate Review). Respondent cannot provethe nature of the arguments or objections raised during this unrecorded bench conference on September16, 1992. Therefore, this Court should not dismiss Appellant’s meritorious arguments because the record does not demonstrate whether or not a contemporaneous objection was properly lodged. The contemporaneousobjection rule is waived whendeficiencies in the record impede meaningful review and a determination as to whether the requisite contemporaneous objection was raised. (Cf. Young, supra, 34 Cal.4th at 1203 (“because it cannot be ascertained whether defense counsel specifically requested clarification [of an instruction], we shall give defendant the benefit of the doubt andfind the issue preserved for appeal.”)). This is also true in response to Respondent’s reliance upon Bohana, supra, 84 Cal.App.4th at 372-73,for the proposition that since “Appellant consented to the trial court’s response to jury questions during deliberations, any claim of error with respect thereto is waived.” (RB 312). In truth, Respondent cannot prove: 1) Appellant’s proposed response to the jury’s question; 2) the state’s proposed responseto the jury’s question; 3) Appellant’s objections to the court’s proposed response; and 4) whether Appellantoriginally consentedto the trial court’s instructions since the discussion of objections went unrecorded during the conference on September 16, 1992. Second, this Court may hear this argument since “a defendantis not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutionalrights...” (Vera, supra, 15 Cal.4th at 276). Here, the trial court’s error violated Appellant’s rights to due process, a fundamentally fair penalty proceeding anda reliable sentencing determination under the Eighth and Fourteenth Amendments andthe parallel provisions of the California Constitution by failing to 372 adequately inform and instruct the jury. Thus, even if this Court finds that Appellant failed to preserve this claim at trial, he maystill raise for the first time on appeal his claims asserting the deprivation of these fundamental and constitutionalrights. This conclusion is unaffected by Respondent’s citation to Rodrigues, supra, 8 Cal.4th at 1193, a case whichis factually inapplicable to Appellant’s situation. There, this Court addresseda trial court’s response to an inquiry by the jury about unanimity.’*! Indeed, in Appellant’s case, it is becausethetrial court failed to answerthe jury that a “false choice” was created between imposing the death penalty or sentencing Appellant to a limited term of incarceration. (Simmons, supra, 512 U.S. at 161). This false choice hadthe effect of allowing defendant to be sentenced to death '°! In Rodrigues, the jury asked: “‘Can weplease have a clarification on the instructions. [{]] Does the jury have to be unanimouson the penalty no matter which choice is made? Andifthe jury happensnotto be unanimous what would happen then?’ The court discussed the matter with both sides outside the presenceofthe jury, and the prosecutor agreed with defense counsel's suggested responses. Pursuantto the parties' agreement, the court informed the jury that the answertoits first question was “‘yes,’”” and that the answerto its second question was, ““you are not to speculate on that eventuality. That is a matter which mustnot in any wayaffect your decision.”” (Rodrigues, supra, 8 Cal.4th at 1193). This Court noted how the situation wasdissimilar to cases like Simmons, supra, 512 U.S.at 154, which involvethetrial court’s failure to respond to a jury inquiry about the definition oflife without the possibility of parole that could lead to a “false choice” between death and limited incarceration. (See Rodrigues, supra, 8 Cal. 4th at 1194). Thus, situations as in Appellant’s case, wherethetrial court fails to provide the jury with the correct meaning oflife without the possibility of parole (especially in the presence of a future dangerousness argument) are distinct from situations, as in Rodrigues, wherea trial court fails to inform the jury that a non-unanimousverdict would require that “the case [] be retried....” (/bid.). Indeed, this Court hasstated that in Simmons “the United States Supreme Court reversed a death judgment becauseofthetrial court's refusal to instruct that imposition of a life sentence on the defendant would be life without parole. The situation[] [in Rodrigues’ case is] not similar.” (bid.). 373 on the basis of information that he had no opportunity to explain or deny. (Ibid.). Thus, this Court may hearthis argument because the violations of Appellant’s constitutional rights rendered his capital phase proceedings fundamentally unfair. (See Vera, supra, 15 Cal.4th at 276). Third, andfinally, this Court has recognizedthat the contemporaneousobjection rule may also be waived for “pure questions of law.” (Williams, supra, 43 Cal.4th at 624 (citing Hale, supra, 22 Cal.3d at 394; Panopulos, supra, 47 Cal.2d at 341; and Yeap, supra, 60 Cal.App.4th at 599 n. 6)). While this doctrine has been developedin civil cases, here Appellant’s criminal case presents a pure question of law that maybe answered simply by referenceto the record, the jury’s question, and the trial court’s response. (See CT 2172.2E; RT 3891; Simmons, supra, 512 U.S. 154; and Silva, supra, 279 F.3d at 850 n. 20). This Court may thus hear Appellant’s claim as a pure question of law despite the contemporaneousobjection rule. C. The Trial Court was Constitutionally Required to Directly and Plainly Instruct the Jury as to the Legal Definition of Life Without the Possibility of Parole. Even whenthe death penalty is not at issue, the Constitution requires courts give unambiguous answersto jury inquiries. (Bollenbach v. United States (1946) 326 U.S. 607, 612-13). The Supreme Court has explained that “when a jury makesexplicit its difficulties a trial judge should clear them away with concrete accuracy.” (Ibid.). Bollenbach places onthetrial court “a duty to respond to the jury’s request with sufficient specificity to clarify the jury’s problem.” (McDowell v. Calderon (9th Cir. 1987) 130 F.3d 833, 839 (quoting Davis v. Greer (7th Cir. 1982) 675 F.2d 141, 145)). Here,like in Bollenbach,thetrial court failed to fulfill its duties, and 374 instead, opted to be “quite cursory”’ in its instruction.'*” In doing so,“he wasnot even ‘cursorily’ accurate. He was simply wrong.” (Bollenbach, supra, 326 U.S. at 612-13). In response to the jury’s question, the trial court here was obligated to “give the jury the required guidance by a lucid statementofthe relevant legal criteria.” (Bollenbach, supra, 326 U.S. at 612). Respondent recognizes Appellant does not suggest that the trial court hadto tell the jurors he would never be released from prison, or even that he would never be paroled. (See RB 312). Instead, the direct, proper, and constitutionally required answerto the question was: “Life without the possibility of parole meansthat the defendant will not be eligible for parole,” or “‘Life without the possibility of parole’ has no special meaning and therefore you should interpret the terms based on the standard meaning of the words.” These instructions would have provided a “lucid” responseto the jury’s question and “legal criteria” for evaluating the punishmentoflife without the possibility of parole. (See Bollenbach, supra, 326 U.S. at 612). Moreover, had thetrial court’s instructions conformed to those proffered by Appellant, the instructions would havesatisfied the Supreme Court’s specificity and “plain meaning” requirements. (/bid.). Respondentsays that “Appellantis entitled to no relief” because “no error occurred.” (RB 311). Respondent incorrectly characterizes “the crux of Appellant’s argument [as being] that the court’s ‘response did not answerthe question asked by the jurors. The court simply told them to '? Instead, here, the trial court told the jury that the legal definition of life without the possibility of parole was: “For the purpose of determining the appropriate sentence for this defendant you should assumethat either the death penalty or confinementin state prison for life without possibility of parole would be carried out. You are not to consider or speculate as to any other possibility or any circumstance that might preclude either of the two penalties from being carried out.” (RT 3891). 375 assume something that they did not understand.”” (/bid.). In truth, Respondent quotes only one of Appellant’s arguments andfails to address six more raised in the Opening Brief.’ Respondent’s failure to address these six arguments underminesits conclusion that the trial court did not commiterror. D. The Trial Court Violated Appellant’s Rights By Failing to Provide the Jury with the Legal Definition of Life Without The Possibility of Parole as Constitutionally Required. Whena capital defendant’s future dangerousnessis placedinissue, and the only sentencing alternative to death is life imprisonment without possibility of parole, the Constitution requires that the jury specifically be informedthat parole is not available. (See Simmons, supra, 512 U.S. 154; and Silva, supra, 279 F.3d at 850 n. 20). This requirementis essential to 'S3 Respondent does not addressor rebut six of Appellants arguments: 1) In light of the fact that California juries are confused about the “plain meaning”ofthe term “life without possibility of parole,”this Court should reconsiderits conclusion that the standard instruction given by the trial court sufficiently explains the sentencing options. (See II AOB 486-87 (citing Eisenberg & Garvey The Deadly Paradox ofCapital Jurors (2001) 74 So. Cal. L. Rev. 371, 373)); 2) Thetrial court’s instruction was madein errorsince the jurors did not express confusion over the consequencesofa verdict, but rather, confusion overthe legal definition of the term “life without the possibility of parole.” (See II AOB 487 (citing People v. Kipp (1998) 18 Cal4th 349, at 378-79)); 3) The trial court committed error by giving the jury an instruction which increased their confusion and unnecessarily raised irrelevant considerations in the juror’s minds. (See II AOB 487); 4) The trial court was required to provide the legal definition oflife without the possibility of parole in light of the prosecution’s confusing reference to “a life sentence” rather than “life without possibility of parole.” (See Jd. at 488); 5) The trial court committed error by failing to give an instruction with sufficient specificity to clarify and resolve the jury’s problems. (See Jd. at 489); and 6) Thetrial court’s instruction was constitutionally defective given the fact that during voir dire several jurors indicatedthat they believedit had a special meaning, apart from its plain terms, andbelievedlife without the possibility of parole meant that there would be the possibility of parole. (See Id. at 490-91). 376 ensure that the jury did not base its sentence on “the grievous misperception” that they had a “false choice between sentencing [Appellant] to death and sentencing him to a limited period of incarceration.” (Simmons, supra, 512 U.S. at 161-162). It is impermissible for the jury to infer that the only way to prevent the defendant’s release is to sentence him to death. (See Coleman, supra, 210 F.3d at 1050). Accordingly, the Supreme Court has held that trial judge commits reversible error if he fails to instruct the jury on the meaning oflife without parole whenthe prosecution argues future dangerousness, even where no evidence on future dangerousnessis presented. (See People v. Kelly (2002) 534 U.S 246; and Shafer, supra, 532 U.S. at 39). Respondent says that “Appellant’s contention is [] baseless.” (RB 312). Respondent contends that when the jury impliedly raised “the commutation question,” the trial court properly addressed the jurors’ confusion “by instructing the jury to assume that whatever penaltyit selects will be carried out.” (Zbid.(citing Smithey, supra, 20 Cal.4th at 1009)). Respondentbelievesthat the trial court’s instruction conveyed the same meaning as Appellant’s proffered instructions ofthat “life without the possibility means that the defendant will not be eligible for parole” or “life withoutthe possibility of parole has no special meaning and therefore you should interpret the terms based on the standard meaning of the words.” (RB 311). Respondentfeels that Appellant’s contentions are foreclosed by - the fact that jurors are “presumed to understand and follow the instructions given to them.” (/d. at 313 (citing Jones, supra, 15 Cal.4th at 168; Wash, supra, 6 Cal.4th at 263; and Yoder, supra, 100 Cal.App.3d at 338)). In order to advance these arguments, Respondent must distinguish Simmons v. South Carolina, in which the Supreme Court foundthat the state had denied the defendant due process by refusing to instruct the jury that life imprisonment meantno possibility of parole. (See Simmons, supra, 377 512 US. 154, 162, 168-71). Respondent cannot do so. Thus,the state oddly relegates this tremendous duty to a footnote; perhaps to hide their inability to distinguish clearly controlling precedent. (See RB 313 n.30). Respondent arguesthat Simmonsis distinguishable since there the jury requested a definition of“life imprisonment,” while here the jury requested the definition of“life without the possibility of parole.” (/bid.). Respondent’s attempt to distinguish Simmonsand thestate’s arguments defending thetrial court’s actions fail in many ways. First, in response to the jury’s question in Appellant’s case,the trial court never confirmed whetheror not there was a “legal definition”oflife without the possibility of parole. The jury thus wasledto believe thatlife withoutthe possibility of parole had a special meaning and that they should not interpret the terms based on the plain meaning of the words. Byfailing to acknowledge that there was no separate “legal definition”oflife without the possibility of parole,the trial court impermissibly opened the door for the jury to concludethat the only way to prevent Appellant’s release would be to sentence him to death. (See Coleman, supra, 210 F.3d at 1050). Second,the trial court failed to tell the jury to interpret the phrase life without the possibility of parole based on the standard meaningofthe words. In doing so, the court abdicated its duty of providing some guidance in responseto the juror’s clear state of confusion asto their sentencing options. Respondent is thus wrong to arguethatthe trial court’s instruction “you should assumethateither the death penalty or confinement in state prison for life without possibility of parole would becarried out,” (RT 3891), conveys the same meaningas “Life without the possibility of parole meansthat the defendantwill not be eligible for parole,” or “‘Life without the possibility of parole’ has no special meaning and therefore you should interpret the terms based on the standard meaningofthe words.” The trial court’s instruction did not provide the jury with any guidance. 378 The Court’s instruction failed to answer whether: 1) there was a distinct legal definition for life in prison without the possibility of parole; 2) the jury should be concerned aboutthe legal, as opposed to general, definition of life without the possibility of parole; 3) the jury should interpret the meaning oflife without the possibility of parole according to plain meaning of the term; or 4)life without the possibility of parole meant that Appellant will not be eligible for parole. Third, this case falls squarely within the holding of Simmonsandits progeny and Respondenterrs in arguing that Simmonsis distinguishable. _ As in Simmons,here, the jury in a death penalty case had only two sentencing options, a death sentenceorlife without the possibility of parole. Likewise, as in Appellant’s case and Simmons,the prosecutor argued future dangerousness during the penalty phase. (See RT 3696 and 3815). Thus, this case clearly falls within the Simmonsrule. Fourth, the distinction Respondent attempts to draw between Appellant’s case and Simmons doesnot exist. (RB 133 n. 30). During deliberations in Appellant’s penalty phase proceedings, the jury asked for the “legal definition of life in prison without possibility of parole;”likely in response to prosecutorial arguments that Appellant was a future danger. The question demonstrates confusion as to the “plain meaning”ofthe term “life without the possibility of parole.” (Simmons, supra, 512 U.S.at 161). Just as in Simmons,the jurors were not sure whatlife without parole meant -- that is why thus they asked for a “legal definition.” The Court in Simmons recognized that, regardless of whetherit was calledlife imprisonmentorlife without possibility of parole, if the jury understood the “plain meaning”ofthe term they would have had no reasonto inquire aboutit. (See Simmons, supra, 512 U.S. at 170 n. 10). Thus, the California law and South Carolina law are indistinguishable where,as here, the jurors believed that “life without the possibility of parole” had a “special 379 meaning”different from the plain reading of the words. Simmons, therefore, applies to this case and holdsthat the trial court denied Appellant due process by refusing to instruct the jury that life imprisonment meant that Appellant had nopossibility of parole. (See /d. at 162 and 168-71). Fifth, the cases Respondentrelies upon to support its proposition that “jurors are presumed to understand and follow the instructions given them” (RB 312), do not support that proposition in the context ofjuror deliberation questions. In Jones, supra, 15 Cal.4th at 168, this Court held that jurors are presumed to follow instructions regarding the propriety of attorney arguments. In Wash, supra, 6 Cal.4th at 263, this Court held that jurors are presumedto follow instructions regarding the propriety of witness testimony. In Yoder, supra, 100 Cal.App.3d at 338, the Court of Appeals held that jurors are presumed to follow mental capacity instructions. Simply put, none of Respondent’s authorities remotely address the factual issue presented here, or the breadth of potential constitutional violations resulting from the trial court’s failure to provide the “legal definition oflife without the possibility of parole” upon inquiry by a deliberating jury. Additionally, Respondent’s argumentthat the juror’s were presumed to have followedthe instruction given makeslittle sense. Here, the trial court’s response told the jury to select one oftwo sentencesanddid not answer whethera legal definition for life without the possibility of parole existed, and if so, whether the jury was to consider the special legal definition or the plain meaning of the terms. Ofcourse, the jury followed the court’s instructions, since they indeed selected a sentence. Appellant’s contention, however, is that the jury was misled in their sentence determination due to the trial court’s failure to respond to their question and provide a constitutionally soundinstruction. In effect then, Respondentis contending that the jurors in Appellant’s case should be presumed to have 380 followed a constitutionally deficient instruction that failed to give any practical guidance as to the sentencing options at hand. (See Simmons, supra, 512 U.S. at 161-162). Sixth, Respondent’s reliance on Smithey, supra, 20 Cal.4th at 1009, is misplaced. The jury’s question andthe trial court’s answer in Smithey,as well as, this Court’s rationale, are distinguishable. In Smithey the jury’s question focused on the appellate process. (/d. at 1007). In Appellant’s case, the jury’s question focused on the basic meaning and definition of the sentencing options at hand. Additionally, in Smithey the trial court’s response focused on the juror’s consideration of the appellate process. (Ibid.). In Appellant’s case, the trial court’s response failed to address the definition of life without the possibility of parole and was not concerned with subsequent or future considerations. (RT 3891 (‘For the purpose of determining the appropriate sentence for this defendant you should assume that either the death penalty or confinementin state prison for life without possibility of parole would be carried out.”)). Had Respondent provided the full quotation to Smithey, (see RB 312), it would be apparentthat the case waslimited to situations involving juror speculation as to the appellate process: “indeed, the confusion reflected in the jury's note appears to concern the consequencesofa reversal of a death sentence on appeal — not the meaning oflife without the possibility of parole.” (Smithey, supra, 20 Cal.4th at 1009-10). Thus, becauseit strictly deals with a question related to the appellate process, Smithey is inapplicable to Appellant’s case. Finally, in recent years, this Court has been presented with three capital cases alleging Simmonserror. (See Wallace, supra, 44 Cal.4th at 1090; Williams, supra, 43 Cal.4"™at 646; and Rundles, supra, 43 Cal.4th at 187). However, none of these cases involved elements that satisfied the requirements of a Simmons claim. In contrast to these cases, in Appellant’s case, the jury manifested the requisite confusion to qualify for a 381 Simmonsinstruction. First, unlike in Wallace, Appellant is not challenging the definition oflife in prison without the possibility of parole as described by CALJIC No. 8.84. Instead, he is challenging thetrial court’s failure to provide a clear definition oflife without the possibility of parole when requested by the jury during their sentencing determination. Second, unlike in Williams, Appellant’s claim arose during the jury’s sentencing determination,not voir dire. The United States Supreme Court has made clear that when a capital defendant's future dangerousnessis placed in issue, and the only sentencing alternative to death is life imprisonment withoutpossibility of parole, the jury mustspecifically be informed that parole is not available. (Simmons, supra, 512 U.S. at 154). Third, and unlike in Rundle, Appellant, upon his owninitiative, informedthe trial court of its need to inform the jury as to the “plain” meaningoflife in prison without the possibility of parole. In sum, unlike in the cases that have recently come before this Court, here the trial court committed error under Simmonsand in violation of Appellant’s state and federal constitutional rights. Respondent’s attempt to defend against Appellant’s argumentfails. Respondent’s authorities neither address the factual scenario presented in Appellant’s case nor detract from the constitutional violations at hand under Simmons. Here, this Court should find that Appellant’s constitutional rights to due process, a fundamentally fair trial, and a reliable sentencing determination, under the Fifth, Sixth, Eighth and Fourteenth Amendments, as well as Article I of the California Constitution, were violated by thetrial court’s deficient instruction on the “legal definition oflife without the possibility of parole.” 382 E. Conclusion. Becausethe principles of Simmons were violated in this case, reversal of the death sentence is required without any showingofprejudice. But even assuming prejudice must be shown,the constitutional error cannot be deemed harmless. The jury directly expressedits inability to understand a crucial term, perhaps the most crucial term, in the sentencinginstructions, at the most crucial important time in the proceedings. Whethera life sentence would result in parole was obviously a pivotal issue forthe jury. If any juror erroneously believed that Appellant would somedaybe eligible for parole undera sentence of “life without the possibility of parole,” that factor alone would have dictated their vote for death. Since there is a reasonable likelihood that the penalty phase instructions as a whole distracted the jury and preventedit from performingits proper duties, Appellant’s capital sentence cannot stand. (See Boyde, supra, 494 U.S.at 380). 383 XXI. THE TRIAL COURT IMPROPERLY DENIED APPELLANT’S REQUEST FOR ALLOCUTIONIN VIOLATION OF HIS CONSTITUTIONAL RIGHTS. A. Introduction. A capital defendant’s right to address the sentencing bodyis different from the rightto testify, to present evidenceor to have a plea for mercy made by an attorney. In fact, the Supreme Court hasnoted the far- reachinghistory of the elementary rightto allocute. (See Green v. United States (1961) 365 U.S. 301, 304; and United States v. Behrens (1963) 375 U.S. 162, 167 (conc. opn)). In a case where the prosecution improperly seized uponthe denial of Appellant’s proffered statementin allocution to note Appellant’s failure to testify and argue that Appellant lacked remorse, the trial court’s denial of allocution while permitting the prosecutor’s argument rendered the penalty phase proceedings in Appellant’s case fundamentally unfair. B. Appellant’s Federal Constitutional Right to Allocution Was Improperly Abridged by the Trial Court. Whenrequesting that Appellant be permitted to allocute, defense counsel stated that Appellant wanted to express his extreme remorse for the death of Ms. Olsson andtheterrible shock it caused to her family. (RT 3621). The defensealso requested that, if the trial court denied the motion, the prosecutor should be prohibited from arguing that Appellant lacked remorse. (RT 3622). Keyedin,after the trial court denied the motion,the prosecutor then arguedto the jury that Appellant’s alleged “lack of remorse” wasa factor that supported imposition of the death penaltyhere. The prosecutor juxtaposed Appellant’s lack of remorse with the Olsson’s family’s sorrow; and erroneously commented on Appellant’s failure to testify as evidence ofhis lack of remorse. (See Claim XXII - Appellant 384 Was Sentenced to Death Based on The Non-Statutory, Improper and Materially Inaccurate Aggravating Factor of Absence of Remorse). In defense, Appellant should have been allowed to express remorse through allocution. Worse, Appellant’s jury was deprived of evidence of Appellant’s actual remorse and was misled by the prosecutor’s argument. Historically, when a defendant was convicted of a capital offense, the common law doctrine of a/locutus provided the defendant an opportunity to speak on why the sentence of death should not be imposed. (Halsbury's Laws of England (1st ed. 1909) 734-35; see also Fielden v. People (1889) 128 Ill. 595). In fact, “at common law no judgmentfor corporal punishmentcould be pronounced against a man in his absence, and in all capital felonies it was essential that it should appear of record that the defendant wasaskedbefore sentenceif he had anything to say whyit should not be pronounced.” (Ball v. United States (1891) 140 U.S. 118, 129). Respectfor this history requires this Court to recognize that Appellant’s constitutional right to allocute before the determination ofhis death sentence was improperly abridged bythetrial court and prejudicially misused bythe prosecution. (See Claim XXII - Appellant Was Sentenced to Death Based on The Non-Statutory, Improper and Materially Inaccurate Aggravating Factor of Absence of Remorse). Respondent argues that the United States Supreme Court has not granted Appellant the constitutional right to allocution and that Green v. United States, supra, 365 U.S. at 304 is not applicable to Appellant’s case. (RB 316). In Respondent’s view, Green has no import becauseit involved the federal rules of procedure, and therefore, does not meanthat “state capital defendants have a federal constitutional right to present unchallenged statements to their penalty juries, especially when they already havethe right to present such statements and evidencein mitigation that the prosecution may challenge.” (/bid.). 385 Respondent’s arguments fail in whole. First, allocutionis distinct from presenting “statements and evidence in mitigation.” While both proceduresinvolve considerations the jury may weigh in its sentencing deliberations, the subject matter of allocutory statements is limited so as to obviate the need for cross-examination or rebuttal arguments. Allocutionis akin to direct testimony or the presentation of evidence and has long history in the commonlaw. Indeed, a defendant’s responseto carefully poised questions by his counsel is not comparable to his own pleas for mercy. The importanceofallocution at commonlawis persuasive authority for this Court to reconsider its holdings regarding a defendant’sstate right to allocute. (See Green, supra, 365 U.S. at 304; Anonymous, 3 Mod. 265, 266, 87 Eng.Rep. 175 (K.B); and J. Sullivan, The Capital Defendant's Right to Make a Personal Pleafor Mercy: Common Law Allocution and Constitutional Mitigation (1987) 15 N.MLL. Rev. 41). In the face of Green and the commonlawhistory of the right of allocution, this Court should recognize the right to allocution as fundamental to California’s powerto sentence a person to the punishmentof death. C. This Court Should Reconsider its Denial of the Right to Allocution to Capital Defendants. Respondentsaysthat “this Court need not engage in any prejudice analysis becausethetrial court ruled correctly.” (RB 315). Respondent claimsthat this “Court has repeatedly held that a capital defendant has no right to address the penalty phase jury in allocution.” (Jbid. (citing People v. Robbins (1988) 45 Cal.3d 867, 888; People v. Keenan (1988) 46 Cal.3d 478, 511; People v. Nicolaus (1991) 54 Cal.3d 551, 583; and Davenport, supra, \1 Cal.4th at 1209)). Respondent concludes that“thetrial court did not err undereither state law or the federal constitution in denying Appellant allocution.” (RB 318). In his Opening Brief, Appellant recognized that this Court has held that federal principles of due process do 386 not grant capital defendant’s right to allocute. (See II AOB 494). Respondent does not address Appellants argumentthat this Court’s prior decisions are wrong, andthat both the state and federal law and constitutions grant capital defendants the right to allocute to their sentencing jury. Based on Appellant’s four uncontested arguments and Equal Protection challenge, no rational reason exists to forbid capital defendants the opportunity to allocute to the jury. Statements in allocution are limited in subject matter. They are not a viable meansof “cloaking” deceptive arguments. Without a statement in allocution, the penalty phase procedures fail to ensure that a jury will hearall the evidence in mitigation, which includes a capital defendant’s expression of remorse. To facilitate a jury’s guided discretion during the penalty phase, as well as a capital defendant’s rights under the Fifth Amendment statements in allocution are necessary to ensure that the proceedings comply with the requirements interposed by the Eighth Amendment.'°° '54 Respondenthasfailed to oppose the following four arguments: 1) This Court has wrongly concludedthat other proceduralrights providedat the penalty phase, including the defendant’sright to present evidence in mitigation andhis rightto testify, render allocution “unnecessary to fairtrial.” (See If AOB 494); 2) The capital defendant’s right to make a statement to the jury is necessary to assure the jury has heard all mitigation before rendering its penalty decision. (See Jd. at 495); 3) This Court’s concern that allocution is a means of “cloaking”the right to testify with immunity from cross-examination, is easily addressed where an offer ofproof is made by the defendant. Here, there was an offer ofproof made by Appellant. (See /bid.); and 4) Expressed remorse is an aspect of the defendant’s “character or record”that the jury must be permitted to consider under the Eighth Amendment. (See /d. at 496). '°> Indeed, a capital defendant’s rightto allocution has been upheld in a numberofjurisdictions. (See, e.g., Zomlinson v. state (1982) 98 N.M. 213; Sellman v. State (1981) 47 Md.App.510; State v. Nicoletti (R.I. 1984) 471 A.2d 613; Mohnv. State (Alaska 1978) 584 P.2d 40; and 387 Respondentsays that Appellant is wrongto state that offers of proof, as to a defendant’s allocution statement, cure the problem of“cloaking the right to testify with immunity from cross-examination.” (RB 316). Respondentalleges that Appellant’s claim fails because a “capital defendant can ‘cloak’ or lie about remorse just as he or she can concerning any other subject.” (/bid.). In Respondent’s view,“the prosecution has a right to try and prevent fraud on the penalty process.” (Ibid.). Respondent arguesthat allocution statements havetoo great a potential of “confusing the jury, and also might impair their ability to weigh the aggravating and mitigating factors disclosed by the evidence.” (Jd. at 317). In light of the limited subject matter about which Appellant desired to speak, his remorse and sympathy for the Olsson family, the prosecutor had no need to cross-examine Appellant. Likewise, Appellant made an offer of proofto the trial court and prosecution, suchthat his statement could have beentailored, or even offered as a declaration, so as to ensure that he was not “cloakingthe right to testify with immunity from cross- examination.”!*° (RB 316 (citations omitted)). Respondent’s arguments fail to discuss Appellant’s profferattrial. People v. Emig (1972) 177 Colo. 174). It has been held discretionary in otherjurisdictions. (See e.g., State v. Burkhart (Tenn. 1976) 541 S.W.2d 365; Wilsonv. State (1947) 76 Ga.App. 257; Patterson v. State (1926) 21 Ala.App. 357; and State v. Townley (1921) 149 Minn.5). '56 Respondent’s omissionsin failing to address these points are telling. For example,as to item #3, in Robbins, supra, 45 Cal.3d at 867, this Court acknowledged that the Maryland Supreme Court foundthat, under the commonlaw ofthestate, a capital defendant had theright to speak to the sentencing jury without cross-examination. (/d. at 890 (citing Harris v. state (1986) 306 Md. 344)). In distinguishing Harris, this Court foundit significant that the defendant in Harris, unlike Robbins, had made an offer of proof before requesting to address the jury. (Ibid.). Here, like the defendant in Harris, and unlike in Robbins, Appellant did make an offer of proof. 388 This is because, the prosecutor certainly acted inconsistently with the truth - whenhe deceptively argued to the jury that the defendant lacked remorse- even though he had just witnessed Appellant offer to allocute regarding his remorse for the crimes alleged against him. This Court should not sanction the prosecutor’s conduct whenit flies directly in the face of the reality knownto the prosecutor at the time of his arguments. D. The Denial of a Capital Defendant’s Right to Allocution Violates the Equal Protection Clause, and the Denial in the Instant Case Violated Appellant’s Equal Protection Rights. Respondentnext attempts to muster a defense to Appellant’s contention that since non-capital defendants havea rightto allocution, the denial of the sameright to capital defendants violates principles of equal protection. (See RB 317). Respondent concedes that Appellant’s interpretation ofJn re Shannon B. (1994) 22 Cal.App.4th 1235, supports Appellant’s position. (See RB 317). Respondent, however, argues that Appellant has not stated a valid equal protection claim because he has not shownthat“the state has adopteda classification that affects two or more similarly situated groups in an unequal manner.” (Jbid. (citing People v. Massie (1998) 19 Cal.4th 550, 571; and People v. Lucero (2000) 23 Cal.4th 692, 717-18)). This Court has never fully addressed whether denial of allocution to a capital defendant violates equal protection.'°’ The purpose ofthe Equal Protection Clause of the Fourteenth Amendmentis to secure every person '°7 Tn Clark, this Court summarily rejected an equal protection argument because no authority had been presented to support the claim, and this Court “perceive[d] no merit in it.” (Clark, supra, 5 Cal. 4th at 1037). In Robbins, supra, 45 Cal.3d at 867, this Court acknowledgedthat the Maryland Supreme Court found that, under the commonlaw ofthe state, a capital defendant hadthe right to speak to the sentencing jury without cross-examination. (See /d. at 890 (citing Harris, supra, 306 Md. at 344)). 389 against intentional andarbitrary discrimination underthe law. (See Village of Willowbrook v. Olech (2000) 528 U.S. 562, 564). The Clause forbids the unequal treatment ofindividuals and requires, at a minimum,that statutes are “rationally related to a legitimate state interest.” (New Orleans v. Dukes (1976) 427 U.S. 297, 303). No state interest in denying capital defendants the opportunity to allocute has been presented here. Instead, this Court’s precedents andstate statutes have classified non-capital and capital defendants in an unequal mannerandin violation of the Fourteenth Amendmentand Article I of the California Constitution. Respondent’s argument that Appellant has not been subjected to an arbitrary classification fails. Logically, Penal Code section 1200, in granting non-capital defendants the right to allocute, and this Court’s precedent, in forbidding capital defendants the opportunity to allocute, classify two similarly situated groups in an unequal manner. In truth, any distinction between a non-capital homicide defendant anda capital homicide defendant is controlled by prosecutorial discretion and the decision to charge a capital crime. (See Claim XXX - Appellant’s Death Sentence Was Imposed Through the Arbitrary, Disparate, and Unconstitutional Implementation of California’s Capital Sentencing Statutes). Exercise of prosecutorial discretion alone, should not decide whether a criminal defendant will be able to address his sentencing body through allocution. Contrary to Respondent’s assertions, Appellant has put forth arguments showingthat section 1200 and this Court treat a similarly situated group of defendants in an unequal manner. 390 E. Section 1200, the Common Law,and the Prosecutor’s Improper Comments on Appellant’s Lack of Remorse Compelled the Trial Court to Grant Appellant’s Request for Allocution to Avoid Violating His Rights to Equal Protection and to Render a Fundamentally Fair Sentencing Proceeding. Respondentarguesthat the trial court did not have the statutory discretion to grant Appellant’s requested allocution. (RB 318). According to Respondent’s interpretation, the “plain language” of section 1200 does: not apply to capital defendants. (/bid.). Respondent argues that Appellant has offered no “persuasive reason”to the contrary. (/bid.). Respondentis wrong. First, section 1200 invests the trial court with discretion to grant or deny a request to allocute. (See Robbins, supra, 45 Cal.3d at 890 n. 10; People v. Sanchez (1977) 72 Cal.App.3d 356, 359-360; People v. Wiley (1976) 57 Cal.App.3d 149, 166; and People v. Cross (1963) 213 Cal.App.2d 678, 681-682). There is nothing in the statute to indicate that this discretion does not apply to capital as well as non-capital cases. In fact, this requirement has been prudentially developed by this Court. (See Robbins, supra, 45 Cal.3d at 888-91; Keenan, supra, 46 Cal.3d at 511; Nicolaus, supra, 54 Cal.3d at 583; and Davenport, supra, 11 Cal.4th at 1209). Second,the trial court failed to properly considerits discretion in denying Appellant’s request for allocution. If it had doneso, following Appellant’s objections that the prosecutor had inappropriately turned lack of remorse into a non-statutory aggravating factor, the trial court would have allowedallocution to show the true state of Appellant’s remorse. Moreover,the trial court, in denying Appellant’s request, did not indicate that it has considered any controlling authorities. (See RT 3622). This was plainly wrong, as section 1200 does give the court the authority to allow 391 allocution. (See Robbins, supra, 45 Cal.3d at 893 (concurring opn. of Mosk, J.)). Importantly, the trial court wholly failed to recognize the commonlaw as authority bestowingthe right of allocution and justifying Appellant’s request. (See Ball, supra, 140 U.S.at 130). Thetrial court’s determination was unreasonable, an abuse of discretion, and has consequently violated Appellant’s rights to due process and equal protection as interposed by the Fourteenth Amendmentand Article I of the California Constitution. In the last four years, this Court has discussed the rightto allocute in two cases. (See Jackson, supra, 45 Cal.4th at 698; and Zambrano, supra, 41 Cal.4th at 1181). Neither case controls the arguments raised by Appellant. First, this Court has not been fully confronted with a claim that discrepancies between capital and non-capital defendantsin the right to allocute violate the Fourteenth Amendment. Second,in neither case was this Court’s holding, that the right to allocute contravenes the sentencing law’s purpose to provide the sentencer with all relevant information bearing on the appropriate penalty challenged. Third, neither case dealt with the denial of a requestto allocute and prohibition on a capital defendant’s right to allocute that eliminated relevant and material information from the jury’s consideration. (See Keenan, supra, 46 Cal.3d 478, 511). Fourth, and finally, this Court has not previously been presented with a situation where the prosecution exploited a capital defendant’s denial ofrightto allocute, by arguing that the defendant’s lack of remorse wasa non-statutory aggravating factor that the jury should consider during their penalty deliberations. (See Claim XXII - Appellant’s Death Sentence Rests On The Prosecution’s Improper Use of Lack of Remorse As A Non-Statutory Materially Inaccurate Aggravating Factor). 392 F. Conclusion. Thetrial court, in denying Appellant’s request to allocute, did not exercise its discretion as required by state law, the California Constitution, or the Fourteenth Amendment. Federal constitutional error occurred and pursuant to Chapman, supra, 386 U.S.at 23, the state has failed to justify that the trial court’s error was harmless beyond a reasonable doubt. State law error also occurred and,in light of the prosecution’s improper lack of remorse arguments, there is a reasonable possibility that the jury would not have sentenced Appellant to death if the trial court had granted his request to allocute. (See Brown, supra, 46 Cal.3d at 448). Principles of due process, the rightto a fair trial, to a reliable penalty determination, and to equal protection under the Fifth, Eighth and Fourteenth Amendments, as well as state law, required that Appellant be allowed to address the jury before his sentencing. 393 XXII. APPELLANT’S DEATH SENTENCERESTS ON THE PROSECUTION’S IMPROPER USE OF LACK OF REMORSEAS A NON-STATUTORY MATERIALLY INACCURAT AGGRAVATING FACTOR. A, Introduction. Lack of remorseis not a factor authorized for jury consideration by California’s capital sentencing statutes. In Appellant’s case, lack of remorse was not supported by the evidence and was materially inaccurate in light of Appellant’s efforts to allocate and to express his remorse. The prosecution’s use of Appellant’s purported lack of remorse as a non- statutory aggravating factor violated the “fundamental conceptions of justice whichlie at the base ofourcivil and political institutions.” Becauseofthis his death sentence invalid. (See Lovasco, supra, 431 U.S. at 790 (quoting Mooney v. Holohan (1935) 294 US. 103, 112; and Dowling v. United States (1990) 493 U.S. 342, 352)). Appellant’s death sentence should be vacated. An overt remorselessness argumentis only proper when supported by facts and direct evidence gleaned either from the defendant’s statements, physical evidence, or percipient and eyewitnesses. (See Cox, supra, 53 Cal.3d at 686 n 24, and Cain , supra, 10 Cal.4th at 77-78). Without evidence on the issue ofremorse, arguments concerning Appellant’s “absence of remorse” introduced an “extraneous emotionalfactor,” which the prosecutor used to sway the jury against Appellant without any judicial safeguards. Appellant’s penalty phase proceedings were rendered unreliable due to the prosecutor’s use of lack of remorse. Because the defense did notraise the issue of remorsein either argumentor evidence, and there was no overt evidence of remorselessness introduced by the prosecution in this case, the prosecutor should have beenprohibited from arguing the issue. 394 Asthis Court has explained: “In a death penalty case, we expect the trial court and the attorneys to proceed with the utmost care and diligence and with the most scrupulous regard for fair and correct procedure.” (Hernandez, supra, 30 Cal. 4th at 878). The proceedingsherefell well short of this goal whenthe trial court allowed the prosecutor to argue that the absence of remorse constituted a non-statutory aggravating factor. Judicial experience, research, and evenintuition, show that the evidence bearing on the defendant’s absence of remorse, as well as future dangerousness, may determineajury’s sentencing verdict.'°* The prosecutor’s inappropriate arguments andthetrial court’s failure to provide correcting instructions violated Appellant’s rights under the Fifth Amendmentand Article I of the California Constitution. The error and misconduct also subverted the truth as to Appellant’s actual remorse for the crimealleged. B. Use of Lack of Remorseas a Non-Statutory Aggravating Factor Renders the California Capital Sentencing Statutes Unconstitutional. In Respondent’s view, “Appellant essentially argued [in his Opening Brief] that denial of allocution prevented the presentation of evidence of remorse and that the prosecutor, who objected to allocution, should not be able to take advantage of that and argue lack of remorse.” (RB 320-21). Respondentsays that Appellant is wrong to urge this Court to reconsiderits precedent regarding overt remorselessness because it has not created an '88 (See e.g., Riggins v. Nevada (1992) 504 U.S. 127, 143 (concurring opn. Kennedy,J.) (“In a capital sentencing proceeding, assessments of character and remorse may carry great weight and, perhaps, be determinative. ...”); see also Michael A Simons, Born Again on Death Row:Retribution, Remorse, and Religion, 43 Cath. Law 311, 322 (2004); Theodore Eisenberg, Stephen P. Garvey, & Martin T. Wells, But Was he sorry? The Role ofRemorse in Capital Sentencing (1998). 83 Cornell L. Rev. 1599, 1633). 395 additional non-statutory aggravating factor and does not broaden Penal Code section 190.3(a). (RB 328). Respondent argues that this Court’s precedent does notturn the absence of remorse into an aggravating factor, and that People v. Lewis (1990) 50 Cal.3d 262, 287, forecloses Appellant’s claim. Ud. at 329). In arguing that this Court should notrevisit its precedent, Respondent omits almostall discussion of the specific constitutional objections and argumentsactually raised in Appellant’s Opening Brief.’ S? Respondent did not address orrebut twelve (12) of Appellants arguments: 1) The principles of this Court’s jurisprudence governing absence of remorse instructions and argument is based on precedent from the 1960's and mustbe revisited in light of substantial changesin the California capital sentencing scheme in 1977 and 1978. (See IT AOB 505- 507; 529-532 (citing People v. Talbot (1966) 64 Cal.2d 69, 712)); 2) The prudential inclusion of the non-statutory aggravating factor of lack of remorse violates requirements interposed by the Eighth Amendment designed to ensure that juror considerations are appropriately guided and are based on reason rather than caprice, emotion, or inaccurate and misleading information. (See II AOB 508); 3) Appellant’s liberty interest, protected by the due processclause of the Fourteenth Amendment, in state law requiring capital jury’s to base their penalty determination on only relevant sentencing factors was violated when lack of remorse wasused as a non-statutory aggravating factor in his case. (See Jd. at 510); 4) Prosecutorial argument characterizing “absence of remorse”(or any other mitigating factor notraised by the defense) as an aggravating factoris improper andviolatesstate law, the California Constitution and the Fifth, Sixth, Eighth and Fourteenth Amendments. (See Jd. at 512-13); 5) Appellant cannotbe sentencedto death based on evidenceofpost-crime lack of remorse or constitutionally protected activity, such as the right to remainsilent, without violation of the Fifth, Eighth and Fourteenth Amendments.(See Jd. at 518); 6) It is unconstitutional for the jury to consider the defendant’s “silence”or failure to waive his Fifth Amendment rights against self-incrimination in its penalty decision; therefore arguments ofremorselessness must be limited to those cases in which the defendant waived his self-incrimination rights by confessing, admitting to the killing, or by sotestifying before the jury. (See Jd. at 521-22); 7) The heightened standardsofreliability imposed by the Eighth Amendment cannot be metin a capital case where the jury considers the non-statutory aggravating factor 396 Respondent’s failure to address these twelve (12) arguments underminesits conclusion that this Court should notrevisit its precedentin light of substantial changes in the law and particular problems posed by Appellant’s case. In the absence of any opposing text from Respondent, Appellant stands by his assertion, and supporting subarguments, that the use of lack of remorse as a non-statutory aggravating factor renders the entire California capital sentencing statutes unconstitutional. OF Use of Lack of Remorse as a Non-Statutory Aggravating Factor in Appellant’s Case Violated His State and Federal Constitutional Rights. In recent years, this Court has rejected several claims premised on the prosecution’s impropercreation of an aggravating factor out of the defendant’s absence of remorse. (See e.g. Zambrano, supra, 41 Cal.4th at 1179; Riggs, supra, 44 Cal.4th at 302; and People v. Collins, (2010) 49 of absence of remorse. (See Jd. at 525); 8) Thetrial court’s failure to prohibit the jury's considerations of lack of remorse precludes meaningful judicial review of Appellant’s penalty phase proceedings. (See Jd. at 526 (citing Roberts v. Louisiana (1976) 428 U.S. 325, 335 n. 11)); 9) Prosecutorial arguments concerning the non-statutory aggravating factor of remorse violate capital defendant’s right to jury trial under the Sixth and Fourteenth Amendments by introducing evidence that is not developed from testimonyandin respect of the defendant’s right to confront witnesses, compel the production of evidence, and the right to representation by counsel. (See II AOB 526 (citing Turner v. Louisiana (1965) 379 U.S. 466 472-73)); 10) Under the Eighth Amendment, the non- statutory aggravating factor of absence of remorse is vague andcreates an unacceptable risk of randomnessandfails to sufficiently narrow the class of death eligible defendants or guide the jury’s sentencing determination. (See Il AOB 529); 11) Ad hoc judicial expansion ofthe aggravating factors a jury may consider during the penalty phase violates the Constitutional requirementthat all capital sentencing statutes are structured so as to preventthe penalty from being administered in an arbitrary and unpredictable fashion. (See Jd. at 534); and 12) This Court’s holdings allowing prosecutorial argumentbutrestricting trial court instructions regarding use of lack of remorse evidence mayare inconsistent,illogical, and must be overturned. (See Jd. at 535). 397 Cal.4th 179, 238). At the sametime, this Court also rejected challenges to prosecutorial arguments that convert the absence of mitigation into aggravation and challenging the definition of remorse under CALJIC No 8.85.'The absence of remorse arguments madeandfacts presented in Appellant’s case are egregious and call for a reversal of Appellant’s death sentence.'®' Similarly, Appellant has raised specific constitutional arguments not previously addressed by this Court. Respondent’s oppositionis littered with damning concessionsthat underminethestate’s claim of no prejudicial error. Respondent concedes that during the prosecutor’s opening summation, and throughout the morningsession, the state displayed a chart captioned: “What You Didn’t Hear About Richard Christopher Tully.” (See also Claim XIX - the Trial Court Erred by Allowing the Prosecutor to Display Inflammatory Charts to the Jury). The chart included, amongst many prejudicial subcaptions: “That He’s Remorseful, Sorry For What He Did” and “That He Has Done One Decent Thing In His Life, That He Found God and Repented.” (RB 321 16 (See Mills, supra, 48 Cal.4th atl 58; and Jackson, supra, 45 Cal.4th at 662; Ervine, supra, 47 Cal.4th at 745; and Burney, supra, 47 Cal.4th at 203). 16! Th contrast to Zambrano and Riggs, in Appellant’s case the prosecutor’s lack of remorse argument drew vehementobjections and prejudiced Appellant’s ability to receive a fair trial. Similarly, it was not limited to one line of argument during the state’s penalty phase summation. Instead, the prosecutor also displayed three terms in a chart that highlighted Appellant’s failure to express remorse. Finally, unlike in Zambrano and Riggs, in Appellant’s case the prosecutor’s arguments were fundamentally unfair due to their material inaccuracy. Here, the prosecutor, in arguing that Appellant had failed to demonstrate remorse, knew that Appellant had vigorously soughtto assert remorse throughallocution but had been denied that right by the prosecutor’s objections. (See Claim XXI- the Trial Court Improperly Denied Appellant's Request for Allocution in Violation of His Constitutional Rights). In sum, the prosecution’s lack of remorse argument and thetrial court’s error in overruling defense objections constitute, respectively, misconduct and abuse ofdiscretion. 398 (citing RT 3667-70)). Respondent concedes that defense counsel objected to the constitutionality of prosecutorial arguments referencing lack of remorse, as well as, the legal propriety of prosecutorial arguments referencing remorse beyond what“happenedat the actual crime scene.” (RB 321 (citing RT 3671)). Respondent concedes,as the state must, that defense counsel: 1) objected to these charts and subcaptions; 2) incorporated earlier objections and argued that the prosecutor’s comments on lack of remorse, by calling attention to the fact that Appellant did not testify, would be improper, unsupported by evidenceat the crimescene, and would violate Appellant’s rights under the Fifth Amendment;3) objected to the chart’s captions discussed “items in mitigation,” which urged that “the absence of these items are, therefore, aggravation; and objected to the prosecutor’s charts; and 4) objected to prosecution arguments as improperly conveying that the absence of a mitigating factor was evidence in aggravation. (RT 3667-74). Respondent counts four allegations of trial court error and prosecutorial misconduct, and argues that “Appellant’s contentions are without merit.” (RB 319). However, Respondent concedes almost every material point to Appellant. Respondenthas thus failed to adequately defend the egregious misconduct anderror that permeated the jury’s sentencing determination caused by inappropriate attention towards Appellant’s lack of remorse and failure to testify. As such, Respondent fails to effectively rebut the allegations of trial court error and prosecutorial misconductraised in Appellant’s Opening Brief. 399 1. Appellant Has Shownthat the Trial Court Committed Prejudicial Error By Allowing the Prosecutor to Argue Lack of Remorse as a Non- Statutory Aggravating Factor. Respondent concedesthat, in response to defense objections,the trial court held that the prosecutor’s charts were misleading and ordered the prosecutor nottofurther publish to the jury the caption concerning remorse and repentance. (RB 322 (citing RT 3675-76)). Respondent recognizes that the court warned the prosecutor that he could no Jonger argue that the absence of mitigation wasitself a factor in aggravation. (RB 322 (RT 3676)). However, Respondentfails to provide the trial court’s ruling, free of misleading paraphrasing, which reads in full: as stated (on Chart #4), it could be misleading in termsof the appropriate argument and could inadvertently, as stated there, make reference to a failure to testify as distinguished from, for example, an appropriate argument on the subject of remorsefulness as it might relate to what occurred in reference to the crimeitself or at the scene of the crime. (RT 3675 (emphasis added)). Respondent argues that the trial court’s order allowing argument concerning “lack of remorse,” and the prosecutor’s argument that Appellant was not remorseful were not fundamentally unfair in light of Appellant’s proffer to express remorse for the crime through allocution. (RB 329). Respondent argues that Keenan, supra, 46 Cal.3dat 478 is controlling. Respondent characterizes the prosecutor’s statementsas merely “comment[s] on the recordasit actually stood, as Appellant chose not to testify.” (RB 330 (emphasis added)). First, Respondent argues that the prosecutor’s arguments were justified in light of “Appellant[‘s] cho[ice] notto testify” (RB 330). This point admits, in essence, that the prosecutor commented on Appellant’s failure to testify in violation of Griffin, supra, 380 U.S.at 615. Respondent’s argumenthighlights the fact that Appellant was penalized for 400 invokinghis right to not testify. The prosecutor not only commented on Appellant’s silence, or as Respondentputsit his choice “notto testify,” but told the jury that because he would notincriminate himself he had not exhibited remorse for the crime. Since Appellant’s request to exercise his right to allocute and express remorse was denied, there was only one inference that the jury could draw from the prosecutor’s argumentthat Appellant failed to demonstrate remorse -- that he should have waivedhis constitutional rights and testified to his remorse during the penalty phase. Second, Respondent does not address Appellant’s contention that he wassentenced to death based on a sentencing factor that was patently inaccurate. (See I] AOB 527). Appellant had specifically requested to address the jury and personally “express his extreme remorse for the death of Ms. Olsson andthe terrible shock on her family.” (RT 3621). On these facts, it cannot be said that Appellant lacked remorse. Thetrial court should not have permitted the prosecutor’s argument, understandingthatits decision had precluded the defense from offering any rebuttal evidenceto the prosecutor’s arguments. To sentence a man to death based ona materially inaccurate sentencing factor is “so extremely unfair”that it “violates ‘fundamental conceptionsofjustice’” under the due process clause and equal protection. (Dowling, supra, 493 U.S. at 352 (quoting Lovasco, supra, 431 U.S. at 790)). Third, as the Supreme Court hasstated, “[t]here is no gainsaying that arriving at the truth is a fundamental goal of our legal system.” (United States v. Havens (1980) 446 U.S. 620, 626 (citation omitted)). Here, after hearing Appellant’s allocution proffer, the prosecutor could not, in good faith, argue that he lacked remorse. Prosecutor Burr intentionally subverted the fundamental goalof “arriving at the truth,” as well as the prosecutorial ethic of maintaining justice by arguing that Appellant lacked remorse despite the fact that he knew to the contrary. The state thus made a 401 materially false allegation against Appellant. Blatant misrepresentation to a capital jury violates the right to due process, equal protection anda fairtrial under the Sixth, Eighth and the Fourteenth Amendments,as well as Article I of the California Constitution. 2. The Court Should Have Instructed the Jury Regarding the Limited Manner in Which it was Permitted to Consider the Evidence of Lack of Remorse. After improperly allowing the prosecution to argue lack of remorse and prohibiting Appellant from presenting evidence of remorse via allocution - the trial court had a duty to limit argumentto the truth as reflected in the record. This necessarily excluded arguments regarding Appellant’s lack of remorse, since Appellant had proffered evidence ofhis remorse in support ofhis request to allocute. (RT 3621). The trial court thus had a duty to instruct the jury on the limits of lack of remorse in regards to Appellant’s decision nottestify. Respondentsaysthat the trial court did not commitprejudicial error by failing to “instruct the jury ‘on how to properly assess and considerthe absence of remorse.” (RB 330). Respondent recognizes that Appellant has alleged six separate instancesoftrial court instructional error related to this line of argument. (Jbid.). Respondentsays thatthe trial court had no sua sponte duties, to provide anyinstructions related to remorse since no general principles of law governing remorse, as connectedto the facts of the case, were relevantto the jury’s sentencing determination. (Jbid. (citing People v. Hood, (1969) 1 Cal.3d 444, 449; and People v. Wilson, (1967) 66 Cal.2d 749, 759)). Respondentclaimsthat the “common sense” meaning of remorse governedthe jury’s sentencing determination. (RB 330-31 (citing People v. Anderson (1966) 64 Cal.2d 633, 639)). Respondentsays that the trial court’s instructions ameliorated any prejudice resulting to Appellant, 402 andthat “the jury had been informed of everything Appellant now contends the trial court should have provided instruction on.” (RB 331). First, this Court has acknowledgedthat the jury will bring its own life experiences to bear when deciding what is relevant at the penalty phase regardless of “whatit is told” to them. (People v. Bemore (2000) 22 Cal.4th 809, 854-855 (juries will use their “common senseandlife experience[s]” concerning remorse “no matter what [they are] told.”)). If true, however, this principle demonstrates that California’s death penalty schemeis arbitrary and capriciousin violation of the Eighth Amendment since neither the arguments of counsel nor the court’s instructions can adequately guide the jury’s sentencing discretion as required by the Eighth and Fourteenth Amendments. Second, Respondent concedes that under People v. Hood (1969) 1 Cal.3d 444, 449, the trial court is required “to instruct the jury onall general principles of law relevant to the issues raised by the evidence.” Yet, Respondent appears to contendthat the “general principles of law governing the case”did not require instruction on the definition of remorse here. (RB 330 (citing Wilson, supra, 66 Cal.2d at 759)). If no instruction was required, the court created juror confusion by failing to tell the jury to apply a common sense meaning of the term. In either case, the trial court wasrequired to instruct the jury as to how to properly evaluate arguments concerning Appellant’s alleged lack of remorse. — Respondentis wrong to argue that arguments concerning remorse do not invoke a constitutionally required instruction under Anderson, supra, 64 Cal.2d at 639. Without a specific instruction, the jury is left to their commonsense understanding of the term. Lay understanding plainly entails impermissible considerations, like repentance, salvation, guilt, conceit, triteness. The fact that the jury might naturally consider these things as part of their “life experience” does not render them permissible 403 penalty considerations, nor doesit give the prosecutor the right to argue that they are relevant. Third, Appellant proffered a well-reasoned and acceptable description of instructions that could be easily implemented in cases where overt remorselessness is argued. (See IT AOB 535-36). These instructions, or substantially similar ones, should have been given bythe trial court in Appellant’s case and should be accepted by this Court now. Thetrial court’s instructions did not ameliorate any prejudice resulting to Appellant because they did not address: 1) how the jury should infer lack of remorse from the evidence; 2) whether the jury could consider Appellant’s Fifth Amendmentrightnotto testify; 3) whether the jury’s consideration of Appellant’s purported lack of remorse waslimited to evidenceat the scene of the crime; 4) whetherthe jury could consider lack of remorse for other purposes; and 5) whether a showing of lack of remorse was a prerequisite to a life verdict. Despite Respondent’s contentions, Appellant’s “jury had [not] been informed of everything Appellant now contendsthe trial court should have providedinstruction on.” (RB 331). Thetrial court failed to discuss eight instructional aspects of remorse that mustbe given in order to ensurethat juror’s properly consider this highly . ; 6 inflammatory evidence.’ '© (See II AOB 500(First, the absence of remorseis a not statutory aggravating factor in California. Second, the current death penalty law does not permit argumentasto the “absence of remorse.” Third, the prosecutor’s argumentthat remorse wasa “condition precedent to mercy” precluded the jury from considering and giving any affect to the mitigating evidence presented in this case. Fourth, because Appellant did not testify or admit the killing, the argumentviolated his right against self-incrimination. Fifth, because there was no evidence to support an argumentof overt remorselessness, the prosecutor’s argument was based on impermissible speculation. Sixth, the prosecutor’s argumentthat Appellant was not remorseful was materially inaccurate. Seventh, “absence ofremorse”as interpreted by this Court lacks sufficient 404 3. Respondent Does Not Rebut Appellant’s Arguments that the Trial Court Erredin Failing to Sustain Defense Objections or Grant a Defense Motion for Mistrial in Responseto the Prosecutor’s Improper Arguments About Appellant’s Remorse. Thetrial court improperly prohibited Appellant from presenting evidence of remorsevia allocution and allowed the prosecution to argue lack of remorse. In choosing to do so, the trial court accepted a duty to ensure that the prosecutor’s argument was limited to what wasactually true. This necessarily excluded arguments regarding Appellant’s lack of remorse beyond the crime scene, since Appellant had proffered evidence of his remorse in support of his request to allocute. (RT 3621). Thetrial court also had an affirmative duty to limit the prosecution’s arguments to a discussion of lack of remorse in the context of what actually occurred at the scene of the crime. (/bid. (citing RT 3675)). Thetrial court, in the face of controlling authority, abdicated both ofits duties. Thetrial court allowed the prosecutor to freely and repeatedly argue Appellant’s lack of remorse. Thetrial court failed to sufficiently correct the prosecution’s display of a chart detailing Appellant’s lack of remorse. The trial court failed to limit the prosecution’s lack of remorse arguments to facts knownto be true. Thetrial court failed to protect Appellant’s right underthe Fifth Amendmentnotto testify. Indeed, the trial court failed to limit the prosecutor’s lack of remorse argumentsat all. Worse,thetrial court erroneously prevented Appellant from respondingto the prosecutor’s arguments andtruthfully asserting his remorse through allocution. Under these circumstancesthetrial court’s error and the prejudice incurred from the prosecution’s arguments violated Appellant’s state and federal definition to be properly considered in the penalty determination. Finally, if such argument wasproper, the jury should have been instructed how to properly assess and consider the absence of remorse in deciding the penalty.”)). 405 constitutional rights, warranted a mistrial, and now require reversal of Appellant’s death sentence on appeal. Respondent does not rebut Appellant’s arguments that the trial court erred in failing to sustain defense objections to the prosecutor’s speculative and improper arguments about Appellant’s remorse during the commission of the crime. (See II AOB 524) Respondent does not rebut Appellant’s assertion that the trial court erred by denying, without comment, the defense’s motion for mistrial based on the prosecutor’s repeated speculation as to events at the scene of the crime and his “direct attempt|s] to inflame the jury.” (II AOB 524(citing RT 3718-19)). This is a significant error on Respondent’s behalf. The trial court’s erroneousdenial of Appellant’s motion for mistrial, based on the inappropriate use oflack of remorse as a non-statutory aggravating factor, constituted a miscarriage of justice and fundamentalerror in the proceedings. (Contra Combs, supra, 34 Cal.4th at 866). Respondent’s lack of arguments to the contrary proves the absence ofa justification for the trial court’s denial of Appellant’s motion for mistrial. A. Appellant Has Shown that the Prosecutor Committed Prejudicial Misconduct by Arguing Lack of Remorse as a Non-Statutory Aggravating Factor. Respondentstates that the “propriety of commenting on lack of remorse” depends onthe inferences the prosecutor asks the jury to draw. (RB 319 (citing Cox, supra, 53 Cal.3d at 685)). Respondent acknowledges that the prosecutor argued that a showing of remorse was a “condition precedent”!™ for Appellant to receive life without the possibility ofparole 163 Although “condition precedent”is a legal term ofart, the prosecutor explainedit to the jury in common terms. The most common definitions for a “condition”are: 1) “anything called for as a requirement before the performance or completion of something else;” or 2) “anything 406 (See RB 322). Indeed, Respondentnotes that the prosecutor argued that the jury must “see in existence...before you grant mercy, remorse, the presence of remorse, the fact that you’re sorry for what you’ve done...It’s not present in this case.” (ibid. (citing RT 3693)). The inference that remorseis a condition precedentto a life sentence is undoubtedly an impermissible use of the non-statutory aggravating factor of lack of remorse. Respondentagreesthat it is fundamentally unfair when the prosecutor argues that “a defendant’s failure to confess his guilt after he has been found guilty demonstrates his lack of remorse....” (RB 319 (citing Coleman, supra, 7\ Cal.2d at 1168)). Respondent concedesthat prosecutorial references to post-crime evidence of lack of remorse or expressions of innocence are improper and fundamentally unfair. (RB 319-20 (citing Boyd, supra, 38 Cal.3d at 771-76; and Gonzalez, supra, 51 Cal.3d at 1232)). Respondent thus must concede that remorse is a non- statutory aggravating factor. Respondent contends that Appellant is wrongto assert that the prosecutor’s comments in this case misled the jury and misstated the law. (See RB 323). Respondent argues that the prosecutor sought to explain that “no evidence of remorse had been presented,” and did not suggest “that the absence of remorse wasitself a specific aggravating factor.” ([bid.). Respondentarguesthat it is not reasonably likely that a juror would have understood the prosecutor’s statements as meaning that a showing of mercy was a “condition precedent” to accepting evidence in mitigation. (/d.at essential to the existence or occurrence of something else; prerequisite.” (Webster’s New World Dictionary (3College Ed. 1988), at 290). “Precedent” is defined as: “an act [] that may serve as an example, reason, or justification for a later one.” (/d. at 1060). Respondent’s use of the term condition precedent here demonstrates that the state agrees with Appellant that the prosecutor argued that the jurors must, in effect, believe that Appellant is remorseful before voting against the death penalty. 407 324). Respondentcredits jurors for realizing that “the prosecutordid not argue that his view wasthe law the jury was compelled to follow.” (dd. at 324). Respondent arguesthat the trial court’s instructions obviate Appellant’s contentions. Respondent is wrong. First, the prosecutortold the jury that “in the law,” there are “condition precedents;” (sic) a term meaning “something has to happen before another thing follows, a prerequisite.” (RT 3693).'°* The prosecutor then characterized evidence of remorse as a condition precedentto granting repentance, mercy, and salvation. (/bid.). Respondent is wrong to argue that the prosecutor merely soughtto highlight the lack of evidence submitted on the issue of remorse. (See RB 322 (citing RT 3693)). As recognized by the trial court, when striking the subcaptions from the prosecutor’s Chart #4, Prosecutor Burr’s arguments fundamentally mislead the jury and soughtto illegally convey that the lack ofremorse constituted an aggravating factor. (RT 3675; see also Mendoza, supra, 24 Cal.4th at 187). Since the jury did not hear evidenceasto this “condition precedent,” it followed that Appellant hadfailed to show whyhedid not “deserve the death penalty.” The premise ofthis “condition precedent”runs contrary to state statutes, the most basic principles of the California death penalty scheme and, consequently, the California and United States Constitutions. (See e.g., Romine v. Head (11th Cir. 2001) 253 F.3d 1349, 1368; and Caldwell, supra, 472 US.at 336-339). | '64 Here, the prosecutor argued in entirety “Whatelse didn’t you learn about the defendant? That he doesn’t deserve the death penalty? You know, whatis in the law, we call it a condition precedent, something has to happen before anotherthing follows, a prerequisite, something that you would expect to see in existence before you give sympathy, before you grant mercy, remorse, the presence of remorse,the fact that you’re sorry for what you’ve done can be a mitigating factor, can be a mitigating factor, but it’s not present here.It is not present in this case.” (RT 3693 (emphasis added)). 408 Second, Penal Code Section 190.3 does not refer to any “condition precedent.”’ Prosecutor Burr’s “condition precedent” was thusartificially created by argumentwithout law or instruction. The use of the non- statutory aggravating factor of remorse thus prevented the jury from granting a capital defendant sympathy or mercy and thus from considering his mitigation evidence as constitutionally required. (See Lockett, supra, 438 U.S. at 604-05; Woodson, supra, 428 U.S. at 304; and Eddings, supra, 455 U.S. at 113-15). This is exactly what the prosecutor told the jury here —to disregard Appellant’s mitigating evidence because he had not qualified for a life sentence by proving his remorse. Third, the prosecutor’s argument was undoubtedly misleading. The prosecutor invoked an irrelevant and unfoundedlegal principle that lack of remorseis a “condition precedent.” In doing so, he told Appellant’s jury that “they should not even consider mercy[,]” and thus misled “the jury about one ofits central tasks, which is to decide whetherthe individual, convicted murderer standing before it should receive mercy.” (Romine, supra, 253 F.3d at 1368; see also Easley, supra, 34 Cal 3d at 880). The prosecutor’s novel, manipulative, and improper arguments should not stand on appeal. Fourth, the trial court’s instructions could not have possibly cured the error resulting from the prosecutor’s arguments, since thetrial court had refused to provide anyinstruction relative to the jury’s consideration of remorse and had denied Appellant’s request to express his remorse. (RT 3623). Moreover, a reasonable juror would believe that a prosecutor, an officer of the court whois held to the highest ethical duties underthe law, would not materially misstate the law regarding the permissible consideration of remorse during the sentencing deliberation. This is especially true in the absence of any controlling or competing instruction from thetrial court. 409 Fifth, Respondent contendsthat the prosecutor did not commit Griffin error whenhe arguedthat a “condition precedent” for Appellant not to receive the death penalty was “to see in existence...before you grant mercy, remorse, the presenceof remorse, the fact that you’re sorry for what you’ve done....It’s not presentin this case.” (RB 322 (citing RT 3693)). Respondentfeels that only an unreasonable juror would have understood the prosecutor as referencing Appellant’s failure to testify.” (RB 324). Again, Respondenttries to argue that the trial court’s instructions ameliorated any prejudice. (/d. at 324-25 (citing Wash, supra, 6 Cal.4th at 263)). Respondent has already concededthat the prosecutor’s arguments sought to penalize Appellant for not testifying. (See RB 330 (“the prosecutor commentedontherecord asit actually stood, as Appellant chose notto testify”) (emphasis added)). The record clearly demonstrates that the express meaningofthe prosecutor’s argument wasthat the lack of Appellant’s testimony and expressions of remorse were reasons to sentence Appellant to death and impediments to sentencing Appellantto life in prison. The direct implication of the prosecutor’s argument wasthat Appellant’s decision notto testify was indicative of his lack of remorse and warranted a death sentence. A reasonable juror would have associated Appellant’s failure to testify with his lack of remorse and understood the prosecutor’s argument to mean that Appellant could not earn life sentence. Similarly, and given the ecclesiastical debate that raged throughoutthe closing penalty phase arguments, a reasonable juror would have understood the prosecution’s chart #4 entitled “What You Haven’t Heard About Richard Tully.,” and reading “That He Is Remorseful - Sorry - for What He Did” and “That He Has Found God and Repented.” (Court Exhibit 5); as meaning that Appellant’s failure to testify and expresshis remorse doomshis chancesofsalvationor a life sentence. (See Claim VII - 410 The Prosecutor’s Religious Arguments Permeated the Penalty Phase Arguments and Prejudiced Appellant). No instruction, and particularly the lack of any instruction, could cure the prejudice incurred to Appellant’s constitutional rights from the prosecution’s misleading use of lack of remorse evidence andthetrial court’s error.’ 5. The Prosecutor’s Lack of Remorse Arguments Strayed far from Comments on Evidence of Overt Remorselessness and were not Factually Supported by Evidencein the Record. Respondentinsists that the prosecutor's arguments were proper. (RB 325). To this end, Respondent contendsthat the prosecutor argued: “‘Another aggravating factor is his callousness at the scene and the failure to show any remorseat the sceneofthat crime. Totally callous. Indifferent to whatshe was going through,totally and completely.” (RB 325-26 (citing RT 3715)). However, in pursuing this line of argument, before defense objections, the prosecutor fabricated a story about how the crime occurred based on speculation, without factual support in the record, to argue Appellant’s alleged failure to show remorse. Respondent concedesthat the prosecutor commented that Appellant failed to act with “humanity” and '© Respondent does not address Appellant’s argumentthatthetrial court committed a grave error in allowing the prosecutor to argue absence of remorse. Absence of remorseis a not an aggravating factor in California. (See Mendoza, supra, 24 Cal.4th at 187). Allowing the prosecutor to argue lack of remorse, based on post-crime behavior and Appellant’s failure to testify, permitted the jury to consider an additional aggravating factor beyond what was allowed understate law in a manner that was not constitutionally acceptable. Here, the trial court’s restrictions on the prosecution’s lack of remorse arguments did not have sufficient definition to meet constitutional requirements. Because Appellant did not testify or admit guilt, and the prosecution directly commented on the exercise of Appellant’s rights, the trial court’s error resulted in the material violation of Appellant’s rights against self-incrimination andreliable sentencing under the Fifth and Eighth Amendments. (See Griffin, supra, 380 U.S. at 609). 411 “compassion” while Mrs. Olsson was“laying on her bed crying,” and that Appellantfailed to “lift one fingerto call for help.” (RB 325-26 (RT 3715- 3716)). But the evidence used by Respondent and by the prosecutor does not prove that Appellant wasat the sceneof the crime, that Mrs. Olsson cried, or that the assailant did not lift a finger. Respondent wants to characterize the prosecutor’s argumentas seeking to describe “overt remorselessness” anddetail the circumstances of the crime. (RB 326(citing Gonzalez, supra, 51 Cal.3d at 1231)). This way, Respondent canarguethat the prosecution’s argumentative creation of the non-statutory aggravating factor of remorse was proper. Respondent, however, cannot provide more than one quote from the record indicating that the prosecution discussed Appellant’s lack of remorsein relation to the circumstances of the crime. (See RB 325-26 (RT 3715-3716)). In the absence of support from the record, Respondentis left to argue that the evidence inferred that Appellant acted with overt remorselessness at the crime scene.” (See RB 327). Respondent analogizesthe situation to the inference introduced by the prosecution at Appellant’s trial that Appellant had rummaged through Ms.Olsson’s purse, since grapes were found on her floor. (Jbid.). Respondent’s assertion that the “evidence overwhelmingly supports a finding that Appellant acted with overt remorselessnessat the scene”is baseless. An overt remorselessness argument is only proper when focused on the circumstances of the crime and supported by facts and direct evidence gleaned either from the defendant’s statements, physical evidence, or percipient and eyewitnesses. (See Cain, supra, 10 Cal.4th at 77-78). In his Opening Brief, Appellant proved that in comparison to “overt remorselessness” cases, the prosecutorhad failed to support his assertions since there was no direct evidence of remorselessness in the circumstances of the crime. (See IJ AOB 523). 412 The state’s assertion is not supported by a comparisonofthe prosecutor’s arguments in Appellant’s case and other cases where prosecutors argued “overt remorselessness.” In fact, the only evidentiary support Respondent can musteris an argument that Appellant rammaged through Ms. Olsson’s purse and consequently spilled grapes on the floor. Respondent cannotproffer direct evidentiary support of the prosecutor’s arguments because none exists. Instead, Respondentstacks inference upon inference in order to cover such outlandishfactual assertions as “Appellant failed to lift one finger,” and “Ms. Olsson was lying on her bed crying.” This is not a case wherethe prosecutor could argue that the defendant exhibited “overt remorselessness” at the scene of the crime. (Cf. Gonzalez, supra, 51 Cal.3d at 1231). Despite that fact, Respondent attempts to justify the prosecutor’s behaviorby trying to analogize to Gonzalez. (RB 319-20). However, the prosecutor’s arguments in Gonzalez expressly focused on the circumstances of the crime, the defendant’s incriminating and boastful statements. Gonzalez, supra, 51 Cal.3d at 1231- 32. In contrast, in Appellant’s case, the prosecutor’s comments on the topic of remorse ranged from Appellant’s failure to find God (RT 3667); to comparing Appellant to the bad thief at Christ’s crucifixion (RT 3704); from characterizations of remorse as a condition precedentfor salvation (Court Exhibit #5); to descriptions of remorse as a condition precedent for a life sentence. (RT 3693). Prosecutor Burr’s arguments thusstrayed far from the scene of the Olsson homicide and “overt remorselessness” arguments sanctioned by Gonzalez. © Respondent concedesthat, in closing, the prosecutor again returned to the subject of remorse and repentance during his lurid description of Christ’s crucifixion. (RB 327-38). Respondent concedes that the prosecutor compared Appellant to the bad thief who did not earn salvation becausehefailed to repent and instead “cussed at Christ, turned his nose.” 413 (Id. at 327). Here, Respondentargues that Appellant’s contentions of prosecutorial misconduct during closing argument were forfeited due to failure to object at trial. In the alternative, Respondent argues that no prejudice resulted to Appellant from the prosecutor’s comparisons of Appellant to the bad thief who cussedat Christ, or the lurid description of Christ’s crucifixion, due to the trial court’s instructions. (/d. at 328). Respondent’s arguments ofprocedural default are taken up elsewhere; but reiterated here for clarity.'°° (See Claim XVII - The Prosecutor’s Religious Arguments Permeated the Penalty Phase Arguments and Prejudiced Appellant).’ Respondent cannottruthfully argue that no prejudice stems from the prosecutor’s analogy of Appellant, and his capital trial, to the bad thief at Christ’s crucifixion. The argument was egregious beyond any precedent. In closing arguments of the penalty phase of a capitaltrial, there is no placefor religious arguments,let alone arguments recreating Christ’s crucifixion — the penultimate important momentin Christian history. Remarkably, the situation here is even more prejudicial as the prosecutor compared the defendant to the bad thief, also crucified and capitally punished, in order to argue that Appellant’s lack of remorse requires the jury not to grant him furtherlife and salvation. Thus, beyond the prejudice resulting from the biblical references, the prosecutor’s argumentalso incurred additional prejudice becauseit constituted the 166 This Court may review this claim because: 1) A defendantwill be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. In addition, failure to request the jury be admonished doesnot forfeit the issue for appealif ‘'an admonition would not have cured the harm caused by the misconduct.” (Hill, supra, 17 Cal.4th at 820-821 (citations omitted)); and 2) “A defendant is not precluded from raising forthe first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights[including]... the constitutional right to a jury trial.” (Vera, supra, 15 Cal.4th at 276; see also Loker, supra, 44 Cal.4th at 704; and People v. Belmares (2003) 106 Cal.App.4th 19, 27). 414 : . . 1 - ue conversion of lack of remorse into an aggravating factor. 7 No description or conception of overt remorsefulness could include the prosecutor’s arguments here. D. The Trial Court’s Error and the Prosecutor’s Misconduct was not Harmless Beyond a Reasonable Doubt. Theconstitutional errors asserted here require reversal because, pursuant to Chapman, supra, 386 U.S. at 23, the state has not and cannot prove that the error was harmless beyond a reasonable doubt. (See also Sochor, supra, 504 U.S. at 532; and Sanders, supra, 373 F.3d at 1059-60). For seven reasons the prosecution’s lack of remorse argument prejudiced Appellant’s constitutional rights and ability to earn a fundamentally fair penalty phase proceeding. First, the absence of remorse is a not statutory aggravating factor in California, and cannot be considered as such. Second, the current death penalty law does not permit argument as to the “absence of remorse.” Third, the prosecutor’s argument that remorse was a “condition precedent to mercy” precluded the jury from considering and giving any affect to the mitigating evidence presented in this case. Fourth, because Appellant did nottestify or admit the killing, the argument violated his right against self-incrimination. Fifth, because there was no evidence to support an argument of overt remorselessness, the prosecutor’s argument wasbased on impermissible speculation. Sixth, the prosecutor’s argumentthat Appellant was not remorseful was materially inaccurate. Seventh, “absence of remorse”as interpreted by this Court lacks sufficient definition to be properly considered in the penalty determination. Finally, '®7 Undoubtedly, Respondent cannot arguethat the prosecutor’s argument wassanctioned as “overt remorseless” since Christ’s crucifixion is almost two thousand years away from the Olsson homicide. This analogy showsjust how far the prosecutor’s remorse arguments strayed from those sanctioned under Gonzalez, supra, 51 Cal.3d at 1231 and Cain, supra, 10 Cal.4th at 77-78. 415 if such argument wasproper, the jury should have been instructed how to properly assess and consider the absence of remorse in deciding the penalty. Respondent does not argue asto the correct prejudice standard because the state believes no error occurred. (RB 321). In either case, Respondent cannot meetits burden of showing harmless error beyond a reasonable doubt here. In fact, the injection ofthe irrelevant and misleading “aggravating factor”of alleged lack of remorse resulted in an arbitrary and capricious death sentence. Appellant incurred prejudice from religious arguments, characterizing expressions of remorse as required for salvation, and misstatements of the law, characterizing expressions of remorse as a condition precedentto a life sentence. Respondent cannot justify the prosecutor’s lack of remorse arguments based on circumstances of the crime and overt remorsefulness. The prosecution’s creation ofthe illusory aggravating factor of alleged lack of remorse at the scene biased the jury’s decision in favor of death in violation of the Eighth Amendment. (See Stringer v. Black (1992) 503 U.S. 222, 235-36). Since the jury was “told to weigh an invalid factor in its decision,” this Court “may not assume it would have made no difference if the thumb had been removed from death’s side of the scale” and must invalidate Appellant’s death sentence. (Id. at 232, 236). E. Conclusion. Appellant has shownthat the argument regarding the absence of remorse violated state law as well as his right to a fair trial, to refrain from self-incrimination, to an impartial jury, to due process, equal protection and to a reliable penalty determination underthe Fifth, Sixth, Eighth and Fourteenth Amendments, and parallel provisions of the California Constitution. The effect of each ofthese errors, individually and cumulatively, was that the jury was misledinto finding the existence of an 416 inflammatory aggravating factor that required a death sentence. Forall the reasonsraised underthis claim oferror, the trial court’s failure to preclude the prosecutor’s arguments on remorse, and the arguments made by the prosecutor regarding absence of remorse, violated Appellant’s rights to a fair trial, to refrain from self-incrimination, to an impartial jury, to due process, to equal protection, and to a reliable penalty determination under state law, the Fifth, Sixth, Eighth, and Fourteenth Amendments, and the parallel provisions of Article I of the California Constitution. Since Appellant was sentenced to death based on anirrelevant sentencing factor, he was improperly deprived ofthis liberty interest without due process in violation of the Fourteenth Amendment. His death sentence must be reversed. 417 XXIII. APPELLANT’S DEATH SENTENCE MUST BE REVERSED BECAUSE ALL ESSENTIAL FACTORS WERE NOT PROPERLY CHARGED AND WERE NOT FOUND BEYOND A REASONABLE DOUBTBY A UNANIMOUSJURY. A. Introduction. The Sixth Amendmentto the United States Constitution grants defendants theright to jury trial in all phases of criminal proceedings. (See U.S. Con., VI Amend. (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...”)). In fact, the Sixth Amendment, as recognized by the commonlawatits ratification, extends to criminal defendants the right to haveall factual elements, necessary to impose criminalliability and sentencing,in all phases of the criminal proceeding found unanimously and beyond a reasonable doubt. (See Sanjay Chhablani, Disentangling the Sixth Amendment, 11 U. Pa. J. Const. L. 487 (2009)). In recognition ofthis constitutional and common law maxim; the Supreme Court has crafted a litany of cases defining and expanding criminal defendant's right to jury trial. (See Jones, supra, 526 U.S.at 243 n. 6; Apprendi, supra, 530 U.S.at 476; Ring, supra, 536 U.S.at 614; Blakely, supra, 542 US. at 301; and Booker, supra, 543 U.S. at 220). In light ofJones, Apprendi, Ring, Blakely, and Booker, and more recently Cunningham v. California (2007) 549 U.S. 270., the California death penalty schemeis unconstitutional underthe Fifth, Sixth, Eighth, and Fourteenth Amendments, as well as Article I of the California Constitution. The Fifth, Sixth, and Fourteenth Amendments,andparallel provisions of the California Constitution require that the jury unanimously find beyond a reasonable doubt that aggravating circumstancesexist, that the aggravating circumstancessubstantially outweigh mitigating circumstances, and that the 418 death penalty is appropriate. California does not require that the jury make any of these findings unanimously or beyond a reasonable doubt. Since the California death penalty system does not provide these protections,it is unconstitutional. B. This Court Should Reconsider Its Earlier Case Law. Pursuant to Apprendi, Ring, and Blakely, whena state bases an increased statutory punishment upon additionalfindings, the findings must be made by a unanimousjury beyond a reasonable doubt. Notwithstanding Supreme Court law holding this true, this Court has held that the penalty jury does not need to be instructed that any ofits findings have to be made unanimously and beyond a reasonable doubt. (See e.g., Prieto, supra, 30 Cal.4th at 262-64; People v. Snow (2003) 30.Cal.4th 43, 126 n. 32; and Martinez, supra, 31 Cal.4th at 700. These opinions are based on a misapplication of federal constitutional requirements to California’s penalty scheme. Accordingly, the cases must be reconsidered and overruled bythis Court.'® Respondentattempts to rebut Appellant’s argument wholly by citation to this Court’s decision in Dickey, supra, 35 Cal.4th at 930-31. (See RB 32-33). Based ona string cite spanning two pages, Respondent argues that Appellant’s argument “merits no further attention.” (/d. at 334). Respondent characterizes Appellant’s arguments as merely calling this Court’s decisions “faulty or wrong,” and claims that Appellant has failed to offer anything “new in the way of analysis.” (See Jd. at 333-34). . '68 Tn the last four years, this Court has repeatedly rejected the argumentthat California capital jury's failure to find, unanimously and beyond a reasonable doubt, all elements necessary to imposea capital sentence based on a finding and weighing of aggravating and mitigating factors does not violate the constitutional right to jury trial afforded by the Sixth and Fourteenth Amendments. (Bunyard, supra, 45 Cal.4th at 836; Gutierrez, supra, 45 Cal.4th at 789; and Riggs, supra, 44 Cal.4th at 248). 419 In truth, Appellant’s argument covers twenty-four (24) pages and raises numerous arguments challenging the constitutionality of the jury’s penalty phase verdict and the state’s charging documents. (See II AOB 541-65). Respondent, however, fails to discuss thirteen (13) of Appellant’s arguments.©’ Respondent’s lack of effort underminesthe state’s ‘© Respondentdoes not address or rebut the following thirteen (13) arguments: 1) Under the Eighth Amendment, andin a capital case, heightenedreliability concerns require unanimousjury findings beyond a reasonable doubtas to all elements necessary to impose a death sentence. (See II AOB 542); 2) In Blakely, supra, 542 U.S. at 296 and Booker, supra, 125 S. Ct. at 746, two cases not discussed in Dickey and Respondent's string cite, the Supreme Court found that the rightto a jury finding beyond a reasonable doubtas to the “truth of every accusation” was “unquestionably applicable” to the Guidelines sincethis right hadits “genesis in the ideals of our constitutional tradition.” (See Id. at 543); 3) California’s failure to allege in an indictment or informationall the findings necessary to impose a death sentence violates Supreme Court precedent(Id. at 544) (citing State v. Fortin (2004) 178 N.J. 540, 633); 4) this Court has wrongly interpreted California’s penalty schemeas a simple, two part process, neatly divided into an “eligibility” phase and a “selection” phase, when a California penalty determination involves several distinct steps, all of which require essential fact findings, before the “statutory maximum”of death is a possible punishmentin accordance with capital defendant’s Sixth Amendmentrights. (See Il AOB 547); 5) this Court has improperly focused its Ring analyses solely on one statute, Cal. Penal Code Section 190.2, and thus incorrectly held that section 190.2(a) establishes death as the statutory maximum penalty forfirst- degree murder with a special circumstance, and that Apprendi only applies to the special circumstancefinding. (See Jd. at 547); 6) this Court has incorrectly held that because a jury’s penalty findings are “moral” and “normative”rather than “factual” Ring does not apply; when,in actuality, it is the effect of the jury’s findings on the potential range of punishment that is determinative ofRing’s application. (See Id. at 551); 7) because the finding that the aggravating factors substantially outweigh the mitigating factors subjects a defendantto a higher penalty, andit is only after this finding that the jury decides whether death is warranted or appropriate, the weighing determination must be proven unanimously beyond a reasonable doubt. (See Jd. at 553); 8) California’s death penalty scheme requires additional factual findings beyond those made during the guilt phase before the death penalty is an available punishment and because 420 conclusion that Appellant’s claim “merits no further attention.” (RB 334). Similarly, Respondent’s failure to set forth a sufficient opposition assures that the state is not in a position to determine whether Appellant has offered anything “‘new in the way of analysis.” (RB 334). In addition to the manylegitimate arguments Respondentfailed to address, Appellant has raised several new argumentsindicating that this these additional factual decisions are required for the increased punishmentof death, California juries are required to unanimously find, beyond a reasonable doubt, that any aggravating factors exist, that the aggravating factors outweigh the mitigating factors, and that death is the appropriate penalty beyond a reasonable doubt. (See Jd. at 556); 9) this Court’s failure to require jury unanimity on the factual findings that lead to the jury’s sentencing verdict violates principles of equal protection as guaranteed by the Fourteenth Amendment because capital defendants are entitled to more rigorous protections than those afforded to non-capital defendants. (See Jd. at 557); 10) this Court’s failure to require unanimity as to sentencing factors in a capital case thus violates both the Due Process and Equal Protection Clauses of the Fourteenth Amendment by depriving capital defendants state created liberty interest in the right to jury trial as guaranteed by the California Constitution. (See II AOB 558); 11) in California, the failure to provide adequate notice and a public charging determination in capital crimes violates due process guarantees under the Fourteenth and Fifth Amendments and fails to ensure that a defendantis not subject to capital jeopardy for a crime alleged only by the prosecution. (See II AOB 561] (citing Hurtado v. California (1884) 110 U.S. 516; United States v. Cotton (2002), 535 U.S. 625, 634; Stirone v. United States (1960) 361 U.S. 212, 217)); 12) because noneofthe aggravating factors used against Appellant were presented to a magistrate at the preliminary hearing, found to have sufficient evidentiary support to bring him to trial, or pled in a charging document, Appellant’s due process rights under the Fifth and Fourteen Amendments wereviolated. (See II AOB 561); and 13) the failure to require the jury to return unanimous, beyond a reasonable doubt findings on the aggravating factors wasparticularly prejudicial in Appellant’s case due to the prosecutor’s decision not to charge Appellant with rape at the guilt phase, but to argue during the penalty phase that the rape was an uncharged act of violence and an additional aggravating factor, without ever meeting the burden ofproofrequired to sustain an actual rape conviction or a statutory aggravating factor under section 190.3 (b). (See /d. at 563). 421 Court needsto revisit its precedent. Cunningham v. California reinforces the argument that denying capital defendant’s the right to have all penalty phase determinations made by the jury unanimously and beyond a reasonable doubt violates the Sixth Amendmentand Article I of the California Constitution. (See Cunningham, supra, 549 U.S. at 220). The Supreme Court explicitly rejected reasoning used by this Court in cases such as Dickey to argue that the finding of aggravating factors is not factual, and to claim that once a special circumstance is found death is the prescribed statutory minimum, and Apprendino longerapplies. (See lbid.; and Dickey, supra, 35 Cal.4th at 929-31). In examining California’s Determinate Sentencing Law (DSL),the Court in Cunningham determinedthat the circumstances in aggravation were factual in nature and, because ofthis, under Apprendi, they must be submitted to a jury and found beyonda reasonable doubt. (See Cunningham, supra, 549 U.S. at 276-79, 290-91). In Cunningham,the Court emphasized that Apprendi identified a “bright-line rule.” (Ud. at 288). “1AJny fact that increases the penalty for a crime beyondthe prescribed statutory maximum must be submitted to a jury, and found beyond a reasonable doubt.” (dd. at 288-89; quoting Apprendi, supra, 530 U.S.at 490). Any determination thatis factual in nature triggers the Apprendirule. (Ibid.). Cunningham alsorejects this Court’s position that because once a special circumstanceis found, death is the prescribed statutory maximum, so Apprendi’s rule no longerapplies. In Cunningham, the DSL provided that the upper term sentence could only be imposedbya trial judge finding an aggravating circumstance. (Cunningham,supra, 549 U.S.at 288). The Court distinguished between the middle term -- the most severe penalty that could be imposed by the judge without further factual findings, and the upper term — a penalty that required additional findings, makingits 422 determination subject to the Apprendi rule. (Id. at 279). Therefore, just because a defendantis death eligible after a first degree murder conviction with a special circumstance, does not mean Apprendino longerapplies. Underthe law applicable in cases such as Appellant’s, death is not an available option unless the jury makesfurther findings that one or more aggravating circumstances exist. (See Cal. Penal. Code § 190.3; and CALJIC 8.88). Under Cunningham,these further findings used in the penalty phase to impose a death sentence are within the rubric of Apprendi’ s bright-line rule, and thus must be found by a jury beyond a reasonable doubt. C. Conclusion. Appellant was sentenced to death under an unconstitutional death penalty schemethat failed to require that all essential sentencing factors be charged and found by a grand jury or magistrate, and found beyond a reasonable doubt by a unanimousjury. Specifically, the jury was not required to unanimously find beyond a reasonable doubt that any aggravating circumstance existed, that any unanimously proven aggravating circumstances substantially outweighed the mitigating circumstances or that death was the appropriate penalty. Appellant’s death sentence must be reversed for violation of the Fifth, Sixth, Eighth and Fourteenth Amendments, as well as Article I of the California Constitution. 423 XXIV. THE CUMULATIVE PREJUDICIAL EFFECT OF THE ERRORSIN APPELLANT’S PENALTY PHASE PROCEEDINGS REQUIRES REVERSAL OF HIS DEATH SENTENCE. A, Introduction. The prejudicial impact of multiple errors mayresult in an unfair and unconstitutional trial. (See Taylor, supra, 436 U.S. at 487 n. 15). “[E]rrors that might not be so prejudicial as to amount to a deprivation of due process when considered alone, may cumulatively producea trial setting that is fundamentally unfair.” (Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862, 883; see also Killian v. Poole (9th Cir. 2002) 282 F.3d 1204) (citations and quotations omitted). In evaluating the matter, this Court should consider the prejudicial impact ofthe penalty phaseerrors together, rather than individually. Viewed together, the errors in this case undermineall confidence in the death sentence. B. Argument. Respondent concedes that Appellant has shown penalty phase error as to “missteps by the prosecutor during opening statement, fleeting witness reference to excluded victim impact evidence, andreligious references by all counsel.” (RB 335). Respondent argues that Appellant’s other penalty phase claimsoferror fail. (Ibid.). According to Respondent’s tally, when the claims of error are viewed cumulatively: “Appellant is no more entitled to reversal of the death judgment than he is whenthe errors are viewed singly.” ([bid.) This is because, in Respondent’s view, there is no possibility that an “errorfree trial” would haveresulted in a life sentence, based on the “egregious circumstancesofthe crime.” (/bid.). Respondent thereaftertries to justify its argument that Appellant did not suffer from cumulative prejudice again by recalling lurid details of the crime. 424 Respondent’s arguments do nothing to prove or persuade that Appellant’s penalty phase proceedings were notriddled with constitutional error and significant prejudice. First, based on Respondent’s concessions alone, Appellant has established cumulative prejudice sufficient to justify reversal of his death sentence. (See RB 335). The prosecutor’s misstatements of the law, prejudicial victim impact evidence, highly inflammatory religious references andallusions to Christ’s crucifixion violated Appellant’s constitutional rights and rendered the penalty phase proceedings fundamentally unfair. (See Claim XV - The Prosecutor Committed Misconduct During the Presentation of Victim Impact Evidence and the Trial Court Erroneously Denied Appellant's Motion for a Mistrial; Claim XVI - The Prosecutor Committed Prejudicial Misconduct During the Penalty Phase Arguments; and Claim XVII - The Prosecutor’s Religious Arguments Permeated the Penalty Phase Arguments and Prejudiced Appellant). Second,the state’s case in aggravation was notas strong as Respondenttries to argue. In fact, Respondent’s arguments here, like the trial prosecutor’s, are based entirely on circumstances of the crime and not evidence submitted as part of the state’s case in aggravation. The circumstancesofthe crimeare not the controlling or the dispositive factor in the penalty phase, especially in light of the strength of Appellant’s case in mitigation. Respondent thuserrs in arguing that the circumstancesofthe crime alone canjustify Appellant’s death sentence. Third, Appellant’s penalty phase proceedings were riddled with prosecutorial misconduct from start to finish. Throughout the penalty phase opening arguments the prosecutor committed misconduct by misstating facts he intended to prove, misstating the law, and violating the trial court’s orders. During the presentation of evidence, the prosecution 425 proffered impermissible victim impact testimony andstroveto exploit the court’s decisions by asking the jury to focus on impermissible considerations. Worse, the prosecutor deliberately elicited inflammatory responses from witnessesin orderto cajole objections from the defense and make Appellant appearobstructionist and callous towards victim witnesses. Theprosecutor violated nearly every rule controlling andlimiting the scope of argumentsat the penalty phase. He recreated, without factual support, stories of sadism and sexual violence that hadlittle to do with the provable facts of the crime and moreto do with the prosecutor’s speculative dramatization of the crime. His entire penalty presentation was framed and reinforced by misconduct. Fourth, forits part, trial court error during the penalty phase proceeding impermissibly allowed Appellant’s two scufflesin jail to be introduced as prior unadjudicated acts of “violence” and the prosecutor to argue non-statutory, false and inflammatory “aggravating” factors, including future dangerousnessandthe lack of remorse. Appellant had in fact, expressed remorse, yet was prohibited from expressing it to the jury. Nonetheless, the prosecutor told the jury to ignore all defense mitigation because remorse was “a condition precedent” to mitigation, and Appellant’s remorselessness should be considered by the jury in making its sentencing decision. Likewise, during the most crucial moments in the penalty phase proceedings, the trial court confused the jury by failing to answer their question regarding the “legal meaning”oflife without parole. Rather than answerthis question, the trial court simply referred the jurors back to the instructions and ultimately sealed Appellant’s fate. But for the prosecutorial misconductandtrial court error in Appellant’s case, there is more than a reasonable probability that he would not have been given a sentence of death. 426 C. Conclusion. Underthese circumstances, this Court can have no confidence in the reliability of the death verdict. (Killian v. Poole, supra, 282 F.3d at 1211). Theerrors singly and cumulatively violated Appellant’s rights to due process, equal protection, a fair and impartial jury, to a fair trial, to present a defense, and to a fair and reliable penalty verdict, in violation not only of his rights under state law and the California Constitution but also under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution. Appellant’s death sentence must be reversed. 427 XXV, THE TRIAL COURT FAILED WHEN PERFORMING ITS DUTIES IN REVIEWING THE JURY’S DEATH VERDICT. A, Introduction. In reviewing Appellant’s death sentence,the trial court failed to exercise its responsibilities under section 190.4(e). The statutory and constitutional errors detailed below, individually and cumulatively, prejudiced Appellantand, as a result, the death sentence must now be vacated and reversed. (See e.g. Brown, supra, 45 Cal.3d at 1264 (holding that this Court “must reverse the penalty judgmenton the basis of the section 190.4(e) error”); see also People v. Sheldon (1989) 48 Cal. 3d 935, 963). Here, thetrial court failed to sufficiently state its findings and reasons on the record. Thetrial court’s findings as to aggravation, as to mitigation, and as to the comparative weightof the aggravation and the mitigation, were all improper and inadequate. Thetrial court failed to considerandgiveeffect to valid mitigating evidencein violation ofthe Eighth and Fourteenth Amendments, and Article ] of the California Constitution. (See Lockett, supra, 438 U.S. at 604). The trial court used improper standardsto the detriment of Appellant. Thetrial court considered improperinformation that was not presented to the jury and that the defense never had the opportunity to confront, explain, or even review. Thetrial court failed to make an independent determination as to the evidence, and instead deferred to the implicit findings of the jury. B. Appellant’s Arguments havenot Been Forfeited. Respondent argues that Appellant has forfeited this argumentfor failure to lodge a contemporaneousobjectionat trial. (RB 342). Respondentsays that thetrial court’s errors have been waived underHill, 428 supra, 3 Cal.4th at 959. However, Respondent acknowledges the impossibility of the argument, by noting that Hil] was decided 15 daysafter Appellant’s modification hearing on December 4, 1992. (RB 342).!”° Simply put, at the time the trial court ruled on his motion for modification, Appellant had no legal duty, besides submitting his motion challenging the verdict, to object to the trial court’s denial of that motion. Appellant’s claimsare not foreclosed by Hill. C. The Trial Court’s Ruling WasDeficient. Respondentsuggests that “Appellant’s real complaintis not [that] the trial court failed to make independentfindings, but that the court viewed the evidence differently than Appellant does and drew inferences unfavorable to him.” (RB 348). Respondent says that “no prejudicial error occurred.” (Jd. at 337). However, Respondent must concedethat thetrial court erred in referring to the probation report (See Lewis, supra, 50 Cal.3d at 287). Respondent must also concedethat the personal notes, also improperly relied upon bythetrial court, are missing on appeal and affect meaningful review of the appellate record. (See Claim I - The Missing Portions of the Record Deprived Appellant of Meaningful Appellate Review). Respondent concedes that no judge should deny a motion for modification of the jury’s penalty verdict “merely because the jury’s penalty verdict is supported by ‘substantial evidence.’” (RB 338 (citing ' Tn light of Respondent’s acknowledgmentthat Hill was decided after the modification hearing,it is patently unfair for the state to argue that Appellant’s arguments are underminedbecause his counsel did not objectat trial under Hil], There was no legal duty for Appellant to object until December 19, 1992 when Hill was issued. Thus, Respondentis being disingenuous whenit argues that because counseldid not object to the ruling as vague, this inaction by counsel proves that the Court’s sufficiently described the state’s evidence. (RB 343). In actuality, counsel had no duty to object.. 429 Bonillas, supra, 48 Cal.3d at 800-01)). Respondent arguesthattrial judges have “circumscribed” authority when reviewing a motion to modify the verdict, because sentencing “authority” under California law has been given to the jury.'’' (RB 338). Respondentasserts that the trial court fulfilled its obligations in Appeliant’s case. (/bid.). Respondentargues that the trial court complied with its duties to review the jury’s verdict “count by count,” summarize “the “requirements of section 190.4(e),” and recognize its power of “independent review” under Rodriguez, supra, 42 Cal.3d at 793. (RB 339). Respondentalso credits the trial court with “agree[ing] that the jury’s assessment that the circumstances in aggravation outweigh the circumstances in mitigation is supported by the weight of the evidence” (RB 339 (citing RT 3910)), and “in termsof credibility, [] agree[ing] with the implicit findings of the jury that the witnessesfor the people were credible and believable.” (RB 340 (citing RT 3911)). Based on lengthy quotation ofthe trial court’s reasoning, Respondentfeels that the trial court “personally and carefully reviewedthe transcripts of and evidence from the penalty phase.” (RB 340). Naturally, Appellant is challenging the trial court’s decision because it was unfavorable. Bu that does not meanthat thetrial court’s determination wasnot erroneousand did notresult in prejudiceto his constitutional rights. First, the trial court issued a conclusory denial of Appellant’s motion for modification, which essentially rested on the court’s view of the “substantiality” of the circumstances of the crime. (See RT '! Respondent’s argumenthere supports Appellant’s contentions in Claim XXIII - Appellant’s Death Sentence must Be Reversed Because All Essential Factors Were Not Properly Charged and Were Not Found Beyond a Reasonable Doubt by an UnanimousJury. All criminal defendantsare entitled to trial by jury and proof beyond a reasonable doubt in accordance with the Sixth Amendmentand Article I of the California Constitution. 430 3910). Second, Respondent makes too muchofthe trial court’s generic statements in the record. Saying the magic words,“section190.4(e)” and “independent review” does not ensure that the court’s analysis followed those guidelines. Respondent’s lengthy quotation andbrief analysis of the trial court’s ruling does nothing to support the state’s view thatthetrial court “personally and carefully weighed the transcripts and evidence” or conformed its ruling to controlling authorities. Third, Respondent’s conclusions are undermined byits failure to address all of Appellant’s arguments challengingthe trial court’s ruling on the motion for modification.’ D. The Trial Court Made Deficient Aggravation Findings. Respondent arguesthat there is no credibility, “either factually or legally,” for Appellant’s argument that the trial court’s ruling was deficient '? Respondentdid not address or rebutfive (5) of Appellant’s arguments: 1) Thetrial court’s failure to make written and specific findings, as required by this Court, has precluded meaningful appellate review of Appellant’s claim in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments, as well as Article 1 of the California Constitution. (See II AOB 574); 2) The trial court did not find whether any of the circumstances of the crime in Appellant’s case were unique,in violation of sentencing factor (§190.3(a)), which requires discussion of circumstancesthat are “unique”to the case at issue. (See II AOB 577-78); 3) The trial court’s findings in aggravation were inadequate and consisted solely of descriptions that run contrary to the definition of an aggravator as “any fact, condition or event attending the commission of a crime which increases its guilt or enormity, or addsto its injurious consequences whichis above and beyond the elements of the crime itself.” (See Jd. at 578); 4) Thetrial court failed to consider and give effect to uncontested mitigating evidence presented by the defenseat the penalty phase andthus failed to consider the mitigating evidence presented here “with particularity” as required by statute, the Eighth and Fourteenth Amendments, as well as parallel provisions of Article 1 of the California Constitution. (See Jd. at 585-86) 5) Thetrial Court’s failure to conform with statutory requirements amounts to deprivation of Appellant’s state-created liberty interest in violation of his rights under the due process clause of the Fourteenth Amendment. (See Jd. at 596). 431 because “it is vague, unsupported by specific reasons and incapable or appellate review.” (RB 342 -43 (citing I] AOB 575-578)). Respondent wholly bases this conclusion onthe fact that the trial court reviewed the circumstancesofthe crime and found the murder to have been “cruel, callous, viciousandpitiless.” (RB 343). Respondent argues that there is “nothing vague” aboutthe circumstancesofthe crime. (Jbid.). First, Respondent’s efforts to attack Appellant’s credibility are unavailing. A simple review ofthe faceofthe trial court’s orderreflects the vagueness inherentin the ruling: “[T]he court independently finds that the circumstances surroundingthe first degree murder[] were vicious and pitiless. The defendantbrutally stabbed the victim numeroustimes and exhibited a high degree ofcruelty and callousness.” (RT 3912). Simply because the victim in this case was stabbed multiple times and the crime appearedvicious is not automatic justification for a death sentence. Respondentbelievesthat continuingto cite circumstancesof the crime facts, in an effort to bolster the “cruel, callous, vicious andpitiless” nature of the crime supports the trial court’s description. However, by definition, all first-degree murdersare vicious,pitiless, brutal, cruel, and callous. (People v. Superior Court (Engert) (1982) 31 Cal. 3d 797, 803). Moreover, it is this realization which has led the Supreme Court, as well as others, to strike aggravating factors qualified by the “cruelness” or “heinousness”of a crime. (See Godfrey, supra, 446 U.S. at 429 (footnote omitted)). The trial court’s ruling was vaguebecauseit is applicable to all cases of first-degree murderandreflected the fact that the court had not independently considered the facts and circumstances unique to Appellant’s case. Second, despite Respondent’s attempt, the circumstances of the crime alone cannot support a death sentence. A system or death sentence based entirely on the circumstancesofthe crime would unconstitutionally abridge a capital defendant’s right to individualized and reliable sentencing. 432 (See Sumner, supra, 483 U.S. at 79-80 (“An inmate's participation may be sufficient to support a murder conviction, but in some cases it may not be sufficient to render death an appropriate sentence....”); and Roberts, supra, 428 U.S. at 334 (“The constitutional vice of mandatory death sentence statutes lack of focus on the circumstancesofthe particular offense and the character and propensities of the offender is not resolved by [limiting] first- degree murderto various categories of killings”)). While such circumstancesare a consideration during the penalty phase, Respondent’s andthetrial court’s heavy reliance on the circumstances proves the weakness in the state’s case in aggravation. Indeed,the trial court did not even cite to the prosecution’s “future dangerousness” evidence involving the two scuffles at the Alameda County Jail as aggravation evidence sufficient to warrant the death penalty. Thisis likely because the evidence concerning both instances wasinsufficient to establish that a battery occurred and consensual wrestling or “hurt feelings” alone cannotjustify a death sentence. (See Claim XIII - The Admission of Two Uncharged MisdemeanorBatteries as Aggravating Factors in the Penalty Phase Violated state Law and Appellant’s Constitutional Rights). E. The Trial Court MadeDeficient Mitigation Findings. Respondent contendsthatthe trial court did not “ignore mitigating evidence”or “rule contrary to uncontradicted evidence.” (RB 343). Respondentprovides a list of cases where the court discusses “family 99 66history activities,” “circumstances extenuating the gravity of the crime,” and reasons“none of the evidence offered by the defendant could in any waybe considered a moraljustification or extenuation for his conduct.” (Id. at 343 (citing RT 3912-13)). Respondent argues that the trial court was entitled to discredit the credibility of witnesses in mitigation and was relieved of any duty to recall all the mitigating evidence. (RB 344 (citing Hawthorne, supra, 4 Cal.4th at 80; and People v. Dennis (1998) 17 Cal.4th 433 468)). Respondent“disputes any suggestion thatthe trial court operated under a misapprehension of law and believed evidence wasn’t mitigating unless it related to the circumstancesof the crime.” (RB 344). Respondent then repeats the list provided on the prior page, which includes the court’s reasoning that “none ofthe evidence offered by the defendant couldin any way be considered a moraljustification or extenuation for his conduct.” (Id. at 343 (citing RT 3912-13)). First, other than the court’s brief reference to “family history activities,” the trial court wholly failed to discuss any of the intricacies of the social history evidence or other mitigation evidence offered by Appellant. Instead, the trial court’s reasoning centered upon thefact that no evidence was introduced “extenuating the gravity of the crime”or “extenuating his conduct.” (RB 341-42). Second,the trial court did not assess the credibility of the witnesses, determine the probative force of the testimony, or weigh the evidence, as the statute requires. (See Rodriguez, supra, 42 Cal. 3d at 793; and Jennings, supra, 46 Cal. 3d at 995). Had thetrial court actually stated that it discredited the witnesses’ mitigation testimony, Respondent’s citationsto People v. Hawthorne wouldberelevant. Instead, Respondent merely speculates about the basis forthe trial court’s failure to recite the evidence in mitigation when discussing the court’s reasoning in denying Appellant’s motion. Third, Respondent’s repeated citation to the same statement made by the trial court regarding the lack of evidence of extenuating circumstances does nothing to support its assertion that the trial court did not operate under a misapprehension oflaw. (See RB 343-44). In fact, the quote reveals that, if Appellant wanteda favorable ruling on his motion for modification, the trial court required him to submit mitigation evidence that could be “considered a moraljustification or extenuation for his conduct.” 434 (RT 3912). Fourth, Respondent does not address Appellant’s specific attacks on the trial court’s findings in mitigation. (See If AOB580-81). These include the arguments that the ruling was improperbecauseit:1) applied a standard that this Court has found to be too narrow in Easley; 2) used language taken from the improper pre-Eas/ey standard that mitigation evidence mustrelate to the crimeitself; and 3) recognized the family background evidence, but assessed its weight underan irrelevant and inappropriate sentencing factor — whether the defendant reasonably believed there was a moral justification or extenuation for the crime.’” Fifth, and alternatively, assuming that the trial court did not commit error, its findingsarestill flawed because it found that no mitigating evidence existed in this case when evidence was presented underat least three separate mitigating factors. (RT 3907). For instance, Appellant had no prior felony convictions. This undisputed fact is mitigating under sentencing factor 190.3(c). (See Crandell, supra, 46 Cal.3d at 884). Finally, the trial court’s findings as to mitigation were flawed becauseit failed to properly analyze the factors that were mentioned by defense counsel, and which hadto be mitigating as a matter of law. This Court has said that the statute requires the trial court to “considerall proffered mitigating evidence” in ruling on a section 190.4 application. (Steele, supra, 27 Cal. 4th at 1267-68 (emphasis in original); see also Jennings, supra, 46 Cal. 3d at 993). The Eighth and Fourteenth Amendments similarly require that a sentencer in a capital case consider '3 Factor 190.3 (f) was irrelevant andthe trial court should not have addressedit here. (See People v. Crandell (1988) 46 Cal.3d 833, 884 (“Because defendant offered no evidence of moraljustification and did not rely in argument on the factor of moraljustification (§ 190.3, factor (f)), this factor was irrelevant to penalty determination. As we have noted, it would be ‘rare indeed’ to find mitigating evidence in a capital case which could justify or excuse the defendant’s conduct.”)). 435 and giveeffect to all mitigating evidence presented. (See Lockett, supra, 438 U.S. at 604). F. The Trial Court Improperly Foundthat the Circumstances in Aggravation Outweighedthe Circumstancesin Mitigation. Respondenttries to rebut Appellant’s arguments that the trial court did not sufficiently : (1) detail specific aggravating evidence; (2) detail the weight it gave to the aggravating evidence; (3) describe the weight it gave to mitigating evidence; and (4) describe its reasoning upon weighing the evidence. (RB 345). Respondent “submit[s] [that] Appellant must be examining anotherrecord.” (Jbid.). In the alternative, Respondent argues that the court was not required to assign a particular weightandits finding was “sufficiently specific” under Cunningham, supra, 25 Cal.4th at 1040. Respondent concedesthat a “more detailed statement of reasons would have been helpful to understand morefully the trial court’s independent determination,” (Farnam, supra, 28 Cal.4th at 195), but argues that the record, andparticularly the circumstancesofthe crime, justify the court’s conclusions. (See RB 346). Respondent’s argumentsfail. Respondent credits the trial court for “specifically agree[ing]’ with the jury’s conclusion that the circumstancesin aggravation outweighed those in mitigation because‘the weight of the evidence compells] such a conclusion.” (RB 344(citing RT 3910)). Respondent alsocredits the court for “personally assess{ing]” the factors in aggravation outweighedthe factors in mitigation. (RB 344). Respondentthen arguesthat the trial court sufficiently evaluated the circumstances of the crime, Appellant’s family background, and foundthat no evidence extenuated the circumstances of the crime. (See Jd. at 345). First, Respondent’s take on the record rests wholly upon the circumstances of the crime. These facts, in themselves, are insufficient to 436 establish that the trial court properly considered the weight of evidence marshaled during the penalty phase and then correctly weighed that evidence. Respondent’s use of circumstances of the crime evidence, as cited by the trial court, to support the denial of Appellant’s motion for modification proves that the circumstances were the only evidence evaluated bythe trial court. In fact, one needs to look no further than the trial court’s ruling to verify the truth of this proposition. (See RB 344 (citing RT 3912-13)). Second, the fact that the trial court agreed with the jury does not provethat the trial court, or the jury for that matter, properly considered the penalty phase evidence. Respondent’s argumentsto the contrary are conclusory andfail to shed any light on the trial court’s reasoning or motivations when denying the motion for modification. Moreover, the fact that the court stated that it “personally” reviewed the aggravation evidence does not ensure the sufficiency of that review or that the court reviewed the mitigating evidence. In fact, and in light of the court’s statements in the record, the court’s personal review of the evidence wasdeficient and wholly failed to consider the evidence in mitigation. Moreover, personal review is different “[from] thoughtful and effective [] review .. .,”” which necessarily includes “the reasons whyit concluded the aggravating circumstances exceeded the mitigating circumstances.” (Bonillas, supra, 48Cal. 3d at 801 (quotations omitted)). Finally, the trial court’s weighing determination can hardly be described as specific. This is apparent when onereviewsthetrial court’s orders issued in the cases Respondentrelies upon in support ofits opposition to this claim. In Cunningham, supra, 25 Cal.4th at 1039, the trial court madea point of explaining that it looked for “every conceivable angle upon which we could do something other than whatthe jury has proposed to do in this case.” In Appellant’s case, the judge did notstate 437 that he had reviewed the evidence in mitigation or the evidence supporting the death judgment. In fact, it appears that the trial court actually narrowed its review to one factor and perspective of the evidence: whether Appellant had provided a moraljustification or extenuationfor the crime. Similarly, in Farnam, supra, 28 Cal.4th at 195; in responseto a brief order denying a motion for modification, this Court held that “a more detailed statement of reasons would have been helpful to understand more fully the trial court's independent determination that death was warranted. But the record here not only establishes that the court acted on a proper understandingofits statutory duties, it amply justifies the court's conclusion as well.” (Ibid.). Quite to the contrary in Appellant’s case, the record does not demonstrate that the trial court was operating underthe correct apprehension of law orthat it had reviewedall the evidence adducedat the penalty phase. Put simply, the trial court’s order in Appellant’s case is distinguishable from the trial courts’ orders in Cunningham and Farnam. G. The Trial Court Improperly Relied Uponits Notes. Respondent concedesthatthe trial court reviewedits “personal notes” when deciding to deny Appellant’s motion for modification. (RB 346). Respondent, however, argues that the court’s conduct wasnoterror because the court “knew the only evidence whichthe court is to review is that which was before the jury.” (/bid.). Thus, Respondenttries to provide assurancesus that the court was “reviewing notes of evidence presented to the jury and wasnotrelying on any unpresented matters.” (Jbid.). In order to find prejudice, Respondentarguesthat this Court would have to apply the same standardto juror note-taking and blames Appellant for not “finding authority” contrary to juror note-taking. (bid.). First, Respondent does not describe how authorities on juror note- 438 taking are relevant to judicial note-taking. Nor does Respondent describe how a judge’s ruling on a motion for modification is similar to a jury’s verdict. In fact, the opposite is true, and judgesare notto rest their motions for modification on the substantiality of the evidence, but instead, on their determination after independent review of the record. (See Rodriguez, supra, 42 Cal. 3d at 793; and Jennings, supra, 46 Cal. 3d at 995). Second, Respondent concedesthatthe trial court, in violation of applicable law, reviewedits notes in ruling on the motion for modification. (RB 346). This is important because Respondent has claimed that Appellant’s review of those notes on appeal is unnecessary and unimportant. (See Claim I - The Missing Portions of the Record Deprived Appellant of Meaningful Appellate Review). However, far from Respondent’s conclusions, whetherthetrial court’s determination conformed with the law regarding its consideration of Appellant’s motion for modification is a necessary, compelling and importantfact in Appellant’s case. Moreover, Appellant’s inability to verify the contents of the trial court’s notes hindershis ability to challenge the trial court’s reasoning in denying his motion for modification. ‘Second, Respondent’s assertion that this Court should “trust” that the trial court did not rely on “unpresented matters” when denying Appellant’s motion for mistrial wholly fails to address the issue or the prejudice emanating from thetrial court’s course of conduct. (See RB 346). Despite Respondent’s protestations, trust alone cannotverify the contents of the court’s notes. Moreover, the importantfact is that the trial court was prohibited from reviewing its notes in the first instance. Since there is no wayofverifying the contents ofthe trial court’s notes, and the trial court’s use of the notes, in the first instance, was improper, these facts should create a presumption that the court’s failure to preserve those notes indicates that they contained matters not present in the record. Respondent 439 has not set forth evidence indicating that the matters contained in the notes were innocuousand hasthusfailed to rebut the presumption. Third, Respondent’s arguments concerning juror note-taking is an attemptto divert this Court’s focus from the issues at hand. Respondent’s argumentthat, in orderto prevail, Appellant must challenge “juror note- taking”is specious, whenthis claim centers uponthe trial court’s decision to deny Appellant’s motion for modification based on unpreservednotes. Juror-note-taking is wholly irrelevant to determining the extent to which the | trial court relied uponits trial notes and whether any impermissible notations were contained within the notes. Moreover, juror note-taking is not comparable heresince the jury doesnot arbitrate over the parties’ motions, review the sufficiency of the evidence, or independently review the penalty phase proceedings. (See Penal Code Section 190.4). Here,the trial court improperly relied on information the defense never reviewed, muchless had an opportunity to confront or explain, in sentencing Appellant to death. Thetrial court violated the most basic notions ofthe right to confront witnesses, the right to present a defense,the right to notice ofthe allegations and evidence to be presented against you, the opportunity to be heard, the state’s burden of proving every element beyond a reasonable doubt, heightened reliability in capital cases, due process, equal protection, and fundamental fairness under the Fifth, Sixth, Eighth, and Fourteenth Amendments,as well as Article I of the California Constitution. Duetoall of these statutory and constitutionalerrors, Appellant’s death sentence must now bereversed. H. The Trial Court Improperly Relied Upon the Probation Report. Respondentagreesthattrial courts may not review or consult probation reports before deciding on a motion for modification. (RB 346- 47 (citing Lewis, supra, 50 Cal.3d at 287)). Respondent concedesthat the 440 trial court in Appellant’s case read the probation report before deciding on his motion for modification. (RB 347 (citing RT 3917)). Respondent, however, argues that this Court “has no reason nottake thetrial court at its word,” whenit stated that it considered the materials in the probation report only as to sentencing for the non-capital offense. (RB 347 (citing Ross v. Superior Court (1977) 19 Cal.3d 899, 913; and People v. Levaditis (1992) 2 Cal.4th 759, 787)). Respondent thus argues that Lewis is distinguishable. (RB 347). First, because Respondentlacks other persuasive arguments or authorities to justify the trial court’s ruling, it again must resort to “trusting” that the trial court did not inappropriately utilize Appellant’s probation report. While deferenceto trial courts is often warranted, the fact that Respondenthas hadto resort to the same “trust” argument twice in one claim, to justify inappropriate actions and conduct undertakenbythetrial court, works against the state’s conclusion that thetrial court fulfilled its statutory duties when ruling on Appellant’s motion for modification. The job of this Court is not to blindly trustthe trial court, but to review the proceedings to ensure they contained no error. Instead, of trusting the trial court again, this Court should presume,in the absence of clear evidence to the contrary, that the trial court’s inappropriate conduct prejudiced Appellant’s chances of receiving a fair ruling on his motion for modification. This is the only fair conclusion and the only conclusion, which prevents the future improperuse of probation reports for motion for modification rulings by Californiatrial courts.'”* Second, Respondent’s efforts to distinguish Lewis are unavailing. Respondentcannot deny the similar deficiencies in the trial court’s order in Lewis andthetrial court’s order in Appellant’s case. In both cases thetrial ' This would place the burden on Respondentto rebutthis presumption, a burden the state wholly failed to carry in their Brief. 441 courts: 1) basedtheir ruling on the “substantiality” of evidence supporting the jury’s verdict; 2) failed to adequately review the evidence in mitigation; 3) failed to identify the facts unique to the case before them; 4) failed to adequately weigh the aggravating evidence versusthe mitigating evidence; 5) basedtheir findings in aggravation on the brutality of the crime; and6) required that the defendant submit a justification for the crime as mitigating evidence. Moreover, in Lewis, the trial court also improperly read the probation report before ruling on the motion for modification. Finally, the probation report, in both Appellant’s case and Lewis’ case, contained prejudicial information that was only revealedto the judge by reference to the probation report. (See Lewis, supra, 50 Cal.3d at 287). Respondent’s reliance upon Ross, supra, 19 Cal.3d at 913; and Levaditis, supra, 2 Cal.4th at 787, is misplaced here. Ross involved contempt proceedings, a benchtrial, and whetherthe court applied the correct burden of proof. This situation is far removed from the heightened reliability demanded in capital cases and a motion for modification of a verdict sentencing a manto the punishmentof death. In Ross, the defendant argued “that in the absence ofan explicit statementbythetrial court indicating that he was applying the reasonable doubt standard,error must be presumed.” (Ross, supra, 2 Cal.4th at 913). The Court rejected this argument, and instead held“in the absence of any contrary evidence, weare entitled to presumethatthe trial court... properly followed established law.” (bid. (citations omitted)). Here, however, the trial court did not properly follow established law by considering the probation report before ruling on the motion for modification. Thus, no presumption is necessary to show that the trial court violated applicable law. Similarly, in Levaditis, this Court held that no error occurred becausethetrial court considered the probation report after issuing its ruling on the motion for modification. (See Levaditis, supra, 2 Cal.4th at 787). Ross and Leviditis 442 are not comparable to Appellant’s case, where, prior to ruling on Appellant’s motion for modification, the trial court read the probation report that contained prejudicial information, and considered that information prior to rejecting the request for modification of Appellant’s death sentence. I. The Trial Court did not make an Independent Determination on the Appropriateness of the Death Penalty. Respondent arguesthat the trial court correctly reviewed the evidence whenruling on Appellant’s motion for modification because the trial court used the words “independent” or “independently” ten (10) times in the record.'” (RB 348). Respondentargues that this Court should take the trial court at its word that it did not merely review the sufficiency of the evidence,or it felt that it had no authority to modify the verdict. Respondentarguesthat the trial court fulfilled its duty under section 190.4. (Ibid. (citing Steele, supra, 27 Cal.4th at 1268)). First, the fact that the trial court stated the magic words “independent review” does not meanthat the trial court’s review was independent. Respondent claimsthat this Court should take the trial court at its word. (RB 348). However, Respondent makes this argument because the trial court’s ruling, as reflected in the record, indicates that the court failed to independently consider the unique circumstances of Appellant’s case. Put simply, “the [trial] court’s comments offer[] no assurance”that it “exercised its independent judgment”in this case. (People v. Burgener (2003) 29 Cal. 4th 833, 892). This Court should not take the trial court at its word that it independently considered the evidence whenthe record indicates the contrary. Instead, this Court must review thetrial court’s ' Respondentfails to provide pinpointcitations for its assertion that the trial court stated “independent or independently” ten (10) times. (See RB 348). 443 determination to ensure that it complied with the law. This Court thus must look to see whetherthe trial court’s order fulfilled a// its duties under Penal Code Section 190.4 and this Court’s precedents, including Lewis, supra, 50 Cal.3d at 287). Second,the trial court relied too heavily upon the factthat it “agreed” with the juror’s verdict. This Court has held that such a finding demonstrates that “the trial court did not exercise its independent judgment in reweighing the evidence”under the statute and has reversed the death sentence. (See Rodriguez, supra, 42 Cal. 3d at 793). Respondent does nothing to defeat this argument. Appellant’s case is simply not comparable to People v. Steele and others cited in Respondent’s Brief, where this Court foundthat a trial court properly exercisedits duties under Penal Code section 190.4. In People v. Steele, the trial court explicitly consideredall of the defendant’s evidence in mitigation. Thetrial court in Steele wasso specific as to outline the defendant’s “Vietnam experiences, his mental state, his state of intoxication, and the other evidence.” (Steele, supra, 27 Cal.4th at 1268). Similarly, in Steele, the trial court did not consider the defendant’s probation report prior to ruling on the motion, and there were no allegations that the trial court failed to preserveits trial notes for review on appeal. (Ibid.). In Appellant’s case, the Court did not expressly consider Appellant’s mitigation evidence, and instead held it against Appellantthat none of the mitigation evidence constituted a “moraljustification or extenuation for his conduct.” (RT 3912). In whole, the trial court in Appellant’s case issued a deficient ruling that wholly failed to considerthe evidenceorfulfill its statutory duties under Penal Codesection 190.4. In the last four years, this Court has decided fourteen (14) capital cases where appellant’s havealleged that the trial court failed to accurately 444 rule upon the motion for modification lodged by the defense.'”° (See infra notes 149, 150, and 151). Typically, this Court has excused the claims due to the defendant’s failure to object to the trial court’s ruling on the motion for modification;'”’ a situation not Applicable in appellant’s case based on the fact that the contemporaneousobjection rule announcedin Hill, supra, 3 Cal.4th at 959, was decided fifteen (15) days after the trial court ruled on Appellant’s motion for modification. However, this Court has also denied, on the merits, a variety of challenges to adverse decisions rendered bytrial courts in response to motions to modify capital verdicts.'”® In two of the fourteen (14) cases, this Court foundthat the trial court erred duringits consideration of the defense’s motion for modification. (See Carrington, supra, 47 Cal.4th at 201; and Mungia, supra, 44 Cal.4th at 1139). In neither case, however, did this court find that the error prejudiced the defendant’s right to favorable determination on the motion. Here, in contrast, the trial court clearly erred. Due to the weaknesses in the state’s case in aggravation, Appellant was prejudicedbythe trial court’s ill-consideration. First, unlike in Mungia, Appellant was not required to object because his conviction becamefinal before this Court’s precedent requiring such objections. Second, like in Carrington, thetrial court did not exercise its responsibilities under section 190.4(e) and,like in Mungia, the result was a summary dismissal of Appellant’s motion for modification that was evidently prejudgedbythe trial court. Third, unlike '7® (See e.g., Burgener, supra, 46 Cal.4th at 231; Alfaro, supra, 41 Cal.4th at 1277; and Romero, supra, 44 Cal.4th at 386). '” (See Tafoya, supra, 42 Cal.Ath at 147; DePriest, supra, 42 Cal.4th at 1; Zambrano, supra, 41 Cal.4th at 1082; Geier, supra, 41 Cal.4th at 555; and Wallace, supra, 44 Cal.4th at 1032). '"8 (See Burney, supra, 47 Cal.4th at 203; Jackson, supra, 45 Cal.4th at 662; Bennett, supra, 45 Cal.4th at 577; and Richardson, supra, 43 Cal.4th at 959). 445 in either Carrington or Mungia, herethe trial court relied upon improper information, gleaned from the trial court’s notes and Appellant’s probation report that was not presentedto the jury and which the defense never had the opportunity to confront, explain, or review. Finally, like in Carrington, here the trial court failed to make an independent determination asto the evidence and instead deferred to the findings of the jury based on the “substantiality” of evidence. In sum,thetrial court did not “carefully and conscientiously perform its duty under section 190.4.” (Steele, supra, 27 Cal.4th at 1268). There is a reasonable possibility that Appellant would not currently be subject to the punishmentof death hadthetrial court properly evaluated his motion. As a result, Appellant’s constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendments, as well as, Article I of the California Constitution have been violated by the trial court’s improper motion for modification ruling. J. Conclusion. Respondent blames Appellantfor “neglect[ing] to specify whether a remandfor a penalty phaseretrial or for a reconsideration of the verdict- modification application would be the appropriate remedy for the errors he discerns.” (RB 337). In truth, both resolutions lead to the sameresult; reversal of Appellant’s death sentence. Thetrial court incorrectly ruled on the motion for modification becauseit failed to adequately consider the evidencein mitigation, overly relied upon the circumstancesofthe crime and misapprehended governing law. Hadit adequately considered the evidence, the inevitable conclusion would have been reached that Appellant was wrongfully sentenced to death. Here, the only remedy for the constitutional violations resulting from thetrial court’s error is reversal of Appellant’s death sentence. 446 The independentreview ofa jury’s death verdict bythetrial court is a critical stage in the California death penalty scheme. It provides a crucial check necessary to prevent arbitrary and capricious death sentences, condemnedby the Supreme Court as unconstitutionally “cruel and unusual” in Furman andits progeny. The Supreme Court has found California’s independent review requirement an important safeguard in the California death penalty scheme. (See Pulley, supra, 465 U.S. at 52-54). Both “this court and the United States Supreme Court havecited the provisions of section 190.4, subdivision (e), as a [] safeguard against arbitrary and capricious imposition of the death penalty in California.” (Lewis, supra, 33 Cal.4th at 226 (citations omitted)). Thetrial court’s duties under section 190.4(e) are critical to the constitutionality of the California death penalty scheme. (See Pulley, supra, 465 U.S. at 52-54; and Frierson, supra, 25 Cal.3d at 178-180). Section 190.4 is an “integral part” of the California scheme. (/d. at 231). Structural defects affecting the frameworkofthe death penalty law are not subject to harmless error review. (See Fulminante, supra, 499 U.S.at 309- 10). Here, the errors were structural, because they cannot be reviewed and because they prevent this Court from providing “thoughtful and effective” and meaningful review of the jury’s death verdict. Thetrial court’s errors thus underminedits role, and thus rendered Appellant’s death sentence unfair and unreliable under Fifth, Sixth, Eighth and Fourteenth Amendments,as well as the parallel provisions of Article I of the California Constitution. (See e.g., Gardner, supra, 430 U.S. at 349). For each of these reasons, reversal of Appellant’s death sentence is required. 447 XXVI. DEATH QUALIFICATION VOIR DIRE IS UNCONSTITUTIONAL. A. Introduction. Death qualification inquires “whether the juror’s views would preventor substantially impair the performanceofhis duties as a juror in accordance with his instructions and his oath.” (Ashmus, supra, 54 Cal. 3d at 961-962 (citing Wainwright, supra, 469 U.S. at 42, and Adams, supra, 448 U.S. at 45)). The result of death qualification is the exclusion of individual jurors from serving in death cases because of their moral and normative beliefs. Yet a juror’s duty - as defined by California law is to make “moral and normative” judgments, and by law, they are required to make “moral and sympathetic” determinations. (See People v. Mattson (1990) 50 Cal. 3d 826, 846). By excluding jurors becauseof their “moral and normative”beliefs, the process eliminates the “moral and normative beliefs” of the community. Death qualification in California prevents citizens from being jurors in capital cases based on their “moral and normative” beliefs concerning the death penalty. These jurors are excluded despite the fact that the law specifically requires capital jurors to make “moral and normative” decisions in deciding to imposea capital sentence. By excluding those jurors who have “moral and normative”belief about the penalty - which in many cases lead them to question the propriety of its application -- the process of death qualification narrows the sentencing body to those who: 1) take less seriously the moral and normative issues involvedin a death penalty case; 2) are predisposedto findings in aggravation; and 3) are predisposed to disregard non-statutory factors in mitigation. These citizen’s voices are also eliminated from the data that courts rely on to determine whether a particular punishmentoffends evolving standards of decency underthe 448 Eighth Amendment. (See Coker, supra, 433, U.S. at 584). To make matters worse, California allows case-specific death qualification. This form of death qualification removes jurors who would be highly favorable to specific mitigation evidence. See Brooke M. Butler and Gary Moran,The Role ofDeath Qualification in Venireperson’s Evaluations ofAggravating and Mitigating Circumstances in Capital Trials, (2002) 26:2 Law and Human Behavior 175 (hereafter “Butler & Moran, Death Qualification & Evaluations ofAggravating and Mitigating Circumstances). Dr. Butler and Moran have noted that there is an undeniable relationship between the death qualification process under Witt and venirepersons' evaluation of aggravating and mitigating circumstances. Indeed, “death qualified participants, when compared to Witt excludables, wereless likely to believe that nonstatutory mitigators were valid reasons to give someonea life sentence.” (/d. at 183). Simply put, there is no doubt that “‘a death qualified jury is significantly more likely to impose the death penalty than a jury comprised of excludables.” (/bid.). Since the process of death qualification in California results in a non-representative jury — both conviction and death-prone- it does not meet the standards of heightenedreliability required by the Eighth Amendment. Totheir detriment, capital defendants receive vastly different juries at the guilt phase in comparison with other defendants. Capital defendants charged with different varieties of capital murder also receive vastly different juries at the penalty phase from each otherasa result of case-specific death qualification, and this Court has not ensured state wide standards to prevent these results. As a result, death qualification in California also violates the Equal Protection and Due Process Clauses of the Fourteenth Amendmentas well. With those principles in mind, Respondenttries to rebut, ten (10) arguments raised in Appellant’s Opening Brief challenging the 449 constitutionality of death qualification jury selection. (RB 349-51). Respondentfeels that Appellant offers “no good reason for this court to reconsiderits rulings as to the California Constitution.” (dd. at 353). Respondentsays that this Court should reject “Appellant’s twenty-sixth assignmentoferror.” (Jbid.). In making these claims, Respondent does not address ten (10) additional argumentsraised by Appellantin his Opening Brief.” Respondent’s decision not to address these arguments undermines "7? Respondentdid not address or rebut the following ten (10) arguments: 1) Death qualification of capital juries is unconstitutionalin California because neitherthe legislature nor the electorate has enacted a statute requiring death qualification of penalty phase jurors andthe statutes governingjury selection in criminal cases forecloses death qualification. (See II AOB 601 (citing Code of Civil Procedure §229(h)); 2) This Court has provided an unconstitutional “judicial gloss” to the statute that, contrary to its express language, allows the removalofjurors whose views would not affect their penalty determination. (See II AOB 602 (citing Hovey v. Superior Court (1980) 28 Cal. 3d 1,9 n. 7 and n.9)); 3) Death qualification, which removescertain members of the community, breaks the essential link between community values and the penal system by excluding from penalty deliberations certain community members and certain community values, thereby preventing formation of “the indicators” by which courts ascertain contemporary standards of decency in violation of the Eighth Amendment. (See II AOB 607(citing Trop v. Dulles (1958) 356 U.S. 86, 101)); 4) Death qualification results in an unconstitutional death penalty scheme because without statutory grounding the current “substantially impaired”test is irrational and violates the Sixth, Eighth and Fourteenth Amendments and Article I of the California Constitution. (See II AOB 607); 5) By providing different schemes for selecting juries in capital and non-capital cases, California discriminates between two classes of defendants and impinges on the fundamental right to an impartial jury at the guilt phase andthe rightto life at both the guilt and penalty phases. (See Id. at 609); 6) Death qualification fails strict scrutiny analysis becauseit is not necessary, narrowly tailored, or the least drastic means. (See /d. at 611 (citing Wygant v. Jackson Bd.ofEducation (1986) 476 U.S.267, 280 n. 6)); 7) The Supreme Court has not addressed whether death qualification has a negative impact on race, gender, and religion in jury composition and currentresearch provesthat death qualification has an adverse effect on these importantclasses in violation of the Fourteenth Amendment. (See Jd. at 626); 8) The Supreme Court has not addressed whether the process of 450 the state’s position that Appellant has put forth no persuasive argumentsto justify his request that this Court revisit its precedent regarding death qualification. B. Appellant’s Argument Has Not Been Forfeited. Respondent says that Appellant failed to object to the Hovey death qualification voir dire, and has thus failed to preserve these issues for appeal. (RB 351 (citations omitted)). Respondent is wrong. First, Appellant was not required to object because the error affected a fundamental right, which infected his trial with structural error. This Court has found that the violations of fundamental constitutional rights are exemptfrom the general forfeiture rule. (See Vera, supra, 15 Cal. 4th at 276-277). Although the Court has not precisely defined exactly whatit deemsto be a “fundamental”right, there are few rights more fundamental than the right to jury trial. This Court should include violations of a capital defendant’s constitutional right to an impartial jury and reliable sentencing in its definition of rights of fundamental and constitutional import. Second, Appellant was not required to lodge a contemporaneous objection because the question presented on appeal is a pure question of law. This Court has recognized that the contemporaneousobjection rule may also be waived for “pure questions of law.” (See Williams, supra, 43 death qualification voir dire, and its influence throughoutthetrial, violates the Eighth Amendment’s need for heightenedreliability in capital trials. (See Jd. at 631); 9) Death Qualification violates the Sixth Amendment’s right to jury trial because the purposeofajury is to guard against the exercise of arbitrary power through the commonsense judgmentof the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over conditioned or biased response of a judge. (See Jd. at 631); and 10) Death qualification undermines the purposesofthe Sixth Amendmentrightto a jury trial, by excluding individuals with views against the death penalty from petit juries and failing to create juries based on a fair cross-section of the community. (See Jd. at 633). 451 Cal.4th at 624 (citations omitted)). While this doctrine has been developed in civil cases, Appellant’s pure question oflaw here, regarding the constitutionality of death qualification voir dire, merits waiver of the contemporaneousobjection rule and decision on the merits of the claim as presented by Appellant. Third,this Court has created a catch-all exemption to the contemporaneousrule, whichallows this Court to hear arguments for the first time on appeal where,as here, the challenge is non-evidentiary. (See Williams, supra, 17 Cal. 4th at 161 n.6). C. The Supreme Court andthis Court’s Precedents do not Foreclose Appellant’s Arguments. Respondentsays that Appellant’s arguments have previously been rejected by the United States Supreme Court andthis Court. (RB 351). Respondent says that Appellant’s federal constitutional arguments have been foreclosed by Lockhart, supra, 476 U.S. at 162 and Buchanan, supra, 438 U.S. at 402. Respondentsays that Lockhart foreclosed the use of social studies indicating “conviction prone” bias stemming from the death qualification process. (RB 352). Respondent says that Buchanan foreclosed the argument that death qualified juries violate the Sixth Amendment's right to an impartial jury. (/bid.). Respondent is wrong. First, the High court in both Buchanan and Lockhart recognizedthat “death qualification in fact produces juries somewhat more ‘conviction - prone’ than ‘non - death - qualified’ juries.” (Buchanan, supra, 483 U.S.at 415 n. 16 (quoting Lockhart, supra, 476 U.S.at 173) (internal quotations omitted)). Second, Respondentfailed to address Appellant's argument that Lockhart does not control the issues raised under the California Constitution. (See Raven, supra, 52 Cal. 3d at 352-54; see also Smith, Due Process Educationfor the Jury: Overcoming the Bias ofDeath Qualified 452 Juries (1989) 18 Sw. U. L. Rev. 493). Over one hundred years ago, Iowa and South Dakota interpreted their states’s constitutional guarantees to an impartial jury andreliable sentencing.’®° This Court should continue down the path it began in Hovey and find death qualification unconstitutional under the California Constitution. Third, Respondent did not address Appellant’s argument that new evidence establishes that the factual basis on which Lockhart rests is no longer valid,'®' and that the Supreme Court’s decision was based onfaulty science and improper logic. In Lockhart, the Supreme Court rejected evidence submitted in the form of social science studies conducted in a “manner appropriate and acceptable to social or behavioral scientists.” Instead, the court grossly misinterpreted the data ofjuror bias, and “[t]he Court's adamantrefusal to acknowledge the strength of the evidence before it casts grave doubts uponits ultimate holding in Lockhart.” (Thompson, Death Qualification After Wainwright v. Witt and Lockhart v. McCree (1989) 13 Law & Human Behavior 185, 195). This improperscientific assessment waskey,yet fatal, to Lockhart’s holding. Moreover, the Supreme Court did not look at the studies as a whole body of data, allowing it to ignore the studies’ cumulative effect. Since Lockhart, the research showing that death qualified juries are impartial, biased towardsthe prosecution, and notreflective of the community has '80 (See State v. Lee (lowa 1894) 60 N.W. 119, 121; and Statev. Garrington (S.D. 1898) 76 N.W.326, 327). '8! All scientific research on death qualification shows that death qualification results in juries that are more prone to convict. (See Moar, Death Qualified Juries in Capital Cases: The Supreme Court’s Decision in Lockhart v. McCree (1988) 19 Colum. Hum. Rts. L. Rev. 369, 374, 382- 383) (hereafter Moar; and Seltzeret al., The Effect ofDeath Qualification on the Propensity ofJurors to Convict: The Maryland Example (1986) 29 How. L.J. 571, 581). 453 only grown.'* The questionsraised in Lockhart and Witt must be reevaluated in light of studies that continue to prove that death qualified jurors view the evidence, proceedings, victims and defendants in capital cases differently than non death qualified jurors. 183 Modern death qualification now takes place: “in the context of record high abstract support ofthe death penalty, it operates to exclude persons whodeath penalty attitudes would merely impair them in performingtheir functionsin a capitaltrial, and it eliminates persons onthe basis of extreme death penalty support as well as opposition.” (Craig Haney, Aida Hurtado, and Luis Vega, Modern Death Qualification: New 182 Modern research, from the Capital Jury Project, indicates that death qualified juries are biased and impaired in seven different ways. (See William J. Bowers, The Capital Jury Project: Rationale, Design, and a Preview ofEarly Findings (1995) 70 Ind. L. J. 1043) (“1) Prejudgment: Death qualified juries are prone to premature decision making; 2) Death Bias: death qualified juries are corrupted by the death qualification procedures; 3) Mitigation Impairment: death qualified juries suffer from a pervasive failure to comprehend and follow instructions regarding mitigation; 4) Fatal Ignorance: death qualified juries are likely to suffer from the widespread belief that death is mandatory in some cases; 5) Irresponsibility: death qualified juries are likely to evade responsibility for their sentencing decisions; 6) Racism: death qualified juries are likely to use the defendant or the victim’s race (or both) as a factor in sentencing decisions; and 7) Early Release Fears: death qualified juries are likely to erroneously believe that life sentences will not result in lengthy incarcerations. In combination, these seven biases completely impede death qualified juries from impartially and objectively evaluating guilt phase evidence and making a moral and normative sentencing determination.”’). '83 (See generally Moar, supra, at 374 (detailing criticism of the Court’s analysis of the scientific data); See also Bersoff& Glass, The Not-So Weisman: The Supreme Court's Continuing Misuse ofSocial Science Research (1995) 2 U Chi L Sch Roundtable 279; and Tanford, The Limits ofa Scientific Jurisprudence: The Supreme Court and Psychology (1990) 66 Ind. L. J. 137)). 454 Data on Its Biasing Effects (1994) 18:6 Law and Human Behavior619, 621). Likewise, historical research indicates that the use of death qualified juries controverts the Sixth Amendment’sright to jury trial guarantee and “frustrates the founder’s understandingasto the role of the criminal jury.” (G. Ben Cohen & Robert J. Smith, The Death ofDeath Qualification (2008) 59: 87 Western Reserve Law Review 3).'** Most importantly, modern research provesthat the death qualification, and the exclusion of individual’s with scruples towards the death penalty, defeats accuracy in jury determinations by inhibiting the comparison of different understandings of the evidence, and the jury’s ability to reach a decision consistent with the evidence. (See Nicole L. Waters & Valerie P. Hans, A Jury ofOne: Opinion Formation, Conformity, and Dissent on Juries (2008) Cornell Legal Studies Research Paper No.08- 030).'® Significantly, death qualification likely decreases juries conscientiousness in their role as a sentencer, increases the likelihood that they will deny responsibility for the defendant’s punishment, and increases the likelihood that they will rush to judgment. (See William J Bowers, WandaD.Foglia, Jean E Giles & Michael E. Antonio, The Decision Maker Matters: An Empirical Examination ofthe Way the Role ofthe Judge and the Jury Influence Death Penalty Decision Making (2006) 63 Wash. & Lee L. Rev. 931). In sum all modern statistics reveal that death qualification process undoubtedly biases the jury, against the capital defendant, and makes their determinations more death prone.'®° '84 Available at: http://ssrn.com/abstract=1456367 '8 Available at: http://ssrn.com/abstract=1297272 '86 (See also Eisenberg, Garvey & Wells, The Deadly Paradox of Capital Jurors, 74 S. Cal. L. Rev. 371 (2001); Garvey, Johnson & Marcus, Correcting Deadly Confusion: Responding to Jury Inquiries in Capital Cases, 85 Cornell L. Rev. 627 (2000); Bowers & Steiner, Death by 455 Modern research also confirms that death qualified venirepersons are morelikely than excludable jurors to endorse aggravating factors over mitigating factors. (See Butler & Moran, Death Qualification & Evaluations ofAggravating and Mitigating Circumstances, at 175). (Conducting a study of 450 venirepersons in Miami, Florida and concluding that death qualified venirepersons, when comparedto excludable venirepersons were morelikely to endorse aggravating circumstances and that Lockhart v. Mcreefrustrated the constitutional capital sentencing scheme envisioned in Gregg v. Georgia). Moreover, modern studies have supplemented this conclusion with hosts of other verifiable studies proving that death qualified venirepersons possessa host of other behavioral and attitudinal features which bias their views of the evidence and proceedings during a capital trial.'*” Someofthese features include: 1) a tendency to place unduestress upon victim impact evidence;'®® 2) a tendency to possesshigher levels of homophobia, modern Default: An Empirical Demonstration ofFalse and Forced Choices in Capital Sentencing, 77 Tex. L. Rev. 605 (1999); Garvey, Aggravation and Mitigation in Capital Cases: What do Jurors Think?, 98 Colum.L. Rev. 1538 (1998); Hoffman, Where’s the Buck - Juror Misperception of Sentencing Responsibility in Death Penalty Cases, 70 Ind. L.J. 1137 (1995); Bowers, Sandys & Brewer, Crossing Racial Boundaries: A Closer Lookat the Roots ofRacial Bias in Capital Sentencing when the Defendant is Black and the Victim is White, 53 DePaul L. Rev. 1497 (2004); Sandys, ‘Cross-Overs’ - Capital Jurors who Change their Minds about Punishment: A Litmus Testfor Sentencing Guidelines, 70 Ind. L.J. 1183 (1995)). '87 (See Brooke Butler & Gary Moran, The Impact ofDeath Qualification, Beliefin Just World, Legal Authoritarianism, and Locus of Control on Venireperson’s Evaluation ofAggravating and Mitigating Circumstances in Capital Trials (2007) 25 Behav. Sci. Law 57). '88 (See Brooke Butler, The Role ofDeath Qualification in Venireperson’s Susceptibility to Victim Impact Statements (2008) 14(2) Psychology, Crime & Law, 133, 135-36). 456 racism, and modern sexism;'®” and 3) a tendency to overly trust forensic and scientific evidence even when developed by dubious methodology.'”” Needless to say, no modern evidenceindicates that that death qualified venirepersons and excludable venirepersons approach or view a capitaltrial in the same manner. Fourth, Respondent did not address Appellant’s argument that social science evidence maybe consideredin light of the fact that the “Hovey problem”’”! has been solved.'”” Moreover, Respondent ignores Appellant’s request that this Court take Hovey to its full conclusion. Death qualification of “guilt phase includables” renders the jury partial towards guilt and inhibits the purpose and functioning of the jury. (See Hovey, supra, 28 Cal. 3d at 18-19). This Court should now find that death qualification in California violates the Sixth and Fourteenth Amendments guarantee of a right to trial by an impartial jury, and violates the due '89 (See Brooke Butler, Death Qualification and Prejudice: The Effect ofImplicit Racism, Sexism, and Homophobia on Capital Defendants’ Right to Due Process (2007) 25 Behav. Sci. Law 857, 858). 199 (See Brooke Butler, The Role ofDeath Qualification and Need for Cognition in Venireperson’s Evaluations ofExpert Scientific Testimony in Capital Trials (2007) 25 Behav. Sci. Law 561, 562). '91 The “Hovey problem” wasthat the studies did not take into accountthe fact that California also excluded automatic death penalty jurors via “life qualification.” (Hovey, supra, 28 Cal. 3d at 18-19). 12 (See III AOB 618 (citing Kadane, Juries Hearing Death Penalty Cases: Statistical Analysis ofa Legal Procedure (1983) 78 J. American Statistical Assn. 544; Kadane, After Hovey: A Note on Taking Account of the Automatic Death Penalty Jurors (1984) 8 Law & Human Behavior 115; and Luginbuhl & Middendorf, Death Penalty Beliefs and Jurors’Responses to Ageravating and Mitigating Circumstances in Capital Trials (1988) 12 Law & Human Behavior 263)). 457 process guaranteedby the Sixth and Fourteenth Amendments and by Article I of the California Constitution. Respondent next argues that Appellant’s state constitutional arguments have been foreclosed by Jackson, supra, 13 Cal.4th at 1164; Cummings, supra, 4 Cal.4th at 1279; People v. Carrera (1989) 49 Cal.3d, 291, 333; People v. Johnson (1989) 47 Cal.3d 1194, 1214; and People v. Caitlin (2001) 26 Cal.4th 81, 112. Respondent argues that Jackson,like Lockhart, forecloses the use of social science evidence to prove death qualified jurors’ biases. (RB 352). Respondent arguesthat Cummings forecloses arguments that death qualification violates the Fourteenth Amendment's right to a fair trial and that Carrera does the same regarding | the Sixth Amendmentright to an impartial jury. (See Jd. at 353). Respondentargues that Johnson forecloses argumentthat the use of peremptory challenges exacerbates the problem. (Jbid.). Finally, Respondentargues that this Court most recently upheld the death qualification process in Caitlin. (Ibid.). Respondent’s arguments miss the issue raised here. First, the prosecutor shares responsibility with the trial court to preserve a defendant’s right to a representative jury, and can only exercise peremptory challenges for legitimate purposes. Since thestate is forbidden from excusing a class ofjurors for cause based ontheir death penalty skepticism, those viewsare not a properbasis for a peremptory challenge. A jury shorn ofthe significant community viewpoint that these prospective jurors provide cannotsuitably perform the essential purpose and function of a jury in a criminaltrial. (See Ballew, supra, 435 U.S.at 239-242). Evenif these jurors do not constitute a cognizable class for purposes of the Sixth Amendment's representative cross-section of the community analysis, (see Lockhart, supra, 476 U.S. at 174-77), they are distinct class and necessary for ensuring boththe reliability of a capital sentencing decision and the 458 need for the jury to reflect the consensus of the community. (See Witherspoon, supra, 391 U.S. at 519). Second, Respondent’s argument that Appellant’s social science has already been rejected is wrong and not supported bytheir citations to Jackson, supra, 13 Cal.4th 1164; Cummings, supra, 4 Cal.4th at 1279; and Carrera, supra, 49 Cal.3d at 333. Significantly, Jackson (1996), Cummings (1993), and Carrera (1989) were decided before most of the social science evidence proffered by Appellant was published.'” Similarly, neither Jackson, Cummings, nor Carrera cited any ofthe social science f.!°4 None of the cases havestudies referenced in Appellant’s Opening Brie thus foreclosed Appellant’s claim or the evidence used by Appellant to provethat the death qualification process is unconstitutional. Based on the persuasive value of this evidence, and Appellant’s unrebutted argumentsin his Opening Brief, this Court should revisit past precedent, including Lockhart, and review the constitutionality of death qualifying capital jurors. "3 (See II AOB 608-09, 620 (citing ‘Modern ”Death Qualification, supra, at 631); Bersoff& Glass, The Not-So Weisman: The Supreme Court ’s Continuing Misuse ofSocial Science Research (1995) 2 U Chi. L. Sch. Roundtable 279; Allen et al., Impact ofJuror Attitudes about the Death Penalty on Juror Evaluations ofGuilt and Punishment: A Meta-analysis (1998) 22 Law & Hum. Behav. 715, 725; and Garvey, The Overproduction ofDeath (2000) 100 Colum.L. Rev. 2030, 2097)). 154 (See II AOB 616-22(citing Smith, supra, at 528; Seltzeretal., supra, at 573;. Kadane, supra, at. 544; Luginbuhl & Middendorf, supra, at 263; Kadane, supra, at 202; Byrne, Lockhart v. McCree: Conviction- Proneness and the Constitutionality ofDeath-Qualified Juries (1986) 36 Cath. U. L. Rev. 287, 318; Moar, supra, at 374; Tanford, supra, at137; Peters, Constitutional Law: Does ‘Death Qualification”Spell Death for the Capital Defendant's Constitutional Right to an Impartial Jury? (1987) 26 Washburn L.J. 382, 395; and Gross, Determining the Neutrality ofDeath- Qualified Juries: Judicial Appraisal ofEmpirical Data (1984) 8 Law & Hum.Beh.7, 13)). 459 D. Conclusion. In the last four years, this Court has rejected constitutional challenges to California’s death qualification system in two cases. (See Taylor, supra, 48 Cal.4th at 574 and Mills, supra, 48 Cal.4th at 158). Appellant’s challenge to California’s death qualification system is distinguishable from those raised in Mills and Taylor. Here, Appellant has raised arguments and evidence showingthat this Court’s precedentis fundamentally flawed. Appellant has proffered new and persuasive social science evidenceindicating that the United States Supreme Court’s decision in Lockhart is fundamentally flawed. Dueto death qualification in California, capital defendants face significantly different juries at the guilt phase than non-capital defendants. Theyalso face juries that differ significantly from case to case due to case- specific death qualification. Capital defendants face guilt juries that are more prone to convict and more prone to issue a death sentence. This Court has not established any uniform guidelines for death qualification in response to anyofthese constitutional problems,resulting in a failure of due process, and disparate treatment of capital defendants, in violation of the Fourteenth Amendmentandthe parallel provisions of Article I of the California Constitution. This improper treatmentis unacceptable, especially when a person’s life is at stake. Death qualification in Appellant’s case was unconstitutional. His convictions, special circumstancefinding, and penalty must be reversed. 460 XXVIT. CALIFORNIA’S DEATH PENALTY SCHEMEIS UNCONSTITUTIONAL BECAUSEIT FAILS TO PROPERLY NARROW THECLASS OF DEATH PENALTY OFFENDERS AND OFFENSES. A, Introduction. To be constitutionally sound, a death penalty scheme must narrow the class of death-eligible offenders to thefew whoare eligible for death as opposed to the many whoare not. The Eighth Amendmentrequiresthat “ageravating circumstances must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant comparedto others found guilty of murder” (Zant, supra, 462 U.S. at 876). The Eighth Amendmentrequires the “jury’s discretion be sufficiently channeled” and includethe “principled distinction between the subset of murders for which the sentence of death may be imposed andthose whichare not subject to the death penalty....” (Wade, supra, 29 F.3d at 1319 (citations omitted); see also Zant, supra, 462 U.S. at 876-77). California impermissibly allows 90% ofall of first-degree murderers to be eligible for the death penalty. (Steven Shatz & Nina Rivkind, The California Death Penalty Scheme: Requiemfor Furman? (1997) 72 N.Y.U. L. Rev. 1283, 1287 (hereafter Shatz & Rivkind). Thus, the California death penalty scheme does not meaningfully, rationally, or genuinely narrow the class of death-eligible offenders. 1. It does not narrow in a quantitative manner. 2. It does not narrow in a qualitative manner. 3. It was not carefully crafted by the legislature, but instead was enacted through a misleading initiative process. 4, It has expanded to cover more first degree murders with the assistance of expansive decisions by this Court. 461 California’s death penalty statute fails all three aspects of the Furman mandate.’As result, the scheme permits the arbitrary selection of offenses and offenders for capital prosecution in violation of due process and the cruel and unusual punishmentclauses of the Eighth and Fourteenth Amendment, as well as Article 1 of the California Constitution. Respondent says that Appellant’s claim is based “primarily on a law review article which studied more than 400 appealedfirst degree California murder cases between 1988 to 1992.” (RB 354). Respondenttries to discredit the accuracy andreliability of any “empirical” evidence on death eligibility developed by “law professors and criminal defense attorneys.” 196 (Id. at 359 n. 34). Respondenttries to argue that “Appellant's argument 27 is without merit.” (/d. at 355). Foremost, Appellant’s argumentis based on several matters; not just the significant findings made by Shatz & Rivkindin their cited work. Respondentdoesnottry to rebut six constitutional arguments raised by Appellant under this claim oferror in his Opening Brief. '97 Respondent’s '9 Respondent does not contest Appellant’s assertion that the Furman mandate controls the resolution of this claim. 196 «Taw professor” Steve Shatz recently testified before the Honorable Thelton Henderson in Ashmus v Ayers (N.D.C.A 2008) Case No. 93-CV-00594. Prof. Shatz’s testimony concernedthe precise issue addressed here; the numberofhomicideseligible for capital prosecution under the California capital sentencing scheme. In fact, based on Prof. Shatz’s law review article Judge Henderson granted an evidentiary hearing on the narrowing claim raised in Ashmus. '97 Respondentdid not address or rebut the following arguments:1) Since 1977 the expansion, in sheer number and breadth, of California’s special circumstancesbythe initiative process andthis Court hasfailed to comply with the Furman mandate to quantitatively and qualitatively narrow the class of death-eligible offenders. (See II AOB 645-56); 2) A comparison between California’s special circumstances and other death penalty states’ aggravating or death qualifying circumstances demonstrates 462 failure to address these arguments underminesthe state’s conclusion that the California capital sentencing statutes adequately narrow the class of death-eligible offenders. The absence of any showing by Respondent, confirms the indefensible nature of the California capital sentencing statutes’ failure to narrow the class of death-eligible offenders in line with constitutional mandates. the unconstitutional breadth of California’s scheme. (See /d. at 657 and 659 (citing State v. Young (Utah 1993) 853 P.2d 327, 396-411 (dissenting opn. of J. Durham)); 3) California’s felony-murderrule is unconstitutionally broad because: (a) the felony-murderrule applies to the most common felonies resulting in death, particularly robbery and burglary;(b) the felony-murderrule in California applies to killings even if they occur after the completion of the felony as long as the killing occurs during an escape; and (c) the felony-murderrule is not limited in its application by typical rules of causation andthusit applies to altogether accidental and unforeseeable deaths. (See II AOB 658 (citing People v. Cooper (1991) 53 Cal.3d 1158, 1166-1167)); (4) The lying in wait special circumstance under section 190.2(a)(15) is so all-encompassing that it includes nearly every premeditated murder because: (a) this Court has abandoneda strict adherenceto the language of “while” lying in wait; (b) the language ofthe special does not require physical concealment; (c) does not require that the actual period of lying in wait include “watching;” and (d) it does not require that the killing occur simultaneously with the waiting. (See IT AOB 660-64 (citing People v. McDermand (1984) 162 Cal.App.3d 770; and Osterman & Heidenreich, Lying in Wait: A General Circumstance (1996) 30 U.S.F.L. Rev.1249, 1279)); 5) The California statute is unconstitutional because a comparison of special circumstancesfirst degree murders under 190.2 and non-special circumstancefirst-degree murderers under section 189 shows that, at the most, there are seven theoretical categories offirst-degree murderers excluded from death eligibility and there are more special circumstances categories than “excluded” categories. (See IJ AOB 664); and 6) California’s death penalty scheme as a whole does not meet the qualitative narrowing prong of the Furman mandate because death-eligible first-degree murderers are no more blameworthy than the “excluded” categories of first-degree murderers. (See /d. at 673). 463 B. Persuasive Authorities Demonstrate that the California Death Penalty SchemeFails to Properly Narrow the Class of Death Penalty Offenders and Offenses. Respondentcharacterizes the theory behind the Shatz & Rivkind article as “curious” and as based upon the argumentthat “California does not sentence enough people to death,i.e. that there are too many defendants who“deserve death (because they committed factually special circumstances but have managedto avoid that sentence.” (RB 356 (citations and emphasis omitted)). Respondent describesthearticle as finding that “a large percentage of California first-degree murdercases have factually been special circumstance cases. This, the authors continue, reflects a failure of the special circumstancesto significantly narrow the class of death-eligible murderers as Furman v. Georgia and Zantv. Stephens require for a constitutional death penalty.” (/d. at 355 (citations omitted)). Ultimately, Respondentsaysthe article is based on “numerous misapprehensions concerning both the operation of California’s statutory scheme and the import of federal constitutional requirements.” (RB 356). Respondent says that there is no legal authority that a capital sentencing schemeis unconstitutional becauseit is “too lenient, too forgiving,[or] too compassionate.” (Ibid.). Respondent contends that the Shatz & Rivkind article was rejected as unpersuasivein Viera, supra, 35 Cal.4th at 302, and should also be rejected here. (/d. at 359). Respondentsays that “one should havelittle confidence in the capacity of law professors and criminal defense attorneys to accurately and reliably discern ‘death eligibility’ by ‘empirical means.” (/d. at 359 n. 34). In truth, it is Respondent who has misapprehendedthe theories and conclusions reached in the Shatz & Rivkind article. Respondent’s efforts to shift the “confusion” are unavailing. Respondent misunderstands “the 464 operation of California's statutory scheme andthe import of federal constitutional requirements.” (RB 356). First, Respondent misquotes and mischaracterizes the study that led to the conclusions reached in the Shatz & Rivkind article. The study included 404 cases. (Compare RB 356; with Shatz & Rivkind, supra, at 1326). The study specifically focused on all 253 of the published opinions in capital cases issued by this Court and the California Courts of Appeal. (Id. at 1326 n. 252). The studyalso included the unpublished decisions of the Court of Appeal for the First Appellate District in 151 capital cases, during the period of 1988-1992.'°8 (Ibid.) Of the 253 publishedfirst- degree murdercases, the study found that 242 could have been capitally charged basedonfacts qualifying special circumstances; leaving a mere eight cases that could not have been capitally charged. (/d. at 1329, Table 1)'” As to the unpublished cases, the study found that the data “generally confirm[ed] the data for the published cases,” and that 121 of the 142 total unpublished first-degree murder cases, or 85.2%, actually involved special circumstances. (/d. at 1330, 1331, and Table 2). Second, Respondent does not contest the probative value of the Shatz & Rivkind article, which included the review ofcapital cases in Alameda County from 1988 to 1992. The same county and time frame 8 Duringthis five year period, in California 346 people per year, on average, were convicted offirst-degree murder and 33.2 people per year, on average, were sentenced to death. (/d. at 1327-1328 and ns. 253 and 254). Duringthis five year period, 9.6% of those convicted offirst-degree murder were sentenced to death in California. (/d. at 1328). ‘9 The empirical data confirms that the special circumstances do not genuinely narrow the class of death-eligible murders to a small subclass of offenders. Instead, the special circumstances perform the opposite function. Only a small subclass of offenders, 3.2%, are not eligible for death and nearly all the remaining offenders, 96.8%, are eligible for death. (See Shatz & Rivkind, supra, at 1328). 465 during which Appellant was sentenced to death. (/d. at 1326 n. 251). The study includes both the county and time period of Appellant’s conviction, and is therefore highly relevant to his case and the constitutional precepts underlying this claim. This fact alone distinguishes Appellant’s case from cases,like Vieira, supra, 35 Cal.4th at 302, where this Court rejected statistical evidencethat the application of the California capital sentencing statutes has resulted in disparate and unconstitutional results.7”° Moreover, constitutional deficiencies in the California sentencing scheme had a very real effect on Appellant’s case. He was“eligible” for death becauseofthe breadth of the felony-murder special circumstance,the sole special circumstance alleged in his case. Appellant’s death “eligibility” was not based on the circumstancesofthe crime alleged, but instead, based on the fact that the murder he purportedly committed occurred during a burglary. Third, the Shatz & Rivkindarticle is not based on the theory that there are too many capital defendants’ who deserve death that are not sentenced accordingly. Instead, it is based on the fact that the California 20° Respondentargues that this Court previously rejected the Shatz & Rivkindarticle in Vieira, supra, 35 Cal.4th at 302. (See RB 359 (“In Vieira this Court specifically addressed the law review article in questions, and concluded thatthe statistics therein did not persuadeit that any ofits prior decision on the current issue were incorrect.”)). While in Vieira, this Court addressed a study of California death penalty cases from 1998 to 1992, (Viera, supra, 35 Cal.4th at 302), this Court did not explicitly reference the Shatz & Rivkindarticle. To the extentthat this Court in Vieira considered the Shatz & Rivkind article, the case is distinguishable because the case involved a death verdict from Stanislaus County; a county not includedin the study conducted by the Shatz & Rivkind. However, in Appellant’s case, the Shatz & Rivkindarticle is geographically and contemporarily relevant and inclusive of Appellant’s case in Alameda County between 1988 and 1992. Thearticle thus hasdirect probative value in comparing the narrowing failures in Appellant’s case while the defendant's casein Vieira. 466 capital sentencing statutes authorize too manycapital defendant's cases for death. (See Shatz & Rivkind, supra, at 1326). Respondent’s “interpretation” attempts to convert the article’s central theory; that California’s special circumstances authorize more murdercases for death than is constitutionally justified under the Eighth Amendment’s narrowing requirements, or that could practically be prosecuted. (/bid.) Fourth, Respondent’s argumentthat a capital sentencing scheme cannot be found unconstitutional becauseit is “too lenient, too forgiving,[or] too compassionate” is based on a misinterpretation of the Shatz & Rivkind article. (See RB 356). The authors never opined that the scheme was unconstitutional for being merciful. Instead, they opined that the schemecreates too much discretion in the hands of prosecutors and juries becauseit fails to narrow the class of death-eligible offenders as constitutionally mandated. (See Shatz & Rivkind, supra, at 1294). Fifth, Respondent takes an implausible swipeat the credibility of law professors and defense attorneys. In truth, it is law professors who are most adept, capable, and proficient in compiling over “400 hundredfirst degree murder cases” and reviewing “probation reports and the trial record” to determine that most murder cases are death-eligible under California's expansive capital sentencing scheme. There are of course, no government studies to the contrary and Respondentfails to cite any conflicting academic sources. In fact, the conclusions reached by Shatz and Rivkind were also reached by the California Commission on the Fair Administration of Justice (CCFAJ) in its Final Report.””’ There, the CCFAJ found that “87% of California’s first degree 201 CALIFORNIA COMMISSION ON THE FAIR ADMINISTRATION OF JUSTICE, Final Report (2008) Gerald Uelman, Ed., availableat: http://www.ccfaj.org/documents/CCFAJFinalReport.pdf(last visited June 20, 2010). 467 murdersare ‘death eligible’ and could be prosecuted as capital cases.” (Final Report, supra, at 120). The CCFAJalso foundthe prior studies indicated that “for every 100 cases that were charged as capital cases, 40 actually wentto trial on the guilt phase, 20 went to penalty phase, and 10 resulted in a judgmentof death.” (/d. at 128 (footnote omitted)). The CCFAJchiefly blamedthe inclusion of felony-murderas a special circumstance for the California capital sentencing statutes failure to adequately narrow theclass ofpotentially death eligible offenders. (/d. at 140). Key to these findings was Professor Shatz’s testimony.” Sixth, the Shatz & Rivkind article demonstrates that California’s special circumstancesfail to genuinely narrow the class of death-eligible offenders. The study’s consistent findings demonstrate that more than eighty percentofall first-degree murderersare eligible for the death penalty in California. Whenall the findings are combined, the study showsthat 90% ofall first-degree murderers in California are death-eligible. Only 10% of murder offenders are in fact excluded by the special circumstances. This total lack of narrowingis not sufficient for purposes of the Furman mandate; a conclusion reached by the CCFAJin its Final Report as well. There, the CCFAJ foundthat “a narrowing of the California special circumstances... could largely eliminate the geographic variation in use of the death penalty...” and “the gravest concerns about the fairness of the death penalty mightbe alleviated or eliminated if its use were limitedto the most aggravated cases.” (Final Report, at 140). This conclusion was based on testimony before the Commission, which indicated that “the primary reason that the California Death Penalty Law is dysfunctional is because it 202 (See Appendix B ) - California Commission for the Fair Administration of Justice, available at: http://www.ccfaj.org/documents/reports/dp/expert/Shatz%20Testimony.pdf (last visited June 20, 2010). 468 is too broad, and simply permits too many murdercases to be prosecuted as death penalty cases.” (/d. at 138). The CCFAJ thus urged the California legislature to develop a “formulaorlist to narrow California’s death penalty law...carefully measured to actually achieve the benefits of narrowing”that the CCFAJ identified in its Final Report. (/d. at 141).°” In the faceofthis reality, this Court should recognize the unconstitutionality of California’s expansive special circumstances in accordance with the CCFAJ’s comprehensivefindings. This is but one ofmany problems with the California death penalty system. In total, the problems amountto - astestified to by soon to be retired Chief Judge Ronald George - a “dysfunctional” capital sentencing system. (California Commission on the Fair Administration of Justice, Testimony of California Chief Justice Ronald M. George January 10, 2008, Report and Recommendations on the Administration of the Death Penalty in California, at 3).°”* *3 The CCFAJ’s recommendation coincided with the Constitution Project’s’ recommendationthat the list of death eligible special circumstances belimited to the five aggravating factors or to aggravating factors that “legally affected all citizens of the state of California.” Final Report at 138-139. 204 . . Available at. http://www.ccfaj.org/documents/reports/dp/official/FINAL%20 REPORT%20 DEATH%20PENALTY.pdf(last visited June 20, 2010). 469 C. Constitutional Authorities Demonstrate that the California Death Penalty SchemeFails to Properly Narrow the Class of Death Penalty Offenders and Offenses. 1. This Court's Precedents do not Adequately Address Appellant's Claim. Respondent argues that Appellant’s claims are indistinguishable from the many cases where this Court found that the California death penalty scheme adequately narrowstheclass of eligible murderers. (See RB 356 (citations omitted)). Respondentis “certain” that death sentences are impeded “for reasons that have nothing to do with whether the case satisfies one or more special circumstances.” (/d. at 357 (citations and emphasis omitted)). Respondent chastises Appellant“for not taking into account”lingering doubt, plea bargaining, prosecutorial discretion” and other “feature[s] of California law [that] occasionally permit[]s some persons who‘deserve’ death (on account of their having committed a ‘factually special circumstances murder’) to avoidit.” (Id. at 357 n. 32). In reality, however, this Court’s precedent do not sufficiently address Appellant’s claim, and Respondent’s argumentsfail for several reasons. First, Appellant did take into accountprosecutorial discretion when evaluating the constitutionality of California’s capital sentencing scheme. (See II AOB 685; and Claim XXX - Appellant’s Death Sentence Was Imposed Through the Arbitrary, Disparate, and Unconstitutional Implementation of California’s Capital Sentencing Statutes). Appellant has challenged the constitutionality of the California capital sentencing scheme based onthe fact that, given the expansive definition of death eligibility created by the use of overlapping and numerousspecial circumstances, prosecutor's have unlimited discretion to seek death in almost every case of first-degree murder. (See III AOB 735-36). Respondent attemptsto 470 muddythe picture of eligibility by alleging that this variability is proper as the result of including prosecutorial discretion. The consideration of California prosecutors’ unlimited discretion to imposecapital charges, however, has the opposite effect. It makes the California capital sentencing schemeentirely arbitrary in light of the substantial amountoffirst degree murderand special circumstancescases not charged with capital crimes. Second, Respondent misinterprets the meaning of “death eligibility.” According to Respondent, “the only personsstatutorily eligible for the death penalty are those who are: 1) charged and convicted offirst degree murder; and 2) whose juries have found one or more special circumstances true; and 3) against whom the prosecution elects to seek death.”* (See RB 359). This however, fails to actually quantify death eligibility as statutorily established. This determination is made by review ofthe applicability of special circumstancesto all cases of first-degree murderarising in California. This review indicates that “87% of California’s first degree murdersare ‘death eligible’ and could be prosecuted as capital cases.” (Final Report, supra, at 120). Third, Respondent does not rebut with analysis greater than a string cite Appellant’s assertion that this Court has not fully addressed his constitutional arguments. In his Opening Brief, Appellant noted that this Court has rejected arguments similar to those raised here. (See If AOB 682). Appellant requested that this Court revisit those decisions, and *° Respondenthere contradicts the state’s later arguments that prosecutorial discretion is sufficiently channeled and directed under the California Sentencing Scheme. (See Claim XXX - Appellant’s Death Sentence Was Imposed Through the Arbitrary, Disparate, and Unconstitutional Implementation of California’s Capital Sentencing Statutes). Moreover, any capital schemethat rests upon prosecutorial discretion to meet the constitutionally mandated narrowing requirements fails under the Eighth Amendment and Furman. 471 decide the issue differently. This request is not a rarity. The United States Supreme Court has re-thought: 1) victim impact testimony (see Paynev, supra, 501 U.S. at 808 (overruling Booth, supra, 482 U.S.at 496)); 2) the execution of the mental retardation (see Atkins v. Virginia (2002) 536 U.S. 304 (overruling Penry, supra, 492 U.S. at 302)); and 3) use of the juvenile death penalty (see Roper v. Simmons (2005) 543 U.S. 551 (abrogating Stanford v. Kentucky (1989) 492 U.S. 361)). However, andin addition, this Court has never fully addressed the legal and empirical claims that are detailed here. This Court has never addressed claimsas to the qualitative narrowing requirementor the requirementthat the legislature creates the narrowing circumstances under the Furman mandate. This Court has never addressed the empirical data that demonstrates that the death sentenceratios in California are equivalent, or worse, than the death sentence ratios that were found unconstitutionalin Furman. Beyond acknowledging that the 1978initiative was “doubly misleading” (Carlos v. Superior Court (1983) 35 Cal.3d 131, 143 n. 11), this Court has never addressedthe fact that the Furman mandate requires that the narrowing circumstancesbe created and defined bythelegislature, not by voter initiative or this Court. (See Strauss v. Horton (2009) 46 Cal.4th 364, 414-16 (discussing Frierson, supra, 25 Cal.3d at 142). This Court has never fully addressed the requirement that death penalty schemes qualitatively narrow the class of death-eligible offenders. Accordingly,this Court’s prior decisions do not foreclose the claimsraisedhere. 2. The Violation of the Furman Death Sentence Ratio Renders the California Capital Sentencing Scheme Unconstitutional. Respondent says that Appellant is wrong to contendthat the decision in Furmanv. Georgia “ruled that a statutory scheme that results in death sentences for as few as 15-20 percentofits ‘death eligibles’ is...in violation 472 of the Eighth Amendment.” (RB 358). Respondentsaysthat there is no authority for Appellant’s argument. (/bid.). Respondent says that Appellant’s interpretation ofFurman would do “great damage to Lockett and its progeny.” (/bid.). Respondent arguesthat it would be “bizarre” to distill a constitutionally mandated minimum death penalty ratio from Furman in light of the significant differences between California’s capital sentencing scheme and Georgia’s schemein 1972. (/d. at 358 n. 33). First, Respondent’s analysis is missing California’s exact death sentence ratio. That may be because Respondent does not want to admit that 84% percentoffirst-degree murderers were considered death-eligible, yet only 9.6% ofall first-degree murderers are in fact sentenced to death in California. (Shatz & Rivkind, supra, at 1328). The death sentenceratio of these two figures (9.6% and 84%) is 11.4%. (/bid.). The death sentence ratio found to be unconstitutional in Furman was 15%. (See David C. Balduset al., Equal Justice and the Death Penalty: A Legal and Empirical Analysis (1990) Northeastern University Press, at 80). Thus, California’s death sentenceratio is far worse than the rate in Georgia when Furman was decided. Second, Appellant never argued that Furman requires the abandonmentof California’s death penalty scheme solely becauseit resulted in death sentences at a more arbitrary rate than Georgia’s scheme in 1972. Appellant cited this death penalty ratio as empirical evidence that California’s capital sentencing scheme operates in an arbitrary manner becauseit fails to effectively narrow the class of death eligible offenders. While this Court may find the incongruencein ratios an operative fact, Appellant offered the persuasive evidence amidst several theories challenging the constitutionality of the California scheme. (See IT AOB 680-81). 473 Third, there is nothing “bizarre” in comparing death eligibility ratios between varying capital sentencing schemes. In fact, what is bizarre is the reality that even though the California sentencing scheme wasenacted to meetthe constitutional requirements of narrowedapplication, it has actually resulted in more disparate and disproportional death eligibility than prior schemesthat have been declared unconstitutional. Fourth, Respondent’s contention that Appellant’s interpretation of Furman “does great damage to Lockett” is misplaced and confusing. (RB 357 n. 32). Appellant’s argumentis based on death eligibility not death selection where Lockett and capital defendant’s’ free range to present mitigating evidenceis relevant. Lockett is not concerned with the narrowing function of a capital sentencing scheme, as muchas, the selection of the sentence of death after a defendant has been found death eligible. In fact, if California limited its capital sentencing schemein accordance with Furman, no damage wouldbe doneto a capital defendant’s ability to present a wide-range of mitigating evidence to persuade against the sentence of death after having been found death-eligible. Respondent’s argumentsto the contrary confusethe central issue raised in this argument. Fifth, Respondent does not rebut Appellant’s assertion that the arbitrary death sentenceratio has actually converted California’s capital sentencing scheme into a schemewith unbridleddiscretion of the type condemnedin the Furmanline of cases. The jury who decided Appellant’s fate had the sameultimate discretion in deciding whether he lived or died. Since special circumstancesare so broad asto fit any first-degree murder case, the jury’s finding of such a circumstance did not limit their discretion in any manner. The jury wasallowed to make a “moral and normative” decision whether Appellantlived or died without any objective guidelines whatsoever. Thus, the system in California today moreclosely reflects the 474 artifice of discretion held valid under McGauthav. California’”and, the next year, unconstitutional in Furman v. Georgia. 3. The Selection of Thirty Three (33) Special Circumstancesby Initiative and Expansion of Those Special Circumstances by this Court Rendersthe California Capital Sentencing Scheme Unconstitutional. The special circumstancesset forth in section 190.2 purportedly narrow theclass offirst degree murderers subject to the death penalty in California. Current section 190.2 is not a legislative statute, but rather was created in 1978 by the electorate through California’s ballot initiative process. Section 190.2 expands, instead of narrows,the class of offenses and offenders whoare subject to the death penalty. The Supreme Court has held that the Constitution requires that legislatures enact statutes that quantitatively and qualitatively narrow the class of death-eligible murderers in a genuine and rational manner. (See Gregg, supra, 428 U.S. at 193-95). Respondent argues that there is no merit in Appellant’s argument that the California death penalty schemeis unconstitutional due to the enactment of manyspecial circumstances throughthe initiative process. (RB 359). Respondent argues that the Furman mandate doesnot require the legislature to devise narrowing circumstances. (/bid.). Respondent contends that it would be a “curious reading ofFurman indeed(and onenot shared by the people), that an act that would be constitutionally sound(sic) permissible if enacted by the citizenry’s elected representatives is somehow unconstitutional wheninstituted by the citizenry directly.” (Ud. at 360). In 206 Tn 1971, in McGautha v. California (1971) 402 U.S. 183, 207, the Supreme Court turned downa challenge to the then commonprocedure of giving the death penalty decision to a completely unguided jury:“[I]t is impossible to say that leaving to the untrammeled discretion of the jury the powerto pronounce life or death in capital cases violates any provision of the Constitution.” 475 Respondent’s view,then, the fact that California’s capital sentencing statutes were enacted by initiative has no bearing on the constitutionality of those statutes as applied. First, conspicuously absent from Respondent's analysis is a discussion of the constitutionality, under the Eighth Amendment, ofcapital sentencing schemescreatedbylegislative initiative. Furman mandatedthat the legislatures enact statutes to perform the required narrowing. In Zant, supra, 462 U.S.at 878, the Supreme Court stated that its “cases indicate[] that statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribethe class of personseligible for the death penalty.” In Lowenfield, supra, 484 U.S. at 244, the Supreme Court again referenced this requirementofan “objective legislative definition.” This Court has also acknowledged that Furman provides a mandate directedto the state legislature. (See Bacigalupo, supra, 6 Cal.4th at 465). For these reasons,“[t]he [Supreme] Court has thus plainly required that guidelines be expressly articulated by the legislature in the statute authorizing the death penalty.” (Harper, supra, 729 F.2d at 575 (emphasisin original)). As the federal government conceded in Harper, “lt]he conclusion that the Constitution requires legislative guidelines in death penalty casesis thus inescapable.” (/d. at 1225-26). Second, Respondent does not discussthe historical expansion ofthe California capital sentencing scheme. Here, butfor the initiative process, California would not currently have thirty-three (33) special circumstances, and would not have the most expansive death penalty scheme in the country. (See II AOB 674-79). Third, decisionsrelative to death should notbeleft entirely in the hands of the populace. Enactments created by electedofficials are capable of being suitably tailored to meet the Eighth Amendment’s narrowing requirement than enactments created by popular will and revolt. Dueto its 476 unique abilities to evaluate studies and gauge the consensusofits constituents, punishmentis the peculiar domainofthe legislature. It follows that the legislature should create and define the narrowing circumstances that would make someoneeligible for the ultimate punishment. Recognizingthis, the California legislature created the 1977 death penalty scheme. In fact, a central tenet ofFurman is the argument that it is the legislature’s duty to create narrowly tailored capital sentencing schemes.’”” Fourth, Appellant argued that the creation and definition of death eligibility factors by the voters and this Court, rather than by the Legislature, was unconstitutional. (See IT AOB 674-79). He offered the issue to explain whythe special circumstances do not properly narrow ina quantitative or qualitative manner as required by Furman. (See Id. at 679). The Furman mandate specifically requires the legislature to devise narrowing circumstances. California violates this third prong of the Furman mandate andis a case study on the constitutional issues created by 07 A tenet of capital punishmenthas been to ensurethatjustice is done by the state and not by private actors performing vigilante justice. (See Furman, supra, 408 U.S.at 308 (“When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishmentthey ‘deserve,’ then there are sown the seeds of anarchy, of self-help, vigilante justice, and lynch law.””)). The initiative process in California, however, allows for vigilante justice by popular referendum. In this regard the initiative process is analogousto the story of the classic book and movie “The Ox Bow Incident.” See Walter Van Tilburg Clark, The Ox-Bow Incident (Random House 1940; and Twentieth Century Fox, 1943). There suspected cattle rustlers and killers are lynched by a posse of cowboysbasedonthe popular regard of the posse. The climax of the story is when, in a powerful scene, the posse votes for the hanging of the suspected criminals whoare so executed at dawn. Shortly after the hanging, the alleged criminals howeverare revealed to be innocent. (See Harry F. Tepker, Jr., The Ox-bow Incident (1997) 22 Okla. City U. L. Rev. 1209). 477 adaptation of capital sentencing statutes through initiative. Fifth, the initiative process chills legislative independence because changesto initiative statutes must pass throughthe distorting lens of a popular election. With the enactmentofthe 1978initiative, the legislature’s powerto define the parameters of California’s death penalty scheme was stripped away. Thelegislature could not respond by any meansother than anotherinitiative. The California Legislature has no independent means of assuring the constitutionality of California’s death penalty without voter approval. Evenif the California Constitution authorizes the use of voter initiatives to enact statutes, the process cannot be used to evade constitutional mandates. (See e.g., Kopp v. Fair Pol. Practices Com (1995) 11 Cal.4th 607, 652 (judiciary has limited powerto revise or reform voter initiative statutes to assure constitutionality)). Finally, the initiative process is subject to considerable abuse. Political rhetoric during public debate may obfuscate the issues at stake. This is especially true whentheinitiative involves hotly disputed and complicated issues, such as capital punishment. The 1978 death penalty initiative process was fraught with such abuses. This Court has acknowledgedthat the voters were misled by the “political rhetoric” of the ballot initiative that created the current death penalty scheme. (See Carlos, supra, 35 Cal.3d at 143 n. 11). D. Conclusion. In only a handfulof recent cases has this Court addressed, without simply referencinga string cite, the constitutional narrowing challenge raised by the defendant. (See Bonillas, supra, 41 Cal.4th at 313 (rejecting a narrowing challenge that specifically focused upon flaws in Proposition 7 and the 1978 capital sentencing statute); Stevens, supra, 41 Cal.4th at 182 (2007) (rejecting a challenge to the constitutionality of the lying in wait factor); and Lewis, supra, 43 Cal.4th at 415 (rejecting a challenge to the 478 California felony murderdefinition and special circumstances)). Appellant, in his cumulative review of the California capital sentencing statutes legislative history and operation, asks this Court to thoroughly review the constitutionality of California’ death penalty scheme and reconsiderits prior erroneousholdings. The Supreme Court recognized long ago that if the administration of the death penalty is to be even minimally rational, assuring that the death- eligible class is properly limited is a necessary first step. California’s death penalty schemeconstitutes a profound undermining of the Furman mandate. As Shatz and Rivkind concluded, this Court will either “have to enforce the Furman principle by holding California’s scheme unconstitutional, or it will have to abandonthat principle and, with it, any pretense that the Constitution requires the death penalty to be administered in an evenhanded and non-arbitrary manner.” (Shatz & Rivkind, supra, at 1343). The former option is compelled by the empirical data, the Supreme Court’s jurisprudence, this Court’s jurisprudence, fundamental fairness, justice, and the state and federal Constitutions. The California death penalty schemeviolatesall three requirements of the Furman mandate. It does not narrow in a quantitative sense. It does not narrow in a qualitative sense. It was not enacted and defined by the legislature. The scheme thus suffers from the same arbitrariness and capriciousness that was deemed unacceptable in Furman. For each of these reasons, the California death penalty schemeis unconstitutional. Since Appellant was sentenced to death under this unconstitutional scheme, his sentence must be reversed and vacated. 479 XXVIII. CALIFORNIA’S DEATH PENALTY SCHEME AS INTERPRETED BY THIS COURT AND AS APPLIED AT APPELLANT'S TRIAL IS UNCONSTITUTIONAL. A. Introduction. Appellant argued that California’s broad death penalty scheme, and the use of the death penalty as an arbitrary, but routinely imposed punishment, offends evolving standards of decency underthe Eighth and Fourteenth Amendments,as well as parallel provisions of Article 1 of the California Constitution. Respondentelects to defend against the arguments in “abbreviated fashion.” (RB 361). Respondent supports its argument with string cites and infrequent analysis. Respondentnotes that this method “essentially conveys that this Court has already declined to reconsiderits previousrejections.” (/bid.). While this Court has addressed some of Appellant’s claims .Respondent’s lack of effort should fail to persuade this Court that these issues are not ripe for review, and that past precedents are not worthrevisiting. The opposite is true. B. Section 190.3(a) As Applied is Vague, Overbroad and Results in an Arbitrary and Capricious Death Penalty System. The purpose ofsection 190.3 is to inform the jury ofthe factors to be considered in assessing the appropriate penalty. Appellant argued that factor(a), as applied,is arbitrary and contradictory in violation ofthe guarantee of due process of law and the Eighth Amendment’s requirement for heightenedreliability in capital cases, as well as Article 1 of the California Constitution. In defense of section 190.3(a), Respondentcites to Osbond, supra, 13 Cal.4th at 703; Sanders, supra, 11 Cal.4th at 563; People v. Medina (1995) 11 Cal.4th 694, 780; and People v. Turner (1994) 8 Cal.4th 137, 208. Respondent offers no analysis as to how or why these cases address Appellant’s specific arguments. Moreover, Respondent, and 480 the cases referencedin its string cite, fail to rebut several arguments raised underthis subcaption in Appellant's Opening Brief.” In California, juries are required by law, and urged by the prosecution, to consider the facts of the crime itself, no matter what they are, as an “aggravating” factor. However,there is “‘no principled way to distinguish [one] case, in which the death penalty was imposed, from the many cases in whichit was not.”” (Maynard v. Cartwright (1988) 486 US. 356, 363 (quoting Godfrey, supra, 446 U.S. at 433)). In practice, factor(a) allows indiscriminate imposition of the death penalty for no reason other than the facts surrounding a murder. Yet, the Supreme Court has “plainly rejected” as unconstitutional the notion that “a particular set of facts surrounding a murder, however shocking they mightbe, [are] enough in themselves, and without some narrowing principle to apply to those facts, to warrant the imposition of the death penalty.” (/d. at 363). The vagueness and overbreadth of factor(a), as applied, arbitrarily and capriciously results in death sentences in violation of the Eighth and °°8 Respondent did not address or rebut the following arguments:1) Factor (a) has been applied in such a “wanton and freakish” mannerthat almost every circumstance attending any murdercan be, and has been,as the prosecution did in Appellant’s case, characterized by prosecutors as “ageravating;” where the “facts and circumstances of the crime”act as the primary aggravating factor in the penalty phase. (See II AOB 688); 2) Given the vague and overbroad language of factor (a), and this Court’s failure to limit it, prosecutors throughout California have unconstitutionally used the aggravatorto argued that the jury should weigh almost every conceivable circumstance of the crime, even those that reflect opposite circumstances. (See Jd. at 689); 3) Factor (a) unconstitutionally allows the prosecutor to argue non-statutory aggravators as “circumstancesofthe crime” which renders California’s capital sentencing schemeinvalid for failure “to tailor and apply its laws in a mannerthat avoidsthe arbitrary and capriciousinfliction of the death penalty.” (See Jd. at 693-694); and 4) The inclusion of “victim impact” evidence or “the lack of remorse”in this manner renders the phrase “circumstances of the crime” unconstitutionally meaningless. (See Jd. at 694). 481 Fourteenth Amendments, as well as parallel provisions of Article 1 of the California Constitution. Since factor (a) played the defining role at Appellant’s penalty phase, this Court must nowreverse his death sentence. C. California's Death Penalty Scheme Lacks Safeguardsto Avoid Arbitrary and Capricious Sentencing. Permitting the use of the same facts to sustain a first degree felony murder conviction and a felony murder “special” circumstance finding at the guilt phase, and to establish a factor in aggravation under section 190.3(a) at the penalty phase is improper. It is unconstitutional to permit a penalty jury to separately consider more than one felony murder “special” circumstance under section 190.3(a), especially when the killing occurred during an indivisible transaction with a single criminal intent. Section 190.3(a) is unconstitutional as applied because it enables a jury to “triple count”the facts surrounding a murder committed in the course of a burglary and a robbery: 1) under the felony murderrule, to elevate the offense to first degree murder; 2) as a special circumstance, to make defendant eligible for the death penalty; and 3) at the penalty phase, as a “circumstance of the offense” warranting a sentence of death. Respondent’s opposition here s lacking. The twocasescites by Respondentdo not address Appellant’s specific claim — that the California capital sentencing schemelacks sufficient safeguards to avoid arbitrary and capricious sentencing. (See RB 362 (citing Smith, supra, 35 Cal.4th at 373; and Jenkins, supra, 22 Cal.4th at 1050-53)). In Smith, this Court summarily denied several constitutional challenges to the California capital sentencing scheme — none of which addressed a challenge to the lack of procedures offered by the scheme. In Jenkins, this Court did address a claim challenging the lack ofprocedures contained by the California capital sentencing scheme. (See Smith, supra, 35 Cal.4th at 373; and Jenkins, 482 supra, 22 Cal.4th at 1053). The claim was denied with string cite. (See Ibid.). Appellant urges this Court to reconsider these decisions in light of his persuasive claim. 1. The California Capital Sentencing Statutes as Applied to Appellant’s Case Violated his Constitutional Rights by Failing to Require the Prosecution to Prove the State’s Case Beyond a Reasonable Doubt. The burden ofproof is the most fundamental concept in our system of criminal justice and anyerror in articulating it is reversible error. (See Sullivan, supra, 508 U.S. at 279-281). Instructions given without a burden of prooffail to provide the jury with the legally required guidance to administer the death penalty. Without instruction as to the burden ofproof, each juror may instead apply the standard he or she believes is appropriate in any given case. Jurors who believe the burden should be on the defendant to prove mitigation in the penalty phase will continue to abide by that belief if not instructed to do otherwise. It would be constitutionally unacceptable, under the Sixth, Eighth and Fourteenth Amendments,for a juror to vote for the death penalty because he or she misallocated a nonexistent burden ofproof. Respondentsays that the constitution does not requirethat aggravating factors (other than prior criminality), the weighing determination, and the penalty determination be proven beyond a reasonable doubt. (RB 362). Respondentcites to Dickey, supra, 35 Cal.4th at 930; Smithey, supra, 35 Cal.4th at 573; Bolden, supra, 29 Cal.4th at 566; Ochoa, supra, 26 Cal.4th at 453-54; and Barnett, supra, 17 Cal.4th at1178. Respondentdoes not explain why these precedentsare relative to Appellant’s specific arguments or attempt to rebut two arguments raised 483 under this subcaption in Appellant’s Opening Brief” In cases in which the aggravating and mitigating evidenceis balanced, or the evidenceas to the existence of a particular aggravating factor is in equipoise,it is unacceptable under the Eighth and Fourteenth Amendments, as well as parallel provisions of Article 1 of the California Constitution, that one man should live and another die simply because one juror assigns the burden ofpersuasionto the state, and anotherassignsit to the defendant. (See O Neal v. McAninch (1995) 513 U.S.432, 436 (when the court is in “equipoise as to the harmlessnessof error” the defendant “must win.”)). The error in failing to instruct the jury on the proper burden of proofis reversible per se. (Sullivan v. Louisiana, supra, 508 U.S.at 279-281). Thetrial court here failed to instruct the jury in Appellant’s case accordingly. 2. At a Minimum,Each Sentencing Finding Must be Proven by a Preponderanceof the Evidence. Respondent says that the Constitution does not require that aggravating factors, the weighing determination,or the penalty determination meet a preponderance ofthe evidence standard. (RB 362 (citations omitted)). Respondent does not explain how these authorities address Appellant’s arguments, nor does it acknowledge or rebut two 2 Respondent did not address or rebut the following arguments:1) Constitutionally, under the Eighth and Fourteenth Amendments, some burden ofproof mustbe articulated to ensure that juries faced with similar evidencewill return similar verdicts so that the death penalty is evenhandedly applied and capital defendants treated equally from case to case. (See II AOB 697); and 2) It is “wanton”and “freakish,” and the “height of arbitrariness,” under the Eighth and Fourteenth Amendments, that one defendant shouldlive and another die simply because one jury can break a tie in favor of a defendant and another can doso in favorofthe state on the samefacts, with no uniformly applicable standards to guide either. (See Id. at 698 (citing Proffitt v. Florida (1976) 428 U.S.242, 260; and Mills v. Maryland (1988) 486 U.S. 367, 374)). 484 arguments raised underthis subcaption in Appellant’s Opening Brief.””” Appellant’s jury, at a minimum, should have been instructed that the state had to prove by a preponderance of the evidence the existence of any factor in aggravation, and the propriety of the death penalty. Sentencing Appellant to death without adhering to the procedural protection afforded by state law violated federal due process. (See Hicks, supra, 447 U.S.at 346). The failure to articulate a proper burden of proofis constitutional error under the Sixth, Eighth and Fourteenth Amendments,as well as parallel provisions of Article 1 of the California Constitution, and is reversible per se. 3. California Law Fails to Require Unanimous Jury Agreement on Aggravating Factors. Respondentsaysthat there is no constitutional requirementthat the jury must unanimously agree on facts in aggravation used in the penalty deliberations. (RB 363 (citations omitted)). Respondent does not elaborate further. Contrary to Respondent's position,it violates the Eighth and Fourteenth Amendmentsif each juror based his or her verdict on a different set of aggravators or a different process of weighing those aggravators. It is unconstitutional, and violates state law, for a jury verdict to be based on 71° Respondent did not address or rebut the following arguments: 1) In non-capital cases, California does impose on the prosecution the burden to prove to the sentencer by a preponderanceofthe evidencethat aggravating circumstances exist such that the defendant should receive the upper term. To provide greater protection to non-capital defendants than to capital defendants violates the due process, equal protection, and cruel and unusual punishmentclauses of the Eighth and Fourteenth Amendments, and the Sixth Amendment’s guarantee to trial by jury, as well and Article I of the California Constitution. (See II AOB 700 (citing Myers v. Yist (9th Cir. 1990) 897 F.2d 417, 421)); and 2) The failure to allocate a burden of proof violates Evidence Codesection 520 and Appellant’s reasonable interest in adjudication with a properly allocated burden of proofin line with the due process clause of the Fourteenth Amendment. (See II AOB 700). 485 separate jurors finding different aggravating circumstances; or jurors separately voting on whethertheir individual set of aggravating circumstances warrants death; or if a sentence of death resulted from a vote of 1-11 against death or 11-1 for death. (See Cal. Penal Code section 190.4). A death sentence under those circumstances wouldbearbitrary, capricious, and would fail under the Eighth and Fourteenth Amendments. (See e.g., Gregg, supra, 428 U.S. at 188-89). Under Ring it would also violate the Sixth Amendment’s guarantee ofa trial by jury. (See Ring, supra, 536 U.S.at 584). The findings of one or more aggravating factors, and the finding that these factors outweigh mitigating factors, are essential elements of California’s sentencing scheme, and a prerequisite to the “normative” weighing process. Thus, these decisions must be made unanimously and the California capital sentencing schemesfailure to order such a requirementviolates basic constitutional precepts. 4. California Law Fails to Require that the Jury Base Any Death Sentence on Written Findings Regarding Aggravating Factors. Respondentsays that the Constitution does not require the jury to make written findings regarding aggravating factors. (RB 363 (citation omitted)). Respondent does no more to justify its arguments or explain the relevanceofits citations, and does not acknowledge or rebut four arguments raised under this subcaption in Appellant’s Opening Brief" “I! Respondentdid not addressor rebut the following arguments:1) In a non-capital case, the sentencer is required to state on the record the reasons for the sentence choice. Underthe Fifth, Sixth, Eighth and Fourteenth Amendments, capital defendants are entitled to more rigorous protections than those afforded non-capital defendants. (See Il AOB 703); 2) Written findings are essential for a meaningful appellate review of the sentence even if the decision to impose death is “normative and moral”its basis mustbe articulated. (See Jd. at 703); 3) California’s failure to require written sentencing findings is unconstitutional and places it in the minority of states (13 out of 32) who do not require written findingsasto all 486 Giventhat California juries have total discretion without any guidance on how to weigh aggravating and mitigating circumstances, Tuilaepa, supra, 512 U.S. at 979-980, there can be no meaningful appellate review without written findings. Otherwise,it is impossible to “reconstruct the findingsofthe state trier of fact.” (See Townsend v. Sain (1963) 372 U.S. 293, 314). Thus, the failure to require written or other specific findings by the jury regarding aggravating factors violates federal due process and the Eighth Amendmentright to meaningful appellate review. (See Brown, supra, 479 U.S. at 543; and Gregg, supra, 428 U.S.at 195). This Court has held that the absence of these protections does not render the 1978 death penalty scheme unconstitutional. (See Fauber, supra, 2 Cal.4th at 859). That determination is wrong, and needsto be reconsidered. 5. California Law Fails to Provide the Inter-Case Proportionality Review Required to Prevent Arbitrary, Discriminatory, Or Disproportionate Impositions of the Death Penalty. Respondentsays that this Court’s lack of proportionality review does not render California’s capital sentencing statutes unconstitutional. (RB 363 (citing People v. Gray (2005) 37 Cal.4th 168, 247; Bolden, supra, 29 Cal.4th at 566; Lewis, supra, 26 Cal.4th at 394-95; Barnett, supra, 17 Cal.4th at 1182; Crittenden, supra, 9 Cal.4th at 156; Mincey, supra, 2 Cal.4th at 476; and Hayes, supra, 52 Cal.3d at 645)). Respondent does not rebut or acknowledge three arguments raised underthis subcaption in 212 f,Appellant’s Opening Brief,’ which underminesits position that the aggravating circumstances. (See /d. at 704); and 4) Written findings are essential to ensure that a defendant subjected to a capital penalty trial under section 190.3 is afforded the protections guaranteed by the Sixth Amendmentrightto trial by jury. (See Jd. at 704-705). *I2 Respondentdid not address or rebut the following arguments:1) California’s 1978 death penalty statute, as drafted and as construed bythis 487 California capital sentencing scheme meetsconstitutional standards. In a capital case, the Eighth Amendment requires that death judgments be proportionate, andreliable. The notions ofreliability and proportionality are closely related. Part of the requirementofreliability is “that the [aggravating and mitigating] reasons present in one case will reach a similar result to that reached under similar circumstances in another case.”” (Barclay, supra, 463 U.S.at 954 (alterations in original) (quoting Proffitt, supra, 428 U.S. at 251 (opinion of Stewart, Powell, and Stevens, JJ)). California’s scheme wholly fails to meet this constitutional requirement. 6. The Prosecution May Not Constitutionally Rely on Unadjudicated Criminal Activity as an Aggravating Factor. Factor(b) is unconstitutionally vague - especially in the absence of a requirement ofunanimity - becauseit fails to provide guidanceto the jury on how to distinguish a case that is death worthy from one that is not, and fails to guide the jury's discretion in deciding the appropriate penalty. Respondent argues that California’s death penalty law is not unconstitutional because it permits the jury to consider unadjudicated offenses as aggravating evidence without the support provided by a unanimous jury. (RB 363) (citations omitted). Respondent does not explain Court and as applied in fact, lacks any checks on arbitrariness andfails to pass constitutional muster without comparative proportionality review;. (See II AOB 705); 2) California is in the minority of death penalty states not requiring comparative,or “inter-case,” appellate sentence review; (See Id. at 705); and 3) Under this Court’s precedent, Appellant has shownthat the state's capital punishment system operates in an arbitrary and capricious mannerandthat proportionality review is thus constitutionally required to correct the overbroad reach ofthe special circumstances and the absence of any other procedural safeguards to ensurea reliable and proportionate sentences. (See Jd. at 707 (citing People v. McLain (1988) 46 Cal.3d 97, 121)). 488 its argument any further. However, allowing the jury to consider unadjudicated criminal activity results in an unreliable sentencing, permits consideration of a factor that is vague, and violates due process and equal protection principles guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments and Article I of the California Constitution. (See e.g. Johnson, supra, 486 U.S. at 578; and State v. Bobo (Tenn. 1987) 727 S.W.2d 945). 7. Factor 190.3(c) is Unconstitutionally Vague. California's death penalty schemeis unconstitutional since it permits the jury to hear the underlying facts of a prior felony conviction as | aggravating evidence. Respondentsays that factor 190.3(c) is not unconstitutionally vague because it permits the jury to consider the presence of anyprior felony convictions the defendant might have suffered. (RB 364) (citing People v. Balderas (1985) 41 Cal.3d 144, 201). However, allowing the jury to consider the facts of the prior felony convictionsat the penalty phase is unconstitutional, and the consideration of a defendant’s prior felony convictions constitutes double jeopardy and violates fundamental fairness. Lastly, together with 190.3(b), section 190.3(c) allows capital juries to improperly double count violent criminal conduct. 8. Restricting the List of Potential Mitigating Factors is Unconstitutional. Respondentsaysthat the use of restrictive adjectives in thelist of potential mitigating factors does not impermissibly act as barriers to limit consideration of mitigation by a penalty jury. (RB 364) (citations omitted). Respondentoffers no further exploration of the issue. Respondent’s assessmentis incorrect. The use of adjectives such as “extreme” in factor (d); “reasonably”in factor(f); “substantial” in factor (g); “impaired” in factor (h); and “time frame”in factor (h) improperly restricts the jury’s consideration of relevant mitigation evidence. 489 Specifically, the jury instruction based on factor (h) can be improperly interpreted by the jury as excluding consideration of mitigating evidencerelated to the defendant’s impairments as mitigatingif it did not influence the commissionofthe crime. It is unconstitutional in its formulation and applicationsince it uses the term “impaired,” which improperly suggests that the illness caused the crime. This Court's holdings to the contrary should be reconsidered. 9. Factor 190.3(i) is Unconstitutionally Vague. Respondentsays that factor 190.3(i) is not unconstitutionally vague because it permits the jury to consider the capital defendant’s agein its sentencing determination. (RB 364 (citing Sanders, supra, 11 Cal.4th at 563-64; and Medina, supra, 11 Cal.4th at 780)). Respondent offers no further analysis. The prosecution maynotrefer to the defendant’s age or to the victim's age under 190.3(a) as aggravating factors. Factor (i) improperly permits juries to consider defendant’s youth as an aggravating factor via standard jury instructions and allows prosecution arguments that defendant “was certainly old enough to knowbetter” and was “old enoughto understand the wrongfulness of his conduct.” This court’s holdings to the contrary are incorrect.?"° 10. Factor 190.3(k) is Unconstitutionally Vague. Respondentsays that factor 190.3(k) is not vague because it permits capital sentencingjuries to consider “any other circumstance which extenuates the gravity of the crime even thoughit is not a legal excusefor the crime.” (RB 364 (quoting Mendoz, supra, 24 Cal.4th at 192)). Section 190.3(k) is unconstitutionally vague as it fails to provide guidanceto the *13 (See e.g. Slaughter, supra, 27 Cal. 4th at 1224; Mendoza, supra, 24 Cal. 4th at 190; Jenkins, supra, 22 Cal. 4th at 1051-1052; and Box, supra, 23 Cal. 4th at 1217). 490 jury on how to distinguish a death worthy case from one where the defendant should receive life without parole that is not, and fails to guide the jury’s discretion in deciding the appropriate penalty. 11.‘ The Failure to Instruct that Statutory Mitigating Factors were Relevant Solely as Potential Mitigators was Unconstitutional. Respondentsaysthat a failure to instruct the jury that section 190.3’s statutory mitigating factors were relevant solely as potential mitigators does not constitute constitutional error. (RB 364 (citations omitted)). Respondentdoes not address two of Appellant’s arguments underthis subcaption.”"* | The California death penalty schemeis unconstitutional becauseit permits the jury to generally treat the absence of a mitigating factor as an aggravating factor. The statutory language to consider “whetheror not” certain mitigating factors are present unconstitutionally suggests that the absence of such factors amounts to aggravation. This Court’s opinions to the contrary are incorrect. (See e.g. People v. Weaver (2001) 26 Cal.4th 876, 991, 993; Box, supra, 23 Cal.4th at 1217-1219; Anderson, supra, 25 Cal.4th at 600-601; Cunningham, supra, 25 Cal.4th at 1040-44; Boyette, supra, 29 Cal.4th at 465-466). *14 Respondentdid not address or rebut the following arguments: 1) State law and the Eighth Amendment were violated by the prosecutor’s erroneous statements during penalty phase closing argumentandhis use of a chart listing all the potential mitigating factors that the jury “had not heard” due to the likelihood that Appellant was treated “as more deserving of the death penalty than he might otherwise be by relying upon...illusory circumstance[s].” (See IT AOB 714); and 2) California’s lack of mitigating evidence instructions assure that from case to case, even with no difference in the evidence, different defendants, appearing before differentjuries, will be sentenced on the basis of different legal standardsin an arbitrarily, capricious and uneven manner. (See II AOB 714). 491 California’s death penalty schemeis unconstitutional sinceit fails to identify which factors are aggravating and which are mitigating. Thetrial court should be required to identify to the jury which sentencing factors are aggravating and whichare mitigating, as well as instruct that the “absence of a mitigating factor should not count as a factor in aggravation.” Section 190.3 and related jury instructions do not inform the jury that certain sentencingfactors are relevant only in mitigation of penalty. The trial court should be required to inform the jury that certain sentencing factors are relevant only in mitigation and that only three factors can be aggravating. 12. The Denial of Safeguards to Capital Defendants Violates the State and Federal Constitutions. Respondentsays that the denial of safeguards does not violate the Equal Protection Clause of the United States Constitution. In Respondent's only bit of analysis in this entire argument, the state argues thatcapital defendants are not similarly situated when compared with noncapital defendants. (RB 365 (citation omitted)). In this case, the equal protection guarantees of the California and United States Constitutions must apply with greater force, the scrutiny of the challenged classification is stricter, and any purportedjustification by the People of the discrepant treatment is even more compelling because the interest at stake is not simply liberty, but life itself. To the extent that there may be differences between capital defendants and non-capital felony defendants, those differencesjustify more, not fewer, procedural protections designed to make a sentence morereliable. Moreover, those differences are entirely elected by prosecutors who haveinstituted capital cases in an arbitrary fashion acrossthis state. (See Claim XXX - Appellant’s Death Sentence Was Imposed Through the Arbitrary, Disparate, and Unconstitutional Implementation of California's Capital Sentencing Statutes). 492 The Supreme Court has demandedthat a greater degree ofreliability is required when death is to be imposed, and that courts mustbe vigilant to ensure procedural fairness and accuracy in fact-finding. (See e.g. Monge v. California (1998) 524 U.S. 721, 731-32). California’s death penalty scheme providessignificantly fewer procedural protections for persons facing a death sentence than are afforded persons charged with non-capital crimes. This differential treatment violates the constitutional guarantee of equal protection of the laws. D. The Trial Court Erred in Failing to Instruct the Jury in Accordance with Constitutional Requirements. Without analysis, and based upon a lengthy string cite, Respondent argues that California’s standard penalty phase jury instructions (CALJIC 8.85 and 8.88) are not unconstitutional. (RB 365-66 (citations omitted)). Respondentis wrong. Thetrial court’s error in reading the standard instructions in this case violated Appellant’s rights. The factor (a) instruction, as applied here, was vague andfailed to channel jury discretion which gave unbridled discretion in determining the penalty. The jury may only consider those aspects of the crime that make it an aggravated one for the purposes of reaching a death verdict and its consideration must be informed byprinciples that enableit to distinguish the defendant’s crime from the majority of murders, crimes for which the perpetrators receive sentences less than death. The bare “circumstances of the crime” instruction lacks these guiding principles. CALJIC 8.88 is vague, misleading, and fails to inform the jury that if the evidence in aggravation does not outweigh the evidence in mitigation a verdict of life without the possibility of parole is mandatory. It fails to inform the jury that a verdict of life without the possibility of parole can be returned even if aggravation outweighs mitigation. It fails to inform the jury that a death verdict requires findings beyond a reasonable doubt. It 493 fails to inform the jury whichparty,if any, bears the burden of persuasion as to the appropriate penalty. These failures are especially problematic since after Ring, the prosecutor bears the burden ofprovingthe facts in support of the aggravators,that the aggravators substantially outweigh the mitigators, and that death is appropriate, beyond a reasonable doubt. (See Ring, supra, 536 U.S.at 584). E. The Death Penalty Is Unconstitutional. The Eighth Amendment“draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” (Trop, supra, 356 U.S.at 100; see also Roper, supra, 543 U.S.at 551; and Atkins, supra, 536 U.S.at 304). The meaning ofcruel and unusual punishment and due processof law’are notstatic concepts sealedat the time oftheir writing. “They were designed to be dynamic and gain meaning through application to specific circumstances, many of which were not contemplated by their authors.” (Furman, supra, 408 U.S.at 420 (dissenting. opn. of Powell, J.)). The Eighth Amendment prohibits the use of forms of punishmentnot recognized by several of our states and the civilized nations of Europe, or used by only a handful of countries throughout the world, includingtotalitarian regimes whose own “standards of decency”are antithetical to our own. Respondentalleges that Appellant’s claim is curious in light of a Harris Poll that indicates that more than two-thirds of Americans support the death penalty. (RB 366(citing http://www.harrisinteractive.com/harris_poll/index>)). First, the public’s understanding ofthe underpinnings ofcapital punishment in Americais skewed and based on misleading perceptions. (See Craig Haney, Media Criminology and the Death Penalty (2009) 58 DePaul L. Rev. 689, 733). This is demonstrated bythe fact that the poll relied on by Respondentis likely based on answers by participants who were not informedofthe 494 availability oflife in prison withoutparole as a sentencing alternative.” More modern polls indicate that the American publicis split, 50%-50%, when the sentencing determination is between the death penalty andlife in prison withoutparole.”!° This verifies that “death penalty support appear[s] to be founded more on misconception and frustration with the lack of meaningful alternatives than reasoned analysis about what purposes the death penalty actually servedor realistically could accomplish.” (Craig Haney, Commonsense Justice and Capital Punishment (1997) 3 Psychol. Pub.Pol'y & L. 303, 317). Indeed, as much wasrecognized by Justice Marshall in his concurring opinion in Furman vy. Georgia: While a public opinion poll obviously is of some assistance in indicating public acceptance orrejection of a specific penalty, its utility cannot be very great. This is because whetheror not a punishmentis cruel and unusual depends, not on whetherits mere mention ‘shocks the conscience and sense of justice of the people,’ but on whether people who were fully informed as to the purposesof the penalty andits liabilities would find the penalty shocking, unjust, and unacceptable. [{I] In other words, the question with which we must deal is not whether a substantial proportion of American citizens would today, if polled, opine that capital punishmentis barbarously cruel, but whether they would find it to be so in the light of all information presently available. (Furman, supra, 408 U.S. at 361-62 (concurring opn. Marshall, J)). Nevertheless, straw polls and other indicia of our democratic society *I5 Respondent’s citation is no longera valid url, and Appellant thus cannot confirm Respondent’s assertion that 66% of Americans support the death penalty. Other polls, however, generally support Respondent’s claim when the punishmentof death is the only option presentedto poll takers. See http://www.gallup.com/poll/1606/death-penalty.aspxhe(last visited April 18, 2010). 71© See http://www.gallup.com/poll/1606/death-penalty.aspxhe(last visited April 18, 2010). 495 do not control whether or not use of the death penalty violates the Constitution. The Eighth Amendment removesthe final decision for the imposition of punishment from the will of the masses. Instead, under the Eighth Amendment,it is up to the subjective analysis of this Court to determine whether the death penalty, as a punishment, is constitutional: The use to which [the] Eighth Amendment supposedly is put - to safeguard individual citizens against state sanctioned punishmentthat is “cruel and unusual - implies that the law must be more than simply what the community agrees is acceptable. Indeed, it’s very purpose involves telling democratically elected representatives - -the executive and legislative branches of the government - -that there are certain kinds of punishments that, even though they may be supported and sanctioned by “the people,” are not constitutionally acceptable. Somehow the courts must distinguish unconstitutional community sentiments from truly evolving standards, ones in which the deep structure of our collective attitudes and value systems genuinely have been transformed. (Haney, supra, 3 Psychol. Pub. Pol'y & L. at 314). This Court must look beyondpublic opinionpolls, to decide uponthe propriety of the death penalty underthe lawsprescribed by the California and United States Constitutions. Finally, state-sponsored killing as a form of punishment has now become simply unacceptable in world society. Although the Supreme Court in Gregg held that the death penalty was notper se “cruel and unusual,” it also acknowledgedthat the Eighth Amendmentis “not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humanejustice.” Gregg, supra, 428 U.S. at 171 (plurality opinion) (internalcitations and quotations omitted). Recent events and shifting public opinion prove that modern standards of decency have evolved to the point where the death penalty is now viewed as inhumane. 496 F. Conclusion. In the last four years, this Court has rejected a variety of constitutional claims in seventy-seven (77) capital cases challenging the constitutionality of California’s capital sentencing scheme duetoits failure to narrowtheclass of death eligible offenders.”’’ These cases include "17 Lewis, supra, 46 Cal.4th at 1255; Taylor, supra, 48 Cal.4th at 574; Gamache, supra, 48 Cal.4th at 347; Ervine, supra, 47 Cal.4th at 745; Carrington, supra, 47 Cal.4th at 145; People v. D'Arcy (2010) 48 Cal.4th 257; Taylor, supra, 47 Cal.4th at 850; Martinez, supra, 47 Cal.4th at 399; People v. McWhorter (2009) 47 Cal.4th 318; Burney, supra, 47 Cal.4th 203; Friend, supra, 47 Cal.4th at 1; Rogers, supra, 46 Cal.4th at 1136; People v. Avila, supra, 46 Cal.4th at 680; Gutierrez, supra, 45 Cal.4th at 789; Jackson, supra, 45 Cal.4th at 662; Doolin, supra, 45 Cal.4th at 390; Davis, supra, 46 Cal.4th at 539; People v. Curl (2009) 46 Cal.4th 339; Hawthorne, supra, 46 Cal.4th at 67; Hamilton, supra, 45 Cal.4th at 863; Bunyard, supra, 45 Cal4th at 836; Farley, supra, 46 Cal.4th at 1053; Bennett, supra, 45 Cal.4th at 577; Mendoza, supra, 42 Cal.4th at 686; Morgan, supra, 42 Cal.4th at 593; Tafoya, supra, 42 Cal.4th at 147; DePriest, supra, 42 Cal.4th at 1; Alfaro, supra, 41 Cal.4th at 1277; Geier, supra, 41 Cal.4th at 555; Abilez, supra, 41 Cal.4th at 472; Bonilla, supra, 41 Cal.4th at 313; Stevens, supra, 41 Cal.4th at 182; People, supra, 41 Cal.4th at 109; Cook, supra, 40 Cal.4th at 1334; Leonard, supra, 40 Cal.4th at 1370; Prince, supra, 40 Cal.4th at 1179; Beames, supra, 40 Cal.4th at 907; Bell, supra, 40 Cal.4th at 582; Smith, supra, 40 Cal.4th at 483; Wallace, supra, 44 Cal.4th at 1032; Mungia, supra, 44 Cal.4th at 1101; People v. Hovarter (2008) 44 Cal.4th 983; Loker, supra,44 Cal.4th at 691; People v. Romero (2008) 44 Cal.4th 386; Parson, supra, 44 Cal.4th at 332; Riggs, supra, 44 Cal.4th at 248; Salcido, supra, 44 Cal.4th at 93; Whisenhunt, supra, 44 Cal.4th at 174; Page, supra, 44 Cal.4th at 1; Harris, supra, 43 Cal.4th at 1269; Richardson, supra, 43 Cal.4th at 959; Watson, supra, 43 Cal.4th at 652; Williams, supra, 43 Cal.4th at 584; Lewis, supra, 43 Cal.4th at 415; Zamudio, supra, 43 Cal.4th at 327; Rundle, supra, 43 Cal.4th at 76; Wilson, supra, 43 Cal.4th at 1; People v. Brasure (2008) 42 Cal.4th 1037; Howard, supra, 42 Cal.4th at 1000; Tate, supra, 49 Cal.4th at 635; Collins, supra,49 Cal.4th at 175; People v. Thompson (2010) 49 Cal.4th 79; Hartsch, supra, 49 Cal.4th at 472; Williams supra, 49 Cal.4th at 405; and People v. Lomax, (2010) --- Cal.Rptr.3d ----, 49 Cal.4th 530. Cowan, supra, 50 Cal.4th at 401; Lynch, supra, -- Cal.Rptr. ---; Brady, supra, -- Cal.Rptrt.3d --; and Jennings, supra, -- Cal.Rptr.3d ---. 497 international law claims, (see Ground XXIX - Appellant's Conviction and Death Sentence Violates International Law); claims that California’s capital sentencing schemeoperatesin an arbitrary manner; and claimsthat California’s capital sentencing schemeviolates the equal protection clause in the Fourteenth Amendment. (See Ground XXX - Appellant's Death Sentence Was Imposed Through the Arbitrary, Disparate, and Unconstitutional Implementation of California's Capital Sentencing Statutes). Far from speakingto the constitutionality of the California capital sentencing statutes, this Court's failure to truly explore significant differences between arguments lodgedin the seventy (70) plus different constitutional challenges underminesthe legitimacy of the entire scheme. The thoughtful arguments lodged underthis ground in Appellant’s Opening Briefare basedin respect ofthe legislative history of the California capital sentencing schemeandthis Court’s capital jurisprudence. They are thus the perfect vehicle for reconsideration of this Court’s prior precedent. California’s capital sentencing scheme violates the California and United States Constitutions. Although this Court has rejected various challenges to the California death penalty scheme, these rulings should be reconsidered, both in their analyses and their conclusions,in light of Appellant's persuasive arguments. The variousfatal constitutional defects in California’s death penalty law andthetrial court’s failure to instruct the jury in accordancewith constitutional mandates, require that Appellant's sentencebe invalidated. 498 XXIX. APPELLANT'S CONVICTION AND DEATH SENTENCE VIOLATES INTERNATIONAL LAW. A. Introduction. The rightto life is the most fundamental of the humanrights and is recognized in the Declaration of Independenceandthe International Bill of Rights. (See e.g., Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowedbytheir Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”); and Universal Declaration on Human Rights, G.A. Res. 217A (IID), U.N. GAOR,3d Sess.art. 3, U.S. Doc. A/810 (1948) (“Everyone hastherightto life, liberty, and security of the person”)). Appreciation of the right to life makes it incumbent uponstates to not take a person’s life “arbitrarily.” (See e.g., the International Covenant on Civil and Political Rights (hereinafter ICCPR); American Convention on HumanRights,art. 4, art. 6 1144 U.N.T.S. 123; and I] AOB 728-29). Appellant was charged with capital murder, tried, convicted, and sentencedto death in violation of Article 6(2) of the ICCPR, 999 U.N.T.S. 171, 175. This Article provides that the death penalty may only be imposed for the “most serious crimes.” (See also American Convention on Human Rights, art. 4(2), Nov. 22, 1969, OAS/Ser.L.V/11.92, doc. 31 rev. 3 (May3, 1996)): because death is recognized as a “quite exceptional measure.” (Human Rights Committee, General Comment6(16), para.7). The imposition of the death penalty in Appellant’s case violates the ICCPR and the American Convention on HumanRights and constitutes an arbitrary deprivation of life in violation of international law. Thestate’s failure to abide by international law renders Appellant’s death sentence invalid. Respondent concedes that Article VI, Section 2 of the United States Constitution providesthat all treaties made underthe authority of the 499 Untied States are the supreme law of the land. (RB 368). Respondent concedesthat “the customs and usagesofcivilized nations have long been used as a source of international law binding upon all nations...” (RB 370 (citations omitted)). Respondent, however, says that “Appellant is precluded from raising this issue because he lacks standingtoassert a violation of international law.” (Jbid.). Alternatively, Respondent argues that this Court has already rejected Appellant’s argument that the California capital sentencing schemeviolates international law. (/bid.). Respondent’s arguments are without merit. Appellant has not forfeited this claim and has standingto assert his rights under international law - which, as Respondent acknowledges,is the supreme law of the land. (See RB 368). Appellant’s rights are bestowed by self-executing treaties and customary international law,”'® which create private rights for individuals independent of sovereign protestations. Moreover, this Court has yet to fully address the arguments raised herein. In sum, Respondent's opposition wholly fails to defeat Appellant’s showing underthis claim. B. Appellant’s Argument Has Not Been Forfeited. Respondentfirst argues that this argument has been forfeited due to Appellant’s failure, at trial, to object to his death sentence on international law grounds. (RB 367). Respondent analogizes the forfeiture ofthis argumentto a situation where Appellant raised federal constitutional rights for the first time on appeal. (bid. (citing People v. Rowland (1992) 4 Cal.4th 238, 265, n.4; and Carpenter, supra, 15 Cal.4th at 385)). Under this Court’s precedent, Respondent argues, Appellant’s international law claim should be forfeited. (See RB 367). Respondent’s analogy to federal constitutional rights is misplaced. 218 (See II AOB 729 (“Customary international law refers to a set of principles that are so widely accepted by membersofthe international community that they have evolvedinto binding rulesof law.”)). 500 Appellant’s argument does notrest on the assertion of federal constitutional rights, but rather, rights bestowed by international law. While both are considered the “supremelaw ofthe land,” under Article VI, Section 2 of the United States Constitution, each has distinct origins and influences and applications. Respondentthus errs in arguing that international law and federal law are comparable andrise and fall based on the samerules of procedure. Arguments based on violations of international law should not be subject to the same forfeiture rules as claims based on federal law. Evenifthe international violations are treated the same,valid exceptions to the contemporaneous objection rule exist and allow this Court to now hear these arguments. This Court has found that fundamental constitutional rights are exemptfrom the general forfeiture rule. (See Loker, supra, 44 Cal.4th at 704; and Vera, supra, 15 Cal. 4th at 276-77). Since it appears that Respondent wouldtreat claims based on the violation of international law the same as claims based on the violation of the federal constitution, this argument, if found to be forfeited, would qualify under the exception made in Vera. This is especially true given that Appellant alleges violations of his international rights, which parallel many rights fundamental to the United States Constitution. Similarly, this Court created a catch-all exemption to the contemporaneousrule, which allows arguments for the first time on appeal where,as here, the challenge is non-evidentiary. (See Wilson, supra, 17 Cal. 4th at 161 n.6). C. Appellant Has Standing to Assert His Rights Under International Law. Respondentsays that Appellant has failed to show standingto assert his rights under international law. In Respondent’sview,“the principles of international law apply to disputes between sovereign governments and not between individuals.” (RB 368 (citing Hanoch Tel-Oren v. Libyan Arab Republic (D.D.C. 1981) 517 F.Supp. 542, 545-47)). Respondentargues 501 that an individual can only challenge violations of international law when their complaint is accompaniedby protests from the sovereign involved. (RB 368 (citing Matta-Ballesters v. Henman(7th Cir. 1990) 896 F.2d 255, 259; and United States ex rel. Lujan v. Gengler (7th Cir. 1990) 896 F.2d 59)). Respondent is wrong. Appellant has standing to assert violations of his rights under international law. The language ofthe ICCPR expressly conveys its founder’s intention to grant private individuals a cause of action to assert violationsoftheir international and legal rights. (See Article 2(1), ICCPR). Article 26 of the ICCPRspecifically guarantees that “[a]ll persons are equal before the law andare entitled without any discrimination to the equal protection of the law.” Moreover,article 14 states thatall persons“shall be equal before the courts andtribunals.” (See alsoarticle 2(.1) of the, ICCPR). For the most part, the authorities cited by Respondent deal with writs for habeas corpus initiated by prisoners who were abducted from foreign countries by the American government. Theinternational law addressed by thosecasesis thus “designedto protect the sovereignty ofstates, andit is plainly the offended states which mustin the first instance determine whether a violation of sovereignty occurred, or requires redress.” Gengler, supra, 510 F.2d at 67). Such law is distinguishable from treaties like the ICCPRandInternational Convention for the Elimination of All Forms of Racial Discrimination (hereafter ICEAFRD), which requirestates that are party to the treaty to “respect and to ensureto all individuals withinits territory and subjectto its jurisdiction the rights recognised in the present Covenant, without distinction of any kind.” (Article 2(1), ICCPR). The obligations imposed by the ICCPR and the ICEAFRD,andthe attendant rights granted thereby, are owed separately and independently to Appellant. Respondent’s argument, taken to its logical conclusion, would 502 require the United States to protest California’s treatment of Appellant in order for Appellant to assert his rights under international law. (See Matta- Ballesters, supra, 896 F.2d at 259 (requiring the Honduran governmentto lodge an official protest undertreaties with United States and finding that protests before the American Embassy in Hondurasanda bill introduced in the Honduranlegislature showed that the people of Honduras did not object to the defendant’s detention by American authorities)). This notion confuses fundamental principles of international law, namely that California is a sovereign entity capable of making internationaltreaties.”'” California cannot enter into treaties and is thus not a sovereign entity within international law. Instead, the United States governmenthas entered into two bindingtreaties that require this Court to hear Appellant’s claim based on the Supremacy Clause andthe violation of Appellant’s rights under the ICCPRand the ICEAFRD. The one exception to Respondent’s reliance upon authorities regarding extra-territorial detentions is the reliance on Hanoch Tel-Oren, supra, 517 F.Supp. at 545-47. Respondent believes that Hanoch Tel-Oren sanctions its argumentthat “the principles of international law apply to disputes between sovereign governments and not between individuals.” (RB 368). However, Honoch Tel-Oren is not applicable here sinceit is a civil case based on “four separate bases ofjurisdiction: 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1332 (diversity of citizenship), 719 Respondent's argument would apply in a situation wherethe United States, including California or anotherstate, threatened to execute a foreign national or person abducted from a foreign country. For example, in the trial of Adolf Eichmann for crimes committed during the Nazi Holocaust, the Supreme Court of Israel permitted his execution because Argentina, in a joint communiqué with Israel, had waived its objections and cured any violation of international law. (See 6 M. Whiteman, Digest of International Law (1968) 1110; accord Gengler, supra, 510 F.2d at 67). 503 28 U.S.C. § 1350 (the statute providing for jurisdiction of actions brought by an alien alleging a tort in violation of the laws of the United States or the law of nations), and the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1330, 1602-1611.” (Hanoch Tel-Oren, supra, 517 F.Supp.at 545). Moreover,the plaintiffs in Honoch Tel-Oren “[a]bandon[ed] their position that federal criminal law gives them a right of action.” (Jbid.). Here,there is already a basis ofjurisdiction for Appellant’s claims based onthe application of California’s criminal law andthe automatic appeal of Appellant’s death sentence. This is not a “private human rights suit against a sovereign government.” (See RB 370). This is a direct appeal in a capital case. The ICCPR and ICEAFRD are binding authorities, no different that the statutory and constitutional authorities Appellant has previously discussed. This Court may thus hear argument premised on the violation of the rights guaranteed by the ICCPR and ICEAFRD. Respondent’s argument mixes notions of self-execution and standing, by creating the “fiction” of causeofaction as a requirement for asserting internationalrights as a defense in criminal proceedings. (See RB 370 (“It is well recognizedthat courts are not substitutes for international tribunals, and international law doesnotcreate the right of an individualto pursue a private humanrights suit against a sovereign government.”)). Respondent’s “cause of action” conception ofinternational law does not correctly describe the import or influenceoftreaties on domestic law: [A] treaty that doesnotitself confer a right of action . . . is not for that reason unenforceable in the courts. A right of action is not necessary if the treaty is being invoked as a defense. Moreover, treaties have long been enforced pursuant to common law forms of action. Furthermore, there are a numberofpossible federal statutory bases for rights of action to enforcetreaties, the most important being section 1983 and the APA. Only if there is no other basis for the right of action should it be necessary to locate a right of action in the treaty itself. 504 (Carlos Manuel Vazquez, Treaty - Based Rights and Remedies of Individuals (1992) 92 Colum.L. Rev. 1082, 1141-43). Appellant has standing to assert the violation of any rights guaranteed to him bystate statute, federal statute, state constitution, or federal constitution and international law - the “supreme lawsofthe land.” This Court thus hasjurisdiction to hear this argument based on the violations of Appellant’s rights under Article 14 of the ICCPR (enumerating due processrights relating to criminal proceedings); Article 6 of the ICCPR (providing that the death penalty may be imposed only where these standards are observed); Article 7 of the ICCPR(providing that “[n]o one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment”) and Article 6 of the ICCPR (guaranteeing the right to a fair trial at all stages of the proceedings). D. The California Capital Sentencing Scheme Violates International Law. Though Respondent concedesthat international treaties and customary international law have binding affect as the “supreme law ofthe land,’””’ the state argues that only “self-executing” treaties protect private rights. (RB 368-69). Respondent arguesthat a treaty is self-executing only if its framers “intended to prescribe a rule that...would be enforceable in the courts.” (RB 369 (citing Fuji v. state of California (1952) 38 Cal.2d 718, 220 See David Sloss, The Domestication ofInternational Human Rights: Non-self-executing Declarations and Human Rights Treaties (Winter 1999) , 24 Yale J. Int'l L. 129, 146 fn. 97 (Winter 1999); Louis Henkin, Foreign Affairs and the United States Constitution 203 (2d ed. 1996); Jordan J. Paust, International Law as Law ofthe United States 368 (1996); Yuji Iwasawa, The Doctrine of Self-Executing Treaties in the United States: A Critical Analysis (1986) 26 Va. J. Int’l L. 627, 645; and John H. Jackson, Status of Treaties in Domestic Legal Systems: A Policy Analysis (1992) 86 Am.J. Int’] L. 310, 316. 505 722)). Respondentalso offers an eight factor test that must be fulfilled, in the absence of legislative intent, for a treaty to be self-executing. (RB 369 (citing Frolova v. Union ofSoviet Socialist Republics (7th Cir. 1985) 761 F.2d 370, 373; and American Baptist Churches v. Meese (N.D. Cal. 1989) 712 F.Supp. 756, 771)). According to Respondent'’s interpretation, no language in any ofthe treaties cited by Appellant, especially the ICCPR, indicates that the treaties are self-executing. (RB 369). Respondent erroneously concludesthat: 1) the ICCPR and ICEAFRD arenotself-executing; 2) that self-execution is required for the application of the ICCPR and ICEAFRD;and3) that the ICCPR and ICEAFRD donotserve to protect defendants in criminal cases from discriminatory application of California’s laws.””’ To reiterate the ICCPR and ICEAFRD requirestates to “respect and to ensureto all individuals within its territory and subjectto its jurisdiction the rights recognised in the present Covenant, without distinction of any kind.” (Article 2(1), ICCPR).’” “21 Whether or not this Court finds the ICCPRto beself-executingit maystill apply the treaty indirectly by comparing the ICCPR’s provisions to otherrules of decision controlling this case. (See Restatement (Third) of the Foreign Relations Law of the United States (1987) § 114; David Sloss, supra, at 145, 146 n. 92 (“Indeed, the United States has told the U.N. Human Rights Committee that the NSE declaration attached to the ICCPR does not precludeindirect judicial application of the ICCPR; See also Concluding Observations of the Human Rights Committee: United States of America, U.N. GAOR Hum.Rts. Comm., 53d Sess., 1413th mtg. at para. 276, U.N. Doc. CCPR/C/79/ Add.50 (1995)). 22 Appellant recognizes that the Ninth Circuit recently held that the ICCPRisnot self-executing. (See Serra v. Lappin (9" Cir.2010) 600 F.3d 1191, 1197 (citing Sosa v. Alvarez-Machain (2004) 542 U.S. 692, 735)). This opinion is only persuasive, however, andas noted in the argument does not preclude this Court from indirectly applying the principles ofthe ICCPR. (See, e.g., Filartiga v. Pena-Irala (2d Cir. 1980) 630 F.2d 876, 883-84). 506 Appellant asserts the ICCPR’s provisionsas part ofhis criminal defense and based onthe proposition that the treaty was automatically incorporated by the United Statesin lieu of ratification. This determination is supported by Article 2(1) of the ICCPR andthe fact that the treaty’s creators had the intent that the treaty would be automatically self-executing. (See Restatement (Third) of the Foreign Relations Law of the United States (1987) § 111(4). This Court is thus required to hear Appellant’s claims based on the Supremacy Clause of the Constitution. (U.S. Const. Art. VI, cl. 2). Respondent next argues that “customary international law” is not applicable to Appellant’s case. (RB 370). Respondentsays that because American courts “are not substitutes for international tribunals, and international law doesnotcreate the right of an individual to pursue a private human rights suit against a sovereign government.” (/bid. (citing Hanoch Tel-Oren, supra, 517 F.Supp. 542)). Respondent contendsthat “interpretation and application of the provisions of the United States Constitution to [a] question presented by state or federal statutory or constitutional law is ultimately an issue for the United States Supreme Court and the lower federal courts, not customary international law.” (RB 370). Respondent thus concludes that Appellant’s international law rights have not been violated since under Respondent'’sinterpretation, his state and federal constitutional rights have not been violated. First, United States courts may not ignore the precepts of customary international law. (The Charming Betsy (1804) 6 U.S. (2 Cranch) 64; The Paquete Habana (1900) 175 U.S. 677, 694-700; The Nereide (1815) 13 U.S. (9 Cranch) 388, 423. In general, customary international law has the same status as domestic legislation. (Restatement (Third) of Foreign Relations Law § 701, Comment E). The obligations imposed by international common law andthe attendant rights granted thereby are 507 owedseparately and independently to Appellant. Second, Appellant was convicted and sentenced in violation of his due process rights. Article 14 of the ICCPR enumerates due processrights relating to criminal proceedings.”” Article 14 provides for rights including equality before the courts andtribunals; a fair and public hearing by a competent, independent and impartial tribunal; a presumption of innocence; and the rights to obtain the attendance of his own witnesses and to confront witnesses against him. As documented throughout the Opening Brief, Appellant’s trial was the product ofarbitrariness and discrimination. As documented in this argument, these fundamental errors during Appellant’s trial violate the provisions of the ICCPR and the ICEAFRD. California’s failure to abide by international law in this regard renders Appellant's conviction and death sentence void. Third, Appellant was convicted and sentenced to death in violation of his rights under Articles 6 and 14 of the ICCPR, which guarantee the right to a fair trial at all stages of the proceedings. International common law requires that capital defendants be granted special protection above and beyondthe protection afforded in non-capital cases. The United Nations’ “Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty” (hereafter Safeguards), mandate that: “Capital punishment mayonly be carried out pursuant to a formal judgmentrendered by a competent court after legal process which gives all possible safeguardsto ensure a fair trial, at least equal to those contained in Article 14 of the 23 Article 6 of the ICCPR provides that the death penalty may be imposed only where the ICCPR’s standards are observed. The United Nations Human Rights Committee has held that when a state violates an individual’s due process rights under the ICCPR,it may not carry outhis execution. (See, e.g., Johnson v. Jamaica (1966) No. 588/1994, H.R. Comm.para. 8.9 [reiterating that imposition of a death sentenceis prohibited where the provisions of the ICCPR have not been observed]. 508 International Covenant on Civil and Political Rights.” (United Nations, Economic andSocial Council Resolution (May 25, 1984). California’s failure to require juror sentencing findings to be made unanimously and beyond a reasonable doubt, or even by a preponderanceof the evidence, violates Article 14 of the ICCPR. (See Claim X - The Jury Did Not Find, Unanimously and Beyond a Reasonable Doubt, Each Factual Element Essential to Appellant’s Conviction; and Claim XXIII - Appellant’s Death Sentence must Be Reversed Because All Essential Factors Were Not Properly Charged and Were Not Found Beyond a Reasonable Doubtby an UnanimousJury). Fourth, Appellant’s death sentence should be void for violations of Article 7 of the ICCPR, which provides that “[n]o one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.” Universal Declaration ofHuman Rights (1948) G.A. Res. 217A (IID), U.N. Doc. A/810, at 71. Because of the long delay betweenarrest andtrial and between sentencing and execution, and the conditions in which Appellantis kept, execution of the death penalty in this case violates this provision of the ICCPR. International law bars execution when delay in carrying out the penalty is particularly protracted, a practice referred to as the “death row phenomenon.” (See Pratt and Morgan v. The Attorney General ofJamaica (Privy Council 1993) 3 SLR 995 2 AC 1, 4 All ER 769 (en banc); Soering v. United Kingdom (1989) 161 Eur. Ct. H.R. (Ser. A); Knight v. Nebraska (1999) 528 U.S. 990 (Breyer, J., dissenting from denial of certiorari); Ellidge v. Florida (1998) 525 U.S. 944 (Breyer, J., dissenting from denial of certiorari); Lackey v. Texas (1995) 514 U.S. 1045 (Stevens,J., respecting denial of certiorari); Lewis v. Attorney General ofJamaica (P.C. 12 September 2000) 3 WLR 1785)). Because of the long delay in capital cases and the conditions in which Appellant is confined, execution of the death penalty in this case violates international law. 509 E. This Court Should Reconsider Prior Precedentin the Face of Appellant’s Persuasive Claim. Respondentargues that this Court has already rejected Appellant's claims. (RB 370-71). Respondent argues that in People v. Ghent, this Court specifically held that the international law authorities, “similar to those now invoked by appellant do not compelelimination of the death penalty.” (RB 371 (citing Ghent, supra, 43 Cal.3d at 778-79; Roldan, supra, 35 Cal.4th at 744; and Blair, supra, 36 Cal.4th at 755)). This Court’s reasoning in those cases rests on a faulty assumptionthat is not justified in fact or law. This Court’s prior opinionsstate that the United States reserved its rights to impose capital punishment, when signing the ICCPR and ICEAFRD. “Givenstates’ sovereignty in such matters within constitutional limitations, our federal system of governmenteffectively compelled such a reservation.” Brown, supra, 33 Cal.4th at 404. Thebasis ofthis assumption, however,is not supported by the United States Constitution, which charges the federal government with, and specifically withholds from thestates, all rights and abilities to enter into binding international treaties. (U.S. Con. Art. I, Section 10 (“Nostate shall enter into any Treaty, Alliance, or Confederation....”). By signing the ICCPR and ICEAFRD, despite the reservations, the United States has entered into international treaties which must be regarded as the supremelaw ofthe land. (U.S. Con. Article VI, Clause 2 (“This Constitution, and the laws of the United States which shall be made in pursuancethereof; andall treaties made, or which shall be made, underthe authority of the United States, shall be the supremelaw of the land; and the judges in every state shall be bound thereby....”). This Court should thus look to the ICCPR and ICEAFRD as controlling authorities or, at the very least, as indirect points of reference for evaluating the constitutionality of the California capital sentencing statutes. This is especially true in light of Appellant’s showing here. This 510 Court should reconsiderits holdings denying standing to capital defendants seeking to vindicate the violation of their rights under the ICCPR and ICEAFRD. F. Conclusion. Violations of Appellant’s rights under international law warrant the granting of relief without any determination of prejudice. The errors alleged in the Opening Brief so infected the integrity of the proceeding against Appellant that the errors cannot be deemed harmless. Respondent has failed to meet their burden of showing harmless error. The violations of Appellant’s rights rendered the judgments fundamentally unfair, and resulted in a miscarriage of law. Accordingly, Appellant’s death sentence mustbe reversed. 511 XXX. APPELLANT’S DEATH SENTENCE WAS IMPOSED THROUGH THE ARBITRARY, DISPARATE, AND UNCONSTITUTIONAL IMPLEMENTATION OF CALIFORNIA'S CAPITAL SENTENCING STATUTES. A. Introduction. The circumstances under which a defendant may be deemedeligible for the death penalty must be narrowly drawn and“fit the crime within a defined classification.” (Arave v. Creech (1993) 507 U.S. 463, 471). Wheretheeligibility decision is based, in part, on the subjective and changing viewsofindividualprosecutors, there is no “defined classification,” “so as to ‘make rationally reviewable the process for imposing a sentence of death.” (Tuilaepa, supra, 512 U.S. at 973). Due to the uncheckeddiscretion of the prosecutor in determining actualeligibility, California’s system for capital prosecutions is not“rationally reviewable” and violates the California and federal Constitutions. Here, the imposition of Appellant’s death sentence violated the Eighth Amendment, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, along with Article 14 of the International Covenant on Civil and Political Rights, and Article 24 of the American Convention on HumanRights. The Supreme Court has applied principles of Fourteenth Amendmentjurisprudence and recognized that fundamental rights cannot be denied based uponarbitrary and disparate statewide “standards.” (Bush v. Gore (2000) 531 U.S. 98, 106). In Bush, the High Court held that, where a single state entity has the power to assure uniformity in implementing a fundamentalright, there mustbe at least some assurance that the rudimentary requirements of equal treatment and fundamental fairnessare satisfied. (/d. at 109). A California prosecutor’s choice as to whoreceives a capital prosecution is the product of an arbitrary and standard less process. (See III AOB 738-39). $12 At the time of Appellant’s’s trial, Alameda County had no written policy or published standards regardingthe criteria for authorizing a capital case. The office disparately and discriminatorily chose to institute or not institute capital charges; as occurred in Appellant’s case, where the Alameda County District Attorney chose to seek the death penalty against a man who waschargedwith a single victim felony-murder, had no prior convictions for crimes of violence, and no history of violence of any kind - save two alleged scuffles in jail while awaiting trial. The constitution requires morereliability and less discretion in capital cases. The constitution requires that punishment for crimes, and certainly the imposition of the gravest punishmentofall, be based on review able, articulable and evenly appliedcriteria. Respondent concedesthat “it is clear that under California law prosecutors in special circumstance cases have discretion whetheror not to seek the death penalty.” (RB 372). Respondent concedesthat “the law permits - indeed demands- that prosecutors treat different defendant’s differently.”"”" (Ibid.). Respondent, however, says that Appellant’s arguments are “unavailing.” (/d. at 373). In doing so, Respondent does not acknowledgeor rebut three of Appellant’s constitutional arguments raised underthis claim of error.’ Thus, contrary to Respondent's assertion, *°4 This statement contradicts Respondent’s earlier statementthat capital defendants and non-capital defendants are not distinct classes for purposesof equal protection analysis under the Fourteenth Amendment. (See RB 317 (“Thestate has [not] adopteda classification that affects two or more similarly situated groups in an unequal manner.”) (citing Massie, supra, 19 Cal.4th at 571; and Lucero, supra, 23 Cal.4th at 717-18)). *25 Respondent did not address or rebut the following arguments: 1) Appellant was arbitrarily sentenced to death in violation of the Equal Protection Clause because, in capital cases, state law fails to provide assurances that the rudimentary requirements of equal treatment and fundamentalfairnessare satisfied. (See II AOB 736 (citing Sioux City 513 Appellant’s claim doesnotrise and fall based on this Court’s application of Bush v. Gore alone. (Id. at 373). Instead, an affirmative finding as to any - one of the following arguments - which Respondentdoesnotrebut- suffices for reversal of Appellant’s capital sentence. Respondent’s failure to address these claims defeats their argument that a ruling onthe applicability ofBush alone disposes of the issues raised here. Moreover, Respondent's failure to address these arguments underminesits conclusions that Appellant’s rights under the Fourteenth Amendmenthave not been violated by the lack of standards guiding California prosecutors’ capital discretion. Herein, Appellant demonstrates that Respondent’s meager opposition is unavailing. B. This Court Has Not Foreclosed Appellant’s Argument. Respondentsays that “the People see no need to”substantively address this claim because “[t]his court has repeatedly rejected appellant’s contention.” (RB 372 (citations omitted)). However, the cases cited by Respondentdo not address the arguments raised by Appellant in his Opening Brief. This is apparent by the fact that only Maury, supra, 30 Cal.4th at 43877 was decided after Bush v. Gore and noneofthe cases BrId.ge Co. v. Dakota County (1923) 260 U.S. 441, 445)); 2) The California Constitution creates a liberty interest, protected by the Due Process and Equal Protection Clauses, that criminal laws be “uniformly applied”to all citizens of the state and the California Attorney General’s failure to uniformly apply the law, as chief law officer of the state, violates Appellant’s rights under the California Constitution. (See IIT AOB 742); and 3) Appellant’s death sentence violates his constitutional rights underthe Fourteenth Amendment because the county-by-county disparities in capital prosecutions are not related to homicide rates, but to arbitrary factors, including the personal ideology of the prosecutor, political pressures from constituents, the budgetary constraints of the county, as well as “race, politics, and poorly performing law enforcement systems. (See Jd. at 742). 26 People v. Maury, however,is inapplicable to this decision becausethere the defendant contended that his death sentence should “be 514 address the import ofBush on equal protection jurisprudence. Twoofthe cases hold, in one sentence, that California law is not constitutionally defective because the prosecutor retains discretion whetheror not to seek the death penalty.” (Dickey, supra, 35 Cal.4th at 932; see also Barnett, supra, 17 Cal.4th at 1044). Likewise, in Haskett, supra, 30 Cal.3d at 859-60, this Court addressed only whether the defendant “was denied equal protection because the district attorney sought the death penalty in his case, while choosing not to pursueit in other, assertedly similar cases.” (citing Furman, supra, 408 U.S. at 238). Here, Appellant has shown that the California Attorney General hasfailed to uniformly apply California’s capital sentencing statutes and that district attorney’s disparate application of the statutes has resulted in the systemic violation of capital defendant’s’ constitutional rights to equal protection. Unlike in Kirkpatrick, supra, 7 Cal.Ath at 1024, Appellant has proffered conclusivestatistical evidence documenting that the application of California’s capital sentencing statutes has resulted in wildly disparate results. (See Claim XXVII — California’s Death Penalty Schemeis Unconstitutional Because It Fails to Properly Narrow the Class of Death Penalty Offenders and Offenses). Respondenthasfailed to cite any authorities or statistics that foreclose Appellant’s meritorious and persuasiveconstitutional claim. reversed becausethe district attorney improperly exercised his discretion to seek the death penalty against defendant for reasons contaminated by bias and conflict of interest arising from the district attorney's personal and emotional involvementin the case, and “motivated purely by his ownself- interest.” (Maury, supra, 30 Cal.4th at 438). This Court denied the claim because the defendant had not movedto recuse the prosecutor. (Jbid.). Here, Appellant has alleged that his constitutional rights to equal protection have been violated by the disparate and arbitrary application of the death penalty across California. 515 C. Bush v. Gore is Controlling, Applicable to this Capital Case, and Requires the Reversal of Appellant’s Death Sentence for Violations of his Rights Under the Fourteenth Amendment. Alternatively, Respondent argues that Appellant’s argumentlacks merit because Bush v. Gore is inapplicable to this capital case. (RB 373- 74). Respondentviewsthe application ofBush too narrowly,and argues that the ‘Bush Court expressly limited its analysis to the unique circumstancesofthe 2000 presidential election process in Florida and the recount procedures.” (Ibid. (citing Bush, supra, 531 U.S.at 109). Respondentthustries to limit Bush's application to cases involving the “intent ofthe votertest,” “recount mechanisms,” and “interpreting physical marks on a physical objects.” (/bid.). Respondent argues that because the Supreme Court in Bush did notrefer to the criminal law when discussing the equalprotection challenge, the case is not applicable to criminal cases. (RB 373(citing People v. Wells (1996) 12 Cal.4th 979, 984 n. 4)). Respondent argues that because the case is limited to cases involving “interpreting physical marks on a physical object,”it is irrelevant to consideration of“the prosecutor’s thought process.” (RB 374). First, the implementationofthe death penalty plainly involves the most fundamentalright ofall -- the right to life. (See Ford v. Wainwright (1986) 477 US. 399, 409).”*’ Equalprotection precludes the state from *27 The fundamental rights of liberty and due process are also implicated when the state imposesits authority to execute oneofits citizens, as well as the right to be free from the arbitrary and capricious imposition of the death penalty andthe constitutionally expressright to be free from cruel and unusual punishment. (See e.g., Declaration of Independence(“Wehold thesetruths to be self-evident, that all men are created equal, that they are endowedbytheir Creator with certain unalienable Rights, that among these are Life, Liberty andthe pursuit of Happiness.”)) 516 engaging in arbitrary and disparate treatment that would deprive one person of his or her fundamental rights, and requires implementation of adequate statewide standards to prevent such disparate treatment. (See Bush, supra, | 531 U.S. at 109). California lacks such statewide standards to prevent disparate treatment in implementation of the death penalty. Second, Respondent does not counter Appellant’s assertion that the violation of his fundamental rightto life is analogousto the violation of a voter’s right to vote as in Bush v. Gore. Just as in Bush, there is a single state entity (the California Attorney General) that has the power, as well as the duty, to ensure uniformity in implementing the fundamentalright. Here, it is the fundamental right to life, as well as the rights to due process and freedom from cruel and unusual punishment. Just as in Bush, instead ofuniformly implementing regulations regarding Appellant’s fundamental right to life, the California Attorney General has allowed charging decisions to be made without anyrules, in a standard-less and inconsistent fashion from county to county, and within each county, without any assurancethat the rudimentary requirements of equal treatment and fundamental fairness are satisfied. Just as in Bush, “the want of those rules here has led to unequal evaluation” ofwho should live and who should be subject to death, and the standards for deciding who should be charged with the death penalty “might vary not only from county to county but indeed within a single county....” (Bush, supra, 531 U.S at 106). Fourth, Respondent’s argumentthat “it is fundamental that a case is not authority for a proposition neither raised nor considered therein” (RB 373 (citing Wells, supra, 12 Cal.4th at 984 n. 4)), is without merit in cases involving arguments of constitutional import. In Wells, the defendant was convicted of vehicular manslaughter. (/d. at 982). He cited felony-murdercases, alleging that the trial court erred in failing to instruct the jury on which conductofthe defendant could constitute an inherently dangerous 517 misdemeanor. (/d at 983.). The case thus turned on the statutory construction of Penal Code sections 192(b)(c). (bid.). Here, however, resolution of Appellant’s claim requires interpretation and construction of the equal protection clauses of the Fourteenth Amendmentand the California Constitution. Wheninterpreting constitutional provisions, this Court is free to look to decisions by the Supreme Court addressing the sameconstitutional amendmentand clause, which Appellant claims has beenviolated in his case. Fifth, due to its logical implications, many commentators have recognized Bush's application to death penalty cases.*® Here, the need for equality and non-arbitrariness when a California prosecutor decides to seek capital charges and deprivea citizen ofhis or herlife outweighs any benefits stemming from unbridled prosecutorial discretion. No argumentfor prosecutorial discretion can justify a system that contains no safeguards to ensure that the life of each offenderis treated with equal dignity. California's law does not comply with the equal protection clause's “minimum requirementfor non-arbitrary treatment” because the California Attorney Generalhasfailed to promulgate standards regulating the decision to seek capital charges by district attorney's offices. (Bush, supra, 531 U.S. at 105). Worse, California law, including this Court’s dictates, does not even provide an “abstract proposition” or a “starting principle” as to how District Attorneys oughtto constitutionally make theselife - and - death decisions. (/d. at 106). In the absenceofany controlling authorities, this Court should look 228 See Laurence Benneretal., Criminal Justice in the Supreme Court: An Analysis of United States Supreme Court Criminal and Habeas Corpus Decisions (2001) 38 Cal. W. L. Rev. 87, 91; Michael P. Seng, Commentary: Reflections on When “We, the People”Kill (2001) 34 J. Marshall L. Rev. 713, 717; and Cass R. Sunstein, Symposium: Bushv. Gore: Order Without Law (2001) 68 U. Chi. L. Rev. 737, 758. 518 to the experiencesofits sister states in urging the California Attorney General to adopt a uniform capital case authorization policy. Out of concern for almostidentical disparate statistics in capital charging practices, the New Jersey Supreme Court required its Attorney General to “instill uniformity in charging and prosecuting practices throughout the state.” (State v. Marshall (1992) 613 A.2d 1059, 1112). Similarly, in Oregon,an assistant district attorney submitted a declaration andtestified to the state’s capital charging practices as proof that indeed the office utilized “a coherent, systematic policy” when charging the death penalty. (See Cunningham v. Thompson (2003) 186 Or.App. 221, 256-57). Here, this Court should follow the lead of its sister states and ensure that capital defendants are receiving equal treatment by requiring the California Attommey General to adopt uniform capital charging policies. D. Conclusion. Respondent concedesthat there are no statewide standards in California to guide the District Attorneys of each county in determining whether to seek the death penalty against a potentially death-eligible defendant(i.e. where special circumstances are charged). Respondent concedesthatthe decisionis left solely to the discretion of the prosecutorin the county where the crime was committed. Respondent concedes that each county may, and does, in fact impose its own standards(or noneatall), for deciding who will face death. Respondent should not be able to concede a constitutional violation without Appellant receiving a remedy forhis unconstitutional capital conviction. While the criteria for death-eligibility set forth in section 190.2 are applicable in all counties, the California Constitution expressly requires the Attorney General to ensure the uniform enforcementof state law under Article V, Section 13. The California Attorney General has failed to apply section 190.2's death-eligibility criteria uniformly or ensure the uniform 519 application of capital prosecutions in the different counties. Dueto the California Attorney General’s failure to ensure uniformity, some offenders have beencapitally prosecuted and chosen as candidates for the death penalty, while others with similar characteristics have not been singled out for the ultimate penalty. These decisions have been madesolely on the personal idiosyncrasies of the local prosecutor anddistrict attorney’s office. Undoubtedly, this process increases the substantial risk of arbitrariness in violation of the Eighth Amendment,and violates principles of due process and equal protection as guaranteed by the Fourteenth Amendment. Here, Appellant's death sentence violated the Eighth Amendment, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, along with Article 14 of the International Covenant on Civil and Political Rights, and Article 24 of the American Convention on HumanRights. 520 CONCLUSION For the reasons discussed, Appellant requests that tQis Court reverse the convictions, the special circumstance me and the Sentence ofdeath. \AI “ DATED: September23, 2010 Respectfully Submitted, ‘ a : he Cac JAMESS. THOMSON Attorney for Appellant RICHARD C. TULLY 521 CERTIFICATE OF COMPLIANCE I herebycertify that, according to our word processing software, this brief contains 158,158 words. y Submitted, JAMESS. THOMSON Attorney for Appellant RICHARD C. TULLY DATED: September 23, 2010 522 People v. Tully; California Supreme Court Case No. S030402 PROOF OF SERVICE BY MAIL I, AAron Jones, declare: Iam employed in the County of Alameda, State of California. I am overthe age of eighteen years and am nota party to the within-entitled action. My business addressis 819 DelawareStreet, Berkeley, California. On September 23, 2010, I served the within APPELLANT’S REPLYBRIEFonthe below-listed parties, by delivery or depositing a true copy thereof in a United States mailbox regularly maintained by the United States Postal Service, in a sealed envelope, with postage paid, addressed as follows: Attorney General's Office Honorable Philip V. Sarkisian 455 Golden Gate Ave., Suite 11000 Alameda County Superior Court San Francisco, CA 94102-3660 1225 Fallon Street, Room 209 Oakland, CA 94612 Alameda County District Attorney James Anderson ATTN. Mary Jameson 1225 Fallon Street, 9th Floor California Supreme Court Oakland, CA 94612 350 McAllister Street San Francisco, CA 94102 Melissa Hooper California Appellate Project Richard C. Tully 101 Second Street, Suite 600 H-58500 3 E/B 105 . San Francisco, CA 94105 San Quentin State Prison San Quentin, CA 94974 I declare under penalty ofperjury that the foregoing is true and correct, and that this
