PEOPLE v. HOUSTON (ERIC C.)

Appellant's Opening Brief

Cal.September 17, 2007

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, VS. ERIC CHRISTOPHER HOUSTON, Defendant and Appellant. ) Case No.: SO35 190 1 1 eal From Judgment Entered ) PPR ) In t e Superior Court of Napa ) County, No. No. CR 1431 1 ) ) Hon. W. Scott Snowden, ) presiding ) ) 1 AUTOMATIC APPEAL FROM JUDGMENT OF DEATH APPELLANT'S OPENING BRIEF DAVID H. SCHWARTZ (SBN 62693) One Market Plaza Steuart Tower, Suite 1600 San Francisco, CA 94 105 Tel: (415) 975-2838 Counsel for Appellant, Eric Christopher Houston CERTIFICATE OF COUNSEL PURSUANT TO RULES 8.208 AND 8.630(b)(2) David H. Schwartz certifies as follows: I . 1 know of no entity or person that has a financial or other interest in the outcome of this appeal for listing in the certificate of counsel as required by Rule 8.208. 2. The incident from which the charges against Defendant arose involved over 90 direct victims and probably more than 200 people who were directly affected by Defendant's conduct, and they and their family and close associates may have strong emotional interests in the outcome of this proceeding. The names of all of these people are not known to me. 3. The Appellant's Opening Brief contains 130,914 words according to the word count feature of Microsoft Word 2007. Dated: September 12, 2007 DAVID H. SCHWARTZ TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................ XVI STATEMENT OF THE CASE .......................................................... 1 F . APPEAL ...................................................................................... 13 STATEMENT OF FACTS ............................................................... 14 1 . May 1. 1992. Beginning Shortly Before 2:00 p.m. . Lindhurst High School. Parking Lot and First Floor of Building C ............................................................................... 16 2 . May 1. 1992. From Approximately 2:05 p.m. Until Gutznzan Surrenders . Lindhurst High School. Building C. ........................................................................... Second Floor 37 ....................................................................... a ) On Balcony 37 b) Entering C-204 ................................................................. 38 c) Lookouts ........................................................................... 38 d ) Students from 205 to 204b ............................................... 39 e ) Students from 201 to 204b ................................................ 39 3 . Spreading out .................................................................... 40 4 . Destruction of Property .................................................... 40 5 . Students use the Bathrooms .............................................. 41 [il 6 . Studeizts Released for Special Needs ................................ 42 7 . Assistance sent to Injured Students .................................. 43 8 . Warning Shot .................................................................... 43 9 . Throw Phone .................................................................... 43 . 10 TV/Radio ........................................................................ -44 I I . Supplies and Release of Students ................................... 44 12 . Reasons for coming to the school ................................... 45 13 . Threats and Pointing Gun in C-204b ............................. 49 14 . Di.scu.ssion re shootings downstairs ............................... 50 15 . Evidence on Defendaizt's State of Mind While In C-204b 55 16 . Surrender ........................................................................ 57 C . RESULTS OF AUTOPSIES OF THE DECEASED; EVIDENCE OF ~NJURIES SUSTAINED BY SURVIVORS; EVIDENCE OBTAINED FROM .................................................................................... THE SCENE 5 8 F . DEFENDANT'S EVIDENCE ~NTRODUCED IN THE GUILT PHASE ..128 I . Mental Health Experts .................................................... 128 2 . Lay Testinzony of Defendant's State of Mind ................. 156 3 . Prosecution's Rebuttal Evidence to Defense Witnesses 157 G . SANITY PHASE VIDENCE ........................................................ 158 1 . Defendant's Mental Health Expert ................................ 158 2 . .Mental Health Experts Called by the Prosecution ......... 162 H . PENALTY PHASE VIDENCE ..................................................... 168 [ii] I. Prosecution Evidence ..................................................... 168 ............................. 2. Defendant ' s Witrzesses irz Mitigation. 169 ....................... 3. Defe~zdatzt ' s Testinzony in Penalty Phase 176 ARGUMENT ................................................................................... 194 I. THE ADR/IISSION OF THE \71DEOTAPES OF THE INTERROGATION OF DEFENDANT AND THE AUDIO TAPES CONTAINING STATEMENTS OF DEFENDANT WHILE HE WAS HOLDING STUDENTS HOSTAGE IN ROOM C-204B, WITHOUT AN ACCURATE AND RELIABLE RECORD OF THE INTELLIGIBLE AND UNINTELLGIBLE WORDS SAID ON THOSE TAPES, REQUIRES REVERSAL OF THE JUDGMENT BELOW IN ITS ENTIRETY ................ 194 A. THE PROBLEMS WITH THE TAPES ............................................ 1 94 I . Videotaped Interrogation of Defendant by Law Enforcement .......................................................................... I94 B. AUDIO TAPES OF HOSTAGE NEGOTIATIONS AND CONVERSATIONS IN ROOM C - 2 0 4 ~ ......................................................................... 208 C. THERE IS NO PRACTICAL METHOD FOR SETTLING THE RECORD AS TO WHAT EVIDENCE WAS ACTUALLY PRESENTED TO THE JURY BECAUSE, IN THE ABSENCE OF A COURT REPORTER TAKING DOWN WHAT WAS ~ N T E L L ~ G ~ B L E AS THE TAPES WERE PLAYED FOR THE JURY, DETERMINING WHAT ~ N T E L L ~ G ~ B L E WORDS THE JURY HEARD WOULD BE NOTHING MORE THAN SPECULATION. .... .................. 214 D.THrs APPEAL CANNOT BE PROSECUTED WITHOUT A RECORD OF WHAT THE JURY ACTUALLY HEARD, OR CAN REASONABLY BE DEEMED TO HAVE HEARD, DEFENDANT SAY IN THE RECORDED STATEMENTS DURING THE INCIDENT AND IN HIS ~NTERROGAT~ON BY LAW ENFORCEMENT THE DAY AFTER THE INCIDENT.. . ......... 2 18 1. It Violates Both California Statutory and Case Law, as well as Established United States Supreme Court Precedent on Due Process and Sixth Anzendment Rights in Criminal Appellate Proceedings, to Review and AfJirm a Capital Trial .............. a11d Seiltelzce on ail I~zadequate Appellate Record. 218 E. GIVEN THE EXTENT OF THE EVIDENCE FOR WHICH NO RECORD EXISTS, COUPLED WITH THE CENTRALITY OF THAT EVIDENCE TO THE CASE AS PRESENTED AT TRIAL, THE PRESUMPTION MUST BE THAT THE ~NADEQUATE RECORD IS PREJUDICIAL TO DEFENDANT ON THIS APPEAL ................................................................................ 229 F. APPELLATE COUNSEL CANNOT EFFECTIVELY ARGUE DEFENDANT'S CASE ON APPEAL IN THE ABSENCE OF A RECORD AS TO WHAT THE JURY CAN BE DEEMED TO HAVE HEARD EFENDANT SAY DURING EIGHT HOURS OF PLAYING RECORDED EVIDENCE.. 236 G.THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT PERM~TTED THE PLAYING OF THE VIDEO TAPED ~NTERROGAT~ON AND THE AUDIO TAPES OF C - 2 0 4 ~ DURING THE HOSTAGE NEGOTIATIONS WITHOUT FIRST VERIFYING A WRITTEN TRANSCRIPT THAT ACCURATELY REPRESENTED WHAT WAS JNTELLIGIBLE ON THE ELECTRONIC TAPES. . ................................ 247 H. THE TRIAL COURT COMMITTED PREJUDICML ERROR BY ALLOWING THE JURY TO USE EXHIBIT 89 IN DELIBERATIONS WITHOUT FIRST CERTIFYING ITS ACCURACY. ... ......................... 259 1. THE TRIAL COURT'S ERROR IN ADMITTING THE AUDIO AND VIDEO TAPES BY PLAYING THEM WITHOUT A VERIFIED TRANSCRIPT SETTING FORTH THEIR ~NTELLIGIBLE LINGUISTIC CONTENT WAS STRUCTURAL ERROR EQUIRING REVERSAL OF THE ENTIRE JUDGMENT.. ..................................................................... 260 11. THE JUDGMENT MUST BE REVERSED BECAUSE THE INDICTMENT WAS HANDED DOWN BY A GRAND JURY WHOSE MEMBERS WERE SELECTED BY CONSTITUTIONALLY IMPERMISSIBLE METHODS AND WHOSE PROCEEDINGS WERE PREJUDICIALLY FLAWED. 264 A.FACTS ADDUCED REGARDING THE METHOD FOR SELECTING GRAND JURORS AND THE COMPOSITION OF THE POOL ................. 264 B. THE PROSECUTOR'S DEC~S~ON T CONDUCT PORT~ONS OF THE GRAND JURY PROCEEDINGS OFF-RECORD REQUIRES REVERSAL OF THE JUDGMENT^^^ ...................................................................... 269 D.THE SELECTION AND COMPOSIT~ON OF THE GRAND JURY WHICH INDICTED DEFENDANT VIOLATED THE DUE PROCESS CLAUSE AND THE SIXTH AMENDMENT RIGHT O A TRIAL BY A "FAIR CROSS SECT~ON OF THE COMMUNITY ...................................................... 273 111. THE TRIAL COURT'S FAILURE TO QUESTION I'ROSPECTIVE JURORS UNDER OATH VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS AND AN IMPARTIAL JURY ........................................................................ 277 B. THE LAW REQUIRED VOIR DIRE OF PROSPECTNE JURORS UNDER PENALTY OF PERJURY AND ADMINISTRATION OF THE TRUTHFULNESS OATH ON THE RECORD ....................................... 278 E. SETTLEMENT OF THE RECORD .................................................. 282 F. ~ R E V ~ O U S OPIN~ONS BY THIS COURT DO NOT CONTROL THE ISSUE ............................................................................................ 287 G.THE LEWIS OPINION RELIED ON FEDERAL CASE AUTHORITY ~NAPPOSITE TO DEFENDANT'S CASE AND 1s FACTUALLY DISTINGUISHABLE ........................................................................ 287 H.THE CARTER OPINION IS POORLY REASONED AND FACTUALLY DISTINGUISHABLE ........................................................................ 289 1. THE TRIAL COURT'S FAILURE TO VOIR DIRE POTENTIAL JURORS UNDER OATH ON THE RECORD AT DEFENDANT'S CAPITAL TRIAL VIOLATED HIS FEDERAL CONSTITUTIONAL RIGHTS AND REQUIRES REVERSAL .................................................................................... 292 J. FAILURE TO ADMINISTER THE OATH OF TRUTHFULNESS TO PROSPECTIVE JURORS WAS STRUCTURAL ERROR EQUIRING REVERSAL PER SE ........................................................................ 294 K.FAILURE TO ADMINISTER THE OATH OF TRUTHFULNESS ON THE RECORD LED TO AN ~NCOMPLETE RECORD, REQUIRING REVERSAL295 L. REVERSAL IS REQUIRED UNDER THE REASONING OF GRAY V. MISSISSIPPI.. ......... ....................................................................... 297 M. REVERSAL IS REQUIRED UNDER CHAPMAN V. CALIFORNIA .... 298 IV. THE EVIDENCE WAS INSUFFICIENT TO CONVICT DEFENDANT ON ANY OF THE ATTEMPTED MURDER COUNTS, BOTH AT THE CLOSE OF THE PROSECUTION CASE-IN-CHIEF WHEN DEFENDANT'S SECTION 1118.1 MOTION WAS ERRONEOUSLY DENIED, AND AT THE CLOSE OF GUILT PHASE EVIDENCE .................................... 299 A.THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE A'TTEMPTED MURDER COUNTS UNDER SECTION 11 18.1 BECAUSE THERE WAS ~NSUFFICIENT EVIDENCE OF THOSE C R I M E S ~ ~ ~ C. DEFENDANT COULD NOT CONSTITUTIONALLY BE CONVICTED OF APEMPTED MURDER IN THE ABSENCE OF PROOF BEYOND A REASONABLE DOUBT OF EVERY ELEMENT OF THE CRIME ........... 301 D.THE CRIME OF ATTEMPTED MURDER EQUIRES THE SPECIFIC INTENT TO KILL .......................................................................... 3 0 3 E . THE CIRCUMSTANCES OF THE SHOOTINGS DO NOT REASONABLY SUPPORT FINDINGS OF SPECIFIC INTENT TO KILL ........................ 307 F . THE CIRCUMSTANCES OF THE SHOOTINGS DID NOT ~ N D ~ C A T E THAT DEFENDANT WAS AFFIRMATIVELY TRYING TO KILL ANY OF THE VICT~MS ................................................................................ 308 I . Thomas Hinojosai (Count V ) ...................................... 308 2 . Rachel Scarberry (Count VI) ......................................... 309 3 . Patricia Collazo (Count VII) .......................................... 310 4 . Danita Gipson (Count VIII) ........................................ 3 1 1 5 . Wayne Boggess (Count IX) ............................................. 312 6 . Jose Rodriguez (Count X ) ............................................... 314 7 . Mireya Yanez (Count X I ) ................................................ 314 8 . Sergio Martinez (Count XII) .......................................... 315 9 . John Kaze - Count XI I I .................................................. 315 10 . Donald Graham - Count XIV ....................................... 316 G . THE TOTALITY OF THE EVIDENCE ~NDICATED THAT DEFENDANT DID NOT HARBOR THE REQUISITE SPECIFIC INTENT .................... 318 I . Lack of AfJirnzative Evidence of Intent to Kill the Named Victims .................................................................................. 318 2 . Affirmative Evidence that Defendant Had No Intent to Kill 320 a . Statements to Police ....................................................... 320 3 . Statelneizts to David Rewerts .......................................... 326 I . NOTHING ~NTRODUCED INTO EVIDENCE AFTER THE CLOSE OF THE PROSECUTION CASE IN CHIEF PROVIDED ANY ADDITIONAL SUPPORT. FOR FINDING THAT DEFENDANT ACTED WITH THE REQUISITE SPECIFIC INTENT TO KILL OR OTHERWISE MADE THE RECORD SUFFICIENT TO SUPPORT THE ATTEMPTED MURDER V. DEFENDANT'S LIFE SENTENCES FOR TEN COUNTS OF ATTEMPTED MURDER AND THE JURY'S SPECIAL FINDINGS OF PREMEDITATION AND DELIBERATION ON THOSE COUNTS MUST BE REVERSED BECAUSE THEY WERE UNAUTHORIZED BY LAW ........................................ 329 B. THE ~NDICTMENT FAILED TO ALLEGE THAT THE ATTEMPTED MURDERS WERE WILLFUL, DELIBERATE AND PREMEDITATED ... 330 C. THE SPECIAL FINDINGS OF PREMED~TAT~ON AND DELIBERATION AND THE LIFE SENTENCES IMPOSED FOR ATTEMPTED MURDER WERE UNAUTHORIZED BY LAW ................................................... 33 1 VI. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT VERDICTS OF FIRST DEGREE MURDER BOTH AT THE CLOSE OF THE PROSECUTION CASE-IN-CHIEF WHEN DEFENDANT'S SECTION 11 18.1 MOTION WAS ERRONEOUSLY DENIED, AND AT THE CLOSE OF GUILT ....................................................................... PHASE EVIDENCE 334 A.STANDARD FOR REVIEW .......................................................... 334 B.ANDERSON EVIDENCE TYPE (1) - PLANNING: THERE IS NO EVIDENCE IN THE RECORD THAT PLAINTIFF PLANNED OR EXPECTED THE DEATH OF ANYONE XCEPT HIMSELF ................................... 341 I . Defendant's May 2, 1992 Interrogation by Law Enforcement .......................................................................... 343 2. Testimony of David Rewerts re His Conversations with Defendant About Assaulting the School ............................... 348 3. Defendant's Statements to Students in Room C-204b .... 351 ........................................................... 4. Physical Evidence 355 [viii] C.ANDERSON EVIDENCE TYPE ( 2 ) - MOTIVE: THE RECORD IS DEVOID OF ANY EVIDENCE DEFENDANT HARBORED A MOTIVE TO HARM ANY OF THE VICTIMS OTHER THAN ROBERT BRENS ......... 361 I . Holnicide of Robert Brens .............................................. 366 2. Honzicide of Judy Davis ................................................. 373 3. Homicide of Jason White ................................................ 3 74 4. Homicide of Beamon Hill ............................................... 3 75 F. ADDITIONAL EVIDENCE ADDUCED IN THE DEFENSE CASE ON GUILT UNDERMINING THE REASONABLENESS OF INFERENCES THAT DEFENDANT DELIBERATED AND PREMEDITATED ANY OF THE ................................................................................... KILLINGS 3 8 3 VII. THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY TO VIEW ACCOMPLICE REWERTS' TESTIMONY WITH CAUTION AND ITS ADMISSION OF REWERT'S LAY OYllVlON THAT DEFENDANT WAS LYING ABOUT BEING MOLESTED BY RRENS VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS, A FAIR TRIAL, AND RELIABLE GUILT AND PENALTY VERDICTS ........................................................ 387 B. THE EVIDENCE SUPPORTED A CONCLUSION THAT REWERTS WAS AN AIDER AND ABETTOR ............................................................. 390 1. An Aider and Abettor Is One Who Knowingly Promotes, Encourages or Instigates a Crime Committed by Another .. 390 2. Rewerts' Testimony Was Evidence that He Aided and A betted the Crimes.. ............................................................ 3 9 2 C. THE TRIAL COURT SHOULD HAVE TOLD THE JURY TO VIEW REWERTS' TESTIMONY WITH CAUTION ........................................ 396 D.DEFENDANT WAS PKEJUD~CED BY THE TRIAL COURT'S FAILURE TO GIVE ACCOMPLICE INSTRUCTIONS .......................................... 397 VIII. BY STATING HIS SCORNFUL OPINION OF MENTAL HEALTH TESTMONY THE TRIAL JUDGE FATALLY POISONED ALL THREE PHASES OF THE JURY TRIAL ............................................................................ PROCEEDINGS. 413 B. THE TRIAL JUDGE'S DISPARAGEMENT OF DR. RUBINSTEIN A D PSYCHOLOGY IN GENERAL CONSTITUTED PREJUDICIAL MISCONDUCT REQUIRING REVERSAL OF THE CONVICT~ON AND JUDGMENT ................................................................................... 416 C. THE DISPARAGEMENT OF PSYCHOLOGY PREJUDICED THE DEFENDANT IN THE SANITY PHASE OF THE TRIAL. ..................... 425 D.THE DISPARAGEMENT OF PSYCHOLOGY PREVENTED THE JURY FROM GIVING FULL CONSIDERATION T THE MOST SIGNIFICANT EVIDENCE IN MITIGATION OF PENALTY ....................................... 426 E. THE TRIAL JUDGE'S MISCONDUCT IN ~ R E J U D ~ C I N G THE JURY TOWARD R. RUBINSTEIN AND MENTAL HEALTH TESTIMONY WAS NOT WAIVED BECAUSE NO POST-COMMENT ADMONITION WOULD HAVE CURED THE PREJUDICIAL EFFECT ...................................... 429 IX. DEFENDANT WAS DENIED THE RIGHT TO PRESENT A DEFENSE WHEN THE TRIAL COURT TOLD THE JURY THE WRONG TEST FOR INSANITY AND PROHIBITED CONSIDERATION OF THE EVIDENCE OF MENTAL DISEASE AND DEFECT COMBINED ....................................... 431 B. THE TRIAL COURT FAILED TO ~NSTRUCT HE JURY THAT IF DEFENDANT DID NOT UNDERSTAND BECAUSE OF MENTAL DISAR~L~TY THAT HIS CONDUCT WAS WRONG HE WAS ~ N S A N E 432 F. THE ERRONEOUS ~ N S T R U C T ~ O N SERIOUSLY PREJUDICED DEFENDANT BECAUSE HIS DEFENSE WAS THAT HE DID NOT UNDERSTAND THAT HIS CONDUCT WAS WRONG WHEN HE COMMITTED THE SHOOT~NGS ....................................................... 441 G.THE TRIAL COURT FAILED TO ~NSTRUCT THE JURY THAT IT COULD CONSIDER THE COMBINED EFFECT OF MENTAL DISEASE AND MENTAL DEFECT .................................................................. 444 I . The Jury Must be Presunzed to Have Understood the Word "or" In Its Ordinary Disjunctive Sense ................................. 444 2. The Errolzeous I~zstruction Seriously Prejudiced Defendant Because His Defense Was That His Tenzporary Moral l~zcapacity Was Caused By a Col?zbination of Mental Disease ................................................................ and Mental Defect 446 H.REVERSAL IS REQUIRED .......................................................... 448 X. THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT WHEN HE TOLD THE JURY TO CONSIDER DEFENDANT'S PURPORTED LACK OF REMORSE AS A BASIS FOR FINDING GUILT AND LATER AS AN AGGRAVATING FACTOR ON WHICH TO BASE IMPOSITION OF THE DEATH PENALTY .............................. 450 A.THE PROSECUTOR IMPROPERLY CALLED ATTENTION TO DEFENDANT'S FAILURE TO TESTIFY IN THE GUILT TRIAL BY ARGUING DEFENDANT'S APPARENT LACK OF REMORSE AS A EVIDENCE SUPPORTING UILT.. ................................................. .450 B. THE PROSECUTOR ~MPROPERLY ARGUED THE EVIDENCE OF DEFENDANT'S LACK OF REMORSE ADDUCED LN THE PENALTY PHASE AS A NON-STATUTORY AGGRAVATING FACTOR SUPPORTING ......................................................................................... DEATH 455 XI. CALIFORNIA'S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT DEFENDANT'S TRIAL, VIOLATES THE UNITED STATES .......................................................................... CONSTITUTION. 459 B. DEFENDANT'S DEATH PENALTY IS INVALID BECAUSE PENAL CODE 5 190.3(A) AS APPLIED ALLOWS ARBITRARY AND CAPRICIOUS ~MPOSITION OF DEATH INVIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. ..... ......................................................... 464 C. CALIFORNIA'S DEATH PENALTY STATUTE CONTAINS NO SAFEGUARDS TO AVOID ARBITRARY AND CAPRICIOUS SENTENCING AND DEPRIVES DEFENDANTS OF THE RIGHT O A JURY DETERMINATION OF EACH FACTUAL PREREQUISITE TO A SENTENCE OF DEATH; IT THEREFORE VIOLATES THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. ..... ..................................................................... -466 I . Defendant's Death Verdict Was Not Premised on Findings Beyond a Reasonable Doubt by a Unanimous Jury That One or More Aggravating Factors Existed and That These Factors Outweighed Mitigating Factors; His Constitutional Right to Jury Determination Beyond a Reasonable Doubt of All Facts Essential to the Imposition of a Death Penalty Was Thereby Violated. ................................. 467 2. In the Wake of Apprendi, Ring, Blakely, and Cunningham, Any Jury Finding Necessary to the Imposition of Death Must Be Found True Beyond a Reasonable Doubt. ...................... 471 3. Whether Aggravating Factors Outweigh Mitigating Factors Is a Factual Question That Must Be Resolved Beyond a Reasonable Doubt.. ........................................................... .480 4. The Due Process and tlze Cruel and Unusual Punishnzent Clauses of tlze State and Federal Constitution Require That the Jury in a Capital Case Be Instructed That They May lnzpose a Sentence of Death Only If They Are Persuaded Beyond a Reasonable Doubt That the Aggravating Factors Exist and Outweigh the Mitigating Factors and That Death Is the Appropriate Penalty. ...................................................... 482 a. Factual Deternzinations .................................................. 482 b. In~position of L$e or Death ............................................ 483 5. California Law Violates the Sixth, Eighth and Fourteenth Anzendnzents to the United States Constitution by Failing to Require That the Jury Base Any Death Sentence on Written Findings Regarding Aggravating Factors. .......................... 487 6. California's Death Penalty Statute as Interpreted by the California Suprenze Court Forbids Inter-case Proportionality Review, Thereby Guurunteeing Arbitrary, Discriminatory, or Disproportionate Inzpositions of the Death Penalty. ........... 490 7. The Prosecution May Not Rely in the Penalty Phase on Unadjudicated Crinzinal Ac t iv i~) ; Further, Even If It Were Constitutionally Pernzissible for the Prosecutor to Do So, Such Alleged Crinzinal Activity Could Not Constitutionally Serve as a Factor in Aggravation Unless Found to Be True Beyond a Reasonable Doubt by a Unanimous Jury. ............................ 493 8. The Use of Restrictive Adjectives in the List of Potential Mitigating Factors Irnperrnissibly Acted as Barriers to Consideration of Mitigation by Defendant's Jury. ............... 494 9. The Failure to Instruct That Statutory Mitigating Factors Were Relevant Solely as Potential Mitigators Precluded a Fair, Reliable, and Evenhanded Adnzinistration of the Capital Sanction. ............................................................................... 495 D.THE CALEORNIA SENTENCING SCHEME VIOLATES THE EQUAL [xiii] PROTECT~ON CLAUSE OF THE FEDERAL CONSTITUTION BY DENYING PROCEDURAL SAFEGUARDS TO CAPITAL DEFENDANTS WHICH ARE AFFORDED TO NON-CAPITAL DEFENDANTS. .... ........................... 498 E. THE DEATH PENALTY IS CRUEL AND UNUSUAL PUNISHMENT. 501 F. CALIFORNIA'S U E OF THE DEATH PENALTY AS A REGULAR FORM OF PUNISHMENT FALLS SHORT OF INTERNATIONAL NORMS OF HUMANITY AND DECENCY AND VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS; IMPOSITION OF THE DEATH PENALTY NOW VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS O THE UNITED STATES CONSTITUTION. .... ................................... 502 XII. ARTICLE I, SECTION 27 OF THE CALIFORNIA CONSTITUTION, ENACTED BY PLEBISCITE VOTE ON INITIATIVE PROPOSITION 17, IS UNCONSTITUTIONAL, VIOLATING THE DUE PROCESS, EQUAL PROTECTION AND GUARANTEE CLAUSES OF THE UNITED STATES CONSTITUTION, ARTICLE IV, SECTION 4, AND THE 5TH AND 14TH AMENDMENTS THERETO ................................... 505 B. THE APPLICABLE LAW ............................................................. 507 XIII. THE CUMULATION OF ERROR INFECTED ALL THREE PHASES OF THE TRIAL, WITH MANY ERRORS REINFORCING THE PREJUDICE OF THE OTHER ERRORS, RESULTING IN A FUNDAMENTAL DENIAL OF DUE PROCESS AND A MISCARRIAGE OF JUSTICE ................... 513 B. EACH OF THE ERRORS DISCUSSED IN THIS BRIEF COMPOUNDED AND REINFORCED THE PREJUDICE TO DEFENDANT, DENYING HIM A FAIR TRIAL AT GUILT AND PENALTY AND A FAILURE TO PERMIT HIM AN ~NDIV~DUATED EVALUTATION F HIS MITIGATING EVIDENCE AT PENALTY. .. ........................................................... 5 17 1. Cumulative Error in Guilt .............................................. 51 7 [xiv] 2 . Cu~?zuIative En-or in Sanity Phase ................................. 525 .......................................... 3 . Cu~lzulative Error in Petzalty 526 XIV . CONCLUSION ..................................................................... 527 TABLE OF AUTHORITIES Cases Alexander v . Louisiana (1 972) 405 U.S. 625 ................................... 274 Allen v . United States (1 896) 164 U.S. 492 ...................................... 468 Arizona v . Fulminante ( I 991) 499 U.S. 279 ............. 234, 260. 262. 294 Atkins v . Virginia (2002) 536 U.S. 304 ..................................... 503. 504 Ballew v . Georgia (1978) 435 U.S. 223 ........................................... 409 Beck v . Alabu~na (1 980) 447 U.S. 625 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .p assim Boyde v . California ( I 990) 494 U.S. 370 ................. 439. 441. 445. 449 Brewer v . Qua)-terman (2007) - U.S.-, 127 S.Ct. 1706. 167 L.Ed.2d 622 ................................................................................................. 516 Brizuela v . CalFarrn Ins . Co . (2004) 1 16 Cal . App . 4th 578 ........... 290 Brown v . Louisiana (1 980) 447 U.S. 323 ......................................... 469 Bruton v . United States (1 968) 39 1 U.S. 1 23 ........................... 233. 396 Bundy v . Dugger (1 I th Cir . 1988) 850 F.2d 1402 ............................ 409 Burch v . Louisiana (1 979) 44 I U.S. 130 .......................................... 469 Burns v . Brown (1 946) 27 Cal . 2d 63 1 ........................................ 283 Bush v . Gore (2000) 531 U.S. 98 .............................................. 486. 501 Cabana v . Bullock (1 986) 474 U.S. 376 ........................................... 389 Caldwell v . Mississippi (1 985) 472 U.S.320 .................................... 469 California v . Brown (1987) 479 U.S. 538 ........................................ 487 California v . Rarnos (1 983) 463 U.S. 992 ........................................ 505 California v . Trornbetta (1984) 467 U.S. 479 .................................. 449 Callins v . Collins (1994) 510 U.S. 1 141 ........................................... 501 Campbell v . Blodgett (9th Cir . 1992) 997 F.2d 5 12 .......... 332.458. 497 Carella v . California (1 989) 491 U.S. 263 ....................................... 389 Castaneda v . Partida (1 977) 430 U.S. 482 ....................................... 275 [xvi] Clzu~nbers v . Mississippi (1 973) 4 10 U.S. 284 ................................. 449 Citizens Against Rent Contl-01 1 . City of Berkeley (1 981 ) 454 U.S. 290 ....................................................................................................... 509 Clark v . Arizona (2006) - U.S. - 126 S.Ct. 2709, 165 L.Ed. 2"d 842 ......................................................................... 434, 438. 445. 449 Cole . Arkansas (1 948) 333 U.S. 196 ............................. 329. 332. 333 . . Conover v . State (Okla Ct of Crim App . 1999) 990 P.2d 291 ........ 222 Cooper 1) . Canlp bell (8Ih Cir . 1979) 597 F.2d 628 .................... 287. 288 Darden I! . Wainwright (1 986) 477 U.S. 168 ..................................... 293 DelVecclzio v . Illit~ois Dept . (f Carl-ections (7th Cir . 1993) 8 F.3d 509 ....................................................................................................... 418 Dobbs v . Zant (1993) 506 U.S. 357 .................................................. 221 Douglas v . Alabal?za (1 965) 380 U.S. 41 5 ........................................ 396 Douglas v . Calijbnzia (1 963) 372 U.S. 353 ...................................... 220 Duncan v . Louisiana (1968) 391 U.S. 145 ....................................... 409 Durerz v . Missouri (1978) 349 U.S. 357 ........................... 273. 274. 277 Dustin v . Superior Court (2002) 99 Cal.App.4th 13 1 1 .................... 269 Eddings v . Oklalzorna (1 982) 455 U.S. 1 04 ............................... 474. 498 Fetterly v . Paskett (9th Cir . 1993) 997 F.2d 1295 ............. 332. 458. 497 .................................. Fiore v . White (2001) 531 U.S. 225 301. 308. 336 Ford v . State (1992) 330 Md . 682 .................................................... 306 Ford v . Wainwright (1986) 477 U.S. 399 ......................... 293. 473, 504 Francis v . FI-unklin (1 985) 47 1 U.S. 307 ................................. 435. 449 Furnzan v . Georgia (1 972) 408 U.S. 238 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .p assim Gardner v . Florida (1 977) 430 U.S. 349 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .p assim . George Moore Ice Cream Co.. lnc v . Rose (1933) 289 U.S. 373 ... 507, 513 Godfrey v . Georgia (1 980) 446 U.S. 420 ................. 466. 490. 524. 525 Gray v . Netlzerland (1 996) 5 18 U.S. 152 .......................................... 332 Gregg v . Georgia (1 976) 428 U.S. 153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .p assim Hardy v . United States (1 964) 375 U.S. 277 .................................... 221 Harrnelin v . Michigan (1991) 501 U.S.957 ...................................... 489 Hewitt v . Helms (1 983) 459 U.S. 460 ....................................... 294, 473 Hicks v . Oklulzonza ( I 980) 447 U.S. 343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .p assim . . ................................ Hirst v Gertzen (9th Cir 1982) 676 F.2d 1252 275 Hodges v . United States (1 906) 203 U.S. 1 ...................................... 509 . Holland v Illinois (1 990) 493 U.S. 474 ........................................... 273 . . ........................... Houston v Roe (9th Cir 1999) 177 F.3d 901 524, 525 . Hughes v United States (6Ih c i r . 2001) 258 F.3d 453 ...................... 299 . In re Gates (1 891) 90 Cal 257 ......................................................... 283 . ...................................... In re Hess (1955) 45 Cal 2d 171 329, 333, 334 In re Winship (1970) 397 U.S. 358 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .p assim . Jackson v Virginia (1 979) 443 U.S. 307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .p assim Jecker, Torre & Co . v . Montgomery (1 855) 59 U.S. [18 How.] 110504 . ....................................... Johnson v Louisiana (1 972) 406 U.S. 356 469 . Johnson v Mississippi (1 988) 486 U.S. 578 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .p assim Johnson v . State (Nev . 2002) 59 P.3d 450 ........................................ 480 Kansas v . Marsh (2006) U . S . , 126 S.Ct. 25 16,2527, fn . 6, 165 L.Ed.2d 429 ................................................................... 460, 489, 49 1 Kennedy v . Los Angeles Police Department (9th Cir . 1989) 901 F.2d 702 ................................................................................................. 416 . ................................. Kolender v Lawson (1983) 461 U.S. 352 524, 525 Landrum v . Mosta (8th Cir . 1978) 576 F.2d 1320 ............................ 509 Lara v . Ryan (9th c i r . 2006) 455 F.3d 1080 ..................................... 305 Lee v . Illinois (1986) 476 U.S. 530 ................................................... 396 Lilly v . Virginia (1999) 527 U.S. 116 ........................................ 396 [xviii] Lisvnba v . California (1941) 314 U.S. 219 ....................................... 408 Liteky v . United States ( 1 994) 5 10 U.S. 540 ..................................... 418 Lockett v . Ohio, (1 978) 438 U.S. 586 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .p assim M'Nughten ' s Case (1 843) 10 C1 . & Fin . 200, 8 Eng . Rep . 7 18 ...... 434, 437, 448 Marbury v . Madison (1 803) 5 U.S. 1 37 ............................................ 510 Marin Water Co . v . Railroad Corn . (191 6) 171 Cal . 706 ................. 510 Marks v . Superior Ct . (2002) 27 ~ a 1 . 4 ' ~ 176 ............................ 282, 295 Martin v . Waddell's Lessee (1 842) 4 1 U.S. [16 Pet.] 367 ................ 503 Martinez v . Garcia (9Ih Cir . 2004) 379 F.3d 1034 ............................ 304 Martinez v . State (Fla . Sup . Ct . 2000) 761 So.2d 1074 .................... 220 Maj. nard v . Cartwight (1 988) 486 U.S. 356 ................................... 466 McKoy v . North Carolina (1990) 494 U.S. 433 ............................... 468 Mediiza v . California (1992) 505 U.S. 1244 ..................................... 509 Meyers v . United States (1926) 272 U.S. 52 ..................................... 510 ................... Miller v . United States (1 871) 78 U.S. [I 1 Wall.] 268 503 Mills v . Ma?. land (1983) 486 U.S.367 ..................... 473, 489, 494, 501 Mitchell v . Rose (1 979) 443 U.S. 545 ............................................... 275 Monge v . California (1 998) 524 U.S. 721 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .p assim . ...................... Montez v Superior Court (1 970) 10 Cal.App.3d 343 274 Moore 1.1. Denzpsey (1 923) 26 1 U.S. 86 ............................................. 408 Moore v . Estelle (51h c i r . 1982) 670 F.2d 56 ................................... 298 Morgan v . Illinois (1992) 504 U.S. 7 19 ............................................ 277 Murtishaw v . Woodford (91h cir . 2001) 255 F.3d 926 ...................... 439 Myers v . Ylst (9th Cir . 1990) 897 F.2d 417 ....................... 486, 489, 501 . Nogues v . Douglass (1 858) 7 Cal 65 ............................................... 510 ............................................. Parker v . Dugger (1 991) 498 U.S. 308 221 Paul v . Davis (1 976) 424 U.S. 693 ................................................... 509 Penry v . Lvnuugh (1 989) 492 U.S. 302 ............................................ 516 People of the Territory of Guam y . Murque; (9th cir . 1992) 963 ~ . 2 " ~ 131 1 ............................................................................................... 221 People v Frye (1 998) 1 8 ~ a l . 4 ' ~ 894........................................ 226, 397 People v. Be11 (1 987) 44 Cal.3d 137 ................................................. 514 People v. Robertson ( I 982) 33 Cal . 3d 2 1 ........................................ 515 People v . Adcox (1988) 47 Cal.3d 207 ............................................. 464 ............................................. People v . Allen (1 986) 42 Cal.3d 1222 475 .......................................... People v . Alvurez (1 996) 14 Cal . 4th 155 220 People v . Anderson (1 968) 17 Cal.2d I5 ........................................ 317 People v . Anderson (1 968) 70 Cal.2d 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .p assim People v . Anderson (1 972) 6 Cal.3d 628 .................................. 505, 508 People v . Anderson (2001) 25 Cal.4th 543 ....................................... 477 . People v . Apalatequi (1978) 82 Cal . App 3d 970 ............................ 234 . People v . Arias (1 996) 13 Cal 4th 92 ...................................... 227, 496 People v . Bacigalupo (1993) 6 Cal.4th 857 ..................................... 462 ............................................ People v . Backus (1 979) 23 Cal.3d 360 273 ............................................ People v . Burton (1978) 21 ~a1.3" 51 3 221 .................................. People v . Beenzan (1984) 35 Cal.3d 547 391, 395 ............................................. People v . Belton (1 979) 23 Cal.3d 5 16 335 People v . Bender (1 945) 27 Cal.2d 164 ........................... 244, 338, 340 People v . Berryman (1 993) 6 ~ a l . 4 ' ~ 1048 ............................... 300, 336 ........................................ People v . Bittaker (1 989) 48 Cal.3d 1046 465 ................................... People v . Black (2005) 35 Cal.4th 1238 475, 476 People v . Blakeslee (1 969) 2 Cal.App.3d 83 1 .................................. 303 People v . Bland (2002) 28 ~ a l . 4 ' ~ 3 13 .............................. 303, 304, 306 People I* . Bloyd (1 987) 43 Cal.3d 333 .............................................. 339 People 1) . Bonilla (2007) 4 1 Cal.4th 3 1 3 .......................................... 457 People v . Box (2000) 23 ~ a l . 41h 1 1 53 ........................................ 4 7 3 People v . Boyd (1 985) 38 Cal . 3d 762 ...................................... 458, 497 People 1) . Boyer (2006) 38 ~ a l . 4 ' ~ 4 12...................................... 397. 442 People v . Boyette (2002) 29 Cal.4th 381 .......................................... 451 People v . Bright (1 996) 12 ~ a 1 . 4 ' ~ 652 ........................................ 330 ............................................. People v . Brown ( I 988) 46 Cal.3d 432 515 People 1, . Brown (2003) 31 Cal.4th 51 8 , ........................................... 391 People v . Brow11 (Brown 1 ) (1 985) 40 Cal.3d 5 12 ........................... 475 . People v . Cardenas (1 982) 31 Cal 3d 897 ............................... 5 14, 51 5 People v . Ca~penter (1 997) 15 Cal.4th 3 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .p assim People v . Carter (2005) 36 ~ a 1 . 4 ' ~ I 1 14 ................... 278, 287, 289, 291 People v . Cash (2002) 28 ~ a 1 . 4 ' ~ 703 ............................................... 222 People v . Clzavez (1 95 1) 37 Cal . 2d 656 ................................... 435, 444 . People v . Chessrnan (1 950) 35 Cal 2d 455 .............. 219, 229, 230, 23 1 People v . Clark (1 992) 3 Cal.4th 41 ................................................. 417 People v . Coddington (2000) 23 ~ a 1 . 4 ' ~ 529, 608 ............................ 434 People v . Cofnzan and Marlow (2004) 34 ~ a l . 41h 1 ......................... 393 People v . Cole (2004) 33 ~ a l . 4 ~ ~ 1 158 ...................................... 300, 336 ................................................ People v . Collie (1 981) 30 Cal.3d 43 307 ...................................... . . People v Cook (2006) 39 Cal 41h 566 225, 457 . People v . Cur~zr?zirzgs ( I 993) 4 Cal 4Ih 1233 ..................................... 227 People v . Cunningham (2001) 25 Cal 4th 926 ................................. 293 People v . Der?~etmulias (2006) 39 ~ a l . 4 ' ~ I ...................... 475, 489, 500 . ........................................... People v Dickey (2005) 35 Cal.4th 884 475 People v . Dillon (1 983) 34 Cal.3d 44 1 ............................................. 463 People I) . Dyer (1 988) 45 Cal.3d 26 ................................................. 464 People v . Edelbacher (1 989) 47 Cal.3d 983 ..................... 462, 490. 495 People v . Eliot (2005) 37 ~ a l . 4 ' ~ 453................................................ 339 People v . Fairbank (1 997) 16 Cal.4th 1223 ..................... 467. 47 1 . 487 People v . Farnam (2002) 28 Cal.4th 107 ......................................... 472 People v . Fauber (1 992) 2 Cal . 4th 792 ..................................... 227. 488 th People v . Fierro (1 99 1) 1 Ca1.4 173 ............................................... 492 People I' . Flood (1998) 18 ~ a 1 . 4 ' ~ 470 ...................................... 401. 409 ................................. People I) . Frecnzan (1 994) 8 Cal . 4th 450 227. 279 ........................ People v . Frierson. (1 979) 25 Cal.3d 142 506. 507. 5 12 ............................................ People v . Fudge (1 994) 7 Cal.4th 1075 417 . People v . Galaia (9th Cir 2003) 328 F.3d 558 ......................... 401. 409 People v . Garceau (1993) 6 ~ a l . 4 ' ~ 140 ........................................... 440 People v . Gorzwlez (2005) 126 c a l . ~ p p . 4 ' ~ 1539 ............................ 308 ........................................... People v . Gordon (1 973) 10 Cal.3d 466 397 People v . Green (1 980) 27 Cal.3d 1 ................................................. 302 People v . Guiuan (1 998) 1 8 ~ a l . 4th 558 ........................... 389. 396. 398 .......................................... . People v Guinzan (1 988) 45 Cal.3d 91 5 293 People v . Har?zilton (1 989) 48 Cal.3d 1 142 ...................................... 495 People v . Hardy (1 992) 2 Cal.4th 86 ................................................ 464 People v . Hawthorne (1 992) 4 ~ a l . 4 ' ~ 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .p assim . ........................................ People v . Heard (2006) 3 1 Cal 4'h 946 225 People v . Heishman (1 988) 45 Cal.3d 147 ....................................... 451 People v . Hernandez (2003) 30 Cal . 4th 835 ..................................... 225 People v . Hill (1 998) 17 ~ a l . 4 ' ~ 800 ................................................ 300 . ................................... People v . Hirzton (2006) 37 Cal 4'h 839 225. 228 People v . Holloway (1 990) 50 Cal . 3d 1098 ..................... 224. 230. 23 1 [xxii] . . ............................... People v Holt ( I 984) 37 Cal 3d 436 226. 444. 5 15 . People v Horton (1 995) 1 l ~ a l . 41h 1068 .......................................... 221 People v . Hovey (1 988) 44 Cal . 3d 543 ............................................ 517 People v . Howard (1 992) 1 Cal . 41h 1 132 ......................... 221. 228. 230 People v . Hudso~z (1 98 I ) 126 Cal . App . 3d 733 ....................... 5 15. 5 17 People I> . Huggirls (2006) 38 Cal . 41h 175 ................................. 222. 225 People v . Hughes (2002) 27 ~ a l . 4 ~ ~ 287 ........................................... 386 . People v Janzes (2000) 81 Cal.App.4th 1343 .................................. 439 People v . Joh~zsnn (1 980) 26 Cal.3d 557 ...................................... assim People v . Johnson (1 981) 30 Cal.3d 444 ........................................ 305 . People v Jones (2003) 29 Cal.4th 1229 ........................................... 293 . People v Keeizan (1 988) 46 Cal.3d 478 ........................................... 240 . . People I Kelly (1 992) 1 ~ a 1 4 h 495 ................................................. 437 . People v Kelly (2006) 40 ~ a l . 4 ' ~ 106 ............................... 220. 437. 442 . People v Kirkes (1 952) 39 Cal . 2d 7 19 ............................................ 515 . . . ......................... People v Kronenzyer (1 987) 1 89 Cal App 3d 3 14 514 People v . Lee ( I 987) 43 Cal.3d 666 .................................................. 305 . People v Lewis (2001) 25 ~ a l . 4 ' ~ 61 0 ...................... 278. 287. 288. 292 People v . Luckv (1 988) 45 Cal . 3d 259 ............................................. 516 . People v Lj3?zch (I 943) 60 Cal.App.2d 133 ...................................... 430 . People v Malzoney (1927) 201 Ca1.618 ........................................... 430 People v . Marzriquez (2005) 37 ~ a l . 4 ' ~ 547 .............................. 473. 501 . People v Marshall (1 996) 13 Cal.4th 799 ................................ 332. 492 . People v McLuin (1 988) 46 Cal.3d 97 ............................................. 440 . People v Melton ( I 988) 44 Cal.3d 71 3 ............................................ 407 . People v Melnro (1985) 38 Cal.3d 658 .................... 244. 3 17. 340. 378 . People v Mer~zro (1995) 1 l ~ a l . 4 ' ~ 786............................ 244. 338. 339 [xxiii] People v . Miranda (1987) 44 Cal.3d 57 ........................................... 397 People v . Montiel (1 994) 5 Cal.4th 877 ............................................ 497 People 1) . Moreno (1991) 228 Cal.App.3d 564 ................................ 332 People v . Morrison (2004) 34 Cal.4th 698 ....................................... 496 People v . Murtislzaw (1 98 1 ) 29 Cal.3d 733 ...................................... 305 People 1, . Nicolaus ( I 991) 54 Cal.3d 551 ......................................... 464 People v . Oclzoa (1 993) 6 Cal.4th 1 199 ............................................ 303 Peoyle v . Olivas (1 976) 17 Cal.3d 236 ............................................. 499 . . People v Padilla (1 995) 1 1 Cal 4Ih 89 1 ........................................... 227 . .............................................. People v Perez (1 992) 2 ~ a l . 4 ' ~ 1 1 17 339 . People v Perry (1 939) 14 Cal.2d 387 .............................. 2 1 8, 255, 397 . . People v Pinholster (1 992) 1 Cal 4th 865 ................ 224, 230, 23 1, 234 . ........................ People v Polk (1996) 47 ~ a l . ~ p p . 4 ' ~ 9 4 253, 255, 256 . ............................ People v Prieto (2003) 30 Cal.4th 226 475, 477, 499 . People 1) Rarnos (2004) 1 2 1 ~ a l . ~ ~ p . 4 ' ~ 1 194 ............................... 308 . .................................... People v Ratliff (1 986) 41 Cal.3d 675 305, 307 . .................................... People v Rigney (1 961) 55 Cal.2d 236 41 7, 418 . . ........................................ People v Roberts (1 992) 2 Cal 4th 27 1 2 2 8 ........................ People v . Robinson (2005) 37 ~ a 1 . 4 ' ~ 592 262,263, 465 . People v Rodrigues (1 994) 8 Cal.4th 1060 ...................................... 293 . . People v Rogers (2006) 39 Cal 4th 826 ........................... 224, 230, 488 . . ................................ People v Sa~nayoa (1 997) 15 Cal 4th 795 226, 501 . People v Santana (2000) 80 Cal.App.4th 1 194 ............................... 417 . ........................................ People v Schmeck (2005) 37 Cal.4th 240 459 . ..................................... People v Scott (1 997) 15 ~ a 1 . 4 ' ~ 1 188 220, 226 ............................ People v . Seaton (2001) 26 ~ a l . 4Ih 598 220,225, 228 . ................... People v Skiizrzer (1 985) 39 Cal.3d 765 433,437,439, 450 [xxiv] People v . Snzith (2005) 37 ~ a 1 . 4 ' ~ 733 .............................. 303. 305. 333 People v . Snow (2003) 30 Cal.4th 43 ...................................... 4 7 499 People v . Snyder (1 940) 15 Cal.2d 706 ........................................ 307 People v . Stansbury (1 993) 4 Cal.4th 101 7 ...................................... 451 . People v . Stanwol-th (1 969) 7 1 Cal 2d 820 .............................. 2 I 8. 255 People v . St~)pl~elzs (1953) I 17 Cal.App.2d 653 ............... 253. 254. 258 People v . Srurln (2006) 37 Cal.4th 121 8 ................... 417. 419. 429. 488 People v . Sully (1991) 53 Cal.3d 1195 ............................................. 392 People v . Superior Court (Engert) (1 982) 3 1 Cal.3d 797506.507. 5 12. 513 .............................................. People v . Swain (1996) 12 ~ a l . 4 ' ~ 593 305 People v . Terry (1970). 2 Cal.3d 362 ........................................ 431 People v . Thonzas (1987) 43 Cal.3d 81 8 ........................................... 332 People v . Thor~ zton (2006) 4 1 ~ a l . 4 ~ ~ 391 ........................................ 386 People v . Trevino (1985) 39 Cal.3d 667 ........................................... 335 . People v . Underwood (1 964) 6 1 Cal 2d 1 1 3 ................................... 514 . ........................ People v Valladoli (1 996) 13 ~ a l . 4 ' ~ 590 329. 332. 334 . ........................................ People v Vera (1 997) 15 Cal.4th 269 2 9 9 People v . Visciotti (1 992) 2 Cal.4th 1 ........................................ 303 People v . Walker (1 988) 47 Cal.3d 605 ............................................ 464 . People v Ward (2005) 36 ~ a l . 4 ' ~ 1 86. 2 1 2 ...................................... 397 People v . Werwee (1 952) 1 12 Cal.App.2d 494 ................................. 218 . .......................................... People v Wheeler (1 978) 22 Cal.3d 258 273 People v . Whitt ( I 990) 5 1 Cal.3d 620 ............................................... 429 . ....................................... People v Williams (1 988) 45 Cal.3d 1268 398 . . ................... People v Wilson (2005) 36 Cal 4Ih 309 219. 225. 254. 255 Peters v . Klj f (1 972) 407 U.S. 493 ............................................ 273. 275 Plaut v . Spendthrifr Farin. Iizc . (1 995) 5 14 U.S. 2 1 1 ............... 5 10. 5 1 1 . ........................................... Presnell v Georgia (1 978) 439 U.S. 14 482 . Pulley 1) Harris ( I 984) 465 U.S. 37 ........................................ 460, 490 Quadra v . Superior Court of San Francisco (N.D. Cal . 1975) 403 .................................................................................... F.Supp. 486 276 Quadra v . Superior Court of San Francisco (N.D.Cal. 1974) 378 F.Supp. 605 .................................................................................... 276 . Raven v Deuknzejian (1 990) 52 Cal.3d 336 ..................................... 511 . . ..................................... Riley v Deeds (91h Cir 1995) 56 F.3d 1 1 17 263 . .................................... Roberts v Acres (7Ih c i r . 1974) 495 F.2d 57 509 . Ronza~zo v Oklahonza (1 994) 5 1 2 U . S . 1 ......................................... -524 ........................................... . Rose v Clark ( I 986) 478 U.S. 570 294, 299 . ............................................... Rushen v S'2ain (1 983) 464 U.S. 1 14 295 . ................................. SantosXy v Kramer (1982) 455 U.S. 745 483, 484 . ........................................ Sattem)hite v Texas (1 988) 486 U.S. 249 515 . School District of Abington v Schenzpp ( I 963) 374 U.S. 203 ......... 509 Service Employees Intenzatio?zal Union A FL-CIO CLC v . Fair Political Practice Coinmission (E.D. Cal, 1990) 747 F.Supp. 580 ....................................................................................................... 513 ....................................... . Skinner v Oklahoina (1 942) 3 16 U.S. 535 499 Skipper v . South Carolina (1 986) 476 U.S. 1 ................................... 428 Speiser v . Ra~zdall (1 958) 357 U.S. 5 1 3 ........................................... 482 St . George v . Superior Court of Sun Mateo County (1949) 93 Cal . ................................................................................... App . 2d 8 15 282 . ....................................... Stanford v Kentucky (1 989) 492 U.S. 361 502 . . State v Ring (Az 2003) 65 P.3d 9 15 ................................................ 480 . . ................................. State v Whitfield (Mo 2003) 107 S.W.3d 253 480 ...................................... . Stringer v Black (1992) 503 U.S. 222 458, 498 . Sullivan v Louisiana (1 993) 508 U.S. 275, 28 1 . . . . . . . . . . . . . . . . . . . . . . . . . .p assim [xxvi] Taylor 1) . Krntucky (1 978) 436 U.S. 478 .................................. 439. 452 Thoinpson . Oklalzonza (1 988) 487 U.S . 8 1 5 ................................... 502 Townsend l7 . Sain (1963) 372 U.S. 293 ............................................. 488 Trop v . Dulles (1958) 356 U.S. 86 .................................................... 492 Tuiluepa 1'. Calfornia (1 994) 5 12 U.S. 967 ............................. 465, 524 . ................................................. Tunzey 1) Ohio ( I 927) 273 U.S. 5 10 294 United States v . Albertini (1 985) 472 U.S. 675 ................................ 513 . United States v Booker (2005) 543 U.S. 220 ....................... 470, 475 . .......................... United States 1) Gaudin (1 995) 5 I5 U.S. 506 401, 409 . . United Stutrs 1) Harris (9th Cir 1974) 501 F.2d 1 .......................... 417 . . .............. United States v Jonrs (1 0Ih Cir 1976) 540 ~ . 2 " ~ 465 220, 253 . . ...................... United States v Larson (9th Cir 1974) 507 F.2d 385 417 . United States v Locke ( I 985) 47 1 U.S. 84 ............................... 507, 513 ............ . . United Stutes v Munin (6Ih Cir 1984) 740 F.2d 1352 287, 288 . United States v Monsunto (1 989) 491 U.S. 600 ............................. 513 . ................... . United States 1, Mostella (9th Cir 1986) 802 F.2d 358 417 United Stutrs 1) . Robinson (6Ih Cir . 1983) 707 F.2d 872 ..220, 253, 255, 256 . ................ . Unired States v Suyetsitty (9th Cir 1997) 107 F.3d 1405 449 . United States v Sayetsittyi (9Ih c i r . 1997) 107 F.3d 1405 ........ 401, 409 ..................... . . United States v Schuler (9th Cir 1987) 8 13 F.2d 978 452 ...................... . . United States v Slade (D.C. Cir 1980) 627 F.2d 293 220 Van White 1'. State (Okla . Ct . of Crim . App . 1988) 1988 OK CR 47, 752 P.2d 814 .................................................................................. 235 . . .................................... Vance v Superior Court (1 891) 87 Cal 390 283 . ...................... Vansickel v White (9th Cir . 1999) 166 F.3d 953 332, 511 ........................................... . Vitek v Jones (1 980) 445 U.S. 480 473, 484 .......................... . Wainwright v Witt (1985) 469 U.S. 412 281, 293, 297 [xxvii] . . ................................. Walker v Engle (8th Cir 1983) 703 F.2d 959 409 West Virginia State Bd . of Education v . Barnetre (1 943) 3 19 U.S. 624 ....................................................................................................... 509 . ........................................ Westbrook v Milahy (1970) 2 Cal.3d 765 499 Willianzs v . Florida (1 970) 399 U.S. 78 ........................................... 409 Witherspoon v . Illinois (1 968) 39 1 U.S. 5 10 .................... 28 1 , 293, 297 Woldt v . People (Colo.2003) 64 P.3d 256 ........................................ 480 Woodson v . hTorth C~I-olina (1976) 428 U.S. 280 . . . . . . . . . . . . . . . . . . . . . . .p assim Zant v . Stephens (1 983) 462 U.S. 862 ......................................... passim Statutes . California Civil Code Section 3532 ................................................. 291 California Code of Civil Procedure Section 232 . . . . . . . . . . . . . . . . . . . . . . . . .p assim California Code of Civil Procedure Section 61 1 .............................. 418 California Evidence Code Section 1 15 ............................................. 472 ............................................. California Evidence Code Section 520 485 Cal$ornia Evidence Code Section 800 ............................................ 406 California Penal Code Section 25 .................................................. 437 California Penal Code Section 3 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .p assim California Penal Code Section 1 87 .......................................... ..passim California Penal Code Section 190 ................................................. 477 California Penal Code Section 190.2 .............................. 461, 462, 491 California Penal Code Section 190.3 .............................................. 479 California Penal Code Section 190.9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .p assim California Penal Code Section 664 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .p assim .............................................. California Penal Code Section 939.6 272 California Penal Code Section 1 1 18.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .p assim California Penal Code Section 1 122 ................................................. 418 [xxviii] California Penal Code Section 1 127 ................................................. 43 1 California Penal Code Section 1 158 ................................................. 500 California Penal Code Section 1 158a ............................................... 500 California Penal Code Section 1170 ................................................. 489 California Penal Code Section 1 170.1 .............................. 329. 330. 332 California Penal Code Section 1239 ........................... 13. 21 8. 240. 255 .......................................................... Title 21 U.S.C. Section 848(k) 468 Other Authorities 1978 Voter's Pamphlet ...................................................................... 462 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases February 2003 ......................... 240 Amnesty International. "The Death Penalty: List of Abolitionist and Retentionist Countries" (Nov . 24. 2006) ....................................... 503 Curnutt. The Critical Response to Gertrude Stein. Greenwood Press. 2000 .............................................................................................. -421 Kozinski and Gallagher. Death: The Ultinzate Run-On Sentence. 46 Case W . Res . L.Rev. 1 (1 995) ....................................................... 504 Madison. The Federalist 10 ............................................................. -510 Madison. The Federalist 47 .............................................................. 510 Soering v . United Kingdonz: Whether the Contiizued Use of the Death Penalty in the United States Contradicts lntertzational Thinking (1 990) 16 Crim . and Civ . Confinement 339 ............. 502 Stevenson. The Ultimate Authority on the Ultimate Punishment: The Requisite Role of the Jury in Capital Sentencing (2003) 54 Ala L . Rev . 1 09 1 ....................................................................................... 480 The American Heritage Dictionary of the English Language. 4th Ed . 2000 .............................................................................................. -421 Rules California Rule of Court 203.5 (former) ...................................... passim California Rules of Court. rule 4.42 ................................................. 500 [xxix] Regulations Title 15. California Code of Regulations. section 2280 ................... 488 California Constitutional Provisions California Constitution. Article 1. section 17 ................................... 221 California Constitution. Article I. Section 27 .......... .505. 507. 509. 5 1 1 California Constitution. Article I. Section 6 (now 17) ............. 505. 5 10 Websites http.//www.filmsite.org/term2C.html ............................................... 385 www . amnesty.org ............................................................................ 503 Jury Instructions ................................................................................... CALCRIM 33 398 CALCRIM 3450 ............................................................................... 439 CALJIC 2.02 ..................................................................................... 386 CALJIC 3.00. .................................................................................... 390 CALJlC 3.01 ..................................................................................... 391 CALJIC 3.1 0 ..................................................................................... 390 CALJlC 3.1 1 ..................................................................................... 397 ............................................................................. CALJlC 3.1 8 397. 398 CALJlC 4.00 ............................................................................. 432. 438 CALJIC 8.88 ..................................................................................... 479 STATEMENT OF THE CASE A. Pretrial, 117 Limine and Jury Selection ~efendant ' alas initially charged by complaint2 filed on May 4, 1992, in the Yuba County Municipal Court, with four counts of murder ($ 187') nine counts of attempted murder ($5 66411 87) and one count of false i~nprisonn~ent (Penal Code 9 21 0.5), ali allegedly comn~itted on May 1, 1992. ( I CT 14-1 g4) The complaint alleged that Defendant had personally used firearms in connection with each offense ($8 1203.06(~)(1), 12022.5), causing the offenses to become serious felonies ($ 1192.7 (c) (8)); that the murder counts were with special circumstances (8 190.2 (a) (3)); and that Defendant had 1 The term "Defendant" as used throughout this document shall refer to Defendant and Appellant Eric Christopher Houston. Defendant was later charged by indictment on September 15, 1992. The charges noted here refer to the charges in the complaint filed on May 4, 1992 and differ from those in the indictment. All statutory references are to the Penal Code unless otherwise specified. 4 Appellant uses the following citation form for Volumes one through five of the clerk's transcript: 1 CT 14-18 for Volume 1 of the clerk's transcript at pages 14 through 18. The clerk's transcript also includes nine supplements which will be cited in the following format: CT Supplemental-3 (v.2) 547 for volume 2 of the third supplement to the clerk's transcript at page 547. Appellant uses the following citation form for citations to the reporter's transcript: 1 RT 86 for volume 1 of the reporter's transcript at page 86. In many cases, line numbers are provided for citations; in these instances the format 1 RT 86:4-17 will be used for volume 1 of the reporter's transcript at page 86, lines 4 through 17 or 1 RT 86:4- 101 :7 for volume 1 of the reporter's transcript at page 86, line 4 through page 101, line seven. Where helpful, the last name of the witness or other speaker being referenced will precede the citation. intentionally inflicted great bodily harm on the victim in committing one of the attempted murders (3 12022.7). (1 CT 14- 18) Also on May 4, 1992, the Public Defender of Yuba County was appointed to represent Defendant. (1 CT 28) On June 1, 1992, Julian Macias first appeared as second counsel for Defendant. (1 RT:22)The prosecutor was Charles F. O'Rourke from Yuba County. (1 RT 1) Many requests to conduct film and electronic media coverage were granted, and the media were present for many courtroom proceedings, from pre-trial through penalty. (I CT 29-33,79, 80, 89- 91,99, 100, 123, 143-1 49, 180-1 83; 3 CT 735,782-785, 805-806, 8 10, 822,849,854,862,864; 4 CT 1 145; 5 CT 1 190, 1233-1 234) Grand jury proceedings were held in Yuba County on September 1 , 2 , 3 , 9 and 10, 1992. (1 CT 191) On September 15, 1992, Defendant was charged by indictment5 in case no. 8368 with the following offenses, all allegedly committed on May 1, 1992 (1 CT 124- 1 30; 5 CT 1 163- 1 1 69) Four counts of murder ( 5 187) with personal use of a firearm ($8 1203.06 subd. (a)(l), 12022.5), each offense The indictment was originally filed on September 15, 1992. (1 CT 124) On February 23, 1993, Appellant filed a motion to set aside and dismiss the indictment. (2 CT 544) On March 8, 1993, after granting a change of venue motion to Napa County, (2 CT 435-436), the Yuba County trial court deferred ruling on the motion to set aside and dismiss the indictment for resolution by the Napa Court (3 CT 643), which denied the motion on May 27, 1993. (3 CT 720) The original indictment was corrected by manual interlineation (see 1 CT124 et seq.; 10 RT 2339:24-2342:28) and a conformed interlineated indictment was filed August 9, 1993. (5 CT 1 163 et seq.) Citations in the instant brief are to the conformed indictment. a serious felony (5 1 192.7, subd. (c)(8)) (5 CT 1 163-1 164 [Counts I-IV]); Ten counts of attempted murder (95 664, 1 87) with personal use of a firearm (5s 1203.06, subd. (a)(l), 12022.5) on all counts, the infliction of serious bodily injury on eight counts, and each offense a serious felony (5 1 192.7, subd. (c)(8)) (5 CT 1 164-1 168 [Counts V- XIVI); Three counts of assault with a firearm (9 245 subd. (a)(2)) (5 CT 1 168 [Counts XV-XVII]); One count of false imprisonment of Victorino Hernandez, Joshua Hendrickson, Erik Perez, Jocelyn Prather, Eddie Hicks, Jake Hendrix and Johnny Mills ( 5 236) for the purpose of protection from arrest, which substantially increased the risk of harm to the victims and for the purpose of using the victims as a shield (5 21 0.5) (5 CT 1 168-1 169 [Count XVIII]). The indictment specially alleged that the murder counts, Counts I-IV, were a special circumstance within the meaning of section 190.2, subdivision (a)(3). (5 CT 1 164) On September 16, 1992, the Court confirmed the appointment of Julian Macias to represent Defendant at trial as co-counsel to Yuba County Deputy Public Defender Jeffrey Braccia. Braccia and Macias represented Defendant throughout the trial after its transfer to Napa County. (1 CT 133; 3 RT 524:22-525:8,637:3-10; 25 RT 61 15) In the same proceeding the trial court ordered that the municipal court (31 records in the same case, there numbered F-7445, be consolidated with the superior court file. (1 CT 134) On September 28, 1992, Defendant filed a demurrer to the indictment, which was overruled on October 13, 1992. (1 CT 152; 3 RT 53915-544122) Also on October 13, 1992, Defendant was arraigned and entered pleas of not guilty and not guilty by reason of insanity on Counts I - XV131 and denied the related weapons enhancement on Counts I - XIV. (1 CT 175-177) On October 19, 1992, the trial court appointed Drs. Captane Thomson and Charles Schaffer to examine Defendant pursuant to Penal Code section 1027 and Evidence Code section 730. (1 CT 186; see 3 RT 554:6-555:3) Also on October 19, 1992, the Yuba County trial court ordered that the transcript of grand jury proceedings be unsealed except for two pages. (1 CT 187) On November 12, 1992, Defendant filed a motion to discover grand jury information and augment the grand jury transcript and record. (1 CT 189) On November 18, 1992, Defendant filed an in camera ex parte motion for Defendant's counsel to be present at court-ordered psychiatric examinations. (1 CT 206) On December 2, 1992, the prosecution filed a motion in Yuba County Superior Court to produce evidence concerning Federal Bureau of Investigation (hereafter, "FBI") videotapes of events at Lindhurst High School on May 1, 1992. (1 CT 235) On December 14, 1992, the Federal Bureau of Investigation t41 filed a motion for a protective order under Code of Civil Procedure section 1987.1 and Penal Code section 1002. (1 CT 240) On December 30, 1992, after an in camera hearing, the Yuba County trial court ordered that the complete videotapes of everything recorded by the FBI would be kept in the court's custody including a tape containing extremely sensitive material; that two videotapes designated S-1 and S-2, with certain portions edited out, would be provided to the district attorney; and that all tapes would be sealed and should be treated as sensitive. (1 CT 262-263) On December 30, 1992, Defendant filed a notice of motion for a change of venue out of Yuba County. (2 CT 289,431) On December 3 1 , 1992, the prosecution filed a motion to compel discovery from Defendant. (2 CT 426) On January 25, 1993, the Yuba County trial court initially granted the motion. (2 CT 497- 498) Defendant petitioned for review by the California Supreme Court, and on March 5, 1993, Defendant's petition was granted in Houston v. Yuba County Superior Court, Supreme Court Case No. SO3 122 1. (3 CT 665) On April 12, 1993, however, the prosecution withdrew its request for penalty phase discovery. (3 CT 669) Defendant's petition for review was dismissed as moot by the Supreme Court on January 13, 1994. (3 CT 665; CT Supplemental-4 (v.1) 3) On January 4, 1993, the Yuba County Superior Court granted Defendant's motion for change of venue. (2 CT 435-436) On February 17, 1993, the Yuba County trial court ordered the case transferred to Napa County. (2 CT 5436, 589) On February 23, 1993, Defendant filed a motion in Yuba County Superior Court to set aside and dismiss the indictment. (2 CT 544) On March 8, 1993, the Yuba County trial court disqualified itself from hearing Defendant's motion to set aside the indictment. (3 CT 643) On May 17, 1993, Defendant presented evidence in the Napa County trial court in support of his motion to dismiss the indictment based on prosecutorial misconduct and the under- representation of minorities in the composition of the grand jury in Yuba County. (3 CT 682; 4 RT 839 et seq.) On May 27, 1993, the Napa County trial court denied Defendant's motion to set aside and dismiss the indictment. (3 CT 720; 5 RT 1096:25- 1 102: 16) Jury selection began on June 8, 1993. (3 CT 740) Also on June 8, 1993, Defendant filed motions in limine: (I) to have defense trial motions considered to be made pursuant to relevant state and federal constitutional provisions (3 CT 738); (2) to inform prospective jurors of their civic duty to sit as jurors (3 CT 741); (3) to read particular scripts concerning trial proceedings to the prospective jurors and to seated jurors (3 CT 752); and (4) to apply witt7 and ~ i t h r r s ~ o o n ~ to voir dire (3 CT 77 1'). On June 9, 1993, the defense 6 The year date on the minutes in the clerk's transcript is 1992 and appears to be a clerical error. Wainwright v. Witt (1 985) 469 U.S. 4 12 8 Witherspoon v. lllirzois (1968) 391 U.S. 5 10 filed an in liinir~e motion regarding the defense right to voir dire, which the trial court granted the same day. (3 CT 788; 6 KT 1360:lO- 1361:18) On June 10, 1993, the prosecution and the defense accepted the court's script to be read to potential and seated jurors, which incorporated suggestions that had been made in Defendant's motion. (6 KT 1363 :21-1364:25, 1381 :1-20) B. Guilt Phase On June 17, 1993, the jury was impaneled with three alternates and both sides gave opening statements. (3 CT 803-804) On June 21, 1993, the presentation of evidence by the prosecution began. (3 CT 807) On the same day, the trial court granted Defendant's motion that all objections made by the defense would be deemed to be under the federal and state constitutions. (1 1 RT 2428:24-2429: I ) On July 8, 1993, Defendant moved, at the conclusion of the prosecution's case, for a judgment of acquittal based on the insufficiency of the evidence under section I 1 18.1 and the trial court denied the motion. (3 CT 834-835; 18 RT 4340: 14-4342:21) The motion to apply Witt and Withvrspoorz filed on June 8, 1993, was originally erroneously entitled ''In Limine Memorandum Regarding Defense Right to Voir Dire," which appears on the document in the clerk's transcript at 3 CT 771. Defense counsel orally explained the error on the record during trial proceedings on June 9, 1993, and said that the correct title was "Motion to Apply The Witt Standard for Anti-Death Penalty Jurors and Witherspoon Standard for Scrupled Jurors," and the trial court ordered that that title page be filed also; it appears in the record at 3CT 797. (6 RT I 358:25- 1 360: 10; 3 CT 797) 1203.06(a)(l), 12022.5, and I 192.7(c)I0. (4 CT 1010) Count V1 - Guilty of the attempted willful, deliberate and premeditated murder of Rachel Scarberry ($5 664, 187) with the intentional infliction of great bodily injury ($ 1022.7) and personal use of a firearm within the meaning of sections 1203.06(a)(l), 12022.5, and 1192.7(c). (4 CT 1019-1020) Count VlI - Guilty of the attempted willful, deliberate and premeditated murder of Patricia Collazo ($5 664, 187) with the intentional infliction of great bodily illjury (5 1022.7) and personal use of a firearm within the meaning of sections 1203.06(a)(l), 12022.5, and 1192.7(c). (4 CT 1031-1032) Count VIlI - Guilty of the attempted willful, deliberate and premeditated murder of Danita Gipson ($5 664, 1 87) with the intentional infliction of great bodily injury (5 1022.7) and personal use of a firearm within the meaning of sections 1203.06(a)(l), 12022.5, and 1192.7(c). (4 CT 1043-1044) Count 1X - Guilty of the attempted willful, deliberate and premeditated murder of Wayne Boggess ($5 664, 187) with the intentional infliction of great bodily injury ($ 1022.7) and personal use of a firearm within the meaning of sections 1203.06(a)(l), 12022.5, and 1192.7(c). (4 CT 1055-1056) Count X - Guilty of the attempted willful, deliberate and premeditated murder of Jose Rodriguez ($5 664, 187) with the intentional infliction of great bodily injury ($ 1022.7) and personal ' O The indictment against Appellant did not allege that any of the charged attempted murders was committed with premeditation and deliberation. See Argument V. infra use of a firearm within the meaning of sections 1203.06(a)(l), 12022.5, and 11 92.7(c). (4 CT 1067-1 068) Count XI- Guilty of the attempted willful, deliberate and premeditated murder of Mireya Yanez ($5 664, 187) with the intentional infliction of great bodily injury (8 1022.7) and personal use of a firearm within the meaning of sections 1203.06(a)(I), 12022.5, and 1 192.7(c). (4 CT 1079-1080) Count XI1 - Guilty of the attempted willful, deliberate and premeditated murder of Sergio Martinez ($5 664, 187) with the intentional infliction of great bodily injury (5 1022.7) and personal use of a firearm within the meaning of sections 1203.06(a)(I), 12022.5, and 1192.7(c). (4 CT 1091-1092) Count Xlll - Guilty of the attempted willful, deliberate and premeditated murder of John Kaze ($9 664, 187) with the intentional infliction of great bodily injury (5 1022.7) and personal use of a firearm within the meaning of sections 1203.06(a)(I), 12022.5, and 1192.7(~). (4 CT 1103-1104) Count XIV - Guilty of the attempted willful, deliberate and premeditated murder of Donald Graham ($8 664, 187) with personal use of a firearm within the meaning of sections 1203.06(a)(l), 12022.5, and 1192.7(c). (4 CT 11 15) Count XV - Guilty of assault with a firearm on Tracy Young (8 245 subd. (a)(2)). (4 CT 1 124) Count XVI - Guilty of assault with a firearm on Bee Moua (8 245 subd. (a)(2)). (4 CT 1 129) Count XVll - Guilty of assault with a firearm on ~oshua" Hendrickson ($ 245 subd. (a)(2)). (4 CT 11 34) Count XVlll - Guilty of false imprisonment for protection from arrest as charged in the indictment ( 5 210.5). (4 CT 1 139) Additionally, the jury found the special circun~stance that Defendant had cornnlitted at least one first degree murder and at least one first or second degree murder within the meaning of section 190.2(a)(3). (4 CT 1008) C. Sanity Phase On July 27, 1993, proceedings to determine Defendant's sanity pertaining to all counts began with an opening statement and presentation of evidence by the defense; the defense rested its case on the same day. (4 CT 1 147-1 148) On July 28, 1993, the prosecution began its sanity case with the presentation of evidence and rested on July 29, 1993. (4 CT 1 149- 1151) On August 9, 1993, the jury began deliberations regarding sanity and returned its verdicts approximately three hours later, finding Defendant was sane at the time he committed all the offenses of which he had been convicted. (5 CT 1161-1 187) D. Penalty Phase The penalty phase began on August 10, 1993, with the presentation of evidence by the prosecution, which rested its case the same day. (5 CT 1 1 88- 1 1 89) On August 1 I , 1993, the defense presented evidence including 11 Verdict sheet reads "Josha Hendrickson," an apparent clerical error. [ I l l testimony by Defendant, and rested its case the same day. (5 CT 1191-1 192) On August 16, 1993, the jury returned its verdict sentencing Defendant to death. (5 CT 12 18, 1230) The trial court ordered a probation report on counts V through XVIII. (5 CT 121 8) E. Sentencing On September 15, 1993, Defendant filed motions to dismiss the special circumstance finding and to modify the penalty verdict under sections 1385 and 190.4. (5 CT 1274) On September 17, 1993, after a hearing, the trial court denied Defendant's motions to dismiss the special circumstance finding and to modify the penalty verdict. (5 CT 1287; 25 RT 6060: 19-25) On September 20, 1993, the trial court independently found that Defendant had committed all the offenses of which he had been convicted, that all of the allegations of personal use of a firearm and of the intentional infliction of great bodily injury found by the jury were true, and that the multiple murders special circumstance was true. (5 CT 1456-1 458, 1460) The trial court sentenced Defendant as follows: Counts I-IV - death (5 CT 1460; 1462 [Commitment Judgment of Death]); Count V - life in prison for attempted murder, with an enhancement of four years for personal use of an assault weapon under section 12022.5, to be served consecutively (5 CT 1459); Counts VI-XI11 - on each count, life in prison for attempted murder, with an enhancement of three years for the intentional infliction of great bodily injury under section 12022.7, to be served consecutively, and an enhancement for personal use of an assault weapon under section 12022.5 stayed (5 CT 1459-1460); Counts XIV - life in prison for attempted murder, and an enhancement for personal use of an assault weapon under section 12022.5 stayed (5 CT 1460); Counts XV-XVII - on each count, one-third of the mid- term of one year for assault with a firearm, to be served consecutively (5 CT 1460); Count XVllI - upper term of eight years as the principal term for false imprisonment, to be served consecutively (5 CT 1460, 1490).12 The trial court ordered that all enhancements were to be served consecutively to the counts to which they applied and to each other. (5 CT 1460) Additionally, the trial court imposed a restitution fine of $1 0,000 on Counts V-XVIII. (5 CT 1460) F. Appeal The instant appeal is automatic. (Penal Code $ 1239) 12 On September 22, 1993, an abstract of judgment was filed reflecting the sentences imposed. (5 CT 1478-1480) After receipt of a letter from the Correctional Case Records Manager of the California Department of Corrections, a second abstract of judgment was filed indicating that the sentence on Count XVlll was to be served consecutively. (5 CT 1490) STATEMENT OF FACTS A. Introductory Statement This Statement of Facts is, unfortunately, quite lengthy. Many of the issues raised on this appeal need to be reviewed and evaluated in light of all of the facts adduced in the three stages of the trial. Defendant believes that by presenting an extensive and intensive description of the evidence here, excessive and repetitive recitation of facts in individual arguments has been reduced . The extensive presentation of facts here will also aid the Court in evaluating the prejudice that arose from the various errors that occurred in the trial court, and permits a more general discussion of prejudice in each argument. There are eighteen separate conviction offenses. At the trial it was not disputed that on May 1 , 1992 Defendant entered Building C at Lindhurst High School carrying several weapons and proceeded to shoot those weapons, with the result that four persons died and ten persons were injured by gunshot wounds from that firing, and that Defendant then held approximately 85 students hostage in the school building for approximately eight hours. Virtually the entire trial was focused on the issue of Defendant's mental state at the time of the incident. His mental state at the time of the incident and in the several months preceding were the significant issues in contention for the guilt, insanity, and penalty phases of trial. Thirty-seven witnesses testified to their observations of Defendant's behavior in the hours before the incident and during the incident, exclusive of any law-enforcement witnesses. On the day following the incident Defendant was interrogated by law enforcement officers for over 90 minutes, and a videotape of that interview was played for the jury. During the period Defendant was holding students hostage, audiotapes were made of both the hostage negotiations and the sounds and statements being made by Defendant and others in the classroom where the students were being held. Six hours of such audiotapes were played for the jury. In addition, four expert witnesses testified at length to the nature of Defendant's mental illness and the import of that illness on his criminal culpability. In this brief, for fourteen offenses (four alleged first degree murders, and ten alleged attempted murders), Defendant is raising contentions that the evidence introduced at trial was insufficient to support the verdicts based upon an absence of evidence of the required nzelzs Tea. Defendant believes that a detailed description of the evidence adduced is necessary to set the context for the insufficiency of evidence arguments. Defendant also is attacking the introduction of the videotaped interrogation and the audiotapes recorded during the hostage negotiations without settled transcripts of either, when both sets of tapes have garbled sound with many statements wholly unintelligible and many more subject to differing interpretations as to their linguistic content. Defendant also submits that this appeal cannot be effectively prosecuted or decided by the Court given the absence in the record before this Court of any reliable record of what statements by Defendant the jurors either reasonably could be deemed to have heard or actually believed they did heard when these tapes were played. In this brief Defendant will argue that given the specific facts [I51 and specific state of the record here, the nature and extent of the missing evidence adduced at trial requires a reversal of the conviction per se. However, given this Court's prior jurisprudence regarding claims of inadequate appellate record, Defendant believes it likely that the Court will want to consider the impact of the missing record in the context of the evidence introduced for which the record exists, whether or not the Court ultimately accepts Defendant's position that a specific prejudice evaluation in this specific case is unnecessary. It is Defendant's belief that setting forth the facts in reasonable detail in the Statement of Facts will facilitate, rather than burden, the Court's review of the claims raised on appeal. B. Prosecution Case in Chief I . May I , 1992, Be inning Shortly Be ore 2:00 .m. - indhurst Hi h X , f L! Sc ool, Par ir~g Lot and First d o o r of Building C At between 1 :40 and 1 :45 p.m. on May 1, 1992, Neng Lor was in the parking lot of Lindhurst High School in Lindhurst, ~ a l i f o r n i a l ~ . Lor was waiting to pick up his sister from the high school when he saw ~ e f e n d a n t ' ~ about a block away in the parking lot walking with a long gun. (Lor, 1 1 RT 2449:25-2451:27) According to Lor, Defendant went into Building C of the high school. Lor then heard two shots, and a teacher came running out of the building. The teacher told everyone to "get out of the place." (Lor, 11 RT 2452:8-24535) l 3 Throughout the Statement of Facts, testimony is presented with testifying witness or trial exhibit and citation following. l 4 Defense Counsel stipulated that the man described by witnesses at Lindhurst High School was Defendant and thus the term "Defendant" will be used in summarizing witness testimony. Patricia Morgan had been a teacher at Lindhurst High School for 24 years. On May I , 1992 she had a Business Law class she was teaching at 2:00 p.m. in Building C. She had left her classroom and Building C and gone to the bathroom in the adjacent Administration Building. As she was returning to Building C she saw Defendant walking from the east toward Building C. Morgan noticed that he was wearing military fatigues like from "Desert Storm" and was walking with a determined cadence as if he knew where he was going. He was carrying a long gun or rifle that looked like the type of gun that the R.O.T.C. students carry. (Morgan, 1 1 RT 2464:20-2470:13, 2475:22- 26). Morgan did not recognize Defendant when she encountered him in the parking lot. She asked him if he had a permit for the gun. Defendant turned and looked at Morgan, but did not respond. He continued moving without break toward Building C. (Morgan, 11 RT 2470: 14-247 1 : 1 6) Morgan did not believe that Defendant made eye contact with her, but acknowledged that when interviewed by law enforcement initially she had said that his eyes had been glazed. (Morgan, 1 1 RT 2484: 14-2485:3) Morgan saw Defendant enter Building C. Morgan started to approach Building C as well. A couple of seconds after Defendant entered Building C, Morgan heard one "pop" sound from within Building C. She stopped, took a step or two further toward Building C and then less than ten seconds after the first "pop," she heard about two or three more "pops." The second set of "pops" seemed to come from her classroom in Building C (C-107). Upon hearing the additional "pops," Morgan changed direction and ran to the [ 171 Administration Building where she announced that there was someone with a gun shooting in Building C. (Morgan, 11 RT 2471 :9-2473:19; 2485:26-2487:27) Thomas Hinojosai was a student attending class in C-lO8b when Defendant entered the building. Hinojosai testified that when the door at the Northeast entrance opens, light shines down the hallway that can be seen inside C-108b. Hinojosai saw the light and looked to see who was coming. (Hinojosai, 11 RT 2552:7-2555:21) Hinojosai saw Defendant walking west down the hallway from the Northeast Entrance. (Hinojosai, 1 1 RT 2555: 19-2556: 1 1) Defendant was wearing a black tee-shirt with a brown and tan camouflage hunting vest. A bandolier of bullets hung across his chest, crisscrossing from each shoulder to the opposite waist. He wore a black web belt with shotgun shell loops and a canteen and an ammunition pouch attached. He wore mirrored or dark sunglasses with gold trim. He also wore blue jeans, tennis shoes, and a black ball cap with a National Rifle Association logo. He held a shotgun and had a rifle attached to a strap over his right shoulder. (Exhibits 13-14; Hinojosai, 1 1 RT 2569:27-2570: 1 1 ; Long, 17 RT 3967: 16-25; Kaze, 1 3 RT 2929: 1 2-29305; Scarberry, 1 1 RT 25935-2 1 ; Rodriguez, 1 1 RT 2670: 12-2671 : 17; Martinez, 12 RT 2829:22-27, 2840: 17-2841 :5; Mojica, 12 RT 2857:2-6; Black, 18 RT 41 90:28-4192:9- 17; Ledford, 13 RT 3047: 16-3048:24,3054:3-20, 3088: 17-3092:23) The first classroom that Defendant reached was classroom C- 108b on his left. C-108b had no door or curtain to the hallway, just an opening into the hallway [leading to the northeast entrance] 16. A partition used to separate C-108b from adjoining C-108a was closed. The student desks in C- 108b were arranged facing away from the partition toward the wall with the opening to the hallway. (Hinojosai, 11 RT 2554:26-28, 2565:27-2566:9, 2578: 16-19) Defendant turned into the doorway of C- 108b. Hinojosai noticed Defendant's dark sunglasses; he could not see his eyes. Defendant had a shotgun to his chest just below his right clavicle. He swung around the comer into the classroom and fired at Rachel Scarberry, a student sitting to the west of Hinojosai. Defendant then swung around in the doorway and fired at the classroom teacher, Robert Brens. Brens was leaning on a desk facing the back wall. Defendant shot Brens from about five feet away. When the shot struck him in the right side at the rib cage, Brens fell and crawled to the east wall. (Hinojosai, 11 RT 25565-2558:27; 2562:8-27; 2566: 13-1 8; 2569127-2570: 13) After shooting Brens, Defendant moved toward where Brens was slumping, swung around and "pointed" or "aimed" it at another student, Judy Davis. Davis was sitting toward the front of the class, about 3 feet in front of Hinojosai and I 0 feet from the shooter. The shot hit Davis in the face and chest, causing her to fall over to the side. The shooter then pointed his gun at Hinojosai, who dived away as the blast went past, nicking his ear and shoulder. Lying on the floor, Hinojosai could see the feet of Defendant as he walked out of the classroom down the north hallway further into Building C. 16 Brackets are used throughout the Statement of Facts to identify information not in testimony but provided for clarification purposes. [ 191 (Hinojosai, 1 1 RT 2563: 19-2567:3) Rachel Scarberry testified that she was seated in C-108b two chairs behind the front entrance when Defendant entered. (Scarberry, 1 1 RT 2585:22-2586: 10) Scarberry described him as having a strap across the front of his chest diagonally like the strap of a shotgun; she could see a barrel sticking up on his back. Scarberry also noticed that he wore sunglasses. (Scarberry, 11 RT 2593524) She described Defendant as holding his gun at his waist with his right hand close to his chest level or sternum and with his left hand extended at chest level out in front about a foot with each palm cupped and pointed upwards. (Scarberry, 1 1 RT 2587: 19-25885) When Scarberry was hit she fell to the floor, but initially felt unfazed. Getting up, she saw Judy Davis getting shot, exclaiming "ugh," and falling with a thump, puddles of blood corning out of her head. When Brens was hit he flew back "quite a ways" against the curtain, and slid down to the floor. (Scarberry, 11 RT 2587:20- 2589:22) Defendant left room C-108b; turning left he moved further down the hallway west from the northeast entrance. The next classroom along the hallway was C-107, Patricia Morgan's classroom. Its doorway was to Defendant's right as he moved westward down the north hallway. (Trial Exhibit 3; Hinojosai, 11 RT 2566:27-2567:6). Kasi Frazier was a student present in C-107 at about 2:00 on May 1, 1 992. Like C- 108b, C- 1 07's doorway was merely an opening in the wall between the classroom and the hallway. The classroom had tables and little desks arranged in rows fanning out from the doorway which was at the southwest comer of the room. Frazier was 1201 seated toward the middle of the room but near the western wall. His friend, Jason White, was seated slightly behind Frazier. Frazier heard three sounds that he thought at first were firecrackers but then recognized as shotgun blasts. He and the others in the classroom got down on the floor. (Frazier, 12 RT 2781 :17-2783:26, 2798:l - 2799:2, 2785:3-12,2786:24-25,2799:3-9; Trial Exhibit 3) After a few seconds on the floor Frazier looked up and saw someone at the door to C-107 with a shotgun. He heard the shotgun fire and saw someone go to the floor. He looked across the room and saw that Jason White had been shot and was lying on the ground. Frazier testified that when he fired, Defendant appeared to be aiming the gun at White. (Frazier, 12 RT 2782:3-2787:4) White had gotten up from his chair and was moving along the north wall of C- 107 from the west side of the room to the east side when he was shot. (Frazier, 12 RT 2800:6-2801:6) After firing at White, Defendant proceeded further down the north hallway toward the west, out of the line of sight that Frazier had through the C- 107 doorway. (Frazier, 12 RT 2788:24-2790: 15) Jose Rodriguez was a student in Ms. Ortiz' class in room C-105 of Building C. He was seated toward the back of the class opposite the classroom door which opened out on the north hallway of Building C. Rodriguez testified that he first saw light as the northeast door to Building C opened, then saw a man enter the building and walk down the north hallway outside of room C-108b. (Rodriguez, 11 RT 2653: 13-2656: 16, 2667:2-10, 2670: 12-2672: 13, 2673:5-8) Rodriguez did not see Defendant go into room C-108b, but saw him fire several shots, between three and five, in rapid succession into [211 room C-108b. Rodriguez demonstrated how Defendant held the gun by holding his right hand across his chest at the center of his sternum and his left hand extended directly out to his left with his palms upward. (Rodriguez, 1 1 RT 26735-2674:26) After Defendant fired into C-108b, Rodriguez saw him continue "walking fast" down the hallway toward the foyer area; Rodriguez did not see Defendant fire into C-107. When he reached the stairway in the middle of the north hall, Defendant fired toward the door of C- 105. When he fired he was holding the gun in the same manner as when he fired into C-108b. The shot struck Rodriguez' feet and two other students in C- 105 in their legs. (Rodriguez, 1 1 RT 2660: 19-23, 2662: 17-26, 2673:5-2678:3,2680:22-268 1 :6) Another student struck by the shot into room C-105, Patricia Collazo, had been standing by her seat in the back row of C-105 opposite the door to the hallway close to Rodriquez and Yanez when she heard somebody shooting. She looked down the hallway and saw Defendant outside of C- 108b. (Collazo, 1 1 RT 2682: 16-2687: 14) Collazo testified that she heard one gunshot and then saw Defendant fire toward C- 105 as he was moving down the hallway from outside C-108b. Collazo was struck her in the leg. Shel9in the leg by gunshot pellets. She could not tell if Defendant was pointing the gun when he shot at her. Collazo demonstrated how he was holding the gun by holding her right hand up by her right shoulder and her left hand extended out in front of herself at about chest level with the palms turned upwards. (Collazo, 1 1 RT 2687: 16-2690: 13, 12 RT 27 12:2-7) After Collazo was shot Defendant fired two more shots into C- [221 105 and started moving to his left (i.e., southward). Collazo testified at trial that she estimated she watched Defendant in the hallway for one to two minutes, but admitted that she had told investigating officers shortly after the incident that she had watched him for four to five seconds and that had been her best memory at the time. (Collazo, 1 2 RT 27 19:4-2720: 12) Maria Yanez was sitting inside C-105 near the door, one row in front of Jose Rodriguez and one row behind Patricia Collazo. She saw a shadow of a man standing outside Robert Brens' classroom (C- 108b). In less than two minutes she heard 2 or 3 gunshots and got up to get away from the door. As she got up she was hit by shotgun pellets in both knees and fell. (Yanez, 12 KT 2727:3-2731:8,2736:14- 22,2738: 18-2740: 1,2743:20-23) Nancy Jean Ortiz was the teacher for the class in C-105. As the s shooting in C-108b started, Ms. Ortiz was in her office, which was at the south end of C-105 and separated from the classroom portion of C-105 by a curtain. The initial shots sounded like firecrackers to Ortiz. (Ortiz, 12 RT 2748:6-2750:8) Ortiz exited her office into the hallway and went into the classroom portion of C- 105. She hesitated slightly at the southeast corner of C-105 and saw a figure at the doorway to C-107. (Ortiz, 12 RT 2748:6-2751:27) She saw a male dressed in camouflage holding something in his hands across his body. At first it did not register with Ortiz what he was holding. He was standing with his legs spread apart looking or speaking into the classroom. When she came into the C-105 classroom she saw that the students had knocked tables over onto the floor. She did not remember if she asked or was told that anyone was shot. She closed the door to C-105 and barricaded it with furniture. (Ortiz, 12 RT 2751 :28-2753:3, 2778:14-20; Yanez, 12 RT 2732:22-25) Danita Gipson was a student in classroom C-1 1 Ob at the start of the sixth period around 2:00 p.m. She was sitting at her desk. There were 12 to 15 other students in the room, as well as John Kaze, a substitute teacher. Gipson heard three to five loud bangs coming from outside the classroom toward the north end of the building. Thinking there might be a fight going on, she walked out of the classroom northward until she reached the north end of the double staircase in the middle of the building. From that position she saw Defendant walking westward along the north corridor near the north stairway. He was about 25 to 30 feet away from her. Defendant had a long gun like a rifle or shotgun in his hand and another long gun on his back. (Gipson, 12 RT 2886:22-28995) As she was looking at him, Defendant turned and saw Gipson, raised the gun to his face, put it against his shoulder, aimed, and fired at Gipson. As Defendant was raising the gun, Gipson realized he had a gun and turned and ran. The shot he fired hit her in the left buttock, causing her to fall. She lay on the ground for a second and then got up and ran back into C- 1 1 Ob. (Gipson, 1 2 RT 2890: 14-289 1 :3) The substitute teacher in C-1 lob, John Kaze, also had heard what sounded like gunshots coming from the north end of the building, and then observed a female student go out of the classroom. Kaze followed her out, thinking that if he did so she would return to the classroom. Outside the classroom he saw a man in the northern corridor moving away from the corridor across the northern foyer at [241 about a 45 degree angle. Kaze thought he saw the girl go past him back toward C- 1 1 Ob, but Kaze was focused on Defendant in the northern hallway. Defendant saw Kaze and changed his direction, starting to move toward Kaze who was by the doorway to C- 1 1 Ob. Kaze described Defendant as walking with a "light spring to his step," and looking like he was "having a good time." Kaze demonstrated how Defendant was carrying a gun with its butt end against his waist, held by his right hand with the barrel away from his body at a forty- five degree angle. (Kaze, 13 RT 2922:6-2928:7) Kaze watched Defendant for a short time and then when Defendant was roughly at the center-post of the northern end of the central stairway Kaze turned his head to the right preparatory to going back into C-1 lob and at that point he was shot. Defendant said nothing to Kaze prior to shooting him. (Kaze, 13 RT 2928: 10-29305) When Gipson re-entered C- 1 1 Ob she saw the teacher, John Kaze, by the door, directly in front of her. The entire front of Kaze's shirt was covered with blood and he was bleeding from his nose and his mouth. They both went into the office that is next to C-1 lob and separated by a curtain with a small entrance on one side. (Gipson, 12 RT 289 1 :2-24) Sergio Martinez was a student in room C-109a, the more southerly portion of room C- 109. Martinez heard what sounded like four or five fire crackers coming from the direction of C- 108b, C- 107, and C-105. Martinez did not know what the noises were, but saw other students running away from the direction of the sounds. Martinez ran and hid in the southeast corner of C-109a. (Martinez, 12 RT 281 2:26-2819:28,2820:10-2821: 10) [251 Martinez was on his knees looking up at the door frequently from behind a papier miiche' project, and saw a man walking south down the hallway outside C- 1 09. As Defendant came past the doorway he was pointing his gun at Martinez' chest, and Martinez dropped to the floor and rolled to his right side. Defendant, who was about 16-1 8 feet from Martinez, was holding the gun to his shoulder looking down the gun with his eye squinting. The gun went off and Martinez was hit in his left arm. Martinez heard another shot fired immediately after the one that hit him, but doesn't know if it was fired into C-109 or elsewhere. Defendant then moved further south and Martinez heard two to four additional shots from somewhere in Building C. (Martinez, 12 RT 2820: 15-2822:20,2829: 18-2833:4,2837:22- 2838:14, 2841 :15-2844:15, 2847:17-24) Gerardo Mojica also was a student in C-109 during the sixth period. He was sitting in the C-109b portion of the room using a tape recorder when he heard three sounds he thought were firecrackers coming from the vicinity of the northeast entrance to Building C. The shots went "boom, boom, stop, then boom." Mojica, who was sitting three seats from the door to C-109, got up and looked out into the hallway. He saw the back of a man standing in the doorway to C-107. As he watched, it appeared to Mojica that Defendant fired a shot into C- 107, although Mojica could not see a gun at that time. (Mojica, 12 RT 2849:7-2852:7, 2865:9-2866:8) Defendant started moving westerly along the hallway from C- 107, and then when he came to the comer of C-109, turned and moved in a southerly direction. Mojica ran into C-109a as he heard another shot being fired generally from the north hallway by the foot of the 1261 north stairway. (Mojica, 12 RT 2852:20-2854:l) Mojica then saw Defendant in the doorway to C- 109a and saw the barrel of his gun. Mojica jumped in the air and heard the gun go off. Mojica crawled to a safe location, where he stayed while he heard five or six more gunshots from the south end of Building C. (Mojica, 12 RT 2854:3- 2855: 10) Joshua Hendrickson was in classroom C-204 on the second floor. He heard loud banging noises downstairs and went out of his classroom to the railing on the balcony. Looking down he saw a man standing with a long gun. I-lendrickson saw Defendant look up at him, point his gun and shoot. Hendrickson back away from the railing as the gun went off and ran back into C-204. (Hendrickson, 14 RT 3183:16-3188:20) Ketrina Burdette was in C-104a when she heard sounds like someone hitting the lockers. The sounds were coming from the North Foyer area. She got up and went outside the classroom to see what was making the noise. She heard more shots coming from the north foyer. Then Burdette saw a "guy" coming out of the foyer shooting. He had the gun in his right hand, holding the butt end of the gun against his armpit with his left hand extended out about shoulder height. She saw Defendant go from in front of another classroom over to the entrance to C- 1 1 Oa. (Burdette, 13 RT 3009: 18-3014:2) Bee Moua was a student in room C-104. He heard several shots, but thought someone was setting off stink-bombs, since that had occurred several days before in the school. He stayed at his desk and then saw other students running from the building. Moua got up from his desk intending to leave the building as well, but before he got to ~271 the door he saw Defendant shooting into the classroom. At the first shot Moua dropped to the floor and then heard another shot. He did not see how Defendant was holding his gun and did not know where the shots went but he did hear them go by him. He could not remember where Defendant was when he shot into the classroom and he was not aware of Defendant aiming the gun at any person. (Moua, 13 RT 311 1:24-3116:13,3130:21-3131:18; 14 RT 3142:6-17) Burdette, in room C- 104a, saw Defendant shoot into C-102. She said he appeared to be shooting to the ceiling, holding the gun pointing upward as he shot twice into C-102. She did not hear Defendant say anything. (Burdette, 13 RT 3009:26-3010:8, 3023: 16- 3024: 16) Robert Ledford was teaching in C-102 when he heard some loud "popping sounds" a few minutes before two o'clock. The first two sounds were muffled and he ignored them, but the third was more distinct and caused him to go from the front of C-102 to the back of the room, and then to exit the classroom to look northward down the corridor, running in front of C-130 and C-109, into the common area. The sounds were spaced a few seconds apart. (Ledford, 13 RT 3041 :28-3044: 1 , 3070: 19-3072:20) Ledford went into the common area to the foot of the south stairs and heard three more gunshots from the north end of the building in the area of the north staircase. The shots were again spaced a few seconds apart. Ledford was looking down the corridor running north past the middle staircase to C- 106. Ledford saw a blur, heard echoes of another shot, and saw two boys running from the area of the boys' restroom between C-110 and C-109. One of the boys cut 1281 and ran past the library and out of the building through the southwest doorway. The other boy, Daniel Spade, ran straight at Ledford yelling about a man with a gun. Spade slipped and fell as he approached Ledford. Ledford then yelled loudly into the common area "get down," directed Spade into C-102, and then turned and yelled "get down" into his classroom. (Ledford, 13 RT 3044:2-25,3072: 1- 3076:21) Ledford then moved a little eastward toward the southeast exit and yelled "Don" to Donald Graham, who was the teacher in C-1 Ola. Graham leaned out of the door to C-101 a holding the classroom phone in his right hand. Ledford shouted: "91 1. Man with gun. Shots fired." Graham asked Ledford to repeat what he had said. As Ledford repeated the message, Graham, who was about 20-25 feet away from Ledford, made a motion with his left hand pointing to something behind Ledford. Ledford understood this to mean Graham was indicating there was danger behind Ledford, and Ledford moved down the hallway so that he was behind the short wall extending north just to the east of the entrance to C-102. Ledford heard more shots coming closer and pressed his back against the wall. Then he heard desks being knocked over in C- 102 and then in C- 101 a. Then Ledford heard a gunshot that was traveling eastward down the hallway towards the southeast entrance, past Graham, who leapt back into his classroom as it was fired. Ledford then heard clicking sounds that seemed to him to be Defendant reloading. He peered around the wall and with one eye saw Defendant standing right outside C-302, about 8-1 0 feet away to the northwest. (Ledford, 13 RT 3044:26- 3047: 14, 3049:20-22,3077: 18-3086:28) [291 Ledford saw that Defendant had sunglasses over his eyes; Ledford could not see his eyes. He had no real expression on his face. Ledford acknowledged that when he was interviewed by law enforcement he described Defendant as having a blank stare on his face and showing no emotion. (Ledford, 13 RT 3047: 16-3048:24, 3054:3-20, 3088: 17-3092:23) Defendant was carrying the shotgun with the butt of the gun at the armpit pointing upward at about 15 to 20 degrees above the horizontal. Ledford saw Defendant lift the shotgun to his right shoulder with his left arm extended and his right arm in the trigger position, and fire into C-I 02. Defendant moved out of Ledford's sight into the C-102 classroom for five to ten seconds, then reappeared, facing toward the open area, walked slowly to the south staircase and proceeded to go up the stairs. At this point Ledford observed Defendant holding the butt of the shotgun at or slightly above his waist with the barrel going upward at a 45 degree angle in front of him. When Defendant reached the landing at mid-way up the south stairs, the rifle slung over his back dropped and slid back down to the floor. Defendant turned to come back down the stairs and Ledford hid himself. When Ledford again peered around the wall Defendant was nearly at the top of the south stairs. When Defendant reached the second floor he turned and began walking around the balcony. (Ledford, 13 RT 3049:2-3050:24, 3091 :3-3097: 12) Donald Graham was teaching room C- 101 a when, at about 2:05 p.m. he heard a series of what sounded like firecrackers coming from the north end of the building. At first he heard three "explosions", then a pause, and then several more. The explosions continued for P O I "several nlinutes" and seemed to get closer to his classroom in the south end of the building. Graham got up and went outside the classroom into the hallway, looking westward. He saw Ledford step out of room C- 102. He then saw Ledford make a hasty retreat back toward his classroom, but to go around to the east side of the short wall that stuck out into the hallway to the southeast exit as though he were extremely fearful of something. (Graham, 14 RT 3 169:6-3 174:4) Graham then saw a person enter the area where the north-south hallway running in front of C- 109 and C-110 intersects with the hallway running from the southeast to the southwest entrances to the building. The lights were off in the hallway and the sun was coming through the windows in C-104, causing the figure to be silhouetted to Graham. I t appeared to Graham that the figure had a gun strapped to his back and another gun held in his hands in port arms position. Defendant saw Graham a moment after Graham saw him. Defendant began lowering his gun in Graham's direction by lowering his left hand and extending his left hand out in front of him as to if to point the weapon from the area of the shoulder or upper chest. Graham jumped back into the classroom. (Graham, 14 RT 3 173: 19-3 176: 1) Just after Graham jumped back he heard a gunshot which struck a locker between Graham and Defendant. A pellet or fragment struck Graham in the left forearm. The students in C-lOla had turned over their desks and were crouched behind them. Graham heard another gunshot, a period of silence, some further gunshots, and then silence. Graham heard Ledford shouting to his students to exit the building. Graham told his own students to do so as well, and the students exited the building through the southeast entrance. Graham followed his 1311 students out. (Graham, 14 RT 3 176:2-3 177: 19) Angela Welch was a student in Mr. Ledford's class in C-102. She was seated in the classroom when she heard three or four loud noises "like a firecracker" conling from the "other end of the hall," i.e., north foyer area at the end of the corridor running past C-109 and C- 1 10. Wayne Boggess then came running down the hall and into C- 102 shouting "Mr. Ledford, call 91 1 because my teacher has been shot." Ledford and Boggess then ran out of the classroom, and Welch did not see Ledford after that. She did see Boggess at the southwest comer of C- 1 10a turn around and take a few steps in front of C-1 10a just as Defendant was coming down the hallway in the area of the central stairs. She then saw Defendant fire and shoot Boggess who fell down. Welch was in C-102 standing next to Beamon Hill when she saw Boggess shot. (Welch, 14 RT 3 153:20-3 159:25) After shooting Boggess, Defendant continued to walk toward C-102. Defendant was holding the gun with his right hand extending out and his left hand in back near the chest. Welch froze as she watched Defendant and made eye contact with him. Suddenly, Beamon Hill shouted "No" and pushed Welch out of the way as Defendant, without changing the position of his gun, fired. The shot hit Hill in the head causing him to fall to the ground. (Welch, 14 RT 3 161 : 13-3 162:27) Hill's push sent Welch to the floor several feet away. She crawled under a table where she watched Defendant walk away out of the classroom. A few seconds later Defendant returned. Under the table, Welch saw Defendant only from the waist down. She saw Defendant's waist turning as Defendant looked around. Then [321 Defendant turned and for a second time left the classroom. Welch did not see Defendant again. (Welch, 14 RT 3 162:28-3 163: 17) Gregory Todd Howard was a student in room C-104. He heard loud noises outside the classroom from the area of C- I 07. He heard first one loud bang, and then two or three followed. Howard ran out of the classroom over to the south end of the middle stairway. He couldn't see anything there, so he ran over to the south door to the library area. There he saw students and some teachers in the library rushing away from him toward the door at the north end of the library by the northwest building exit. Howard then heard two more bangs and saw a flash of light coming from the area at the south end of the northern stairway by C-106, following which people who had just run out of the library ran back into the library heading south toward Howard, some diving under chairs. (Howard, 13 RT 2953: 13- 2957: 14) Howard turned and started to run back into C-104 when he remembered that his girlfriend, Lucy Lugo, was in C-110. He ran past the south stairway into C-I I Oa. As he approached C-I 10a he saw John Kaze coming out of the door to C-1 lob, and as he went in to C- 1 10a he heard a loud bang. Inside C- 1 I Oa Howard met up with Lugo and Wayne Boggess. As he was talking to Lugo and Boggess, Kaze came into C-1 IOa. He was bleeding from his nose, neck, and shoulders and asking students to help him. (Howard, 13 RT 2957:15- 2959: 10) Frightened at seeing Kaze injured in that manner, Howard, together with Lugo and Boggess ran out of C-1 10a into the hallway. Boggess stopped at the corner of C-1 10a while Howard and Lugo ran 1331 to the small corridor leading to the door of C-103a. Howard hoped to escape by getting into C-103a, but the door to that room was locked, trapping Howard and Lugo in the small corridor by a row of lockers. They tried to hide by the lockers when they heard somebody yelling loudly "get down everybody." When they heard the voice say "get down" a second time they both got down on the floor with their heads facing out toward C-1 1 Oa. Howard heard another "get down," and saw Boggess still standing at the comer of C-1 1Oa by its doorway. Boggess seemed "in a daze" and was not responding to the calls to "get down." Boggess then looked over at Howard and Lugo on the floor, glanced back, and was shot in the face. The force of the shot sent Boggess up in the air; Boggess landed on his back, moaning and in convulsions. (Howard, 13 RT 2959:23-2962:22) Howard then saw Defendant for the first time. Defendant was coming from the south foyer area near the south stairs and crossed in front of Howard's vision from left to right, entering C-102. Howard heard a shot go off. Defendant walked back out of C-102 within five to eight feet of Howard and Lugo, and then walked back into C-102 out of Howard's sight. An extended silence ensued, followed by Defendant walking back out of C- 102 to within about five to six feet of Howard and Lugo. At first Defendant did not see them, but then turned, saw them, and pointed his gun at them, holding the gun butt slightly above waist level with the front of the gun supported by his left hand. Howard estimated the barrel of the gun was about two feet away from him and Lugo. Howard looked Defendant in the eyes. Defendant held the gun pointed at the two students "for a minute," then moved the gun into a position forty-five degrees out in front of [341 him, (characterized by the trial court as a "port arms position,") turned around, and went up the south stairs two stairs at a time. (Howard, 13 RT 2962:25-2968: 19,2975:5-8) When Defendant passed out of Howard's line of sight Howard jumped up and started for the southeast exit. Looking up, he saw Defendant on the stairs. Defendant had a gun in his left hand and another gun slung on a strap over his left shoulder. Shells and "stuff' were falling out of Defendant's pockets, clattering down the stairs and onto the tile floor. Defendant was taking two stairs at a time. When Defendant was three or four stairs below the top, the gun slung on his right shoulder dropped and slid all the way down to the bottom of the stairs. This was a different, "skinnier" gun than had been pointed at Howard and Lugo. Howard quickly returned to where he had been lying on the floor. Defendant came back down the stairs and picked up his gun but did not attempt to pick up any of the fallen shells. Defendant went back up the stairs to the second floor balcony, however this time he took one stair at a time. Howard could hear Defendant moving along the balcony. Howard got up, grabbed his girlfriend Lugo, who Howard found to be too frightened to move, and dragged her out of the building through the southeast exit. (Howard, 13 RT 2970:7-2972: 15,2973: 19-2977: 1 1) Lugo testified that, when the incident began, she was in C-1 lOa where Mr. Kaze was the substitute teacher. She heard loud noises coming from the north foyer area of the building. Lugo and three other students, including Wayne Boggess, went to the door of C-1 1Oa and stuck their heads out to see what was happening. Lugo heard more loud noises that sounded closer and saw people running. Lugo [351 went back into C-1 1Oa and stood in front of the big chalk board. Her boyfriend, Gregory Howard came into the room through the C-1 lOa doorway, and they backed up to some black cabinets. Lugo saw Kaze, who was holding his throat with one hand and had blood on his other hand. Howard grabbed Lugo by the hand and they ran out of C- 1 10a over to the small hallway that leads to room C-I 03. Lugo thought Wayne Boggess was coming with them, but he remained outside the door to C-1 1 Oa. (Lugo, 13 RT 2987: 14-2992: 16) Lugo recalled someone yelling "get down, get down." Lugo and Howard stood by the lockers in the small hallway to C-103. Again she heard someone shouting "get down." She and Howard both went to the floor. Lugo looked over to Boggess who was still standing at the door to C-11 Oa, looking at Howard and Lugo. She saw Boggess get shot, go up in the air, land, and go into convulsions. (Lugo, 13 RT 2992: 1 8-2994:6) Lugo put her head down and started to pray. She heard another shot that was close by, from the next room [C-1021. Then she looked up and saw Defendant about eight feet from her with his gun pointing at her and Howard. Lugo put her head down and then again looked up to see Defendant running up the south stairway. Lugo heard the gun fall on the stairs and banging as it slid down from stair to stair. Lugo did not hear the gun go off as it fell. Shotgun shells also started falling down the stairs. Then she saw Defendant come back down the stairs. Howard had started to get up, but when Lugo saw Defendant corning back down she pulled Howard back to the floor and they lay there while Defendant picked up the fallen gun and went back up the stairs. Howard then dragged Lugo out of the building through the southeast [361 exit. (Lugo, 13 RT 2994:7-2998:26,3006: 13-19) At trial Defendant stipulated that he was Defendant observed by the preceding witnesses. After ascending the stairs, Defendant did not shoot at any other person nor physically attack or harm any other person during the incident. Witnesses estimated the time during which Defendant was shooting on the first floor as from less than a minute to two minutes . (Hodkinson, 19 RT 4369:3-4370: 12 (60 seconds); Vargas, 19 RT 4385:7-4386:25 (not even a minute); Hendrickson, 19 RT 3 190:14-24 ("at least a minute"). At sentencing the trial judge made a slightly longer estimate of two to three minutes. (25 RT 61 39:22-25) 2. May 1, 1992, From Ap roxinzately 2:05 .nz. Until Gunman urrenders - R i' Lind urst High Sclzool, Building C, Second Floor a ) On Balcony Witnesses testified that upon reaching the top of the stairs, Defendant walked south to north along the balcony (Parks, 15 RT 3526: 1-20; Hendrickson, 14 R T 3 190:25-3 191 : 13), passing room C- 201 (L. Hernandez, 19 RT 4377:23-4378:8,4383:12-20) and C-204b (Hendrickson, 14 RT 3 1 83:25-27, 3 19 1 : 16- 17). Defendant then returned and entered C-204b (Hendrickson, 14 RT 3 19 1 : 1 8-23). One witness testified that while Defendant walked along the balcony he carried two guns, one thrown over his shoulder and another in his hand (L. Hernandez, 19 RT 4383: 12-20); another witness testified that he carried only one gun with the butt underneath his right arm at the elbow and his right hand holding the gun strapped or "braced" upright in a nearly vertical position (Parks, 15 RT 3527:4- 3528: 1). b) Entering C-204 Upon entering C-204b, Defendant told everybody to get on one side of the room and told the teacher, Ms. Cole, to leave the building. (Hendrickson, 14 RT 3 183:23-3284:4; 3 191 :24-26) Witnesses testified that Defendant appeared nervous and was holding the gun with the butt at his hip and the stock parallel to the ground or at a 45 degree angle, pointing in the direction of the students. (Perez, 15 RT 3414: 15-3415: 16) Witnesses testified that once inside room C-204b, Defendant asked the students to help move a desk and a bookcase to partially block the doorway to C-204b. (Hendrickson, 14 RT 3201 :22-3202:12; Hodkinson, 19 RT 437 1 :25-4372:2) Testimony indicated that he said he did this so that if the S.W.A.T. tearnlsniper fired neither he nor the students would get shot (Hendrickson, 14 RT 3201 :22-3202:21,3216:26-3217:7; Owens, 16 RT 361 1 :8-17). C ) Lookouts Defendant ordered four students to go out on the balcony and stairs and serve as lookouts for police. He yelled orders to them. (Perez, 15 RT 3384:7-25; Baker, 15 RT 3497:9- 19) Testimony indicated that Defendant sent students from C-204b to other areas of the second floor as well as to the first floor of the building to bring students to C-204b. (Hendrickson, 14 RT 32135- 22) [381 At some point (within 1 5 minutes per one witness) after Defendant entered 204b, students from C-205 joined the students in room C-204b. Some testimony indicates that the teacher in room C- 205 interacted with a student on the balcony and was told to send her students to C-204b and to exit the building herself, other testimony indicated that Defendant went to C-205 and told the students there to come to C-204b, other testimony indicated that Defendant shouted these instructions to C-205. (Hodkinson, 19 RT 4370: 13-437 1 : 1 1 ; Daehn, 16 RT 3748:8-3749:23; Prather, 16 RT 3770: 15-3771 :23) The students from C-205 walked single file to C-204b where they were told by Defendant to sit with the other students on the floor against the far wall. Defendant was holding the gun at waist level with the butt of the gun by his right hip and his left hand extended to hold the front of the gun at waist level. The gun was pointed at the students as they entered. One student testified that when the students from C-205 arrived in C-204b, Defendant asked them to help barricade the opening to the classroom. (Hodkinson, 19 RT 437 1 :25- 4372:4; Daehn, 16 RT 3749:4- 17, 3806:9-3807: 1) e ) Students from 201 to 204b At some point, .5 hours (Newland, 16 RT 3653:8-24), 1.5 hours (Baker, 15 RT 3495:7- 14), or 2 hours (L. Hernandez, 19 RT 4378:22- 25) after Defendant entered C-204b, the students from C-201 were directed by a female student (Baker, 15 RT 3495:2-6; Newland, 16 RT 3653:17-24) or "two students" (L. Hernandez, 19 RT 4378:7-28; Parks, 15 RT 353 1 :2-10) to leave their classroom to join the others in C-204b; the teacher from C-201 was directed to leave the building. (Baker, 15 RT 3495:2-6) They were told that if the students didn't go to the room with Defendant Defendant would start shooting. (Parks, 15 RT 3531:ll-18) When the approximately 17 students arrived from C-201 to join the 30-40 students already in C-204b Defendant was hiding behind the bookcase with one gun. (Baker, 15 RT 3495:2 1 -3497:8) Defendant told the arriving students to join the others on the floor. Defendant had a shotgun which he held with the butt of the shotgun on his shoulder and his left arm on the forepiece or pump wrapped in the strap. Defendant seemed very agitated and followed each student with the shotgun as they came in telling each one he didn't want them "too close to me." (Newland, 16 RT 3654:15- 3655:28) He had them lift up their arms and turn in a circle to make sure they had no weapons. (Parks, 15 RT 3535:2-5) 3. Spreading out With the arrival of the additional students from C-205 and C - 201, the room became crowded. Defendant stated that the students were too bunched up and too close to him. He told some of the larger students to move desks out of the classroom and told the students to spread out. (Baker, 15 RT 3495:21-3496:4) Defendant told the students to put their pens and pencils and purses in a corner so that they could not stab him in the neck. (Hendrickson, 14 RT 3212:l-6) 4. Destruction of Property Defendant opened the file cabinet in C-204b. He looked through papers, made comments about the failing grades on the papers and threw the papers over the balcony. Defendant made comments about the teacher, Mrs. Cole, whose classroom he was in, recalling an incident between Mrs. Cole and his sister. Defendant then was described as smashing the wall clock, tearing it off the wall, and throwing it over the balcony. (Newland, 16 RT 3657: 10-3658: 19; Moua, 14 RT 3 15 1 :2- 1 8; see also testimony of Hicks, 15 RT 3445: 1 1 - 19) 5. Students use the Bathrooms At some point Defendant asked the students in C-204b if they had to use the restroom. Students testified that "about half' of the students (Baker, 15 RT 35 13: 13-1 8), or "a lot of us" (Parks, 15 RT 354 1 : 12- 13), or "most everyone" (Newland, 16 RT 3662: 14- 18) indicated that they needed to use the restroom. Defendant began allowing students to leave C-204b to use the student bathrooms. The entrance to the student bathrooms was underneath the balcony and thus could not be seen from C-204b. (Hendrickson, 14 RT 32 15:4-9) As students left in pairs to go to the bathroom, Defendant threatened to kill other students remaining in C- 204b if the students going to the bathroom did not return. (Baker, 15 RT 35 19: 18-352 1 :20; V. Hernandez, 14 RT 3272:4- 10) As students re-entered C-204b, male students were asked to lift their shirts so that Defendant could determine that they had no weapons. (Hendrickson, 14 RT 321 2122-28) One witness testified that the first pair of students who went to the student restrooms returned but the second pair did not return; Defendant continued to allow students to use the student bathroom (Baker 15 RT 35 19: 1 1 - 17) Another witness testified that after the second pair of students failed to return another student was sent to look for the second pair and also did not return; when this third individual did not return no additional students were permitted to go to the student bathrooms. (Parks, 15 RT 3541 : 18-3544:7) Testimony from another witness indicated that the first pair of students did not return and then no additional students were permitted to go to the student restroom (Newland, 16 RT 3663:21-3664:8). Although he made such threats repeatedly, apparently several students he allowed to go to the bathroom exited the building once they were out of sight underneath C-204b. Defendant never carried out any of his threats. (Baker, 15 RT 35 18:9-352 1 :20; Parks, 15 RT 3541 : 18-3544:7; Newland, 16 RT 3663:21-3664:8) Eventually a faculty bathroom key was delivered and students needing to go to the bathroom were instructed by Defendant to use the faculty bathroom across the first floor from C-204b. The first two pairs of students who left to use the faculty bathroom did not return, which angered Defendant. Nevertheless, he let an additional pair of students leave C-204b to go to the faculty bathroom; as with the first two pairs of students who left for the faculty bathroom, he threatened to kill students if they did not return. This third pair of students left for the faculty bathroom and then exited the building. Again Defendant's threats were not carried out. (Baker, 15 RT 35 18:9- 352 1 :20) 6. Students Released for Special Needs In addition to the students who exited the building under the guise of using the student or faculty bathrooms downstairs, several students were released by Defendant because they informed him of a special need. Defendant released one female student who was crying and another who claimed to be pregnant and one male student who claimed to be ill. (Hendrickson, 14 RT 3214:2-12; 321 5:24-3216:2) 7. Assisrunce sent to Injured Students Defendant told the police that he would have students remove the injured from the first floor; he then sent students downstairs to do so. (Mojica, 12 RT 2857: 15-2859:20) 8. Warning Shot Several witnesses testified that after several students left the building when going downstairs to use the student bathroom Defendant told police he wanted a key to the men's faculty bathroom. When, after a period of time, no key was produced, Defendant told the students he would be firing a warning shot - not to hit anyone but just to send a message. Defendant then fired a shot out across the library. (Hendrickson, 14 RT 321 5:l-23, 3239:19-3240:17; Baker, 15 RT 3500:3-3521:20) Contradictory testimony indicated that Defendant told the students he was going to shoot somebody, turned the gun toward the library, and shot out a window in the library. (Parks, 15 RT 3539: 13-3540: 1 1) 9. Throw Phone Sometime before 2:30 p.m. (Perez, 15 RT 3422:6-15) or about an hour or an hour and one half after the students from room C-201 came to 204 (Parks, 15 RT 3544:8-23), police rang on the school phone in the classroom to say they were going to deliver a telephone ("throw phone") to the building. When the police brought the throw phone into the building, Defendant had Perez talk to the police negotiator over the throw phone. Defendant did not at first give out his real name, but told Perez to tell the police negotiator his name was "George." Defendant told Perez what to say. At times Defendant would get angry and then he would talk to the negotiator himself, then give the phone back to Perez. (Perez, 15 RT 3385: 1 1-22,3388:6- 3390:9, 341 9:9-3423:4) 10. TV/Radio Defendant instructed a student to obtain a television from a nearby classroom but the cable did not work. Another student was then sent to retrieve a radio. (Parks, 15 RT 3546:28-3548: 11) 1I.Supplies and Release of Students Defendant asked the police to provide Advil, for students who complained of headaches, and for pizza and sodas. Defendant agreed to release some students in return. (V. Hernandez, 14 RT 3274:7-11.) Around 7 3 0 to 8:00 p.m. twelve pizzas, and a cooler containing sodas arrived; two students retrieved them. (V. Hernandez, 14 RT 3274:7- 3275:13) One witness testified that there were 85 students in C-204b before the pizzas arrived (V. Hernandez, 14 RT 3274:23-27) and that Defendant released about 20 to 30 students in return for the pizza and sodas and another 20-30 in return for the Advil. (V. Hernandez, 14 RT 3328:25-3329:3, 3377: 14-20) Another witness testified that there were 50 students in C-204b before the pizzas arrived and that groups of 10 were chosen for release. (Hicks, 15 RT 345 1 : 12-3452:7) Another testified that fifteen students were released as the pizzas arrived. (Mills, 18 RT 43 1 1 : 19-43 12:9) Defendant did not eat any pizza because he was afraid the pizzas may have been drugged. (V. Hernandez, 14 RT 3273:27-3274:6) 12. Reaso~zs for conzing to the school Several witnesses testified to the reasons Defendant gave for coming to Lindhurst High School. Virginia Black was a detective in the Yuba County Sheriff's Department who had come to the school as soon as she heard over radio dispatch that there were reports of a gunman on the campus. Approximately half an hour after Black arrived at the high school, she was in the administration building when a call came through the school intercom system. One of the secretaries handed the phone to Black. It was Defendant calling from C-204b demanding that the school bells be shut off. He stated that if the bells were not shut off he would start shooting students. In the conversation Black asked Defendant why he had come to the high school and what they could do for him. At some point in the conversation Defendant started to talk about his problems: that he had lost his job; that he had rent to pay of $420 or $450 per month; that he hadn't graduated; that he did not have a diploma; that he lived with his parents, etc. He then said he would call back later and hung up. (Black, 18 RT 41 34:26- 4135:15,4138:23-4140:7,4210:9-421213) Various students who were in C-204b with Defendant testified as to what Defendant had said in the classroom which they interpreted as his reasons for coming to the school. Hicks testified that for a while after entering the room Defendant just sat there, cursing at everyone and himself. Then he started talking about why he was there. (Hicks, 15 RT 3440:7-26) While he threw papers off balcony and broke the clock, he continued ranting about Miss Cole and about Robert Brens. Concerning Brens Defendant said that Robert Brens had "betrayed" him, that Brens had failed Defendant in Economics or Civics. Defendant asked the students if they had had Brens as a teacher and asked them "Is he a jerk or what?" The students stated their assentI7. (Newland, 16 RT 3658: 13-3659:6) He said Brens, Mr. Ward (the Lindhurst High School principal), and the school in general had laid traps for him that prevented him from graduating, and that as a result he had lost his girlfriend and his job at Hewlett- Packard. (Newland, 16 RT 3659: 13-21) He said he had worked as a temporary fill-in and was laid off, that he was guaranteed a permanent job and promotion if he went back, but he needed a high school diploma to go back. He said he had gone to the school to get his diploma, but they wouldn't let him have it because he had failed economics, civics, and a couple of l 7 Newland offered the opinion that the students' statement of agreement with the gunman's evaluation of Mr. Brens was the result of the gun he was holding. other classes. He said his girlfriend had left him to join the Coast Guard. (V. Hernandez, 14 RT 3267:25-3269:2) Defendant said he had come to the school to make "Mr. Brens pay.. . He was going to make sure that none of the teachers ever made a mistake again like this [i.e.: treating a student as he was treated].. The teachers were "fools" who failed to spot him when he was on the school grounds. He had brought cans of gasoline straight to the school grounds without the teachers knowing about it, and he had planted this gasoline such that he only had to press a button and the school would blow up.I8 He had read books about police tactics and didn't want the police rappelling from the roof to get in the room. He passed a picture of his girlfriend around the room for the students to see what she looked like. (Parks, 15 RT 3537:20- 3539:4) He "said that he shot a teacher downstairs, and that, you know, he was there for Mr. Brens." (Hicks, 15 RT He said "he came there to talk with Mr. Brens" because "he flunked him" and "it ruined his life." (Burdette, 13 RT 301 5: 24-301 6:5) As discussed, a number of students testified Defendant said he had placed some sort of incendiary material around the school. No evidence was introduced that Defendant had, in fact, brought any incendiary material or device to the school. He wanted to teach the school administration a lesson. (V. Hernandez, 15 RT 3373:4-16, 3375: 13-1 8) He said he lost his job because he didn't have a high school diploma and it was the school's fault so he was taking revenge. (Hendrickson, 14 RT 3206:6-8) He said he was there because Brens had flunked him out of his Civics class so he couldn't graduate. He wanted a newsman to come right away dressed only in his shorts and camera. He didn't believe he would make it out of the building alive that day. (Baker, 15 RT 3498:20- 3499:9) Jake Hendrix testified that Defendant described what he thought the students were likely thinking about him - that he was a crazy blond-headed person. Defendant told the students that Brens had flunked him when he was a senior. He said that he couldn't go to the prom, for which he had rented a limousine; he had lost his job and his fianc6 - all because he had failed high school. Defendant told the students that his fiance' had broken up with him - he passed her picture around the classroom. (Hendrix, 16 RT 381 1 :5-3812:3) Jocelyn Prather testified that Defendant repeated his statements about the girlfriend, the job, and Mr. Brens each time new students entered C-204b. They were not in response to questions - there were few questions, although when he talked the students would talk back to him to keep him from getting angry. (Prather, 16 RT 3791:16-3793:l) 13. Threats and Pointing Gun in C-204b Eddie Hicks was in C-204b when Defendant came in. Hicks testified that Defendant pointed the gun at the students repeatedly and pointed it at Erik Perez several times. He swayed the gun back and forth as he sat. Defendant threatened people who asked to go to the bathroom that he would shoot the person's friend if the person did not return. (Hicks, 15 RT 3436: 15-23,3444:7-23) Another student, Robert Daehn, testified that Defendant said there was a student across the way and he had shotgun slugs that could shoot 100 feet away. Daehn testified that Houston told them that he didn't want to shoot anyone but he would if the students didn't cooperate. (Daehn, 16 RT 3754: 16-3755:2) Esther Baker testified that Defendant made repeated threats to people who he said could go to the bathroom that he would kill three, four, five people if they did not return. Baker also testified that Defendant had Erik Perez tell the police negotiators that he would start killing students if he did not get what he was asking for [pizza, Advil, key to faculty bathroom, etc.] Baker also testified that at one point Defendant pointed his gun at a student who was stationed as a lookout on the balcony right in front of C-204b. Defendant was frustrated because he wasn't getting what he was asking for over the negotiation phone, and he pointed the gun at the student "and made like he was going to shoot him." The student's head was turned such that he could not see what was happening. The students in C-204b let out a collective gasp which caused Defendant to pull the gun away from pointing at the student. (Baker, 15 RT 3500:3-3503: 14) Parks said that Defendant did not aim the shotgun at any specific student, but did wheel the gun around several times with the butt at chest level holding the barrel up at a forty-five degree angle pointing the gun generally in the students' direction. Defendant did point the gun at students when they returned to the classroom, using it to indicate he wanted them to pull up their shirts so he could see they didn't have weapons. (Parks, 15 RT 3539: 13-3540: 11,3541: 18- 354417, 3560: 1-3561: 12) Other students also described these same or similar threats and aggressive behavior on the part of Defendant after he came to C-204b. (Baker, 15 RT 3518:9-3521:20; V. Hernandez, 14 RT 3272:4-10; Mojica, 12 RT 2862:3-8; Perez, 15 RT 3431:22-3432:22; Parks, 15 RT 3541:18-3544:7; Newland, 16 RT 3663:21-3664:8; Vargas, 19 RT 4394:28-4395: 18; Prather, 3776:22-3777:20,378 1:8-14; Hendrix:3822:6- 12; Mills, 18 RT 4322: 15-25; Hendrickson, 14 RT 3203:3- 12; Cook, 19 RT 4364:25-4365:6) At no time did the gunman carry out any of his threats. (Perez, 15 RT 343 1:22-3432:22; Baker, 15 RT 3518:9-3521:20; Parks, 15 RT 3541: 18-3544:7; Newland, 16 RT 3663:21-366423; Hendrix, 16 RT 3822:6-12) 14. Discussion re shootings downstairs Testimony from students who were in C-204b differed as to what Defendant said concerning what had occurred when he was on the first floor of Building C: Jennifer Kohler testified that she remembered Defendant was relieved when the radio newscast playing in C-204b announced no one had been killed. (Kohler, 16 RT 3646: 14-23) Victorino Hernandez testified that after Defendant had been talking for a while about why he had come to the school, Defendant and students were listening to a radio newscast that described people being taken to the hospital, and Defendant expressed surprise that he had shot people. (V. Hernandez, 15 RT 3365:24-3366:9) In his Grand Jury testimony Victorino Hernandez had stated: "[A]ctually, [Defendant] had said that he had not really remembered who he shot. He remembered shooting people, but he didn't know who, and then when he told him about Mr. Brens, that's when he said he was happy. Well, he didn't actually say he was happy. He said, oh, well, he failed me anyway." (V. Hernandez, 15 RT 3372:12-28) However, at trial Victorino Hernandez testified that Defendant had discussed how many people he had shot and mentioned that he had shot two teachers and a student. A couple of the students said the teacher was Mr. Brens. Victorino Hernandez said Defendant responded that "Oh well, he failed me anyway." After the incident Victorino Hernandez told investigators Defendant did not seem aware that he had killed anyone. At trial Victorino Hernandez seemed to back away from that statement but did confirm that Defendant had not said anything to indicate he knew he had killed anyone. (V. Hernandez, 14 RT 3269:3- 8, 331 1:5-12; 15 RT 3365:24-3367:4, 3372:12-21) Joshua Hendrickson testified that Defendant said he had shot a teacher and some students and he hoped that none of them died because he was trying only to wound them. Hendrickson was not sure [5 1 I Defendant was referring to Robert Brens when he referred to having shot a teacher. (Hendrickson, 14 RT 3205:28-3206:3,3234:8-26) Ketrina Burdette testified that Defendant said he had come there to talk with Mr. Brens. At one point Defendant said he had never intended to kill anyone, at another time he said he could not believe what he had done, and, after a couple of hours, he said he had shot Robert Brens "in the ass," but he did not indicate that he knew he had shot anyone else. (Burdette, 13 RT 3014:23-3017:5,3021:21-25, 302913- 10,3030:20-3032: 18) Erik Perez testified that Defendant said he didn't know if he had killed anyone but that he had hit some people and that he had only shot to maim them, not to kill them and was worried as to whether anyone had died. (Perez, 15 RT 3426:7-3428: 17) Eddie Hicks testified that Defendant said he had shot a teacher and others and that he was not aware that anyone had been killed. Hicks confirmed that he had told investigating officers that Defendant said he did not want any of the injured students to die. (Hicks, 15 RT 3461 :20-28,3455:21-3456: 15) Esther Christine Baker also testified she heard Defendant say that he didn't know anyone had been killed. (Baker, 15 RT 3520: 1 - 13) Andrew Parks surmised that Defendant knew he had killed Robert Brens because Defendant said of Brens "He would never do it again," but admitted on cross-examination that Defendant never said he thought he had killed Brens or even that he had shot Brens, and that Defendant had said that he hoped the people he shot were not dead. (Parks, 16 RT 3600: 1 1-3601 :6) Olivia Owens testified that students in C-204b asked Defendant what teacher he had a grudge against; when Defendant said it was Mr. Brens, the students asked why he wasn't downstairs talking to him. Defendant stated, according to Owens: "that Mr. Brens was taken care of already." Owens did not remember how long after Defendant came into C-204b he made that statement [i.e., whether or not he had already been told by the other students that Brens had been shot]. Owens also said Defendant wanted any injured people downstairs moved out of the building and hoped that he hadn't killed anyone. (Owens, 16 RT 3609:4-16,3625: 16-3626:27) Ray Newland testified that Defendant had a pair of thumb-cuffs in his pocket. Later on in the evening Defendant told Newland that he had brought only one pair of cuffs and hadn't planned on taking more than one person hostage. Newland also testified that Defendant stated he had shot at several people downstairs. He didn't explain why he had shot them except to say that they had come out at him or that he was afraid they would try and jump him. He said he didn't know who any of his victims were. He had shot a teacher and a few students, and he described the room where he shot the teacher - downstairs right where you come in from the faculty parking lot, and asked who that teacher was. The students said from the description of the room location it sounded like Mr. Brens and asked Defendant if the teacher had a beard. Defendant said he didn't know if he had a beard "but I shot him in the butt." Newland testified Defendant smiled as he said he had shot the teacher in the butt. (Newland, 16 RT 3660: 11-24, 3669:9-3670:10,3690:20-3691: 11) Robert Daehn said Defendant said he had come to the school to [531 get revenge, that he blamed the teacher Robert Brens for flunking him, and that he had shot Brens in the stomach but that he didn't hurt him and Brens was still alive. He said he shot some students but did not say how many, just describing where he shot them.lg Daehn acknowledged that Defendant said he had just meant to wound the people he shot . (Daehn, 16 RT 3750:23-3751:22,3765:15-3766:3) Jake Hendrix said Defendant asked the students he sent down to remove wounded people from the building to tell him where on the body they had been shot. One of the students he sent down did return to C-204b and when the student told Defendant where the injured person had been shot, Defendant reacted by saying "Oh, my God," stating that he didn't intend to shoot them there, but only to hurt them by shooting towards the legs. (Hendrix, 16 RT 38 10:4-38 1 1 :4) Nubia Lucila Vargas remembered Defendant had said about the people - shot downstairs: - -- "Oh, my God, Oh, my - - God, What have I - - - -- - done? What have I done?" (Vargas, 19 RT 4393: 13-4394:9) Warren Cook was in C-204b for a portion of the time and was also on the stairs as a lookout. While he was in C-204b, but he did not remember when, he heard Defendant state that Defendant and a friend had talked about it being "neat" to go to the school one day and just shoot some people. Defendant also said he wasn't aiming to kill anyone and that he didn't know he killed anyone. (Cook, 19 RT 4361: 14-4363:26) Uncontradicted testimony from law enforcement witnesses established that during the incident a decision was made to withhold l9 At trial Daehn was not asked to elaborate on this statement. [541 from the media any information that any deaths had occurred. Law enforcement also cut the cables to the Building C to prevent Defendant from accessing television or radio news broadcasts about the incident. (Escovdeo, 17 RT 391 1-3913; Tracy, 18 RT 4294:7-21) When Defendant asked the negotiators if anyone had been killed they told him no. (Tracy, 18 RT 4302:6-27) 15. Evidence on Defendant's State of Mind While In C-204b The throw phone deployed into room C-204b around 4:00 to 4: 15 pm on May 1, 1992 recorded both the telephone conversations between the negotiators and Defendant and the words and sounds in C-204b. (1 8 RT 421 8: 14-4220: 1 1). These recordings were preserved on seven audio cassette tapes that were introduced as Exhibits 82-88, (1 8 RT 4221 :8-4222:21) and admitted into evidence without objection. (1 8 RT 4225:25-4226:4) For approximately six hours beginning on the afternoon of July 7, 1993, Officer Charles Tracy was called to the witness stand to play Exhibits 82-88. (4237: 18-4302:27) By stipulation, the Court Reporter was excused from reporting what could be heard in the courtroom as the tapes were played. (18 RT 4227: 15-23) The record on appeal contains no agreed transcription of what could be heard when the prosecution played Exhibits 82-88. Both students and law enforcement witnesses testified that during the negotiations Defendant asked the negotiators for a "contract" that would guarantee that if he surrendered his sentence would not exceed five years, that he would serve it in a minimum security facility and be afforded educational and employment opportunities so that he could pursue a career on his release. The [551 "contract" was also signed by a number of students in C-204b as "witnesses," because Defendant was afraid he would be double- crossed by the police. (Exhibit 54; Perez, 15 RT 3428: 18-343 1 :2 1 ; Black, 18 RT 4146:25-4148:21,4176:24-4177:13; Newland, 16 RT 3670: 13-3672:4,3680:23-3684: 11) A copy of the contract was found in Defendant's wallet after he surrendered. (Williamson, 16 RT 3737: 10-28) Another document was passed around amongst the students in C-204b while being held hostage on which each wrote their name and phone numbers so that their parents could be informed they had not been harmed. (V. Hernandez, 14 RT 3284:21-3286:15; 15 RT 3356:21-3358:3; Hendrix, 16 RT 3819:ll-21) Several witnesses testified to a change in Defendant's mood during the course of the incident. Ortiz testified that after the first two hours of the incident, Defendant was no longer yelling as he had been at the outset. (Ortiz, 12 RT 2775:17-22) Ortiz started to hear Defendant talking and using profanities within fifteen minutes of the start of the incident. Defendant kept saying that if there were police there he would shoot students. The yelling of threats, orders, and profanities was constant for about the first two hours, then it changed and Defendant quieted down. (Ortiz, 12 RT 2774: 17-2775:22) Burdette testified that after an hour or so, the environment changed and there was talking between Defendant and students. (Burdette, 13 RT 3031:15-3032:15) Eddie Hicks testified that Defendant's expression was different in the beginning than later in the day when Hicks was released. Hicks [561 testified that at the beginning, Defendant appeared confused and angry but later appeared calmer, although at times when talking to the negotiators he became more nervous. (Hicks, 15 RT 3460:6-18) Owens testified that at the time gunman first entered C-204b, he appeared to be jumpy and scared. Later his mood changed and he became calmer. (Owens, 16 RT 3627: 15-2628: 1) Newland testified that "We felt that he had calmed down and that he was to some degree more under control of his faculties than he had been before, and that he was more calm and that he could be reasoned with better. (Newland, 16 RT 3692: 13-17) Hendrix testified that at the beginning Defendant seemed scared and panicky and was mumbling to himself. Defendant said he didn't want his mother to know where he was. Hendrix testified that he appeared "off the wall." He also acknowledged that he told the police that Defendant seemed "like he was out of it in some things but together in others." (Hendrix, 16 RT 3823:23-3825: 8; 3827: 19-28) Vargas testified that Defendant was initially angry and that over the course of the evening he became a little nervous. (Vargas, 19 RT 4389: 13-4390: 17) 16. Surrender Alan Long was a detective with the Yuba County Sheriff's Office who arrived at Lindhurst High School on May 1, 1992 along with Virginia Black. He testified that at approximately 10:20 p.m., Defendant, [having released all of the remaining students in C-204b,] agreed with the police negotiators to surrender. The negotiators instructed him to leave all weapons and some of his clothes in C- 204b. Defendant asked that there be no men in camouflage, in black, involved in his surrender. He came down the north stairway, and a uniformed officer was placed in the doorway to C-108 to talk Defendant down the stairs where he was taken into custody. (Long, 17 RT 3954:23-3955:20,3966:5-3967:28) At trial, many of the eyewitnesses were asked to identify the gunman they had seen in the school on May 1, 1992 as the defendant, Eric Christopher Houston. Defense counsel on each occasion stipulated that defendant Houston was the individual they had seen. (Lugo, 13 RT 2994: 17-25; Burdette, 13 RT 301 5: 13-22; Ledford, 13 RT:3054:2 1-26; Moua, 13 RT 3 12 1 :27-3 12223; Welch, 14 RT 3 163:20-3164: 1; Hendrickson, 14 RT 3 192:24-3 193: 10; Perez, 15 RT 3386:ll-18) C. Results of Autopsies of the Deceased; Evidence of Iniuries Sustained by Survivors; Evidence Obtained from the Scene Alan Long (detective with the Yuba County Sheriff's Office) testified that he arrived at Lindhurst High School on May 1, 1992 along with Virginia Black. Shortly after arriving he was directed by his superior, Lieutenant Escovedo, to enter Building C along with Sgts. Johnson and Durfor. "We entered C Building. And immediately to the - - went to the first classroom to the left.. ." In this classroom, C- 108b, they saw a male subject and a young girl, both lying in the classroom. Sgt. Durfor checked the bodies and reported to Long that both were deceased. [These victims were Robert Brens and Judy Davis, respectively.] They then proceeded southward through C- 108b, past the staff room and C-lOla to the southeast hallway, where they turned in a westerly direction and observed a male student lying in the middle of room C-102. Sgt. Durfor determined that the student was deceased. [This victim was Beamon Hill.] While Sgt. Long was looking out the doorway of C-102 providing cover for Sgt. Durfor, Long saw the bottoms of the feet of a male student lying just outside C-1 lOa. The student's chest was moving and he was making sounds. Long told Durfor to cover him while he removed the student from the building. Long dragged the student down the hallway until he was out of the central area, then put the student on his shoulder and carried him out of the building through the same route he had come in. Long delivered the student to paramedics outside. [This student was Wayne Boggess.] Long testified that there had been a pool of blood where his head had been laying when Long started to drag him. Later that evening, when he reentered the building, Long observed a trail of blood across the floor that apparently was the result of Long's dragging him [Boggess]. Long identified exhibits 25 and 26 as photographs depicting the location where he found [Boggess] and the trail of blood from his dragging [Boggess]. (Long, 17 RT 3954:24-3962: 13) Immediately after the incident ended, the SED team went through Building C to determine if there were any additional suspects or students still in the building. In C-107 they found the body of a large white male student with a cowboy hat lying next to him. He was lying on his left side with a large pool of blood under his head. The student was dead. [This victim was Jason White.] (Long, 17 RT 3968: 1-24) The jury was shown Exhibit 56, a video of the condition of [591 Building C taken in the afternoon of May 2, 1992. In Exhibit 56 the bodies of the deceased had been removed and various items of evidence were marked on floors, desks, etc. he videos showed, among other things, the trail of blood left as Wayne Boggess was dragged from in front of C- lOla by Sgt. Long during the incident. (Downs, 17 RT 4036: 17-4050: 19) Dorian Faber, a pathologist providing services to Rideout Hospital in Yuba City, California, testified to the results of the autopsies he performed on Judy Davis, Robert Brens, Jason White, and Beamon Hill. (Faber, 1 1 RT 2629:2-263 1 : 19,2636: 16-23, 2639: 13- 16,2642:26-2643:2) Faber testified that Robert Brens sustained multiple projectile type wounds to his back and chest on his right side and also on his right arm and left and right hands. Faber counted 51 discrete injuries, treating entry and exit wounds separately and also counting eburnations - bums caused by projectiles passing close to the skin. There were extensive internal injuries to the right lung, heart, and liver. The cause of death was bleeding from the projectile wounds. The wounds were typical of gunshot wounds. Faber recovered 13 projectiles from Robert Brens ' body. The projectiles were approximately one-quarter inch in diameter. He opined that Brens would have died within minutes of the injury. (Faber, 11 RT 2636:20- 2639: 12) Faber testified that Jason White sustained four serious projectile type injuries to his rib cage and back on the right side. There were entry and exit wounds for each, and the projectiles caused lacerations of the aorta and liver, lacerations and tears to the lungs, lacerations of [601 the right kidney, and fractures of the right ribs. The wounds were all to the right side of the body and extended from the top of the thorax down to the abdominal area. The cause of death was bleeding due to extensive injuries into both chest cavities caused by the projectiles. Seven projectiles, .24 inch lead pellets, were recovered from the body. He estimated that with the injuries sustained, Jason White would have lived for no more than two or three minutes after being shot. (Faber, 11 RT 2631:16-2635:27) Faber testified that Beamon Hill sustained four wounds to the head, including one in the left-temple, one in the mid-forehead, and an exit wound in the mid-scalp. All injuries were limited to the head. The projectile that had progressed from the left temple had passed through the brain and brain stem, (from left eyebrow to right ear) causing his death. Faber recovered one projectile from the brain of Beamon Hill. It was essentially identical to the projectiles recovered from White and Brens. Based on the extent of bleeding that he observed, Faber estimated that Beamon Hill may have lived up to thirty minutes after being shot. (Faber, 1 1 RT 2639: 13-2642:22) Faber testified that Judy Davis sustained multiple projectile wounds to the head, face, chest, and hands. There were eight wounds to the head, neck and upper chest, seven wounds to the right hand and five wounds to the left hand. There was blood in both thoracic cavities, more in the right side than the left. The projectiles caused multiple injuries to the lungs and laceration to the aorta. The cause of death was exsanguination secondary to gunshot wounds. Faber recovered two projectiles from the body of Judy Davis. They both were identical to the ones in the other bodies. (Faber, 11 RT 2644:4- [611 Faber testified that in each case the projectiles were consistent with being fired from a shotgun. Additional projectiles were left in the bodies, but Faber testified that in each case the projectiles removed either were the cause of the wounds leading to death or representative of the projectiles that caused the wounds leading to death. (Faber, 11 RT 2649:3-6,265 115-1 8) Ronald Ralston, a criminologist for the state, testified that the projectiles recovered from each of the four deceased victims were number four lead buckshot. The pellets recovered from the body of Jason White differed from the pellets recovered from the other bodies in that they were copper-coated number four buckshot. (Ralston, 18 RT 41 12117-4113:27) Rachel Scarberry testified that after Defendant shot at her she did not at first know she had been hit but then felt a burning sensation in her chest while she was still in C-108b. After about twenty minutes she made it out of C-108b and Building C and was taken by ambulance to the hospital. She had several surgeries and, at the time of the trial, still had a projectile lodged between her sternum and her heart. (Scarberry, 1 1 RT 2590:4-9,2594: 1-2595: 17) Tracy Young in C-108b was hit in the right foot. She lost parts of two toes as a result of the gunshot. (Young, 11 RT 2602:27-26035, 2605:21-2606: 14)~' Sergio Martinez testified that after he was shot, he did not at 20 At trial Tracy Young testified only that she had lost "part of my toes." In her grand jury testimony she was more specific that she lost a part of her big toe and a part of her second toe. (9101192 G.J. 91:2-10) first know that he had been hit until he saw his arm twisted back on his shoulder with a lot of blood. The arm was numb. With help from a teacher Martinez got out of Building C in about half an hour. (Martinez, 12 RT 283 1:27-2832:26) Johnny Mills was in C-204b with the Defendant when a student who had just arrived in the classroom said there was a student lying on the floor wounded downstairs. Mills asked the Defendant if he could go down to assist the wounded student, indicating that he knew CPR and how to place tourniquets. At first Defendant was reluctant but then assented, giving Mills five minutes to attend to the student. Mills went down to C- 109 and found a student [Martinez] lying on the ground with a penetrating wound just below the left shoulder. Mills placed a tourniquet on the student's wound. (Mills, 18 RT 4307: 1-5, 431O:l-27) During the post-incident investigation Sgt. Black retrieved a piece of bone fragment from Room C109a just east of the doorway to the classroom, by a papier rniichd hut where Martinez had been working when Defendant approached. Dianna Sweet, a crirninalist with the California Department of Justice testified that the item was a slug roughly the size of a quarter but with four times the thickness of a quarter with several pieces of bone fragment attached to it; this evidence was identified as TE046. (Black, 18 RT 41 86: 18-41 87: 16; Sweet, 18 RT 4124:6-10,4132:28-4133:20) John Kaze testified that after he had crawled out of the building he was taken by ambulance to the hospital. Kaze was hospitalized for a week. He had received three shotgun pellets in the left side of his nose, four pellets in his right shoulder, and two pellets under his collar [631 bone at the base of his neck on the right side. (Kaze, 13 RT 2935:21- 2937:7) Donald Graham was struck by a shot on his left forearm, but the injury was minor and he did not seek treatment. (Graham, 14 RT 3 180:27-3 18 1:6) Redacted records relating to the hospitalization of Rachel Scarberry (Trial Exhibit 94), and Sergio Martinez (Trial Exhibit 98), and hospital records for Patricia Collazo (Trial Exhibit 9 3 , Tracy Young (Trial Exhibit 93), Jose Rodriguez (Trial Exhibit 96), Maria Yanez (Trial Exhibit 97), Danita Gipson (Trial Exhibit 99), John Kaze (Trial Exhibit loo), and Wayne Boggess (Trial Exhibit 101) were admitted into evidence in the guilt phase. (21 RT 5070:26-5073:lO) Also introduced into evidence were the items of clothing, weapons, and paraphernalia that Defendant brought with him into Lindhurst High School on May 1, 1992. These items included the shotgun that Defendant had used - a Maverick brand 12-gauge pump action that would hold five 3 inch shells or six 2 % inch shells with a normal trigger pull (Exhibit 10; Ralston, 18 RT 4096:25-4099:7; Black, 11 RT 4190:8-13 ). Police witnesses testified that expended shotgun shells were found in Building C as follows: A 3 inch magnum four buck, Federal Brand expended shell (Exhibit 33); a 12 gauge magnum four buck expended shell, Winchester Super Double-X brand (Exhibit 34); and a 12 gauge double ought buck expended shell, Remington brand (Exhibit 35) - all were found in the North Foyer hallway just outside the entrance to C-108b (Black, 18 RT 4179:23-4180:27) A 3 inch magnum four buck expended shell, Federal brand (Exhibit 36) found on the floor just inside C-108b to the west of the door opening (Black, 18 RT 4 18 1 : 18- 41825) A 12 gauge one-ounce expended shotgun shell, Winchester brand, Super X, (Exhibit 37), found in the open quad area of Building C (Black, 18 RT 4182:6- 4183:5) A 12 gauge four buck expended shotgun shell, Winchester Brand, Super X magnum (Exhibit 38) found in the open quad area of Building C (Black, 18 RT 4183:6-15) A 12 gauge one ounce slug expended shotgun shell, Winchester Brand, Super X, (Exhibit 39) found in the main open quad area of Building C (Black, 18 RT 4183:16-4184:2) A 12 gauge one ounce expended shotgun shell Winchester Band Super X (Exhibit 40) found in the main floor of Building C, quad area (Black, 18 RT 4184:3-12) A 12 gauge 3 inch mag four buck expended shotgun shell, Federal brand, (Exhibit 41) found on the main floor of Building C, quad area (Black, 18 RT 4 184: 13-22) A 12 gauge four buck expended shotgun shell, Winchester brand Super XX (Exhibit 42), found in the main floor of Building C in the open or quad area (Black, 18 RT 4184:23-4185:4) A 12 gauge one ounce slug expended shotgun shell, Winchester brand Super X (Exhibit 43) found in C-102 where the body of Beamon Hill was found (Black, 18 RT 4185515) A 12 gauge four buck expended shotgun shell, Winchester Brand Super XX mag (Exhibit 44) found on the stairs on the lower portion of the south end of the center stairwell in Building C, (Black, 18 RT 4 185: 16-24, 4186:8-14) A 12 gauge one ounce slug expended shotgun shell, Winchester Brand Super X (Exhibit 4 9 , found on the stairs on the lower portion of the south end of the center stairwell in Building C (Black, 18 RT 41 85:25-4186: 14) Criminalist Ralston examined the thirteen expended shells and opined that 11 of them were fired from the shotgun recovered, (Exhibit lo), while the other two expended shells were consistent with being fired from Exhibit 10 but could not be positively identified as having been fired by Exhibit 10 due to the quality of the markings on the expended shells. (Ralston, 18 RT 41 1 1 :25-4112: 16) A .22 caliber rifle was found in the southeast comer of room C- 204, leaning upwards against the wall (Exhibit 11). The butt of the gun had been sawed off. (Black, 18 RT 4 190: 16-27) When Exhibit 1 1 was received by the criminalist Ralston, it could not be fired or loaded due to there being one or two cartridges broken and jammed in the chamber and the bolt area. Ralston removed the jammed cartridges [661 and attempted to fire the rifle with new ammunition. The first two rounds he tried did not fire, but the second pair of rounds he tried fired normally. Ralston did not make a determination whether the gun had been recently fired because there was powder all over from the broken cartridges. He did not know how the gun malfunction had occurred or if it had been caused by the gun being dropped. (Ralston, 18 RT 41 14:14-4115:15,4117:7-4121:1,4123:8-14) Also found in C-204 was a brown and tan camouflage hunting vest. (Exhibit 13) In the left pocket of the vest were found a single $20 bill; a key ring with seven keys and one handcuff key; and thirteen unexpended shotgun shells, of which four were Winchester brand Super X one ounce slugs, one was a Winchester brand Super X magnum four buck, four were Federal brand three inch magnum four buck, one was a Remington brand slug, and three were Remington brand double ought buck shells. The right pocket contained a 50 bullet box of CCI .22 caliber long rifle bullets, of which there were 49 unexpended rounds; and fifteen 12 gauge shotgun shells consisting of four Winchester brand Super X one ounce slugs, three Federal brand three inch mag four buck, three Winchester brand Super Double X magnum four buck shells, three Remington brand double ought buck shells, and two Remington brand slugs. (Black 18 RT 41 92:9-4193:9) With the hunting vest was found a black web belt with shotgun shell loops and a canteen containing water attached to it. (Exhibit 14) There was testimony that an "Uncle Mike's" ammunition pouch (Exhibit 12) was attached to the web belt at one time, but had come off. The pouch contained 64 unexpended .22 caliber bullets and 16 unexpended shotgun shells consisting of three Remington brand 12- [671 gauge slugs, five Federal brand 3-inch magnum four buck, five Winchester brand Super X one ounce slugs, and three Winchester brand double X magnum double ought buck. (Black, 18 RT 4190:28- 4192:8,4195:22-4196:8, Akins 17 RT 3875:13-21 ; Exhibit 53b) A pair of thumb cuffs (Exhibit 73) was found on the floor in the south portion of room C-204b. (Black, 18 RT 4189: 18-4190:3) D. Evidence of Defendant's Conduct Prior to Coming to Lindhurst H i r r h y 1, 1992 At about 4:30 p.m. on May 1, 1992, while Defendant was in C- 204b holding the students hostage but before the police had set up the hostage telephone system to communicate directly with Defendant, Black received a call from a person who identified himself as David Rewerts. Rewerts told Black that he was Defendant's best friend and that he believed the gunman at the school was Defendant, because Defendant had been talking about going into Building C at Lindhurst High School and "shooting a few people just to see if he could get away with it." Rewerts also told Black other information about Defendant and his background, and she relayed what Rewerts had told her to Lt. Escovedo in the command center that had been established. (Black, 18 RT 4140:9-4143:15) The prosecution called Rewerts as a witness in its case in chief. Rewerts testified that he had known Defendant since 1986 when Rewerts was a freshman and Defendant was a sophomore at Lindhurst High School. Rewerts testified that he and Defendant had become best friends. Rewerts stated that "around noon" on the day of the incident he was on his way to see Defendant when his neighbor told him not to go anywhere near Lindhurst High School because there was a gunman loose at the school. Rewerts stated that when he heard this he thought the man at the school might be Defendant. Rewerts went into his own house and called Defendant's house. A person answered the phone and said that Defendant was not at home. Rewerts then drove to a friend's house and asked the friend what was happening. After the friend told Rewerts what he knew from the television of what was happening, Rewerts said he believed he knew the identity of the man at the school. Rewerts then called the police. Rewerts spoke with Black and told her that he thought the man at the school was Defendant. (Rewerts, 18 RT 4059:23-4062: 12,4067: 18- 25) On direct examination Rewerts explained why, when he heard there was a gunman at Lindhurst High School, he immediately believed it was Defendant, his best friend: Starting three and one half to five months before the incident, Rewerts and Defendant had had conversations where Defendant had spoken of going to Lindhurst High School and shooting guns inside the school. There had been three or four such conversations over the three and one half to five month period prior to the incident. During these conversations both Rewerts and Defendant had been fantasizing about going to the high school and destroying things. On one occasion Rewerts had been reading a "Terminator" book2' and Defendant had been reading passages to Rewerts out of a book on military tactics and police procedures. Rewerts began talking of "destroying things," and then the Defendant spoke of going to the high school, going into Building Referring to a book derived from the Arnold Schwarzenegger movies Terminator 1 or Terminator 2. C, and shooting "a couple of rounds " or "a couple of people" and then getting out and going around the fence by the baseball diamond behind Building C. Defendant did not mention names of people he would shoot. On each occasion Rewerts described his own discussion of destroying things as "pretty absurd," and he considered Defendant's mentioning shooting people as "idle talk," or "just pass6 talk." (Rewerts, 18 RT 4062: 13-4066:2) Rewerts testified that in 1992 Defendant owned two .22 caliber rifles, a shotgun, and a small "machine gun thing," that Defendant had never fired. Rewerts and Defendant had on one occasion gone shooting together at the Spenceville gun range and shot the shotgun. Defendant could cock the pump-action shotgun with one arm. Sometimes Defendant would have bruising on his shoulder after he had gone to the range to shoot. (Reweds, 18 RT 4066:3-4067: 17, On cross-examination Rewerts agreed that the discussion of going to the high school was fantasy, "idle talk.. .Everybody says that they're going to go out and in anger that they're going to kill a person, but they don't." Rewerts and Defendant had seen the movie Terminator 2 together, and they were "so pumped up about the movie that, you know, it was like the greatest movie that happened during the time." They talked about sending robots to the school. Rewerts considered it "B.S.ingV among friends. (Rewerts, 18 RT 4068:7- 4069:28) Rewerts also said that from the time he met Defendant, Defendant had been interested in "military type stuff' and that Rewerts had become fascinated with it as well. On the one occasion 1701 that Rewerts had gone with Defendant to the Spenceville range, Defendant had carried his ammunition in boxes and had not carried any canteen. Rewerts estimated that Defendant went to Spenceville at least once a week and spoke about it a great deal. (Rewerts, 18 RT 4070:20-407 1 :28) The prosecution called Defendant's mother, Mrs. Edith Houston, to testify in its case in chief. Mrs. Houston testified she lived with Defendant and that at about 8:00 a.m. on May 1,1992 Defendant had driven her to the dentist where she had an appointment for a tooth extraction. This was earlier than Defendant normally got up ; she described Defendant as a "night person." After her appointment Mrs. Houston walked home from the dentist about 10:OO a.m. When she arrived home she found Defendant in the driveway polishing his car and waiting for the postman because it was the first of the month and his unemployment check was due. Mrs. Houston went inside and lay down because she didn't feel well. Defendant came into her room and asked her about a police scanner that belonged to Ronald Caddell, [Defendant's half-brother]. Mrs. Houston had Defendant bring the scanner to her in her bed and she "punched it up," but the batteries were dead, so Defendant returned it to the drawer in Ron's room. Defendant then went outside to wait for the mailman. (Edith Houston, 16 RT 3704:24-3706: 13,37 12:28-3713: 19) Mrs. Houston testified that after Defendant went outside, Defendant's sister, Susan Nelson, came in. Mrs. Houston gave Susan money to buy her some soup and whatever Defendant wanted from the store; Defendant wanted a couple of candy bars. After Susan left, the mailman came. Defendant brought Mrs. Houston some Medical 1711 stickers and then left the house about 11:OO a.m. At about 3:OO-3:30 p.m. Mrs. Houston accompanied Susan when she went to pick up her children at a grammar school. At the grammar school Susan learned there was "trouble" at Lindhurst High School. Susan and Mrs. Houston returned to Mrs. Houston's home. (Edith Houston, 16 RT 3706: 12-3708:25) Later that day, she wasn't sure when, a Sheriff's officer came to her door and asked her to come with him. Without taking her purse or anything else she was driven to Lindhurst High School where she met with an FBI agent who explained to her what was happening. She then accompanied several officers back to her house at 48 16 Powerline Road ("Powerline Road") so that she could get her cigarettes, change her clothes, and show the officers where Defendant's bedroom was. By this time it was dark. The officers proceeded to conduct a search of Defendant's bedroom. Mrs. Houston saw that they took some receipts that were lying on Defendant's bed, a box of empty shells, a note that was underneath the bed covers, and a shopping list. Mrs. Houston stated that Defendant always made lists of things that he intended to buy, adding up how much they would cost to determine whether he had enough money to purchase them all. On the shopping list was a drawing of a vest. (Edith Houston, 16 RT 3709: 12-37 11 :27; 3 173:24-25) Mikeail Williamson was an officer with the Yuba County Sheriffs Office on May 1, 1992. Williamson testified that he went to Lindhurst High School in response to radio calls regarding an incident going on at that location. At some point during the incident he met with Edith Houston who described the vehicle Defendant would have [721 been driving. Williamson took steps to locate the vehicle in the parking lot, and after discussing the matter with Lt. Escovedo, contacted Mike Johnson of the Marysville Police Department, introduced him to Edith Houston, and directed Johnson to do a search of Defendant's residence for evidence as to what kind of ammunition and weapons Defendant might be carrying, as well as a possible written plan. (Williamson, 16 RT 37 15: 1-37 18: 19) On May 1, 1992, Mike Johnson was employed as a police officer by the city of Marysville. Johnson testified that he was instructed by Williamson to accompany Edith Houston to the Houston home on Powerline Road. Johnson seized samples of several shotgun shell boxes, shotgun shells, and .22 caliber bullets in boxes scattered on Defendant's bed. These items were placed in a bag that Johnson found on the bed. The bag and items were introduced into evidence as Exhibit 32. Johnson also found on the bed a handwritten document that he characterized as a "supply list." (Exhibit 3 1). During the course of the search Johnson received a call from Sgt. Downs telling him to look between the sheets of the bed for a note.22 Johnson found the note (Exhibit 16) under the blanket or the sheets. He placed Exhibits 3 1 and 16 in the same bag (Exhibit 32) and returned them to Lt. Escovedo andlor Sgt. Downs. (Johnson, 17 RT 3983:2-10, 3986:3-3990:13) Eventually Exhibit 32 was given by Lt. Escovedo to Sgt. Williamson at about 10:OO p.m. on the night of May 1, 1992. 22 Sgt. Downs testified that during the hostage negotiations, Defendant asked whether the police had found a note he had left on his bed. Downs subsequently called Johnson to tell him to look for the note. (Downs, 17 RT 399523-39963) [731 (Williamson, 16 RT 3727:20-3828:8) Exhibit 3 1, a sheet of graph paper, was introduced into evidence. It contained a handwritten list (see Figure 1) . On May 3, 1.992: Sgt. FVil%.iamson csndt~cted ia~othea: seaxck. 4~:f Defe~zdaakr? bbedr-toc~xn. TEzis search produced &e it.sms tba1; were 3.ntr.szduced into evidence as Exhibits 6f),62 ? 61A, 61B, 62A) 63,64, 65, 67, i,T%'illiaansoal, 1.6 RT 3733;25-3734:2) Exhibit 60 (Figuxe 3) was a pie,ce of graph paper with some iteaxis of zizrxs.zzt~.nir;iow, numbers, :md. calc~iP8tion~, and drawings sax it: C$47iIlXix~xsoi~, '$6 WT 373 1 r 18-3732: 1 ; ExSaik3i.t: 60 ) Exhibil: $1' ctmsiskd o:f a large numbn. of tom up picceti uf paper fourid in a large caxdboard box. tfxgt was in Defex2&lant.' c closei:. B j.U Connor, a Questj.:isr:ied Docurneats ExanG.szer. fox the esti;ji.e, les2:i fiecX rhac 19& had assexxdAed ihe pieces of gaper iszto three sheets, each corxtaialing traal&v*~riting that beloaged to Defendant. The rccoristrructed or parf.ial.ly recoras";xucted pages were ixll:roduceb as .Exhi bits fi 1 ia (Flg-rsre 4), 2nd 6 1 b (Eigra,~~. 5). QYViI%iaxns~n, 1G RT 3734: 14.-3735:4; Connor, 5 8 RT 4074c24-4QL7 X : 1.2) 'r?v'illiamson fotlnd ripped-rap pieces of paper 3.0 s clear plaslic bag; in a garbage -. can outside the rear of the Powedizxe residmce, Caaanor xeconstm cted a docun~ent f~x:~nl i:he . paper . fragmensti~ irt Ihe oarbage, That recsnstm.ceed dscanzrrevnt was iaxcrodkaced as Exhibit 42% s (Exhibit 61, j%ViSSi;j.mso~, 16 K1' 3735: 1.1 - 1 6; Connor, 18 R.% &Q74:2&- 409 1 : 1 2) Figure 6 {Exhibit G2A) A'Is~P found i.n the 'beciroam r:rn the %eft side of the headboard on %i:.rp of th.c quilts arxd 'becisprcad nss a note pad (Exlzibit 63). and a dreu)i.rrg