COPY SUPREME COURTCOPY
IN THE SUPREME COURTFOR THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA, 5043520
Plaintiff and Respondent,
Vv.
CARL DEVON POWELL, | Epp Our,
Defendant and Appellant. Nov
APPELLANT POWELL’S REPLY BRIEF
Automatic Appeal from the Judgment and Death Sentence
of the Superior Court of the State of California
In and For The County of Sacramento, No. 113126
The Honorable James I. Morris, Presiding
NEOMA KENWOOD, SBN 101805
Attorney at Law
P.M.B. #414
1563 Solano Avenue
Berkeley, California 94707
Tel & Fax: (510) 528-4775 |
KAT KOZIK SBN 145528
Attomey at Law
Post Office Box 2633
Berkeley, California 94702
Tel & Fax: (510) 524-4020
Attorneys for Appellant
DEATH PEMALIY
TABLE OF CONTENTS
People v. Carl Devon Powell
No. 8043520
TABLE OF AUTHORITIES
INTRODUCTION
ARGUMENT
GLOBAL ISSUES
I THE JUDGMENT MUST BE REVERSED BECAUSE
THE PROSECUTOR PROMISED THE JURY IN HIS
OPENING STATEMENT THAT APPELLANT WOULD
TESTIFY HE DID NOT ROB MCDADE AND KILLED
HIM ONLY UNDER DURESS FROM THE HODGES
BROTHERS, BUT APPELLANT ULTIMATELY
EXERCISED HIS RIGHT TO REMAIN SILENT.
A. Appellant’s Claim Has Been Preserved for Review
1. The Claim Was Not Forfeited
2. Appellant Did NotInvite the Error of the
Prosecutor Outlining Appellant’s Expected
Testimony in Opening Statement and Then
Failing to DeliverIt
B. The Unfulfilled Promise of Appellant’s Testimony
Adversely Affected Appellant’s Invocation of His
Right To Silence and Deprived Appellant of a
Fundamentally Fair Trial
1. Prosecutorial Misconduct Does Not Depend on
Bad Faith
2. Davenport Assists Appellant, Not Respondent
3. Jurors Would Have Drawnan Inference Adverse
To Appellant from the Broken Promise of His
Testimony
Xili
13
18
21
24
27
I.
I.
4, The Court’s Limiting Instructions Were
Inadequate to Prevent Jurors from Drawing a
Negative Inference from Appellant’s
Exercise of His Right to Silence
C. The Error Prejudiced Appellant
1. Davenport Does Not Aid Respondent
2. The Reasonable Likelihood Standard Goes to
Error, Not Prejudice
3. The Harm Was Not Cured bythe Trial Court’s
Limiting Instruction
4. The Reasonable Likelihood Standard Goes to
Error, Not Prejudice
5. The Effect on the Defense Theory and the
Strength of the Evidence
THE JUDGMENT MUST BE REVERSED BECAUSE
THE TRIAL COURT CONDUCTED AN INADEQUATE
INQUIRY INTO THE EXISTENCE OF AN
IRRECONCILABLE CONFLICT BETWEEN
APPELLANT AND TRIAL COUNSEL.
APPELLANT’S TRIAL WITH THE HODGES
BROTHERS USING DUAL JURIES RESULTED IN
IDENTIFIABLE PREJUDICE AND GROSS
UNFAIRNESS IN VIOLATION OF DUE PROCESS
AND REQUIRES REVERSAL OF THE JUDGEMENT
A. Appellant’s Claim Has Been Preserved for Review
B. Identifiable Prejudice and Gross Unfairness
JUROR RELATED ISSUES
il
33
37
37
39
40
39
41
5]
64
64
70
80
IV. THE TRIAL COURT’S ERRONEOUS REFUSAL TO
EXCUSE PROSPECTIVE JURORS LESLIE GONZALEZ
AND JUDITH PERELLA FOR CAUSE REQUIRES
REVERSAL. 80
A. This Claim Should Be ReviewedonIts Merits 80
B. Error 84
1. Gonzalez’s Bias in Favor of Police Officer
Witnesses 84
2. Gonzalez’s Pro-Death Penalty Views 86
3. Perella’s Pro-Death Penalty Views 87
C. Prejudice 89
V, THE TRIAL COURT’S ERRONEOUS REMOVAL OF
JUROR NO. 11, WITHOUT SUFFICIENT CAUSE TO
CONCLUDE SHE COULD NOT DISCHARGE HER
DUTIES AS A JUROR, REQUIRES REVERSAL OF
THE JUDGMENT. 95
GUILT PHASE ISSUES 102
VI. THE TRIAL COURT COMMITTED PREJUDICIAL
ERROR BY FAILING TO INSTRUCT THAT DURESS
IS A DEFENSE TO ROBBERY AND MURDER AND
MAY RAISE A REASONABLE DOUBT ABOUT
THE EXISTENCE OF SPECIFIC INTENT TO ROB OR
DELIBERATION AND PREMEDITATION:; THEREFORE,
APPELLANT’S CONVICITONS FOR ROBBERY AND
MURDER AND THE ACCOMPANYING
ENHANCEMENTS AND SPECIAL CIRCUMSTANCE
FINDINGS MUST BE REVERSED. 102
ili
VIL.
VII.
IX.
A. Substantial Evidence Supported an Instruction on
Duress
B. Duress is a Defense to Murder
C. The Instructional Omission Prejudiced Appellant
THE ERRONEOUS ADMISSION OF EVIDENCE
CONNECTING APPELLANT TO FIREARMS NOT
USED IN ANY OF THE CHARGED OFFENSES
VIOLATED APPELLANT’S RIGHT TO DUE
PROCESS AND A RELIABLE PENALTY
DETERMINATION AND REQUIRES REVERSAL.
A. The Claim Has Been Preserved for Review
B. The Trial Court Erred in Admitting Evidence
Connecting Appellant to Three Firearms That
Could Not Have Been the Murder Weapon
C. The ErroneousIntroduction of the Gun
Evidence Prejudiced Appellant
THE ERRONEOUS INTRODUCTION OF BAD
CHARACTER EVIDENCE PERTAINING TO GANGS
VIOLATED APPELLANT’S RIGHT TO A FAIR
TRIAL AND REQUIRES REVERSAL.
APPELLANT’S STATEMENTS TO LITTLEJOHN
THAT HE INTENDED TO COMMIT ROBBERYIN
THE FUTURE SHOULD HAVE BEEN EXCLUDED
AS MORE PREJUDICIAL THAN PROBATIVE.
ADMISSION OF AN IRRELEVANT AND UNDULY
GRUESOME PHOTOGRAPH OF THE DECEDENT,
PEOPLE’S EXHIBIT NO. T-4, REQUIRES
REVERSAL.
iv
103
111
112
117
117
121
134
144
151
XI.
XII.
XII.
XIV.
XV.
APPELLANT’S ABSENCE FROM CRITICAL
PROCEEDINGS PERTAINING TO WHETHER HE
WOULDTESTIFY AND THE SUBSTANCEOF HIS
TESTIMONY CONSTITUTES REVERSIBLE ERROR.
THE TRIAL COURT ERRED, TO APPELLANT’S
PREJUDICE, BY INSTRUCTING THE JURY UNDER
CALJIC NO. 2.50 THAT EVIDENCE OF APPELLANT’S
UNCHARGED CRIMES COULD BE USED TO PROVE
INTENT, IDENTITY, KNOWLEDGE OR POSSESSION
OF THE MEANS NECESSARY TO COMMIT THE
CHARGED OFFENSES.
THE JUDGMENT CANNOT STAND BECAUSE THE
TRIAL COURT ERRED TO APPELLANT’S
PREJUDICE IN INSTRUCTING THE JURY IT COULD
CONSIDER APPELLANT’S EFFORTS TO SUPPRESS
EVIDENCE PURSUANT TO CALJIC NO.2.06.
THE INSTRUCTION ON FLIGHT, CALJIC NO.2.52,
AUTHORIZED AN IRRATIONAL, PERMISSIVE
INFERENCE.
THE TRIAL COURT ERRED TO APPELLANT’S
PREJUDICE BY INSTRUCTING JURORS UNDER
CALJIC NO. 2.71.7 TO VIEW APPELLANT’S
EXONERATING UNRECORDED ORAL
STATEMENTS WITH CAUTION.
155
165
173
176
179
XVI.
XVII.
THE INSTRUCTIONS THAT THE HODGES WERE
“ACCOMPLICES AS A MATTER OF LAW”
BECAUSE THEY WERE AIDERS AND ABETTORS
WRONGLY DIRECTED THE JURORS TO FIND
THAT APPELLANT WAS THE DIRECT
PERPETRATOR OF THE ROBBERY AND MURDER
AND REQUIRE REVERSAL OF THESE CONVICTIONS
AND ATTACHED ENHANCEMENT AND SPECIAL
CIRCUMSTANCEFINDINGS
BECAUSE THE TRIAL COURT ERRED IN FAILING
TO INSTRUCT ON THEFT AS A LESSER INCLUDED
OFFENSE TO ROBBERY, IT IS NECESSARY TO
REVERSE THE ROBBERY, FIRST DEGREE MURDER,
FIREARM USE AND SPECIAL CIRCUMSTANCE
VERDICTS AND THE ENSUING JUDGMENT OF
DEATH.
XVII.THE TRIAL COURT ERRED TO APPELLANT’S
XIX.
PREJUDICE IN USING THE DISJUNCTIVE
BETWEEN PARAGRAPHS ONE AND TWO OF
CALJIC NO. 8.81.17.
THE TRIAL COURT ERREDIN INSTRUCTING
APPELLANT’S JURY ON FIRST DEGREE
PREMEDITATED MURDER AND FIRST DEGREE
FELONY-MURDER BECAUSE THE INFORMATION
CHARGED APPELLANT ONLY WITH SECOND
DEGREE MALICE-MURDER IN VIOLATION OF
PENAL CODE SECTION 187.
MULTIPLE INSTANCES OF PROSECUTORIAL
MISCONDUCT REQUIRE REVERSAL OF
THE JUDGMENT.
A. Denigrating Role of Defense Counsel
V1
185
195
202
208
209
209
B. Statements of Personal Opinion and References
to Matters Beyond the Evidence 212
C. Emotional Appeal 214
D. Statements About Lack of Remorse 215
E. Appellant’s Claims of Prosecutorial Misconduct
Have Been Preserved for Review 218
F. Appellant Was Prejudiced by the Prosecutor’s
Misconduct 219
XXI. REVERSAL OF THE JUDGMENTIS REQUIRED
DUE TO GUILT PHASE JUROR MISCONDUCT
IN REVIEWING NEWSPAPER ARTICLES
CONCERNING THE MISTRIAL GRANTED TO
THE HODGES AND THE DISMISSAL OF THE
CHARGES AGAINST THEM AND ALSO DUE TO
THE TRIAL COURT’S INADEQUATE INQUIRY
INTO THE MATTER. 221
PENALTY PHASE ISSUES 228
XX. THE TRIAL COURT’S FAILURE TO CONDUCT
AN ADEQUATE INQUIRY INTO THE NATURE
AND IMPACT OF PREJUDICIAL PUBLICITY
COINCIDING WITH PENALTY PHASE
DELIBERATIONS REQUIRES REVERSAL OF
THE DEATH VERDICT; REVERSALIS ALSO
REQUIRED DUE TO JUROR MISCONDUCT. 228
A. This Claim Has Not Been Forfeited 229
B. The Exposure of Ten Jurors to Prejudicial
Publicity Constituted Misconduct Raising
A Presumption of Prejudice, Which the
Trial Court Failed to Adequately Investigate 238
vil
C. The State Has Failed to Show that the
Exposure of Ten Jurors to the Prejudicial
Publicity Was Harmless Error
XXIII. THE TRIAL COURT ERRED IN PLACING
SIGNIFICANT RESTRICTIONS ON THE
TESTIMONY OF APPELLANT’S MENTAL
HEALTH EXPERT, VIOLATING APPELLANT’S
RIGHTS UNDER THE SIXTH, EIGHTH AND
FOURTEENTH AMENDMENTS.
A. The Trial Court Erred in Excluding Dr. Nicholas’s
Testimony Regarding Appellant’s Statements
About the Offense As Part of the Basis for the
Doctor’s Opinion.
The Exclusion of Dr. Nicholas’s Testimony Violated
the Due Process Clause of the Fourteenth Amendment
The Trial Court’s Erroneous Restriction of Dr.
Nicholas’s Testimony Was Prejudicial, Requiring
Reversal of Appellant’s Sentence
XXIV.REVERSAL IS REQUIRED DUE TO PROSECUTORIAL
MISCONDUCT DURING PENALTY PHASE CLOSING
ARGUMENT.
A. Bengal Tiger Argument
B. Urging Jury Not to Consider Sympathy Because
None Was Showedto the Victim
Improper Appeal to See Crime Through Victim’s
Eyes Via Graphic, Invented Script
Urging Jurors to Speculate that Appellant Could
Have Killed Others
Encouraging Jurors to Make Sentencing Decision
On Basis of Their Fears of Gang Violence
Vili
247
250
251
263
264
272
272
275
277
279
279
7
O
42
&
Improperly Arguing Lack of Remorse as a Factor
in Aggravation
Boyd Error — Improper Conversion of Mitigating
Evidence into Aggravation
Misrepresentations Designed to Distort Appellant’s
Relationship with the McDades
Misstatements Concerning Defense Mental Health
Expert’s Testimony
Improper Argumentthat Appellant Acted Alone
Based on Misrepresentations of the Record
. Argument Beyond the Evidence Vouching for
Truthfulness of Testimony that Appellant Fired Gun
During Kennedy High School Shooting
Attacks on Integrity ofDefense Counsel
. Improper Attack on Defense Mental Health Expert
Improper Invocation of Biblical Authority
These Claims Have Not Been Waived Because the
Record is Clear that Any Further Objections Would
Have Been Futile
The Misconduct Violated Appellant’s Rights Under
the Federal Constitution and Was Prejudicial,
Requiring Reversal
ix
280
284
285
286
286
289
290
291
296
299
300
XXV. THE TRIAL COURT ERRED IN FAILING TO
EXCLUDE A PHOTOGRAPH OF APPELLANT
AND WILLIAM AKENS HOLDING GUNS AND
EXHIBITING GANG SIGNS AND TESTIMONY
BY DETECTIVE AURICH THAT APPELLANT
WAS A “MAIN PLAYER”IN THE CRIP GANG.
A. The Photo Was Inadmissible Because It Did Not
Fall Within Any Statutory Aggravating Factor,
Was Not Relevant to Any Disputed Issue and
Did Not Constitute Proper Rebuttal Evidence,
Any Relevance Was OutweighedByIts
Potential for Prejudice, and Its Admission
Violated Appellant’s Right to Due Process
l. The Photograph Should Have Been
Excluded Because It Was Not Relevant to Any
Disputed Issues, Did Not Constitute Proper
Rebuttal, and Constituted Impermissible
Propensity Evidence
Even if the Photograph Had Any Probative
Value, Its Probative Value Was So Slight and
Its Potential for Prejudice So Great, That the
Court AbusedIts 352 Discretion by Admitting
the Photograph.
B. Detective Aurich’s Main Player Testimony
1. Forfeiture
2. Detective Aurich’s Testimony That Appellant
Was a Main Player, a Gang Leader Who Promoted
and Was Involved in Gang Crimes, Did Not
Constitute, and Was Not Admissible as,
Reputation Evidence; It was Inadmissible Hearsay
Evidence Based on Information Solicited From
Unidentified Sources.
C. Prejudice
302
303
305
320
325
326
336
343
1. Standard to Be Applied
2. The State Has Not Demonstrated that This Error
Was Harmless
XXVI.THE TRIAL COURT COMMITTED REVERSIBLE
ERROR BY ADMITTING HIGHLY PREJUDICIAL
VICTIM IMPACT EVIDENCE.
A. No Portion of This Claim Has Been Forfeited
B. Pama’s Testimony Regarding the Impact of
McDade’s Death on Others Was Not Admissible
as Lay Opinion Testimony and Constituted
Irrelevant, Emotional Evidence WhichInvited
AnIrrational, Arbitrary Response
C. Prejudice
XXVII. THE TRIAL COURT ERRED IN REFUSING TO
GIVE APPELLANT’S PROPOSED INSTRUCTION
ON VICTIM IMPACT EVIDENCE ANDIN FAILING
TO OTHERWISE PROPERLY INSTRUCT THE JURY
ON THE USE OF VICTIM IMPACT EVIDENCE.
XXVIU. THE TRIAL COURT IMPROPERLY REJECTED
SEVERAL REQUESTED PENALTY PHASE
INSTRUCTIONS NECESSARY TO GUIDE THE
JURY’S CONSIDERATION OF MITIGATION
EVIDENCE IN VIOLATION OF APPELLANT’S
FUNDAMENTAL CONSTITUTIONAL RIGHTS.
A. The Trial Court Erroneously Rejected Appellant’s
Requested Instruction That Sympathy or
Compassion Alone Could Justify a Life Sentence
1. This Claim Has Not Been Forfeited
2. The Requested Instruction Was a Correct
xl
343
345
355
355
359
361
363
364
364
364
XXIX.
XXX,
Statement of Law and Its Important
Principle that Sympathy Alone Could
Justify a Sentence of Life Was Not
Duplicated in Any OtherInstruction
Given to the Jurors
B. The Trial Court Erroneously Rejected Appellant’s
Requested Instruction That Mitigating Evidence of
Mental ImpairmentIs Not Limited to Excuse or
Negation of an Element
1. This Claim Has Not Been Forfeited
2. The Requested Instruction Wasa Correct
Statement of Law, Was Not Repetitive of
Other Instructions, and Was Crucial to
Ensure the Jury’s Consideration of Appellant’s
Mitigating Evidence
C. The Trial Court Erroneously Rejected Appellant’s
Requested Instruction on the Scope, Consideration of,
and Weighing of Mitigating Evidence
D. Reversal is Required
THE REPETITION OF SEVERAL ERRONEOUS
GUILT PHASE INSTRUCTIONS AT PENALTY
PHASE DEPRIVED APPELLANT OF A FAIR AND
RELIABLE DETERMINATION OF PENALTY.
THE TRIAL COURT IMPROPERLY DENIED
APPELLANT’S APPLICATION FOR MODIFICATION
OF THE DEATH SENTENCE UNDER PENAL CODE
SECTION 190.4(e), DEPRIVING APPELLANT OF
A FAIR AND RELIABLE PENALTY
DETERMINATION IN VIOLATION OF THE
EIGHTH AND FOURTEENTH AMENDMENTS.
A. The Court Should Review this Claim on its Merits
Xil
371
373
373
374
378
379
382
383
383
B. The Judge Erred By Giving Aggravating Weight
to Factors Which As a Matter ofLaw May Only
Be Mitigating and in Failing to Consider Mitigating
Evidence 386
XXXI. CALIFORNIA’S DEATH PENALTY STATUTE,
AS INTERPRETED BY THIS COURT, AND APPLIED
AT APPELLANT’S TRIAL, VIOLATES THE UNITED
STATES CONSTITUTION. 390
XXXII. REVERSAL OF THE GUILT AND PENALTY
VERDICTS IS NECESSARY DUE TO CUMULATIVE
PREJUDICE. 391
CONCLUSION 392
Xlll
TABLE OF AUTHORITIES
Page(s)
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464 US. LAeeeecesccecceseseeseeseseceeeeneceeeseseaesaersseeseressesseesaeesesseeaees 161
Saesee v. McDonald (9th Cir. 2013)
725 F.3d 1045 oooesc eeeseeeeeeseeseecenseceaeesaeeseecesseesaeesteeestaeeseaaeeses passim
XVi
Salinas v. Texas (2013)
133 S.Ct. 2174 ccccccecccccccscessececeeseceecaecsseeeeeeneeseeeenerseeseaeseneesneeseatenss 32, 58
Sandoval v. Calderon (9th Cir. 2000)
QAL F.3d 765 v..ccccccsccccssseceneceeecesseensecsacecseesnseesceeteeeeseaeeesaeeteaeteneeessnees 297
Schad v. Arizona (1991)
501 U.S. 624 vccceccccneenceeeeessecesecseeeesaeeesecneeeeaeeseesaeseeeeeeeereneesatenaes 196
Silverthorne v. United States (9th Cir. 1968)
400 F.2d 627 ....ccccsccecscececeseeesessecssecseseeeenseeecsaeesneeeaeees 225, 245, 246, 247
Skipper v. South Carolina (1986)
476 US. Lcccccccccssecescesnecesececeesecenesseceeeseeeeaeseaeerieerseesseeseeseaesenesenereaeens 271
Smith v. Phillips (1982)
455 U.S. 209 voce ceccescecccsereeseeseceseeeecesecssecseesseeseesesecseessaneeseseateneeeeneesgs 237
Strickland v. Washington (1984)
466 U.S. 668 ...ceeeceecccceeeceeseeeeessecseeeaeeeaesnseceensaeessereneesseetaeesantenes 351, 352
Sullivan v, Louisiana (1993)
S08 U.S. 275 viccecsesessscneecscecneceesseesseceeecneeeaeseeeeeestaessnesssesesesseees 269, 270
Tuilaepa v. California (1994)
S12 U.S. 967 voccccccccccsceeseesecesesseeeseesesesesesecseecsaeseeeseseseeessesassaeeesaesenees 268
Turner v. Murray (1986)
476 U.S. 28 coccccccsscecsneeteesaeseeseeeeaeenseensececsateseeseseeseeesseseaeesecsseseeesaaeens 237
U.S. v, Littlefield (9th Cir. 1985)
752 F.2d 1429 oo iceccesesececenscesensessessecaessesseceaeeneesaeeeserenaees 237, 241, 242
U.S. v. Williams (5th Cir. 1978)
568 F.2d 464 ieeececccceeeceneesseeseeecsaeescerseeesensessaeesserseatessetestatessees 245
United States v. Accardo (7th Cir. 1962)
298 F.2d 133 ccceesccesscecesseecscceseeesseesecsseeeseseessesseeeesseerseesens 225, 226, 246
United States v. Adelzo-Gonzalez (9th Cir. 2001)
268 F.3d 772 ..cccscceccessesseeseesssseesssccsessscesecsessessesesessssesecsessaecseeseseatens 60, 62
United States v. Davis (5th Cir. 1978)
583 F.2d 190.eecesceseeeseeseeesseeseeseceneseeeeeeesseeeessaes 225, 245, 246, 247
XVil
inited States v. Escobar de Bright (9th Cir. 1984)
TAZ F.2d 1196 ..occcecccccceeccsseescecseeseceseeeeceaessecsecssesrecneeessseeseeeeseeeseesaees 116
United States v. Gonzalez-Maldonado(lst Cir. 1997)
DUS F.3d 9ce ccccescccesseeeeeeseceeeesecnetsecsesseesessesesnsesseeeeessesaeesaees 27, 28, 31
United States v. Gordon (D.C.Cir. 1987)
829 F.2d 119 ce eececccccccsecsecesetsseessecesesseesecseesstecsecsssesecsatesseessseseeeeaes 161
United States v. Harris (9th Cir. 1986)
792 F.2d 866 .o..cccccccccscsscsseessscssecsscssesseessessecsaesescssesesseessccaeseseeeseeenseens 178
United States v. Hitt (9th Cir. 1992)
QSL F.2d 422 oeccccsccssccssessseseeseessececsecsreesseseessecseessesensecesseseesenseess 131
United States v. Inzunza (9th Cir. 2011)
638 F.3d 1006... eeeecceseeseceneeseecseseeeesesseceeeceeseesetseseesnteceseeeatessseeeees49
United States v Lewis (D.C. Cir. 1983)
TO F.2d 16. ceccscccseesetseeseeceesecesceaeessecenscsessececneseaessecaeensesneessesereegs 67, 73
United States v. Martin Linen Supply Co. (1977)
A30 U.S. S64 ooo ceeecccccsceeesecneeeneeeeeeeseseneesesseeaeesseensescseseeeseseseeeesseensessess 187
United States v. Rattenni (2d Cir. 1973)
A480 F.2d 195 ooo eccccesecseceseecesseeesecseecseesseceecenseseneeecseesssetessasecntaeecnes 238
United States v. Shapiro (9th Cir. 1982)
669 F.2d S93 ooo eeecceceeceneceeeceseecneeeeceevseceaeesaeesseevsaeeeseeesesesseaeessaeeeaeeens 269
United States v. Solivan (6th Cir. 1991)
937 F.2d 1146... eeseeeecsceeseeccsceeeseeeaeceaeeeseecseeseaeeesaeeeaeeseaeeesseeeeseeees 216
United States v. Thompson (11th Cir. 2005)
A422 F.3d 1285 oc eecccceesccsececeesnsceecesecesecsecnecseesceeeeecsescuseeneseseeesseenas 24, 167
United States v. Tootick (9th Cir. 1991)
952 F.2d 1078 ooo. eeccscesceeseecenaeeeecsseesseeseeeeeecaeceaneesseceesseeeeeeesseeessaeeesaes 75
United States v. Wade (1967)
388 U.S. 218iccccccccsscccsteccsssseecseeccesseesseeeesaeeceeeceeseeeseeseeeesessateeeaeess 211
United States v. Walker (9" Cir. 1990)
915 F.2d 480 wooo ecccccccssececssseeesseccssseeesecesseeeesseeeesseeecesseeeesersteeees 60, 62
XVlil
United States v. Whitehead (4th Cir. 1980)
613 F.2d 523 oooecccccccccsccseccssscsscceceeeesecssecseceseceseenseecasecseseeseeeeeseeesereeesees24
United States v. Winston
(D.C. 1971) 447 F.2d 1236...cc eeceeseeeeeeeessetseceeseeetsetreneesseteseesetene 312
Wainwright v. Witt (1985)
469 U.S. 412 vo ceccccccscccssecesseeessccseceseeeesseseaeesseeseaeeceeescsneecssesensaseseteeseasesats 90
Williams v. Taylor (2000)
529 U.S. 362 ic ececccccsscescetseecsceceseceteeeeaeceneesseeesseeeeeaeeesneeseeeseseesenarenaaes 352
Williams v. Woodford (E.D. Cal. 2012)
859 F.Supp.2d 1154.eee eessessecesecseeerenaecseeesseseaeeeseecneeesaeeneesenees passim
Woodson v. North Carolina (1976)
M28 US. eee eccecceseesesncneceesseesessecaeseesessessessesecseseesaceasesecserseeatesaeeeenasseeaeens 271
Yancey v. Hall (D.C. Mass. 2002)
237 FSupp.2d 128oeeecesscessceeeccececseccsseeeseeeseeesenseeeseeeeesneeseaeeteneees28
Yates v. Evatt (1991)
500 U.S. 391 ieeccccccsccsceessessecssceseeesesseceseecsesesssesecsesesseeseseseeesessseeeseees 270
Yeboah-Sefah v. Ficco (1st Cir. 2009)
S56 F.3d 53 ..cceeseescesccsscsseeesecsecsaeceaeeeeeensessessetseeeesseserecessseesseseessreesees28
Zafiro v. United States (1991)
S06 U.S. 534 veeecceccsccsssetecsecsecserssetecssessecsecsecseeesssssseeceeeseeecesesecsteneeeaes 75
California Cases
Associated Builders & Contractors, Inc. v. San Francisco
Airports Comm'n. (1999)
21 Cal.4th 352 ........ciesesesesesesenesesneensnenenesenessasseneneneaesesesaneseseceeeneeenaneney 317
California School Employees Assn. v. Santee School Dist.
(1982)
129 Cal.App.3d 785 ..c.ccccccscscscsessesscsscsssssssesecsecssessessessseseesessssasesesssses 314
In re Carpenter (1995)
9 Cal4th 634 occceccccessscssecssecseeessesssessssseecssesessessessansenss 249, 257, 261
X1X
College Hospitals, Inc. v. Superior Court (1994)
8 Cal.Ath 707 .eeccccccccccccccssccssscessccsssecsseesseecseccseecaeeesseecseeecssesensessessesens 100
In re Cortez (1971)
6 Cal.3d 78... ccccccccsssecescessecesecesesseeesneesseecesesssseessueseeeeesssesssesssseressees 152
Dickerson v. Superior Court (1982)
135 Cal.App.3d 93 oo... cccecccccseseecssececeesseeseeseecsessnesseeceesseecseeenseseasenseens 160
In re Dixon (1953)
A] Cal.2d 756.0... cecccccccsssecsssesseessecesecssetscesenscsreesateceeessnsesssatessntenees 111
Grimshaw v. Ford Motor Co. (1981)
119 Cal.App.3d 757... ceecseccsscsceseeseesssessecsecseseresatenseseateneecnaessnerenenes 254
Guerra v. Handlery Hotels, Inc. (1959)
53 Cal.2d 266......cccccecssccsssccsssessecssseeseeseeesssesseessseecsaeessnesesesesseseeneeseas 171
In re Horton (1991)
54 Cal.3d 82... .ccccccccsssecssccsceceseeesseceeseessecescesseceseessseenseeeseeesseeeenssenas 237
In re Jackson (1992)
3 Cal4th 578 oo. ccecccccsscsssscesscseeensessnsecseeecseccesecseescseeeseeesseessaeseneeenss 312
Keenan v. Superior Court (1982)
31 Cal.3d 424. ecccccccccssecesseesseesseesssecssseessesesecsnsesnsesessesssseeessesesaecesaneees 8
Kelley v. Trunk (1998)
66 Cal.App.4th 519... cccccscsseccressecesecseeececcseeeseseeeeeeaeeseeeneseeenes 337
In re Lucas (2004)
33 Cal.4th 682 oie ccecccssccsseceseecseeesneecscessseesecessceseseeeeseteeesneeesseeenes 352
Mozzetti v. Superior Court (1971)
A Cal.3d 699oecceccccesceeseeccneeeneeesaeeceeeeaeeseeeeaeseeeseaesecaeesenseseaeeenaeens 301
Orloffv. Los Angeles TurfClub (1951)
36 Cal.2d 734... ccccesccssecssecseeesecssecseecsecssecseesessaeseaecseeseeseeeaeeeeeeneeess 338
Pastene v. Pardini (1902)
135 Cal. 43 Lic cccccccccccsscccssccsecssecesseecseeesseseessceseecsssessesessseceueesseeseatees 370
People v. Abel (2012)
53 Cal.4th 891 ooo ccsccccssccssecssecsseeesceecsseeesrecsseseneessesecseeseneeesseeecneees 142
XX
People v. Abilez (2007)
Al Cal4th 472 oooccciceeccecceccesscnsceeeeseesesseenesesesseessevseceseseneeaeeeaeeaes 177, 178
People v. Adcox (1988)
AT Cal.3d 207 ...cccccccccscccssesssccsecsecseencesaeeseeeeaeceeeceeeeserenseseessaressesenaeens 230
People v. Ainsworth (1988)
A5 Cal.3d 984... cccceeesecccneeceeeeceseesecseeeneseneesauensessssessnesengenaee ae passim
People v. Albarran (2007)
149 Cal.App.4th 214.0... ccceeseseseeesseeeseescsesseeieseeriesirsesseranennes passim
People v. (Albert) Brown (1985)
AQ Cal.3d S12.cc ccccccecssccsscessceecsseceasceeceeeenseccsaeeseeeseseeeseeecssecseeenneenes 268
People v. Anderson (2002) .
28 Cal.4th 767 o..ccccecccecccssessccsssensceecseceeceecsseesteesceeeneeeaseess 26, 102,112
People v. Andrews (1983)
149 CalApp.3d 358... ..cceccccccccssceseeseseeteensecneeeeereeesessseeseseseneeas 225, 247
Peoplev. Andrews (1989)
49 Cal.3d 200.........eee eeee cece csecesesessesesecsessesesessaeseseuesassseesaeessesuegs 370, 371
People v, Antick (1975)
15 Cal.3d 79... ccccccccssecscesscessesecesecsesssesseeseseseseesssesseessesssatenseenees 301, 358
People v. Aranda (1965)
63 Cal.2d 613... ceeesccerceseensessesreseeseeeecesecseseeseteessecseeesecseeeesatsstesaees 3, 72
People v. Arias (1996) |
13 Cal.Ath 92 oiecseececseesceseeeceeceaseeeeccsecesesseseresseseeeesecassnes 120, 292
People v. Ashmus (1991)
54 Cal.3d 932... icsccscssessseeeeesceeeeseessssecseceeessesseeatensesseessesseesatees 266, 344
People v. Bain (1971)
S Cal.3d 839... ccccscssecssecsscesscsesesecseessesseecssecsesessecssseessesssseseessesentens 213
People v. Barajas (1983)
145 Cal.App.3d 804.0. cceecsesccecnsereseesseeeseesseeeseneeseeseeseeeesees 23, 24, 28
People v. Barnwell (2007)
41 Cal.4th 1038 woececcsssscsscsscsecsecsecseessscseecsegsesessesessecsesesesseses 95,97
XKXi
People v. Barraza (1979)
23 Cal.3d 675... cceeescececescsteesresessecsecsreeeeneessecsesrseseesecsessesssesseesseessees 186
People v. Barton (1995)
12 Cal.4th 186 .oo.cecccccccccssccseeseesecseeesseeseesesensessesssessrseneeenes 104, 186, 187
People v. Bassett (1998)
17 Cal.4th 1044 ooo ecccecsecseesessersecseceeeeeenseesesseseeeeessesssessenseens 104, 317
People v. Beagle (1972)
6 Cal.3d 41 Lice ceecceeseesscetsesessressecseeseseeeensesseesseesseseseseseseaessstesseenas 179
People v. Bell (1989)
AO Cal.3d 502... eecccccccsessecsecseecseersessesesecseessessaeseaeeseesesenseeseeess 210, 352
People v. Benavides (2005)
35 CalAth 69 oo. eececesccsseesteesseeteceesseeeseeeeaeesseeessteesecenseessssessteessssessges 265
People v. Bennett (2009)
AS Cal.4th 577 oo .cccccceccccsccsscceseeesseeesesenseceeesssessaeecssessstecssesesesesseeess 96, 278
People v. Bittaker (1989)
AB Cal.3d L046... cceccsecsscececsscetecsscseeeseeisessessseseeeeanes 82, 193, 194, 195
People v. Blair (2005)
36 Cal. 4th 686 ....ccceceeccecscceseeceeceseeeseeceneessseecaeessceceseecsteeeeesenetensees 82, 83
People v. Bojorquez (2002)
104 Cal.App.4th 335.0.cc eeeseecssecseesrereeeeeeeeeeseeenres 141, 321, 322, 323
People v. Bolton (1979)
23 Cal.3d 208.0... ccccccccccseccesscesscceseccsseeseccssecenseseseceseessrteesstessaeeenses 22, 24
People v. Bonin (1989)
AT Cal.3d 808.0... .cccccccccsccereessteeeescsseensecessescseesseessseeseeestesensteesaes 307, 317
People v. Bouzas (1991)
53 Cal.3d 467... ceeccecscsessceenecenceceaeesseeeeeecsaeeessecenesevseeseeeesneeeeatees 314, 315
People v. Box (2000)
23 Cal4th 1153 ce icccccccccccccsccsseeesecseceeeeseeeseceeeeaeeseeceeeseeseeeseeeseeens 159
People v. Boyd (1985)
38 Cal.3d 762... cescescssessecssecceeceeecssceseseeeseeesessaereaeseaesaeenessneeenrees Passim
XXii
People v. Boyette (2002)
29 Cal.4th 381 oo... ccccccecccccsssssesseessscssssessseesseetteeteeetaserseees 12, 82, 111
People v. Bradford (1997)
14 Cal.4th 1005 occ cccccecccccsccesseceseecscecesseeeseessreseaeeesseeeseseseasessneseeees 177
People v. Bradford (2007)
154 Cal.App.4th 1390, 1411 oeeceeeeesseneseescnerteeeseeeseecneseeeeeeneraesees 69
People v. Brady (2010)
50 Cal.4th 547 oo icccecccccccsscccsssseeessssereeeseestsaeeeseneeeseccsseesseesesssnetereseas 273
People v. Brents (2012)
53 Cal.4th 599 ooo. ccceceecesseeseeeceeseeeeceseeeneceaeeneeeessnreeaeeeats 202, 203, 206
People v. Breverman (1998)
19 Cal.4th 142ceeeescsecseesesesseeeteceeesneresesasesaeceaeseaeesseesseseaeens passim
People v. Briggs (1962)
S8 Cal.2d 385eeeeceseesseeseseecsseeceeessevsnesseeesseeaeeeeessseceseseseseaeseneenaeens 145
People v. Brown (1958)
AQ Cal.2d S77. oeeecccccccscceececeeseceneceaeceeeeaeeceeenseenaeseeeseseseseaeecessneeeseseneees 257
People v. Brown (1988)
46 Cal.3d 432.cc ccceceseeneesecseceseesseeseesaeenesensesseeerees 265, 266, 344, 352
People v. Bruner (1995)
Q Cal.4th 1178 vccccccccccsscsseesecssecsecscssscsessseseeseecssscssessecsesssteeeens 336
People v. Burgener (1986)
Al Cal.3d S05iesececescereeseesseeeeseseteecnseeessessessesseeesesseeseteaessnees passim
People v. Burney (2009)
A7 Cal.4th 203 oescescesessecsresseerseesneesaesrsesseesaeeeasesseceeesseesstees 78, 281
People v. Calio (1986)
A2 Cal.3d 639... cecccceeccssectececseeseessessesseeseesseeseeseesesseeesesseeees 67, 359, 370
People v. Carasi (2008)
44 Cal.4th 1263 oo. ceecesscecsecceseeseneesecssntesesssescsessessecsessessesseseseessesaes 75
People v. Cardenas (1982)
31 Cal.3d 897oecececsesseeeessessecseeseesesseecsessesseceecescsseneessessecsensenes passim
XXili
People v. Carpenter (1997)
15 Cal.4th 312ecessesseecseereeseesrererseeeneetaeeserseneeeses 255, 257, 261
People v. Carrasco (1981)
118 Cal.App.2d 936... ceccssesseeneceseeestecteesesessectseeessessstesstesseesseeees 171
People v. Carter (2005)
36 Cal.4th 1114 occccccccsccsssessecessescsseeeesseccssseeessesasesssnsesssseess 177
People v. Castro (1985)
38 Cal.3d 301... eccccccesseccsseesceseceeecesseseseessaecseeesesescesseaceeessesesseesees 179
People v. Champion (1995)
9 Cal.4th 879eieccccsseesseceseccseeseeceeecseeseecseeecsnesseessesesenseessaes 336, 342
People v. Chatman (2006)
38 Cal.4th 344 occeccseesecsecsecseesecsesseeseseeeaessecseeesecseseessessesseeesasees 360
People v. Chavez (1958)
50 Cal.2d 778... ..ceccccscccsecssecseensceessecsesesesteeeseceessersseceaeesseseeecateseseats 152
People v. Clair (1992)
2 Cal.4th 629 oo. .iccccccccccccccccssccssssecssecesscessesesseesseeeserseccessssesenneesens 38,114
People v. Clark (Royal) (2011)
52 Cal.4th 856 ooo. ceccesccccsesscsssseescesceeesececseeesecseensessenseseeneseas 241, 292
People v. Clem (1980)
104 Cal.App.3d 337. ...ececeseseeeesseseseetecseceeeeenesseseeeesesereseestetereeseesesees 176
People v. Cleveland (2001)
25 Cal.4th 466 occcc cceccsccsscscessceseesessecseeesersseesscsessssesneteeeaes 242, 244
People v. Coffman (2004)
34 Cal.4th Loicccccccccsssccessscssseecssecssssssssecessesecsseecsssuseceseeessreeerenseees 14
People v. Cole (1956)
AT Cal.2d 99... ciececcccsceseeeteceeeseceseveceeceseeeceaeceeesrseseeeeecseesesessaeeneeens 342
People v. Cole (2004)
33 Cal.4th 1168 ooo. ccecccscsccsecesesecseeseeeeeneeeesecssceseseresasessseesssesseseeeees 53
People v. Coleman (1985)
38 Cal.3d 69... ccc cccscccsssesssesesecesseeesecsssenseseesessessseeeeses 250, 253, 254, 258
XXIV
People v. Coleman (1988)
AG Cal.3d 749eseceseensenecenesesssesessseseesssesseeseresseseseeeseeesaeenateegs passim
People v. Collins (2001)
26 Cal4th 297 oie cecceccccessceseseeeecseceeeenesessevsesseessecsecseesesseesseseeeseeeneeees 237
People v. Collins (1976) .
17 Cal.3d 687... cececcssescecesseeeetercneceecsscssesaeseeeneesseseensesseseaesatenteneeeaeeees 97
People v. Combs (2004)
34 Cal.4th 821 vee ceeesessscesescesseetesseesecsesseessessevseeeeesesseesserseeees 336, 342
People v. Cook (2006)
39 Cal.4th 566 oo. eeecccccccsseesneeseeeseseesseesseenseeseesseeeneeseccueeseeseeeseseaeees 292
People v. Cooper (1991)
53 Cal.3d 77 Li.eseecessssescessesssssscseseeeeseesesserseeeceeerseseceeeesrensessesees 156, 248
People v. Cortez (1994)
30 Cal.App.4th 143.eeccecsessesscssteesetsessecsetesssecseeeeesstssesaeees 178
People v. Craig (1978)
86 Cal.App.3d 905... eceessessseesecsecesceseteceeeseressessesseeeressesessseesateseeses 248
People v. Crandell (1988)
A6 Cal.3d 833... eececceescssecsessseneeeseercesersceaeeseeeesesecsessscesesseeseeeseesseaees 176
People v. Crittenden (1994)
9 Cal.4th 83 icescscsesesssesecnessaceeessesaessecsessesseseneeeesesenaeees passim
People v. Cruz (1964)
61 Cal.2d 861eececeescecseeseeretssesaecseeessessasenesseesseecssssseesseeseees 175
People v. Cummings (1994)
A Cal.4th 1233 occcececessecsceesssetseeecsseeeseeesseenecsssssessetsseeseenes 65, 68, 69
People v. Dang (2001)
93 Cal.App.4th 1293oeecsessceseeseeecesesssescsesseessesssseassuesseeeeees 331
People v. Daniels (1991)
52 Cal.3d 815ie cccccssssessessescesseseseseeceeeessetsesesersseserssesteeaseetes passim
People v. Danks (2004)
32 Cal.4th 269 ....cceeccsccscesscessssssssesesseseecsecsssecssccsscssssssssssssesssesstesesseeeets99
XXV
People v. Davenport (1985)
AL Cal.3d 247eccccccccncnecsetseenecnesneceecaeseseesesseesseceesssenessseseseneenees 386
People v. Davenport (1995)
LL Cal.4th L171eeccccsesecsseceeeeeesneseesssesseesessesseetsessteessass passim
People v. Davis (2005)
36 Cal.4th 510 oo. ec eee cecccceceeseessesseeceesseeceneeeneeeeeeeeeeeeenes 159, 161, 225
People v. Davis (2009)
AG Cal.4th 539 ooo ccccccccccssecssecsscesseccsseseesieesssecensessrsesseuesseesseeeessnsessaes 372
People v. Davis (1995)
10 Cal4th 463 oie cecescscssessceeeseeseseesecsecsseesesseeaeensceseseeeneseaeeneesaeens 246
People v. Dement (2011)
S3 Cal4th Looe eeceescesccenecescssecneceeesesseesnesneececeseeneecsaseeeeeeeneseseeeeats 203
People v. DeSantis (1992)
2 Cal.4th 1198 occ eccccsesccsecsecseeseeessesseeaeesesseceseseneessesseeneesseneeeneens 235
People v. Diaz (1951)
105 Cal.App.2d 690.0... cecccescesseceseseesserseessesseeneesaeesssesereeeeeaes 359, 370
People v. Doolin (2009)
A5 Cal.4th 390 occeccccccssccseesseceseceseecseecseeecseesseeesseessssseasesseeeesneesenses 38
People v. Duncan (1991)
53 Cal.3d 955 ...ccceccccceccsseesesseestsecereeecseeeeecsesseceecesesateaeeueteseeeents 272, 273
People v. Dykes (2009)
A6 Cal.Ath 731 oo. ccccccccsscccssscessececsscesseesseeecssseeeseesseeeseneeeees 21, 22,278
People v. Easley (1983)
34 Cal.3d 858 ooo eicccccceescccssssceeessecssecsseeseesesecseecesecseeesseseaeessaressneeeres 385
People v. Eastman (2007)
146 Cal.App.4th 688.00.cceceeneseteescnscseseeernreseeaeseeeees 60, 61, 63, 64
People v. Edwards (1991)
54 Cal.3d 787 ..ccccccccccscccsssessssesseesssceseccseceseesseecsueeseessaeessesesseesnaes 262, 263
People v, Eid (2010)
187 Cal.App.4th 859... cccccesesesssessesessereecnecseeeaeeerereess 113, 206, 377
XXV1
People v. Elliot (2005)
37 Cal.4th 453 .ocececcccescesceccsesseneceeeseeseecesecessessassecseeseseesessesnersesereneees 136
People v. Ernst (1994)
8 Cal.4th 441 ooeeccececseceeeesseeseeesecesesseesseecssesseesseeesaeeeseeeneesneessees 237
People v. Espinoza (1992)
3 Cal.4th 806 occceccsscsscsescseecseescesssessssseesssseseessessneeseees 211, 222, 352
People v. Ewoldt (1994)
7 Cal.4th 380 wo. ccccccscceseseneesessessessesesseneetsesessesnseessesesaesseeesesees passim
People v. Farnam (2002)
28 Cal.4th 107 weeccccccssceeeeseceseseaesseeesecseeeseeesseessessnesseseaeeeaee 274, 275
People v. Figueroa (1986)
Al Cal.3d 714.cccceesecseesenesseesessereessssesenssesessscsesneseeseeesessesnesaeegey 190
People v. Flood (1998)
18 Cal.4th 470 ooocccceesescnsesecssesesecneseesesseesccseseseeseesseeeesnesaeeaeeeees 190
People v. Fosselman (1983)
33 Cal.3d 572... eeceecsecsessesseneesecseeseeseecsecseseesseescnecsessesseseetatesesaeeeees 216
People v. Foster (2010)
50 Cal4th 1301cececesesesssesecsssscetseesssecssessseesesnesesersaeeseseseaees 167
People v. Franco (2009)
180 Cal.App.4th 713.0... ccccscccsccccssecssecensesseeesseeesacessssesestesessessseeestees 113
People v. Friend (2009)
AT Cal4th Looe ecceseenerenecneceeeceecnecessesseeesseeecesesseseeeesenessessesateaes 204
People v. Frye (1998)
18 Cal.4th 894 ooeecsessereteeneseneseecessesseeseecseeseeseeessetsaeeeses 38, 265
People v. Fudge (1994)
7 Cal.4th 1075 oiecccesccseceeceeeeeceseeseececeesecneenseseeesessssesessseess 96, 99, 342
People v. Fuiava (2012)
53 Cal.4th 622 cecececesensecnersenetscneseeesesessesssnessssessesessessesesesseseegs 143
People v. Gallego (1990)
52 Cal.3d LIScececseccescnessessessenecsessceeeseeeseesesasesesssseeneses 235, 236
XXVii
People v. Gardeley (1996)
14 Cal. 4th 605 ooo.ccsccccssessseeesnsecesseseeeccsaeeeesseesseaaees 257, 258, 336
People v Gates (1987)
A3 Cal.3d 1168...ec ceeeccccccsecsseesseessseeeesseeseesessessseeesseecssteessseeseuessaes 241
People v. Gay (2008)
42 Cal.4th 1195 oieececscsseceneetserssseeeseesseessaeeteeeesereessrseessreecaseaes 350
People v. Gionis (1995)
9 Cal.4th 1196 oo. cceccccscseeseesecsecseceecnscnecsecsesssessesseseseens 210, 290, 291
People v. Gonzales (1968)
262 Cal.App.2d 286.0... ececcecessceneensesseeereesesseevcecseeessereaeesseesssetenss 307
People v. Gonzalez (2006)
38 Cal.4th 932 voce ccccccscccscccsecsseecsecssecesesessssssscsssccssssesssersssaveass 344, 351
People v. Gordon (1973)
10 Cal. 3d 460...ecceccnecccerseeseenesesseeesseenecesesssevseeessesneesenesneesntenats 186
People v. Graham (1976)
57 CalApp.3d 238... cecccccssessecesseneesserseeseesaeesersenessessaeseaeessessesenaenaes 112
People v. Green (1980)
27 Cal3d Leiceeecccccsccecsesesseeseeseescesesecessecessecseesecteeesesssesseeas 205, 263, 264
People v. Hall (1980)
28 Cal.3d 143... cccccescescessesccecssceeseseeseseceeessessececaeessesseeatesenses 306, 307
People v. Hamilton (1963)
60 Cal.2d 105.0...Vecaeeececsccseceaecaeesseeaeeeseeseneseneeaeens 269, 323, 324, 348
People v. Hamilton (1985)
A] Cal.3d 408... cccceccccccccssceneeeseeeseceeeecaeecnueecsteesseseseeesstes 127, 171, 269
People v. Hardy (1992)
2 Cal.4th 86 occ eecccccssecececsecesecsecenececesseceeesneeneessevsresseecseessaeseeeseeserenaeens 75
People v. Harper (1986)
186 Cal.App.3d 1420... cc ccccsecscesecsescesssesseeseseeesssesseeseecetesesseneens 248
People v. Harris (1989)
AT Cal.3d 1047 ooo. ecceccscsesseeseescceeeeneeneerieeeaeeneeseeeeaeeearentens 22, 67, 68, 73
XXVili
People v. Harris (2008)
A3 Cal.4th 1269 oo. ccccccccccseceseecsseesseeceeeeeeeecseecsesessaeeeseeesaeeeeersereesnes 204
People v. Harrison (2005)
35 Cal.4th 208 ooo. cccccccccccssccssesssecsseccssecsscessesecseeceeeceetecsseesseesetetensees 334
People v. Hart (1999)
20 Cal.4th 546 o...ccccccccsccseccsecsssecsesesseeeesecseessnecesseeeeseesieeetsneesaes 370, 371
People v. Haston (1968)
69 Cal.2d 233. cccccccseccssccsseesseesaceessecseeceseecseesssecessseeeatenineseeeeseaeeesneees 334
People v. Hatch (2000)
22 Cal.4th 260 oo. .cccccccscccsscesscsssecesecsseeesseeesescnsesesssesessecseesensecsreesseees 105
People v. Havenstein (1970)
A Cal.App.3d 710... ceeccseescssccseseneessecsecssevsetsnessaeceaeeensceatessseseeeasentens22
People v. Hawthorne(1992)
A Cal.4th 43 vice cccccccsccsseseccesseesssecsseceseessseccsecssaeeessesesstesseeesseeesaes 211,212
People v. Heath (1989)
207 Cal.App.3d 892.0... cesscscssesescnsceeesesseseeseeceeesseeneesateateneenaees 106, 107
People v. Heishman (1988)
AS Cal.3d 147i cceccccsecccsesseesneecseeesseesseeseescseeesseeeesseessesensescsaes 192, 193
People v. Henderson (1976)
58 Cal.App.3d 349... cccecssccccesseesssesssessssesssecsusecsseeestesseseeeneees 315, 316
People v. Henderson (1976)
58 CalAppl.3d 349, 360... cccscscescecstsensestsesseesseesseeeeenes 117, 315, 316
People v. Hendricks (1988)
AA Cal.3d 635 ..oececccccccccssecsseesseesssesseccesececsecsssceeseesesseecseecsseecnsesesseeesaees 201
People v. Hernandez (2003)
30 Cal4th 835 o...ccccccccscsccessecsnsessseesssecessccaeccnseeessesenseesseeenseesenes 351, 353
People v. Hill (1967)
66 Cal.2d 536... ccccccccssccsssssesecseesseecsscesscsecesscseeeessevseseesessessseseseearens 192
People v. Hill (1992)
3 Cal.4th 959 ooccsccssesecseeseesseseeeseeeessesssecssecseecsseseeesseeeseesses passim
XXiX
People v. Hill (1998)
17 Cal.4th 800 oieecscsececcsesssssesessecssesaecaetesseesenesateeresaeens passim
People v. Hines (1964)
61 Cal.2d LO4cccccecesscnscnessesessesseseeeseeseseecescaestestereaeseeees 268
People v. Hinton (2006)
37 Cal.4th 839 ooo ieccccccccseescsssecssseseetseessressseessateeeeesseeees 12, 15, 20, 372
People v. Hogue (1991)
228 Cal.App.3d 1500... ceecesccessesseesseecesecesseceaeeseasessseseesssessatensseseas 191
People v. Holloway (1990)
50 Cal.3d 1098eeeccsecsseeseeceeeeseeesaeesseesteeseneessaseessaeesnseessaees passim
People v. Holloway (2004)
33 Cal4th 96 iecccceecsseesesesessessesaesercsesesseserensessessaesaeetsegs 231, 232
People v. Holt (1997)
15 Cal.4th 619 vecceccccsecscssccteeesenscseeeseeseesessesssevseseeesatessseseeneses 98, 281
People v. Hudson (2006)
38 Cal.4th 1002 oo... ccc ccccccesccscesseeessecseeeseesseecsseeesseessstesesaseseeenanessaes 166
People v. Hughes (2002)
27 Cal.4th 287 oooccececcccceccssseecseceeseeseesenesssecesessessseeeeeseeeeseesseeeeeeeeeneeaes 195
People v. Jackson (1996)
13 Cal.4th 1164 ooccecsessesseesssseseeeseecseseecsecsseceesssesneseseeneeaeens 174
People v. Jackson (2009)
AS Cal.4th 662 ooccceeesceseceeresetsesnseesrerseeseeeneeeas 53, 174, 383, 384
People v. Jennings (1991)
53 Cal.3d 334... ecesccseesreensceeesseceseseveeecaecesecseesseesseesseesesseseeeseesaeenss 136
People v. Jennings (2005)
128 Cal.App.4th 42.ceececcesececscesseeeseecessesseeseseetsseeessaeessseeseeseaes 251
People v. Jennings (2010)
SO Cal.Ath 616 occccescsssessssesesscnessssceesscescsesecseseesessnesaesesaeeesaeentees 160
People v. Jeter (1964)
60 Cal.2d 671eceecesesesecneceeeesesecreceetssessesaesecerenseeaeesseeteessesseesees 197
XXX
People v. Jones (1998)
17 Cal.4th 279 occ ceecceesesseseeesrssetsessessessesssessessesseesnes 216, 217, 218, 312
People v. Jurado (1972)
25 Cal.App.3d 1027... eceessescsscnscnesseeeerereecersneenesnteaees 168, 281, 284
People v. Jurado (2006)
38 Cal.4th 72 oo.cccccccccsccsseseceesseeeecneeeecsesaeeeecseseesaeeetensesseeeseesees 281, 284
People v. Karis (1988)
A6 Cal.3d 612.eeccceseseeeeseneeteesetseessesecssnesaesessaeeaes 145, 146, 147, 149
People v. Kaurish (1990)
52 Cal.3d 648... ccccscsscesessecseseecseesseeseeecceecenerseceeesaeeaessesseeseenesareatents 237
People v. Kelly (ID) (1992)
1 Cal.4th 495 ooo cecccsecsecescesceseeneveecseesaeeseesessevseeeeecaesseeeeeeseeaes 83, 201
People v. Kimble (1988)
AA Cal.3d 480... ecceccscessecseeseessssecesessecneseecseceaesaecaceceeeaseaeeseesseaesaesatens 202
People v. Lambright (1964)
61 Cal.2d 482.eccsecsseseeceteeeeesserenecseeeaessseesssesecsateesessteeesenneeats 248
People v. Lang (1989)
AO Cal.3d 99 Loeeeccecesessseesstscseteesseesseseessesseseassaesneessesseesesaens 370, 371
People v. Lara (2001)
86 Cal.App.4th 139.eesccecncnsesesecteeteeeecseesrsesesseeaeseeeesesereeaes 236
People v. Laursen (1968)
264 Cal.App.2d 932.0... ccccsessesscsseesecseesscseeseecsecseessecaseeeesssesesecseeseens 301
People v. Lavergne (1971)
4 Cali3d 735 veeccceeseesessecsseseesecsecsecneessecsecseseesssessesesessessesseeeegs 125, 307
People v. Leonard (2007)
AO Cal.4th 1370 oo. ceeccescsessceeceeesessersesseessaeesecsecaesaecaeeeessssessecsseeesesaees47
People v. Letner (2010)
50 Cal4th 99 ooo cccsscescsscecessesesseereseeecseeeseeesesseeesssessassessseseeecseestenseness 75
People v. Livaditis (1992)
2 Cal4th 759 oeeccecccceseeeeeseesesecsessecsseresesseesseasesecseesessseessesesseseatenes 145
XXXi
People v. Loker (2008)
A4 Cal.4th 691 oo... ccecesccecsesecsecsesssessecsecsecssecseecseseseesseecsesessessssseatesass 372
People v. Low (2010)
AO Cal.4th 372 o.ececececscssceseseteesctenseseeseseseesceesssseessenevseeecaecsesseseeseeseeeesees 37
People v. Lucas (1995)
12 Cal.4th 415 iccccccsesscececsscesecssseeseeessssesseeessesseesecsseesneeesseeaees 99
People v. Lucero (1988)
AA Cal.3d 1006.0... ccececssccsssesseesseeeseecssesseeeseesseeceeeeeseeessesecsereesseensas 265
People v. Majors (1998)
18 Cal.4th 385 ooo ecccccesecsseseesseesneeneccseseeeaesseeseeseeseeseeseeeseeeeeags 236
People v. Marchand (2002)
98 Cal.App.4th 1056... ccceccsesecetseesseseesresaeeneeeseesseteeressneseseseaeenss 136
People v. Marks (2003)
31 Cal.4th 197 wo.cccccccccccccssessecssceseeseeesecsssssecssccsesssesressaeeseseneeeneessatens 165
People v. Marsden (1970)
2 Cal.3d 118... ccccesceesseceseecseesneesecesseeeeaeenteesreseaeeeneeersaes 51, 56, 61, 63
People v. Marshall (1996)
13 Cal.4th 799 ooo. eccccsscccsscesseceseesseccseecsececsrenseeeseseeseeseseeesseeessaees 99, 100
People v. Martinez (1989)
207 Cal.App.3d 1204...i eescsceseeseseeeeersessecetsesseeseseecesetseeseesereeees22
People v. Massie (1967)
66 Cal.2d 899... cceecseccsecsecnecseenetseeeseesesseseeecsseesessecseesaecnsesseseeeeeeatenees 75
People v. Matthews (1994)
25 Cal.App.4th 89.ccncctesseeesseccneesereesersrenteeeeeees 114, 206, 377
People v. McCoy (2001)
25 Cal.4th L111 vceccecsesessecsetescseseesesceeesscseesrersesseceevseseresaseneees 194
People v. McIntyre (1981)
115 Cal.App.3d 899occescecssessersesseeeesereeseneeseessetseeeeeees 232, 233, 236
People v. McKenzie (1983)
34 Cal.3rd 616, 627 w...cecccsccsssessesecssessecsscssecssecseceesseeseeeesenesesseesseees 237
XXX
People v. McKinnon (2012)
52 Cal.Ath 610 ooo. ccceccccccccccesseceessneesseeeseneeeesseeessneeessaeersnaeesssaeeeessseeeeenes 140
People v. McNeal(1978)
90 Cal.App.3d 830... eecescscsecseesesescsesssernssesssssesssnersreeseseeeen passim
People v. Medina (1995)
L1 Cal.4th 694 ooeecceecneeeesesectesscseesessesseesesssseenssnteneees 209, 290, 291
People v. Mendibles (1988)
199 Cal.App.3d 1277eeeeeeseereneeeeLaseeseeeneeeseenesaeeeateneeeeeeeneteatees 308
People v. Mendoza (2000)
24 Cal.4th 130 .ccececcecccsesscscseseeesseseeeeseeseessesseseeeaeens 84, 177, 178, 281
People v. Mendoza (2007)
AD CalAth 686 ...ccccccccccsccscceecssceseeseeeceeeseeecseeeeesaessesesteeneesaesees 212, 213
People v. Mickey (1991)
54 Cal.3d 612... ccccccccessceeceeceecserseseetecseseeseseecsetsesaeasesseeeenees 254, 257, 260
People v. Mitcham (1992)
1 Cal.4th 1027 occ ccccccscseccscessecseeseecesessecesseeseeseeseeenssnseeaeesesaeeneeenteas 312
People v. Montiel (1985)
39 Cal.3d O10... ce ccccccsscsceseeseesseseeesceeesevseesaecesseeescesessesecsecrsesssneeeaeass 333
People v. Montiel (1993)
5 Cal4th 877 oo. .cccccccsceccseecssessnsesseeeseesseececseesseeessesenessseseesesseseessesees Passim
People v. Morgan (2005)
125 Cal.App.4th 935... eeseessesseseesestenetessecneeseeecsesssecseeeseeeseeeaeeennees 331
People v. Morris (1991)
53 Cal.3d 152 ciicessssssscsssssscsscneenecnecntesseeseseeeseseaesetseeaee 81, 82, 83, 135
People v. Morse (1964)
60 Cal.2d 63 Lo... ceccccccssscssseessesscssscssecssesssseseseeesseccseesseeneees 117, 269, 317
People v. Mungia (2008)
44 Cal.4th 110] ceceececeneessseescnetessenesseeeeseneesenesseeeesesesesseneeseeseneeaeas 60
People v. Munoz (1974)
Al CalApp.3d 62.0... cecccesssesecteseeecesseneeessseesesseseessessecaeseeesseenes 60, 61
XXXIil
People v. Murtishaw (1981)
29 Cal.3d 733 ....cccesccsccececescsssssesseesseectensesecssesseeecesesseesseeseesasenseessease 268
People v. Navarette (2003)
30 Cal.4th 458 ooo eeccccescccsssccssseeeesnesesnescsseecesteeeeeseeeesessesessssseeesesesensas 203
People v. Navarro (2006)
138 Cal.App.4th 146.0... cccceeseeesceecseseeesceceneeeesessesaeeaesessessesseeseeseenes 53
People v. Nelson (2011)
51 Cal.4th 198 vo... cecccccccssecssscessesssecssesesseserecseeesrecssseeeeseessreesss 300, 381
People v. Newman (1999)
21 Cal.4th 413ccc cecceccssceesecneceeceecseessesseesasceseeeaeesssesessieeseecssesentes 306
People v. Ney (1965)
238 Cal.App.2d 785... cececscccsccessecseeeseceecseesseeeseeceaeeccsecesueceteseseeesseesaes22
People v. O’Brien (1900)
130 Cal. Lives ceeeccescecsscceseesseecseeesseeeeecssesesecseeceaeeccaresassessaeseeeseaeees 130
People v. Ochoa (1998)
19 Cal.4th 353 oooceeeceeeccsssssceseseeseeseeseesecsecsesseesesseseaeeeesaeeaeenees 384, 385
People v. Osband (1996)
13 Cal.4th 622 oocccccccccccccsccccessseseeesececsseesecssesseeesessueeseeesseseneeaes 234, 235
People v. Padilla (1995)
11 Cal.4th 891 oeceeceerseeeteceeecneeresseetssesseessrerseeseaseseeeeeseneeenes 333
People v. Perez (1981)
114 Cal.App.3d 470... eeccsssesseeneseecsscnecesesseceereevateneesecseeeeesareneens 139
People v. Pinholster (1992)
L Cal.4th 865 oo... cccccccccseecseeeeneeeseesseeesseessnesseeesentess 238, 240, 246, 248
People v. Pollock (2004)
32 Cal.4th 1153 voice ccccseesceneceseeeseeeeessecseeesaeeseeeeseeeeesnessanes 337, 338
People v. Powell (1967)
67 Cal.2d 32... cccccccccsccssessessecesseeeeneceaecceeeaeesserererseeseeeceeesnseseneeneseseees 353
People v. Price (1991)
1 Cal.4th 324 wooo ceccecssccsseesssceeeceececeneeeeeesaeeseeeceeeenueesseeeseeseneees passim
XXXIV
People v. Prieto (2003)
30 Cal.4th 225 oocececcccsccsccssceseseesenecnessersenesseseeneesssassesnesesenersesaesatenes 202
People v. Prieto (2003)
30 Cal.4th 226 o...ceiceeecccessecncceneessaeesseeeseeeseeesseseeessseeseeeseneeesseeeenes passim
People v. Prince (2007)
AQ Cal.4th 1179 oo cicceccseccscceescsseeseeesessaersessaessaeenseseeesseessaecenesneseeeeees 333
People v. Quartermain (1997)
16 Cal.4th 600 ...ccccccccccsccessssseesecesecssecnecesetsecseeeaeesseceeeesseteneesseaseeeneeaes 353
People v. Raley (1992)
2 Cal.4th 870 oo. cecceccecceccnesssesceeceeceecsessecsceseeeaeeeeeeteesneeeeeas 81, 82, 83, 204
People v. Redd (2010)
48 Cal.4th 691 742 oo eeecessectesneseesecneeesnecseneetesnesnensenecetsnseneeesentees 214
People v. Redston (1956)
139 CalApp.2d 485 oo. ecssssecsceceeeeeccneesserseesieesasesseeseeseessesenersneees 325
People v. Riccardi (2012)
54 Cal.4th 758 oo. cccccccceeccesscsecneeessecteceseeeessessecerenseeneeents 205, 206, 351
People v. Rich (1988)
AS Cal.3d LO36......ccccccccsccesscccsscessecesseesscessesssecesseesersesseseseeensusessecesteens 352
People v. Riel (2000)
22 Cal4th 1153 occececeecnesccnssseeetseeneseescneessnesseneseeeseesaseesareetes 384
People v. Riggins (1910)
159 Cal. L13oeeeceeesecssssecsetseeneenseeeesessevsecseceeseesecseseeessetseeseseseeaeens 130
People v. Riggs (2008)
AA Cal.4th 248 ooeesccecseeestessecseeeeeetaeeecceesessersessesaeeaesees 81, 193, 216
People v. Riser (1956)
AT Cal.2d S66 oo.ceececccecscsccseessesesesseesseessessessssssuessesesecessecseessuseneseats passim
People v. Roberto V. (2001)
93 CalApp.4th 1350...ei eseescssecseeseesessecsrensecseeeecseseesstssessesseeseees 137
People v. Robertson (1982)
33 Cal.3d 21icecesceseessssceseesecsecsecsensecsessessesseceeeseesesesessseseserenseeees 381
XXXV
People v. Robertson (1989)
AS Cal.3d 18... ccccecccccesecsecnscesecseecseceesseseseeesesessseesesesssseesasenseesseneess 155
People v. Robles (1970)
2 Cal.3d 205... ceccecceecesscenecesecneeesesesecsecesececesseeeneeeieesnsessesceteesssnasesseenees 53
People v. Rodriguez (1986)
42 Cal.3d 730 ...cccccccccssccesecsseccnsceseeccssccsesensecesesecsuessseesssetesseeessseeeseusnes 312
People v. Rountree (2013)
56 Cal.4th 823 oiieeccccssseessenseesesssneessesaeenessassaeseeseseesesaeeaeensesseegs 205
People v. Russell (2010)
50 Cal.4th 1228 o...ccicccccccccssscsssssesessessecessesseccsessescssssseecsseessesseees 14, 363
People v. Salcido (2008)
A4 Cal.4th 93 oeeccscccseesneceseceseeeeeeesseceeeeseeseeeeaesesseseesssseseseasenstens 281
People v. Sanborn (2005)
133 CalApp.4th 1462.0. ccsccsecsseeeseeceseeeeceeetaeeesaeecseeeesseeeseuessaesns69
People v. Sandoval (1992)
A Cal.4th 155eieccsesscsneeneenecneesecnecesesseseeesereseecneesseeatessecaesaeenees 214
People v. Saunders (1993)
S Cal.4th 580 oo. eeccesessestesseecneesresersescessresseessesseesseseeeteees 69, 144
People v. Scott (1978)
21 Cal.3d 284.0... cccccccecssecesesseccsreesseesseesessenteeseseeesas 119, 120, 151, 331
People v. Scott (1994)
9 Cal.4th 331 ooo. eeeceesceeseeeeseececeeeeteenecsseeseeeccaeeesseeesseeesssesesaeeseeeeseees68
People v. Seaton (2001)
26 Cal.4th 598 oooce cececececeeseeeresseeeaecneeeeeeeseesaesseeseaeceaeeeeeesaeenesenreeas 290
People v. Seaton (2004)
34 Cal.4th 193 oc ccccccccscccssceceessecseceecerecsseseesssesseseeesneens 145, 291, 292
People v. Sims (1993)
S Cal.4th 405 ieecsccsessecnecnecsseneeseessecsecseesecesessesseessersessaeeaesaeeneeees 270
People v. Sisneros (2009)
174 Cal.App.4th 142.cecceccserereseeesseessecseeeeseecseseseeesecsseesseesseennees 57
XXXVI
People v. Slaughter (2003)
27 Cal.4th L187ccc cece ccccscsesseeeeeseesecsssescseesseeneessesesessesneeeaessevatenaeens 179
People v. Smith (1993)
6 Cal.4th 684 o.ccccccccsccscseseeescsseeeceneeeseeeecaecaeensscsesreneessesseesessaeesseess60
People v. Smithey (1999)
20 Cal.4th 936 .ccccccccccssscscsscsseccsseeeseceseessetecssessceecssesessseseeessstessseesees 177
People v. St. Martin (1970)
1 Cal. 3d 524... cccccccceseeeenerseecenesseesessesesaseeteeseeseeesecneeeseenetsetaseesaeeetes 187
People v. Stankewitz (1990)
51 Cal.3d 72 ....cccccccccccccsseccessecsseceseneeessneseeeeteceeeseesueecsseseeeseseeseaeesenneeeses 83
People v. Stanley (1995)
10 Cal.4th 764 oo... cceccccscccssccesscsssesssscssecsseesseecsneeseaeecsseesesssesesenesesees 239
People v. Stansbury (1995)
9 Cal.4th 824 ooocccccccscccsccsecsscssesseesssesseesevesscesesssesesssesserseeneeenees 81, 239
People v. Stanworth (1969)
71 Cal.2d 820 ....cccccsscccssscccssecsssecesseeesssssesseeccesssscesaseeessaeeepeseenes 385, 386
People v. Stoll (1989)
AO Cal.3d L136...ce ccececcescecsscsseeneessseeseceetsaeessesessesseeesesessensesseecsssenees 258
People v, Sturm (2006)
37 Cal.4th 1218 occeecccscssessececeeneecsresserseessessseessesessesersessesseens 349, 350
People v. Sully (1991)
53 Cal.3d 1195... eecsceserseseessecsecneesaesseseesseseeeesessesseesaesas 274, 275, 276
People v. Tafoya (2007)
A2 Cal.4th 147 occccecceeceeceseeeeseceeseceeeeesaesceseceseneesessecsecseesesseseeseeeeeees 249
People v. Taylor (2010)
48 Cal.4th 574 oo. ccceccccssccsscssecseenseeseeesecesessaecsscssescaecessccseecsecseceseenseseaees32
People v. Thomas (1945)
25 Cal.2d 880... ecccccccsssccsteessssssecsseeessessseesssesseessesesereesesuesueses 178, 275
People v. Thomas (1992)
2 Cal.4th 489 ooo cccccsccsccssesscesecssessscssecssecssecssecssessessssseseeseseats 216, 274
XXXVil
People v. Thompson (1980)
27 Cal.3d 303 oie iecseeeceessessseeseeeceseecaecnaeesaerserseeeneeeusesseeetseseseenses passim
People v. Turner (1984)
37 Cal.3d 302... ..cccccccccsssesssceesecsseecssecesecesseeessecesseesseeesseesaterss 75, 152, 316
People v. Valdez (1997)
58 Cal.App.4th 494ccccecessesceseesnestesesenecnsessesesesseesstsneeeseetseeatens 255
People v. Valdez (2004)
32 Cal4th 73 occ esescesessessessccssecseessresseesseenetsneeeseeeeesssessseseaeeeaeens passim
People v. Valencia (2008)
A3 Cal.4th 268 oo... ccecccccccsscssscssccssensceseceecessecsscsseceescnsecseserecssenseeesesens 378
People v. Van Houten (1980)
113 Cal.App.3d 280...ccc cecsessceesneessceeesececneessesseesesesesesessneeresaesas 97
People v. Vance (2010)
188 Cal.App.4th 1182... cecccssessssssesseeresecnesesessessessessesssesseseressesees 216
People v. Vargas (1975)
53 Cal.App.3d S16...ce cecsscscceseesecseesecseesaeeecseessessetseseesesessreeseeeeegs 160
People v. Velasquez (1976)
54 Cal.App.3d 695ceecccccsesesseneseeeneceessesseeessecseesesseeeeserseseaesaeneeees 342
People v. Velasquez (1980)
26 Cal.3d 425. eecceceescceenetenteeseeesaeenseeesacesseeeeeessisesseesseneesses 84, 86, 87
People v. Vera (1997)
15 Cal.4th 269 ooo. cccseseseesseseesseeeessesseseseseeseesesecsesseccscceeeseserseseeneeaes69
People v. Verlinde (2002)
100 Cal.App.4th 1146... ccc ccccccsecseessesecereeseeseesseeseseesseeesseeeaseaeeasenes 186
People v. Wallace (2008)
A4 Cal.4th 1032 oo.cccceccccscccssecessessscesseeessecessecseeesesssseceueceseesessteas 81, 82
People v. Ward (2005)
36 Cal.4th 186 oo.cecscecscessecseccsesesesssesseecnereeenesesecneeneesseessees 192, 195
People v. Watson (1956)
46 Cal.2d 818... ceccectecsesseseeeereeeeeaeesscaeeaeeeesseeesersesseeaeeaeeas 204, 265
XXXVIlil
People v. Watson (1956)
A6 Cal.3d 818 ....ccccecccccccsccessesscseesneceaeceesereeseeceeseserseeeeseeeeeeeseenaeens passim
People v. Wattier (1996)
51 Cal.App.4th 94800.esseecseeesesseerseesesesneesseessesseseasesesaeseeaes 336
People v. Weaver (2001)
26 Cal.4th 876 ...ccccceccccsscssecseesessecseceseeesecsreeeevsessaeeesaeeeaseeaeees 82, 83, 84
People v. Weaver,
supra, 26 Cal.Athat ..... ce ceccseseseseceseceneceseseeesesesseseseeeseseneesneseaesaesaeenees 83
People v. Whitt (1990)
51 Cal.3d 620... secesccscsssssecseescesesseesecseceseeseesecneseaeessecerecaesnessesrserenes 265
People v. Wickersham (1982)
32 Cal.3d 307... eeceescesecerecneeseeeneeserssaeessesraeeseeseatesneeneaees 104, 183, 186
People v. Williams (1981)
29 Cal.3d 392... iccccccscccsssecssccssceeseeesseeesseceseeseseessaeeesstessseseseenseeens 89, 90
People v. Williams (1988)
AA Cal.3d L127 oie eeeccccccssseesseeceseeceseeeseseesseeesceeeesessseessseessaeeseseeees 240
People v. Williams (1988)
AA Cal.3d 883 oo... eececcccessccesceecsneeceenseccessecessaeeesneeeeceesecsesteeeesetess passim
People v. Williams (1998)
17 Cal.4th 148 oecccccccesccsecseccssseseesseeesesseeseessseesssesseeseeeneens 386, 387
People v. Williams (2009)
170 CalApp.4th 587... ccc ceccccseesssccsneceseeecseecseeseaeseesesesseeessusesseseseeens 138
People v. Williams (2010)
AD Cal.4th 405 ooecccscsceeseecseceseeseesseeeseeeaeeeeeseseesssessssesssesseeseeeesens 238
People v. Wilson (1967)
66 Cal.2d 749... eecccccccccssseccssseessssesesseeeesseesecsseeesstseteessaaeee 104, 105, 110
People v. Wilson (2005)
36 Cal.4th 309 oeeccccccescessesscesceeensesscesesseeseceseessecssesaecsssseseseesenes 110
People v. Wong Ah Leong (1893)
99 Cal440eccsessecseeeeseceeteseceessereeseceeeeeseseeeteessessessessessessseenesats 130
XXXI1X
People v. Woodward (1979)
23 Cal.3d 329icecccceccseneeesceceeeeeecseeeeseesseceereeseessateesesestseeees 130, 353
People v. Wrest (1992)
3 Cal.4th 1088 oocceccccsscsscesecsscssecsecsseseseessecsseeseeessesssesseseseesns 21, 22
People v. Yee Fook Din (1895)
106 Cal. 163 ....ccccccccccccssecssscsssecssessseessecessesssessseecessscssesesucesseeeesessssasens 130
People v. Yeoman (2003)
31 Cal.4th 93 ooo. cccccseccsececseeseeesesesseeceaeessaeeseeeeseesssesesseeeseeseeeeges 266
People v. Zemavasky (1942)
20 Cal.2d SO. ccceccscsccsecseeeeceeesessseeseesercneessssseseseesesesassaeseneesseneentens 359
In re Sassounian (1995)
9 Cal.4th 535 cccccccscscssessccseecessessessseecseecssssecssseseesecneecsssecsseeneeeeeas 312
Stockton Theaters Inc. v. Palermo (1956)
AT Cal.2d 469... cccccccsseseesceseesseeececeseeaeeaeeaeseeeeesesecsececeaeceseaesaeeseeeeseaeegs 22
Tingley v. Times Mirror Co. (1907)
LS Cab. Lice ccceeceeseceeseseeerecseesseeececeaeeseeseeesseseaeseteceaeeneseneesas 338, 339
In re Wing Y. (1977)
67 Cal.App.3d 69... ceccceccsescccsecsseesceseceseeseeseseseessesseessssensessseseseesatenes 335
Other State Cases
People v. Rodriguez (Ill.Ct.App. 1997)
680 N.E.2d 757 o..ceccccescesseesssceneeseneeececeeecseeeeeeeneecseeessceseieeeeaaeeneeesseeseneeeeaees 75
State v. Moorman (1987)
358 S.E.2d 502 [320 N.C. 837] .ceccccsesccssceseeccesseeseeseseeesseseeereeseeateetenes27
California Statutes
Evidence Code
§ 210 eccccceeccecccssecseccseceseecseccsecsecesecssseecssecssceneecstesstecsecsseseseeensseeeeses 306
xl
§ 350 vccceccccsccssessescessstssessssuvesegssssusecsssesssevesessssssuivessesuneesesseveesessuneeseen 306
§ 35D ecccccccessececeesseeeeeesseetenaceseectaeesascesseeearenaeessdeeseseeseneeeenaeesneeed passim
§ 3538 i cceceereeneeeeteeseeeeeeeseetssesesteeseeteeuesseseeeeaeceseeeetseeesaeseaeeereeeaien passim
§ 720 veececccsceesceseencceressecneessecsececesacesessecsecsesnececessaeesueesessesaeesaeentersteneees 34]
§ TOT coccccccccceescecescceseeeeeneeeseeseeesseenecsscesseseesesseesessssessesescaesaeenaesasenteaseas 211
§ BOL i ceecsceeeessecneceseeseeseseseseeerseeeacesessecaesaeesessseeseeseesaesaeesateaees 252, 337
§ 953 i cecceseeescneteeeaeeseceeetseesseseeneesaceaevssesessessaeesaeesesesessesaesneeasonseneeags 160
SOS ececceenecesetssessseeeneesaetsnecseceaeseesesesscaeesstessesseessasesseceagesseseaeeeeeats 160
SSS Le eeeeccesteentecseeeaeeeseerseessecsaceseeecesseetssesseseesnessieerseesseeeesseeeeaetenseaes 160
$1100 eeeesetcsseeseeneeeseeaeeessseeecssessessesseenesaeessesseessaeaesnsenseeaeentenes 335
SQ LLODeeceeesseetsteeessecceeersnessauessaessaeseaeesseeessatesseeteeaeeeseteegs passim
§ 1220 eeeeeenesseensesseeseeeessessevsecsecesssacsaessensesecseenaeseeeesseseeesiesseseneaes72
§ 1250 eeeee cceesceenecesereeeseessesaeeseceeesssesessssaeseessesseessseseseseaecseseaeeaeeneeaes 263
Penal Code
§ 26(6) oo. reeeeeeccccsecscceeeesenscessevsesececsevscesceeseesseseesecseesaereeeeteseseeeeetenteaees 11]
SL eleteetecteeeestersecesesneeesceesaccaessessesesesecseeseaesseeeaessessaesersatensenaeeas 194
$187 eeescecessevteeseeeesesesscaneeesecseesaesasssesseceeeessaeeseesaesaesaessetiees 112, 208
§ 190.2sscseve eeeeaeeeeeaeeneenetenes 303
§ 190.3 iecesesecneeseeseecsecssesnessesaeeneessessetsevsesatsesenserarensesetens 303, 310, 314
§ 1904cececseneceessessecsecaeeeeeseesersecsecesaeseaesaeetaeserenseeereegs 383, 384
SOT icccesseseeseecceesseesessseresceesaesaessesesesssecaeseeesaeeneeseseasnessseeaetsnteneenes 156
xli
§ 1043 secccecsssseesssseesssscssereessssvesssssevesssssivesssevessusussessuecesanesesseesssseeessnvess 156
§ 1089 ooeeeceeeenecenecceeceseateseeesaeceseesseesceseeeensaeseaeessaeeesaeessteeeeates 95,99
FL27a eeeeecceeeeeeceneeecsceseneeeeceaeesseeeseceeeeesecessaeesareceeeenateseeetenineneeas 261
SL LQTC eceececeseecneeeenceessceeseceneeeneecaeeseesesaestaeesaeseneeseatessneseeteeeseeteees 178
§ 1239 eeecceseccseeceseeeseceseeesesessesseseneesneueeseeessasssatersaeseneesesaeeseasersnes 385
FDicccenseeseeesseesseeersecssesseseeeesesseseseserssessaeeseseessasersneeseaae passim
8 QDSoecece ceseeeeseeeensessesesesesescaeerteeseeesesuseatesseeesecceseetenteersaes 169
Constitutions
United States Constitution
Fifth AmendMment........... cc ccceceecseeeneeceseeeeeseecesnaeeseneeeessaeesesnaeeesaeeeees passim
Sixth AMeNdMENt 0...eecece cece ceeeceneteneetensetsaeevseeceaeeesseeseneeeeaees passim
Eighth Amendment...ccceeeceeeseeseceeseeseeeeesaeeeeeeseaeeneneseaeeeneeesas passim
Fourteenth Amendment ....... ccc eccecceseceessceneeeenaeeeeceseeesressueereaeecees passim
California Constitution
Article I, § 15 .cccccccccccccccsecesessceeesscsssccsecseeessecssesssceseecseesseeeseseseesseesas 155
Article I, § 16... cecceeececssceeeseecneestevereenseseeseeesseenaeeneesneseateeneeneesneeeas 105
Jury Instructions
Judicial Council of California, Criminal Jury Instructions
(CALCRIM)
NO. 358 oo eeceesceeseenecsneesaeevseeesessesaeeseesaeceaesssesesecnaeeneesseecaeeeeeseesnetanees 179
xlit
NO. 2520 vicsccccccssesscsscencesseeseesecseesececeeeeeseseeseeeeeeseesasenacenevaeeeseaseaeenes 168
California Jury Instructions, Criminal
(CALJIC)
NO. 2.04 vocccccsccsscsccssecsecesessceseesecaessecaecsessecessecseeseeeseesaeesessesseeesesessaeeate 174
NO. 2.06 v.ccccccscccscecssesnsceecescenececeeneeeeceneseneeterseeeneesaeeetesaesaes 173, 174, 175
NO. 2.20 w.ecccccscccseesseceeeceseensetseeenevseeeaeensesaeeeseaessaessasesseesseesseeseeesaeeeseseaes 183
NO. 2.27 vecccccessesseessecsecesceceeeseeseceaecerseeeeeerseeesesseeesarenaeesseesseseaeeeaesatenes 183
NO. 2.50 vccescesesscenesseeserseeseeseesssssessesseesesseessesseeeessassesesesaseneseeesaeeneens passim
NO. 2.52 viccsccssssseeceseesseeceseeseesereeseceeeseeeeaceaeeceeeeaeseessevaesenees 176, 177, 178
IN33, 40, 78
NO. 2.71.7 cecccccessesnseeseceneeesecsecseeeasecseceeseeeesesseeeneesaeeeaesentseateeatenaes 179, 183
NO. 3.01 vo eececeseesesseceeeseesseeseesecsevsecsecseeneeneeseseesaseaeeneseateneens 181, 188, 189
NO. 3.10 voeceeeceseesseeseeneeneeeectecesceaeesessevsevseseessesaeeesenseenes 185, 188, 189, 192
NO. 3.16 coe eeeceeeeneeeneeeneceeeeneessecseteascneesesssesesesesesseessesseeeneeseseate passim
NO. 3.18 coeecceceeeseeeneceteneeeeeecsecseeensceseeseesseeseseseseeeeaseeaeeneeseeeenteeates 370, 371
NO. 4.40 oo eeceencceseceneetserseeneeesteseseesaeeaeeecesaeeaeesaeetarseaeeaees 111,115, 116
NO. 44] oo ceececcesccesseeenecnseessecseeeeesseessesenseaeeneesaecneeensessersnesenessaesasseressess 111
NO. 8.81.17 oo eeeceseeseeneeeseseceecseceseeseeaecaeeseceeesevseeaeseteessaesereeeeaeeas passim
NO. 8.84.1 ececcecccesesseceeensesseessesseessecseceseseeesseseseceatseaeesseseseessseaeenseness 323
NO. 8.85 veeeeeeeeeeeeneeeeenetuttapassim
NO. 8.88 oo.ccceccceceesseneesseeeeeeceaecaeeaecsetsneeesseveseeseansaeesseeneesesatsneessees 376, 378
NO. L241 ceeecccccesseseesscseceececeseeseesensecsesseesecseesaesseesaecaeesseseceseesueess 168
NO. 14.65 oe ceccccesseesecesceseeceeeseeeesseecaeseensssaeeeaeseneeeeesseeeaeeenesas 188, 189
xliti
Other Authorities
Jefferson, Cal. Evidence Benchbook (2nd ed. 1982) .......eeceeeees passim
King James Bible "Authorized Version”...........cecccccseessecesseeestecesseeseseeens 298
Millman & Sevilla, Cal. Criminal Defense Practice (20 10,
Matthew Bender) .........c:ccccccsesscecssseceeeseceeseeeeseeseteecssseeesseeeesessensessseeens23
Wigmore, Evidence (Chadbourne ed. 1976) .........ccccecssseeesseceesseseseneeeees 308
Witkin, Cal. Crim. Law (4th ed. 2012) oo. cccccccssccseseeesseeeeeseeeestereeas 311
Witkin, Cal. Criminal Law (3d ed. 2000) 0...eeeeneeeseeeesseeteneeeseetsneeaes23
Witkin, Cal. Evidence (4th ed. 2000)...ccc eeceseseesteceteeesseeteeeenses 336, 337
Witkin, Cal. Procedure (4th ed. 1997) occcccccccsssecestsessesseeeesseeeessteeesarees22
Internet Resources
http://dictionary.reference.com/browSe/flight........ccsesseessseseeeesesseeeeeens 176
http://dictionary.reference.com/browse/theology«00... seeeesrereeee vests 298
http://en.wikipedia.org/wiki/Svengali........eeedesecesessesesuesesasaseeeees 210
http://en.wikipedia.org/wiki/Thelma_%26_Louise ...........c.ccsseeesseseeeeees 147
http://en.wikipedia.org/Wiki/Theology ........ccccceesccecseteeteceteetteeeseteseeeseens 298
http://wordnet.princeton.edu/perl/webwn?s=manipulate...........cceceeeeee 210
ttp://www.kingjamesbibleonline.org/Revelation-21-80. 298, 299
http://www.saccourt.ca.gZOV/jUry/traNSPOTt.ASPX ......cssseseessseeeseeeesseesseeserenes 96
Merriam-Webster.com. http://www.merriam-
webster.com/dictionary/theology ........:cccesssecessseeseteseeeeseeecseeeseesntessaes 298
WWW.dictionaryreferenCe.COM .....ccccccccseccssseessseesseessecceeessecenstecseeensneeneees 139
WWW.thefreedictiomary.COM........ccccccccessceseceesseeeecceeseestecesseeenseeeesnerseteneee 139
xliv
IN THE SUPREME COURT FOR THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA, $043520
Plaintiff and Respondent,
V.
CARL DEVON POWELL,
Defendant and Appellant.
APPELLANT POWELL’S REPLY BRIEF
INTRODUCTION
In this brief, appellant addresses specific contentions made by
respondent wherenecessary in orderto present the issues fully to the Court.
Appellant does not reply to respondent's contentions which are adequately
addressed in appellant's opening brief. In addition, the absence of a reply by
appellant to any specific contention or allegation made by respondent, or to ~
reassert any particular point made in appellant's opening brief, does not
constitute a concession, abandonmentor waiverofthe point by appellant
(see People v. Hill (1992) 3 Cal.4th 959, 995,fn. 3), but rather reflects
appellant's view that the issue has been adequately presented and the
positions of the parties fully joined.
The argumentsin this reply are numbered to correspondto the
argument numbersin appellant's openingbrief.
ARGUMENT
GLOBAL ISSUES
I.
THE JUDGMENT MUST BE REVERSED BECAUSE
THE PROSECUTOR PROMISED THE JURYIN HIS
OPENING STATEMENT THAT APPELLANT WOULD
TESTIFY HE DID NOT ROB MCDADE AND KILLED
HIM ONLY UNDER DURESS FROM THE HODGES
BROTHERS, BUT APPELLANT ULTIMATELY
EXERCISED HIS RIGHT TO REMAINSILENT.
Appellant, who was young (23RT 8850), mentally slow (28RT
10412, 10431) and easily led (31CCT 9270, 9288)! wastried with his
codefendants, John and Terry Hodges. Dual juries were used — one for
appellant and one for the Hodges — to protect the Hodges’ Aranda-Bruton?
rights. (IRT 80-84, SRT 2175-2176.) The Hodges were older, more
sophisticated and morecriminally oriented than appellant. (30CCT 8967,
8980, 31CCT 9295 [Hodgesare older], 25RT 9471-9472, 28RT 10195;
32CCT 9303, 9311, 9314 [Hodges are criminally sophisticated], 31CCT
9001-9002 [appellant had never been involved in anythinglike the
shooting].) Appellant feared them greatly. (31CCT 9006, 9012.) His
defense wasthat they coerced him to commit the crimes. (2RT 1018; 2CT
528-529.) Whether appellant would testify was a major focus during the
guilt phase proceedings.
1! At the penalty phase, Doctor Nicolastestified that appellant had an
overall I.Q. of 75, which meantthat 96 percent of the population had
stronger intellectual capabilities than appellant did. (34RT 12002, 12006-
12007.)
2 People v. Aranda (1965) 63 Cal.2d 613 and Bruton v. United States
(1968) 391 U.S. 123.
3
Appellant’s attorneys represented that appellant would testify while
also acknowledging that there was no guarantee he would do so. (2RT
1022, 4RT 1788, 14RT 5934, 1SRT 6266.) Defense counsel took the
unprecedented step of making appellant available as a witness for the
prosecution even thoughthe prosecutor offered appellant no consideration
andstill sought to convict him of capital crimes and put him to death. (2RT
1018-1023, 14RT 5953-5956, 31RT 11340.) Counsel even gave the
prosecutor appellant’s statement, which wasotherwise privileged attorney-
client communication, concerning his expected testimony. (15RT 6267;
29CCT 8486.) The prosecutor decided he would call appellant as a state
witness. (14RT 6095.)
Uncertainty over whether appellant would testify loomed overthe
proceedings. The court and parties extensively addressed how appellant’s
testifying or remaining silent would impactthetrial, including whether the
prosecutor should be allowed in his opening statement to mention
appellant’s anticipated testimony, despite its uncertainty. (RT 1788, 14RT
5905, 5909, 5934-5935.) Everyone acknowledged that there was no
guarantee that appellant would testify. (2RT 1022, 1062, 1104, 6RT 2349;
see also RB 20-22.) Everyone also recognizedthat if the prosecutor
outlined appellant’s expected testimony in opening statement but appellant
exercised his right to remain silent, mistrials would be in order. (14RT
5934-5935, 5938, 5949, 14RT 5934-5935.) The Hodges unsuccessfully
movedto preclude the prosecutor referencing appellant’s expected
testimony. (14RT 5938, 5950-5953, 5965-5966.) Defense counsel took the
position that that the prosecutor should refrain from doingso to prevent
risking mistrials. (14RT 5934.)
Awareofthe risk he faced, the prosecutor made a calculated
decision to outline appellant’s anticipated testimony. (14RT 5911, 15RT
6304, 6229-6330.) He told both juries that appellant would testify he
approached McDade unarmedtodiscuss getting his job back. The Hodges
brothers approached,talked about robbing McDade, took his money and
forced appellant at gunpoint to shoot him. (1SRT 6344-6345.) In the end,
appellant relied on his Fifth Amendmentright not to incriminate himself
and did nottestify for either side. (2CT 518; 29RT 10702, 30RT 10805,
10816.) The jurors convicted him ofrobbery andfirst degree murder and
foundtrue the robbery felony-murderspecial circumstance. (2CT 550, 3CT
670, 672-684.)
The defense movedfor a mistrial on the groundthat the broken
promise of appellant’s testimony drew attention to appellant’s exercise of
his right to silence in a way that encouraged jurors to draw the negative
inference that appellant’s outlined testimony about acting under duress was
false. (30RT 10818-10829, 10834-10838; 2CT 521-527.) Thetrial court
denied the motion. (30RT 10837-10838.) It found that the claim had been
forfeited and any error was invited and harmless. (/bid.) Respondent
defendsthetrial court’s ruling on each of these grounds. (RB 19-54.) The
State’s efforts are unpersuasive.
As shown below,appellant wasentitled to a mistrial because the
broken promiseofhis testimony constituted prejudicial error. Appellant
cannot be penalized for exercising his absolute, Fifth Amendmentright to
remain silent. The court and parties were constitutionally required to
respect and work around appellant’s unconditionalright to take refuge in
the privilege against self-incrimination.? Thetrial court penalized appellant
for exercising his right even though the court andparties hadall
acknowledgedthat it was impossible to guarantee that appellant would
testify. It failed to hold the prosecutor accountable for his calculated
decision to outline appellant’s expected testimony in his opening statement
despite uncertainty that appellant would testify. Faced with an obvious gap
between appellant’s promised testimony about duress and the evidence
presented, the jurors would have reasonably concluded that appellant did
not testify because his claim of duress was false. Appellant was prejudiced
as aresult. The defense he presented in the absence ofhis testimony was
very closely related to duress,i.e., he did not actually form the mental state
for robbery and first degree murder because his mind was clouded with fear
and pressure from the Hodges. Appellant’s defense had enough support in
the record to raise a reasonable doubt. Jurors, however, could not have put
out of their minds the adverse inference that appellant’s claim of duress was
false when evaluating appellant’s defense because duress and appellant’s
defense were so very closely related.
Accordingly, respondent’s position must be rejected, and the
judgment mustbe reversed.
A. Appellant’s Claim Has Been Preserved for Review.
Respondent argues that appellant’s claim has been forfeited and any
error was invited. (RB 27-31.) Both claims must be rejected.
3 In ArgumentII, respondentalleges that appellant is personally to
blame for the prosecutor’s broken promise ofhis testimony because
appellant apparently told his counsel that he wouldtestify but then changed
his mind. (RB 63.) Appellant addresses this claim in ArgumentIJ,post.
6
1. The Claim Was NotForfeited
Respondentargues that appellant’s challenge to the prosecutor’s
undelivered promise of appellant’s testimony in his opening statementhas
been forfeited due to appellant’s failure to object to the prosecutor’s
referring to the anticipated testimony before the damage was done. (RB
27-29.) According to respondent, defense counsel should have done what
the Hodgesbrothers did in order to preserve the claim. “They objected
before the opening statement, immediately afterwards, and during the
People’s case.” (RB 31, citations to record omitted.) The contention must
be rejected.
Asexplained morefully below, before opening statementsthetrial
court and counsel forall the parties engaged in extensive discussions
concerning prosecutorial reference to appellant’s anticipated testimony.
Appellant’s attorneys, like the Hodges, argued that grave problems would
result if the prosecutor outlined appellant’s expected testimony in his
opening statement but appellant chose to remain silent. Thetrial court
nevertheless overruled the Hodges’ motion to preclude prosecutorial
mention of appellant’s anticipated testimony. It allowed the prosecutorto
proceed andindicated that the way to address the problem,if it came to
fruition, was by wayofmistrial. In light of these circumstances,
appellant’s claim of error has been preserved for review. Thetrial court
was aware of appellant’s position and nevertheless allowed the prosecutor
to proceed. The court’s ruling on the Hodges’s motion showsthat a more
specific objection by appellant prior to opening statementor after it would
have been futile. Also, the trial court decided that the issue only became
ripe at the end oftrial if appellant did nottestify. At that point, appellant
madea timely motion for a mistrial.‘
When defense counsel Castro first announced that appellant would
testify “wheneverI tell him to,” including as a witness for the prosecution
(2RT 1020-1021), the court and parties all recognized that it was
impossible to guarantee appellant’s testimony. A criminal defendant has an
absolute, federal constitutional right to either testify or claim the privilege
againstself-incrimination, and he mayassert either right even overhis
attorney’s express objection. (Rock v. Arkansas (1987) 483 U.S.44, 49-
53.) Further, a defendant may wait to see how the evidence develops
before making a final decision about whetherto testify or remainsilent.
(Brooks v. Tennessee (1972) 406 U.S. 605.) The following exchange
occurred:
MR. MACIAS:? ... I don’t see how he’ll take the stand
during the prosecutor’s case in chief—
MR. SHERRIFF: Orat any time.
MR. MACIAS:Orat any time.
MR. HOLMES:Becausethat’s his final decision at any
time. He couldn’t give you a guarantee.
4 Should this Court decide that defense counsel’s failure to object to the
prosecutor’s outlining appellant’s expected testimony in opening statement
has forfeited this claim, appellant contendsin his petition for writ ofhabeas
corpus,filed with this Court on January 22, 2013, that defense counsel
rendered ineffective assistance of counsel. (Jn re Carl. D. Powell, on
Habeas Corpus, No. 8208154, (hereinafter “PetHC”), Claim III, 165-252.)
> Julian Macias represented John Hodges, James Sherriff represented
Terry Hodges and Brad Holmes wasappellant’s Keenan (Keenanv.
Superior Court (1982) 31 Cal.3d 424) counsel.
8
THE COURT:I don’t feel that any of us should operate
with an understanding that something is guaranteed, as far as
whois going to waivetheir privilege against self-incrimination
and who’s goingto testify. I think —I think we need to assess
the case, apart from what you would hope and expect out of
one of the defendants, any one of the defendants as far as what
the strength of the D.A.’s caseis.
(2RT 1022.)
Whenthe prosecutor observed that Castro had told him appellant was
willing to testify for the State, the court responded incredulously, “even
though you’re seeking to put him in the gas chambers, he’s ready, willing
and able to testify for you; is what your understanding is?” (/bid.)
Thetrial court again articulated its understanding that there was no
guarantee that appellant would testify whenit put its thoughts on the record
about whether to proceed with onetrial and dualjuries to protect the
Hodges’s rights under Aranda-Bruton. (2RT 1103-1 104.) The court stated:
... ifwe proceed with dual juries, one trial but dual juries, and
if defendant Powelltestifies in the D.A.’s case in chief, that
would have belatedly eliminated the reason for the dualjuries.
Only we would still have dual juries, and both juries, I assume,
would be hearing the testimony. And, as we mentioned
yesterday, if we knew that there was a certainty, we could have
avoided the dual juries. But we can’t guarantee that Mr.
Powell will testify in the D.A;’s case in chief.
(Ibid.)
Later on, prior to opening statements, the Hodges’sattorneys
objected to the prosecutor’s mentioning appellant’s anticipated testimony
because there was no wayto ensure that appellant would actually take the
stand. They arguedthat if the prosecutor outlined appellant’s testimony
that the Hodges coerced appellant into shooting McDade but appellant
9
ultimately claimed the privilege against self-incrimination, they would be
prejudiced and entitled to a mistrial. (L4RT 5938, 5950-5953, 5959, 5966.)
Notably, both of appellant’s attorneys voiced similar concerns and
indicated that the prejudice would flow to appellant as well. (4RT 1788,
14RT 5934-5935.) Defense counsel Castro warnedthe prosecutor “to
protect himself” from mistrial by crafting his opening statement knowing
that appellant might not testify. (4RT 1788.) Defense counsel Holmes
pointedoutthat the decision about whetheror notto testify wasentirely up
to appellant. (14RT 5934.) He, too, warnedthat if the prosecutortells
“either one or both juries — that Carl Powell is goingto testify,”the
prosecutor would set himself up “for a couple of mistrials here if
[appellant] in fact doesn’t testify. [The prosecutor’s] already got up and
told both juries what he’s going to say.” (/bid.) Thetrial court’s response
once again acknowledgedits understanding that there was no guarantee that
appellant wouldtestify. It replied, “[wJell, that’s what I’ve already I
thought indicated.” (/bid.) It agreed that if the prosecutor “gets up and in
front of the juries — both juries he details what Carl Powell’s going to say
and Carl Powell doesn’t take the stand ... then we have that dilemma.”
(14RT 5934-5935.) The prosecutor also acknowledgedthat he risked
mistrials if he told the jurors to expect appellant’s testimony but appellant
ultimately remainedsilent. (L4RT 5905, 5909.) Unquestionably, the court
and all parties understood that there was no wayto guarantee that appellant
would testify. They also recognized that ifjurors heard he was going to
testify but he ultimately did not this could result in mistrials.
Respondent argues that the above “couple of mistrials” exchange
between Holmesandthetrial court (14RT 5934-5935) was limited to
mistrials for the Hodges (RB 30), but the record refutes this. Holmes’s
warning that the prosecutor risked “a couple of mistrials” if he mentioned
10
the anticipated testimony to “either one or both juries” madeclear the
defense’s position that the danger of mistrial extended both to appellant and
to the Hodges brothers. Clearly, the trial court understoodthat if the
prosecutor outlined appellant’s testimony in his opening statement but
appellant did nottestify, he risked causing mistrials for both appellant and
the Hodges brothers. (14RT 5934-5935.) Thetrial court also knew that
appellant’s attorneys had cautioned the prosecutornotto take this risk by
refraining from referencing appellant’s testimony in his opening statement.
(4RT 1788, 14RT 5934-5935.)
Despite this knowledge,the trial court denied the Hodges’s motion
to preclude the prosecutor from mentioning appellant’s testimony in his
opening statement. (14RT 5966.) Although appellant did not formally join
in the Hodges’ motion or make a formal motion himself, it was unnecessary
for him to do so in orderto preserve the issue for review.
It would have been futile for appellant to make a formally phrased
objection before or after opening statement. Thetrial court knewthat both
appellant and the Hodges maintainedthat if the prosecutorfailed to deliver
on a promise that appellant would testify, they would be prejudiced and
would be entitled to mistrials. (14RT 5934-5935, 5938, 5949.) The
Hodges formally moved to prohibit the prosecutor from referencing
appellant’s anticipated testimony in his opening statement becauseit was
impossible to ensure that appellant would testify. (14RT 5938, 5950-5953,
5966.) Thetrial court overruled their objection. (14RT 5950.) It explained
that the issue would needto be raised in a mistrial motion because only
then could it assess prejudice. (14RT 5948, 5965.) Had appellant made a
similar objection before or after the prosecutor’s opening statement, the
trial court would have made the same ruling. A party need not make a
11
futile objection to preserve a claim oferror for review. (People v. Boyette
(2002) 29 Cal.4" 381, 432; People v. Hill (1998) 17 Cal.4™ 800, 820.)
Further, it was reasonable for defense counsel to wait to raise the
issue by seeking a mistrial after the close of evidence.. The trial court
explained that the issue should be handled this way because only then didit
becomeripe. (14RT 5934-5935, 5947-5948.) As long as the evidentiary
portion oftrial remained open, appellant could decide to testify. (17RT
6812 & 29RT 10606 [court denies John Hodges’s mistrial motions due to
the absence of appellant’s testimony because court needed to wait to see
how evidence developed]; Brooks v. Tennessee, supra, 406 U.S. 605.)
Only after the evidence closed would appellant’s decision becomefinal and
the trial court could assess if there was prejudice. (/bid.) Appellant relied
on the trial court’s directive to raise the issue in a mistrial motion after the
close of evidence, and he made a timely mistrial motion at that time.
(30RT 1018-1029, 10834-10838; 2CT 521-527.)
The court’s directive that the issue should be handled by way of
mistrial motion made sense. If the prosecutor told the jurors in his opening
statement that appellant was goingtotestify to certain matters and then
appellant testified to them, no one could complain. (People v. Hinton
(2006) 37 Cal.4" 839, 863 [defendant cannot complain that the prosecutor
referenced witness statements whose admissibility was questionable where
the statements were eventually admitted].) The prosecutor’s promise of
appellant’s testimonydid not ripen into a colorable claim until it became
clear that appellant would nottestify. Only after both sides rested did this
becomeplain. Up until then appellant had an absolute right, guaranteed by
the federal constitution, to either take the stand or remain silent, and he, not
counsel, had the ultimate say over what course to take. (Rock v. Arkansas,
12
supra, 483 U.S. 44, 49-53.) Once both sides rested without appellant’s
testifying, appellant promptly moved for a mistrial on the groundthat the
prosecutor’s unfulfilled promise of appellant’s testimony adversely drew
attention to appellant’s decision to assert his right to remain silent. (30RT
10818-10829; 2CT 521-527.)
The decision of the First Circuit Court of Appeal in Ouberv.
Guarino (1° Cir. 2002) 293 F.3d 19 supports the above approach. As the
First Circuit observed,it is through the combination of two “inextricably
intertwined” events, (1) an advocate’s promise to the jurors that certain
witness testimony will be presented and (2) the failure of the testimonyto
materialize into evidence, that a claim based on the failure to deliver
promised testimony ripens into an arguable issue. (/d. at p. 27.) Either
event standing aloneis not necessarily problematic. (Jbid.) Had appellant
objected earlier, the trial court could not have determinedifthe
prosecutor’s promise would remain undelivered orif it was prejudicial.
(14RT 5965, 5948.)
In sum, appellant moved for a mistrial when the mistrial motion
becameripe due to the prosecutor’s unfulfilled promise of appellant’s
testimony. Objecting any earlier would have been futile. The court was
aware that the prosecutorrisked mistrial by mentioning appellant’s
anticipated testimony in opening statement, but it nevertheless ruled that
the prosecutor could do so. Respondent’s claimsof forfeiture are
unpersuasive and must berejected.
2. Appellant Did Not Invite the Error of the Prosecutor
Outlining Appellant’s Expected Testimony in Opening
Statement and Then Failing to Deliver It.
13
Respondent’s contention that appellant invited the erroralso fails to
persuade. (RB 29-31.) In People v. Coffman (2004) 34 Cal.4" 1, this Court
explained, “[t]he doctrine of invited error is designed to prevent an accused
from gaining a reversal on appeal because of an error made bythetrial
court at his behest. Jfdefense counselintentionally causedthetrial court to
err, the appellant cannot be heard to complain on appeal.... [I]t also must
be clear that counsel acted for tactical reasons and not out of ignorance or
mistake.” (/d. at p. 49, emphasis added.) Similarly, People v. Russell
(2010) 50 Cal.4™ 1228states, “the doctrine of invited error applies when a
defendant, for tactical reasons, makes a request accededto by thetrial
court and claims on appealthat the court erred in granting the request.
[Citations.]” (/d. at p. 1250, emphasis added.) Respondentfails to satisfy
the elements of invited error. Respondent doesnot cite to any conduct by
appellant asking or intentionally causing the trial court to permit the
prosecutor to summarize appellant’s anticipated testimony in his opening
statement. Appellant never advocated in favor of such opening remarks.
To the contrary, defense counsel cautioned the prosecutor not to give them
to protect against mistrial. (4RT 1788, 14RT 5934-5935.) Nor does
respondentcite to defense counsel’s articulating any tactical reason for
wanting the trial court to allow the prosecutor’s opening remarks. Thisis to
be expected sincetrial counsel did not advocate in favor of such remarks.
Further, the doctrine of invited error focuses ontrial court error. The
focus of appellant’s argument on appealis the combination of two
intertwined events: (1) the prosecutor’s detailing appellant’s anticipated
testimony in opening statementand (2)his failure to deliver on the promise.
(Ouber y. Guarino, supra, 293 F.3d 19, 27.) Respondentprovides no
authority extending the doctrine of invited error to prosecutorial error.
14
First, the prosecutor’s decision to outline appellant’s expected
testimony in his opening statementis attributable solely to the prosecutor.
The prosecutor wasa free agent. He did not have to mention appellant’s
expected testimony to the jury. Case law and warnings from appellant’s
attorneys counseled him against doing so. (See Ouber v. Guarino, supra,
293 F.3d 19, 28[if it is uncertain whether defendant will testify, counsel
“must exercise some degree of circumspection”]; People v. Hinton, supra,
37 Cal.4" 839, 863 [where the admissibility ofwitness statementsis
66?questionable, a prosecutor should take “’the safer and preferred path’” and
refrain from mentioning them in opening statement].) The prosecutor
madea tactical choice to reference appellant’s testimony. This is plain
from the following exchange betweenthetrial court and the prosecutor.
The court told the prosecutor that, given the uncertainty that surrounded
whether appellant would testify, “you’ve got to try your case in whatever
way you think tactically you must. [{] ... Now, I do appreciate the fact
that you’ve got some hard decisions to make about whatyoustate in your
openingstatement.” (14RT 5911.) The prosecutor said he understood he
had to decide as a matter of tactics whether to mention appellant’s expected
testimony or not. (/bid.; see also 15RT 6304.)
Second, the prosecutordid not deliver on his promise of appellant’s
testimony because the prosecutor had no control over appellant’s decision
to assert his absolute, Fifth Amendmentright not to incriminate himself.
(Rock v. Arkansas, supra, 483 U.S. 44, 49-53.) The prosecutor could not
call appellant to the stand as he could any other witness. (Jbid.) Appellant
had a fundamental right to remainsilent at trial without being penalized in
any way. (Griffin v. California (1965) 380 U.S. 609, 614 [defendant has 5"
amend.right to claim privilege withoutits assertion being made “costly” by
serving as the basis for an adverse inference]; Brooks v. Tennessee, supra,
15
406 U.S. 605, 611, fn. 6 [it violates a defendant’s 5" amend.privilege
againstself-incrimination for the government to burden the defendant’s
exercise of his right to silence by requiring the defendant decide whetherto
testify withoutfirst being able to see how the case progresses].) Appellant
choseto assert his Fifth Amendmentrightto silence.
Asthe foregoing makes clear, defense counsel did not invite the
error. The doctrine of invited error applies to trial court error. Neither the
prosecutor’s (1) tactical choice to outline appellant’s testimony in his
opening statementnor(2)failure to deliver appellant’s testimony was
attributable to the trial court.
Respondent attempts to blame defense counsel for “inducing”the
prosecutor’s argumentby assuring the prosecutor that appellant would
testify. (RB 29, 31.) Those assurances came almostentirely from Castro,
and they were hardly to be relied upon. Both he and Holmesrepeatedly,
with the trial court’s concurrence, acknowledged that they ultimately had
no control over whetherappellant wouldtestify since this decision was
solely appellant’s to make. (4RT 1787-1788, 14RT 5934.) The prosecutor
also knew or should have knownthat the inability of appellant’s attorneys
to guarantee appellant’s testimony wassolidly groundedin the Fifth
Amendment. (Rock v. Arkansas, supra, 483 U.S. 44, 53 & fn. 10
[“defendant has the “ultimate authority to make certain fundamental
decisions regarding the case, as to whetherto... testify in his or her own
behalf], quoting Jones v. Barnes (1983) 463 U.S. 745, 751.) Advocates
mustfrequently decide how to structure their opening statements despite
uncertainty about whether a witness mightfail to appear fortrial,
unexpectedly claim privilege or recant. Uncertainty is a given. The
16
prosecutor was no fool. He knewthat detailing appellant’s testimony
risked mistrial and he made a strategic choice to take that risk.
Asthe prosecutor acknowledged, without appellant’s testimony, the
State’s case against the Hodges was weak. QRT 1014-1015, 1020.) The
prosecution’s main witnesses against the Hodges, Leisey and Banks, both
had credibility problems. (2RT 1020-1021.) The prosecutor choseto detail
appellant’s anticipated testimony in his opening statement, no doubt,
because he believed that priming the jurors in this manner would cause
them to see Leisey and Banksas more credible than otherwise. He sought
to improvethe state’s odds of convicting the Hodges.
Previewing appellant’s anticipated testimony also helped the State’s
case against appellant becauseit cast appellant as the shooter. (1SRT 6344-
6345.) If appellant testified as expected, the prosecutor intended to argue
that those parts of his testimony helpful to him were lies whereas those
parts harmful to him were true. (E.g., 14RT 5926-5927, 6108 [prosecutor
intends to rely on appellant’s prior statements that are inconsistent with his
expected testimony].) On the other hand,if appellant chose to assert his
right to silence rather than testify as outlined, the prosecution could benefit
from jurors drawing the adverse inference (discussed more fully in § B.3,
post) that appellant did not testify because his anticipated testimony was
false. (See Anderson v. Butler (1* Cir. 1988) 858 F.2d 16, 17). Either
scenario benefited the prosecution. The prosecutor must be held
accountable for his knowing and voluntary strategic decision to detail
appellant’s anticipated testimony in his opening statement.
The government suggests that appellant should instead be held
accountable for his decision not to testify after the prosecutortold the jurors
17
that appellant would do so.° (RB 63.) Not so. Nothing forced the
prosecutor to reference appellant’s anticipated testimony when it remained
constitutionally uncertain. Although defense counsel advised the
prosecutor against doing so, the prosecutor madea tactical choiceto tell the
jurors about it in his opening statement. Appellant differs from the
prosecutorin a crucial respect. Unlike the prosecutor, appellant had an
absolute right to not only assert the Fifth Amendmentprivilege against self-
incrimination but to do so unfettered by the dangerthat its assertion would
be made “costly” by serving as the basis for an adverse inference. (Griffin
v. California, supra, 380 U.S. 609, 614; see also Brooks v. Tennessee,
supra, 406 U.S. 605, 611, fn. 6.) Having appellant shoulder the adverse
consequenceofasserting his right to silence in the wake of the prosecutor’s
promise of appellant’s testimony impermissibly penalizes appellant for
exercising his Fifth Amendmentprivilege.
Accordingly, respondenthas failed to demonstrate that defense
counsel invited the error of the prosecutor’s undelivered promise of
appellant’s testimony. Appellant now turns to discussing the adverse
inference that the prosecutor’s broken promise of appellant’s testimony
invited.
B. The Unfulfilled Promise of Appellant’s Testimony Adversely
Affected Appellant’s Invocation of His Right to Silence and
Deprived Appellant of a Fundamentally Fair Trial.
In his opening statement, the prosecutor represented that appellant
would testify that the Hodges, not appellant robbed McDade,and then they
coerced appellant underthreat of death to shoot him. (1SRT 6344-6345.)
6 See footnote 3, ante, at page 6.
18
The prosecutortold the jurors to expect appellantto testify that, as McDade
was leaving KFC, appellant went up to him, unarmed,to discuss getting his
job back. (15RT 6344.) After 10 to 15 minutes, Terry and John Hodges
approached andtalked about robbing McDade. (/bid.) John had a
derringer and Terry had a short shotgun. (15RT 6344-6345.) Then (ibid.),
John had his derringer out. Terry reached into the car
and got the money. Or Keith handed him the money. ... [{]
John handed Carl his gun. Carl Powell could tell there was
only one roundin it based on its weight. Carl started to point
the gun at John. Terry drew downon Carl with a shotgun.
Terry said, “Don’t even think about it.” Carl knew he had only
one bullet.
John put the derringer to Carl’s chest, said, “We ain’t
leaving no witnesses.” Carl said there was nothing he could
do; Carl pointed the gun at Keith and pulled the trigger.
Appellant ultimately chose to rely on his Fifth Amendmentright to remain
silent at trial. He demonstrated that the prosecutor’s unfulfilled promise of
his dramatic and highly significant testimony constituted error in three
ways. First, in violation of appellant’s Fifth Amendmentprivilege against
self-incrimination, it drew the jurors’ attention to appellant’s failure to
testify in a manner which invited them to draw an adverse inference from
appellant’s silence. (AOB 102-113.) Second, it constituted prosecutorial
misconduct. (AOB 113-118.) Third, regardless of whois to blame — the
prosecutor, the trial court, defense counsel or a combination thereof-- it
deprived appellant of a fundamentally fair trial.’ (AOB 118-121.)
Respondent arguesthat no error occurred.
7 Appellant’s reply focuses primarily on violation of his Fifth
Amendmentright to silence. He submits that, for essentially the same
reasons that his Fifth Amendmentright was violated, he was also deprived
19
Again, it bears emphasis that appellant’s claim oferror is premised
on “two inextricably intertwined events” -- (1) the prosecutor’s opening
statement promise of appellant’s testimony that the Hodges coerced him
and (2) the failure of this testimony to materialize. (AOB 124-125,citing
Ouber v. Guarino, supra, 293 F.3d 19, 27; see also AOB 105-108
[discussing “broken promise”cases involving evidence highly significant to
the defense].) It is only due to the combination ofthese two events that
error occurred. (See People v. Hinton, supra, 37 Cal.4" 839, 863
[defendant cannot complain that the prosecutor referenced witness
statements whose admissibility was questionable where the statements were
eventually admitted].) Together, they invited a “heavy inference”that the
promised testimony did not materialize because it was false. (Andersonv.
Butler (1Cir. 1988) 858 F.2d 16, 18.) Appellant did not arguethat,
standing alone, the prosecutor’s outlining appellant’s expected testimony
constituted error. He simply noted this was a risky thing for the prosecutor
to do and hedid it for strategic reasons knowing full well appellant might
not testify and, if so, there would likely be severe consequencesto the
State’s case (AOB 124.)
Respondent myopically focuses on the reasonableness of the
prosecutor’s belief that appellant would testify and argues that, because the
prosecutor held this belief, he acted in good faith and did not commit
misconduct. (E.g., RB 33.) Even if the prosecutor believed that appellant
wouldtestify, the prosecutor also unquestionably knew that there was no
of a fundamentally fair trial under the Fourteenth Amendmentandthe
prosecutor committed misconduct. Appellant relies on his development of
his due process and prosecutorial misconductclaimsin his openingbrief.
(AOB,Arg. I, §§ C.2 & 3, 113-121.)
20
guarantee appellant would do so and he was powerless to compel
appellant’s testimony. (See § A,ante.)
As explained below, the reasonableness ofthe prosecutor’s belief
does not necessarily obviate Griffin error or prosecutorial misconductor
keep a trial from becoming fundamentally unfair. Moreover, because
respondent’s truncated approach of focusing on the prosecutor’s opening
statement promise largely ignores that appellant’s testimony never
materialized, it fails to respond to the argumentthat appellant actually
made,i.e., that the combination of (1) the prosecutor’s promise of
appellant’s testimony and(2) its failure to materialize was prejudicialerror.
Respondent’s side-stepping the full scope of appellant’s claim suggests that
the governmentlacks a good responsetoit.
1. Prosecutorial Misconduct Does Not Depend on Bad Faith
In regards to the truncated issue respondent emphasizes, that the
prosecutor reasonably believed appellant would testify and thus acted in
goodfaith in referencing appellant’s anticipated testimony, respondent
argues that “[c]omments in a prosecutor’s opening statement are not
misconduct unless the evidence referred to was patently inadmissible.”
(RB 33.) Respondent cites language in this Court’s decisions in People v.
Wrest (1992) 3 Cal.4" 1088, 1108 and People v. Dykes (2009) 46 Cal.4
731, 762 in support of this proposition. (/bid.) The language, however,is
dictum in both opinions. Both rejected the defendants’ claimsoferror not
because the prosecutors’ references were to clearly admissible or
inadmissible evidence. Rather, both found that there was no significant
variance between the evidencethat the prosecutor outlined and the evidence
actually presented. (Wrest, supra, at p. 1109; Dykes, supra, at p. 762.)
“The discussion or determination of a point not necessary to the disposition
21
of a question that is decisive of the appeal is generally regarded as obiter
dictum and notas the law ofthe case.” (Stockton Theaters Inc. v. Palermo
(1956) 47 Cal.2d 469, 474.)
A court may nevertheless “rely on a dictum where no contrary
precedentis controlling and where the view commendsitself on principle,”
such as where the dictum is made “after careful consideration, or in the
course of an elaborate review of the authorities, or when it has been long
followed.” (9 Witkin, Cal. Procedure (4" ed. 1997) Appeal, § 947, p. 989.)
The dicta in Dykes and Wrest does not deserve such treatment. It was not
made after careful consideration or review of case law. Rather, both
opinions rest on outdated authority requiring that a prosecutoract in bad
faith to commit prosecutorial error, or misconduct. Dykes cites Wrest
which cites People v. Martinez (1989) 207 Cal.App.3d 1204, 1225, fn. 5.
(Dykes, supra, at p. 762; Wrest, supra, at p. 1108.) Martinez cites to
intermediate appellate decisions requiring bad faith for a prosecutor’s
reference to evidence in opening statement whichis later excluded to be
deemedprosecutorial error. (Martinez, supra, at p. 1225, fn. 5, citing
People v. Havenstein (1970) 4 Cal.App.3d 710, 714 & People v. Ney
(1965) 238 Cal.App.2d 785, 793.) After these intermediate decisions
issued, this Court ruled that bad faith is no longer required to demonstrate
prosecutorial misconduct, including misconduct in opening statement.
(People v. Bolton (1979) 23 Cal.3d 208.)
Asappellant demonstrated, this Court made clear in People v. Hill
supra, 17 Cal.4" 800, that the no-bad-faith rule applies to prosecutorial
misconduct in opening statement. Hill explicitly cited this Court’s opinion
in People v. Harris (1989) 47 Cal.3d 1047, 1079, concerning a claim of
misconduct during opening statement, for the principle that a showing of
22 -
bad faith is not required. (AOB 113-114.) As appellant also pointed out,
treatises take the same position. (Witkin, 5 Cal. Criminal Law (3d ed.
2000) Criminal Trial, § 519, p. 741 [Earlier decisions suggest that bad
faith must be shownto establish prejudicialerror in the opening statement.
However,it is now clear that prosecutorial misconduct need not be
intentional to be reversible error”], citations omitted; Millman & Sevilla,
Cal. Criminal Defense Practice (2010, Matthew Bender) vol. 4, § 81.22,p.
103 [‘‘Neither the prosecutor nor the defense may ... refer to anticipated
testimony that he or she later fails to produce.... Good faith does not
negate prejudicial misconduct, as even unintentional misconduct can be
reversible error”], fns. omitted.)
In People v. Barajas (1983) 145 Cal.App.3d 804, the reviewing
court found prejudicial error due to prosecutorial misconduct consisting of
the prosecutor’s promise of certain witness testimony andthe failure to
deliver it due to the witness’s invocation of his right to remain silent. The
prosecutor said in his opening statementthat a crucial witness would
connect the defendant to the crime despite doubts about whether the
witness would deliverthis testimony; the prosecutor then propounded
leading questions to the witness, including about whether the witness had
been threatened, which the witness refused to answerin reliance on his
privilege against self-incrimination. (/d. at pp. 808-810.) The opinion
found that the nature of the prosecutor’s opening statement, combined with
the circumstances under whichthe witnessasserted his privilege, led jurors
to infer that the witness had seen the defendant commit the crime despite
the lack of any admissible evidence on this point. (/d. at pp. 809-810.)
Notably, Barajas reachedthis result while recognizing that“the test for
determining prejudice arising from a variance between the opening
23
statement and the proofis no longer badfaith.” (/d. at p. 809 & accomp.
fn. 7, citing People v. Bolton, supra, 23 Cal.3d 208.)
Not only does prosecutorial misconduct in general not require bad
faith, but Griffin error, a particular kind ofprosecutorial error (or court
error), does not require it either. Even if a prosecutor’s remarks are not
deliberately intended to urge jurors to draw an inference of the defendant’s
guilt from his assertion ofhis rightto silence, they violate the Fifth
Amendmentif, due to them, jurors would naturally and inevitably draw an
inference adverse to the defendant. (United States v. Thompson (11" Cir.
2005) 422 F.3d 1285, 1299; Hovey v. Ayers (9" Cir. 2006) 458 F.3d 892,
912; United States v. Whitehead (4% Cir. 1980) 613 F.2d 523, 527.)
2. Davenport Assists Appellant, Not Respondent
Respondentplaces heavy emphasis on this Court’s decision in
People v. Davenport (1995) 11 Cal.4" 1171 to contend that there was no
Fifth Amendmentviolation. (RB 33-37.) Davenport requires no such
conclusion. Davenport was an appeal from a penalty phaseretrial. (/d. at
p. 1188.) The prosecutor outlined in his opening statement what he
believed the defendant would testify to and what defense he expected the
defendant would present. The defendanttestified not about what the
prosecutor outlined but about certain artwork which he had created while
incarcerated. (/d. at p. 1192.) In regards to the defendant’s testimony
which the prosecutor had outlined, the jury heard its substance from a
police officer whotestified to the defendant’s out-of-court statement to
him. (/d. at p. 1213.) As the opinion observed,“the challenged statements
by defendantthat the prosecutor referred to in his opening statement were
introduced through the testimony ofthe police officer who interrogated
defendant.” (/bid.) Under the circumstances, Davenport rejected the
24
defendant’s claim that the prosecutor’s opening statement invitedjurors to
draw an adverse inference from the defendant’s decision to invoke his Fifth
Amendmentrightto silence. (/bid.)
Davenportis clearly distinguishable from appellant’s case. First,
jurors werenot left with a glaring gap between the defendant’s outlined
testimony and whatthe evidence ultimately showed. They heard the
essence of the testimony that the prosecutor had outlined through the
defendant’s ownstatements offered into evidence by his interrogating
police officer. (People v. Davenport, supra, 11 Cal.4" 1171, 1213.)
Consequently, jurors were unlikely to draw the adverse inference that the
defendant did not testify as promised because his outlined testimony was
false. This is the inference that jurors naturally and inevitably draw when
they are promised important testimony from a key witness in opening
statement but that witness doesnot testify. (Anderson v, Butler, 858 F.2d
16, 17; see also AOB 104-109, 119 & cases cited therein.) If Davenport’s
jurors focused on the discrepancy, they likely concluded that the defendant
did not give the anticipated testimony because it was already in evidence,
and, therefore he did not need to. Second,it does not appear that the
promised testimony wassignificant. The opinion does not relate what the
prosecutortold the jurors to expect. Nor doesit relate the interrogating
officer’s testimony concerning appellant’s statements. These omissions
suggest that the testimony was of marginal importance and,therefore,
jurors would not have fixated on the defendant’s failure to specifically
testify to it. Third, the defendant actually testified. He did not exercise his
Fifth Amendmentright to silence. (Davenport, supra, at p. 1192.) Jurors
would not have drawn an adverse inference from the defendant’s exercise
of his Fifth Amendmentright because the defendant did not invokeit.
25
In contrast, in appellant’s case, there was a glaring dissonance
between the prosecutor’s description of appellant’s expected testimony and
whatthe evidence ultimately showed. The prosecutor promised the jurors
highly dramatic and significant testimony from appellant that he was
coerced-- testimony that, if believed, precluded appellant’s conviction for
capital murder. (If believed, it would have precluded conviction for
robbery, robbery felony-murderas a theory offirst degree murder and the
robbery felony-murder special circumstance. It would have also precluded
a finding of deliberation and premeditation for first degree murder. At
most, appellant could have been convicted of second-degree murder. (See
People v. Anderson (2002) 28 Cal.4" 767, 784.)) This testimony never
materialized. It was not directly replicated by other evidence of coercion.
Instead, defense counsel arguedthat jurors could infer from the evidence
otherwise presented that appellant acted under fear and pressure from the
Hodgesandthis clouded his mental state to the degree that he did not
actually form the mental state elements of the charged crimes. (See AOB
131-137, Arg. I, § C.5.a [summarizing the fear and pressure defense that
counsel argued].) The trial court concluded that the evidence presented did
not warrant an inference that appellant acted under duress, and it refused to
instruct on the defense. (30RT 11023, 11048, 31RT 11051; see generally,
Arg. VI, post [arguing trial court erred in failing to instruct on duress].) In
contrast to Davenport, jurors would have naturally wondered why appellant
did not testify to this extremely important defense evidence after they heard
the promise ofhis testimony. “[T]he first thing the ultimately disappointed
jurors would believe ... would be that” appellant was “unwilling,viz.,
unable,to live up to [his] billing. This they would not forget.” (Anderson
v. Butler, supra, 858 F.2d 16, 17.) This is especially so since, unlike in
Davenport, appellant did not take the stand but exercised his constitutional
26
right to remain silent. Because Davenportis readily distinguishable from
appellant’s case, its holding does not govern.
Indeed, Davenportis significant becauseit illustrates circumstances
under whichjurors are unlikely to draw an adverse inference form an
unfilled promise of a witness’s testimony: the witnesstestifies, there is no
evidentiary gap between the promised testimony and the evidence
presented, and the testimonyis insignificant. All these factors are missing
in appellant’s case. Therefore, Davenport’s conclusion that jurors were
unlikely to draw an adverse inference from the defendant’s decision to
remain silent does not apply.
3. Jurors Would Have Drawn an Inference Adverse to
Appellant from the Broken Promise of His Testimony.
Appellant’s case closely resembles decisions finding jurors likely to
infer from a broken promise ofwitness testimony that the testimony did not
materialize becauseit is false. (Saesee v. McDonald (9" Cir. 2013) 725
F.3d 1045, 1048-1049; Ouber v. Guarino, supra, 293 F.3d 19; United
States v. Gonzalez-Maldonado (1" Cir. 1997) 115 F.3d 9; Andersonv.
Butler, supra, 858 F.2d 16; McAleese v. Mazurkiewicz (3Cir. 1993) 1
F.3d 159, 166-167; Harris v. Reed (7" Cir. 1990) 894 F.2d 871; State v.
Moorman(1987) 358 S.E.2d 502 [320 N.C. 837].) For example, Harris v.
Reed explains that when counsel’s opening statement “prime[s] the jury to
hear”a particular version of the incident but the witnesses to support it do
nottestify, the jury will likely conclude that they “could notlive up to the
claims madein the opening.” (Harris v. Reed, supra, at p. 879.) Similarly,
Anderson v. Butler providesthat “little is more damaging than tofail to
produce important evidence that had been promised in an opening.... [t]he
first thing that the ultimately disappointed jurors would believe ... would
27
be that the [promised witnesses] were unwilling, viz., unable, to live up to
their billing.” (Anderson v. Butler, supra, at p. 17.) In these cases, certain
factors encourage jurors to draw this damaging inference. Paramount
among them is that the promised testimonyis “specific, significant and
dramatic” (Yeboah-Sefah v. Ficco (1% Cir. 2009) 556 F.3d 53, 78), “critical
to the defense strategy” (Gonzalez-Maldonado, supra, at p. 115), the
defense continues to pursue the same or a closely related strategy even in
the evidence’s omission,as if the omission never happened (Yancey v. Hall
(D.C. Mass. 2002) 237 F.Supp.2d 128, 134; Williams v. Woodford (E.D.
Cal. 2012) 859 F.Supp.2d 1154, 1170), and the failure to call the
witness(es) remains unexplained (Saesee v. McDonald, supra, at p. 1049).
Additionally, if the promised testimony is the defendant’s, it takes on
special significance. When the defendant testifies on his own behalf, “the
impact on the jury can hardly be overestimated. ... When a jury is
promisedthatit will hear the defendant’s story from the defendant’s own
lips, and the defendant then reneges, commonsensesuggests that the
course of trial may be profoundly altered.” (Ouber v. Guarino, supra, at p.
28.) Each of these circumstancesis present in appellant’s case. It follows
that jurors would have inferred that appellant did not testify because his
anticipated testimony that he was coerced wasfalse.®
8 The jurors’ convicting appellant as charged is inconsistent with their
believing that appellant’s outlined testimony was true and appellant
remainedsilent out of fear of testifying to duress or because he was simply
too nervousto testify. (See e.g., People v. Barajas, supra, 145 Cal.App.3d
804, 809-810 [jurors would have accepted as true prosecutor’s opening
statementoutline of testimony ofwitness wholater invokedhis right to
silence in reply to leading questions by the prosecutor implying the truth of
the outlined testimony].) As appellant has demonstrated, his defense that
he acted out of fear and under pressure from the Hodges was a watered-
28
Respondent contendsthat these “broken promise”cases are
distinguishable because they were decided in the context of claims of
ineffective assistance of counsel, not prosecutorial comment on a
defendant’s failure to testify. (RB 37-38.) Respondent, however,fails to
explain why this should rob them oftheir persuasive force. Appellant cited
them as examples ofwhenjurors are likely to draw adverse inferences
against a defendant because promised testimony never materializes. The
circumstances these cases highlight as encouraging jurors to draw an
adverse inference were present in appellant’s case even though the
prosecutor, not defense counsel, promised appellant’s testimony in opening
statement. Under the unusual circumstancesofthis case, the testimony that
the prosecutor promised from appellant was, on its face, extremely helpful
to appellant’s defense while, at the same time, it was devastating to the
Hodges. Respondentfails to explain why the prosecutor’s promising
appellant’s testimony rather than defense counsel’s doing so compels the
conclusion that jurors would not have drawn an adverse inference against
appellant due to his assertion of his right to silence. It should not.
In Lockett v. Ohio (1978) 438 U.S. 586, the United States Supreme
Court analogized defense counsel’s broken promise ofhis client’s
testimony to prosecutorial Griffin error. There, the defendant complained
that the prosecutor’s commentsthat certain government evidence was
“unrefuted” and “uncontradicted” constituted Griffin error. The high court
refused to grant relief because defense counsel’s conduct had already drawn
downversion of a duress defense. (AOB,Arg.I, § C.5.b, 137-140.) If
jurors tended to believe appellant’s promised testimony, they would have
presumably credited his fear and pressure defense. The verdict showsthat
they did not.
29
the jury’s attention to the defendant’s decision notto testify in a way that
wassure to encourage jurors to draw a negative inference from the
defendant’s silence. Lockett observed that defense counsel “clearly focused
the jury attention on [the defendant’s] silence” by “outlining her
contemplated defense in his opening statementand... stating to the court
and jury near the close of the case, that Lockett would be the ‘next
witness.” (/d. at p. 595.) The defendant did not testify. bid.) The
opinion analogized defense counsel’s broken promise of the defendant’s
testimony to Griffin error by the prosecutor. It stated, “the prosecutor’s
closing remarks added nothingto the impression that had already been
created by Lockett’s refusal to testify after the jury had been promised a
defense by her lawyer andtold that Lockett would take the stand.”? (bid)
In Williams v. Woodford , supra, 859 F.Supp.2d 1154, the federal
district court also found a defense attorney’s broken promiseofhis client’s
testimony comparable to Griffin error committed by a prosecutor. The
court held that defense counsel’s promise of the defendant’s testimony
confirming his alibi and refuting certain governmentevidence constituted
ineffective assistance of counsel. It stated, “[b]y shining a light on [the
defendant’s] failure to testify, counsel undermined the presumption of
innocence and madeit much harderforjurors not to hold defendant’s
silence against him.” (/d. at p. 1164.) Williams then explicitly drew an
9 Appellant relied on Lockett in his openingbriefto assert that a broken
promise of a defendant’s testimony can be tantamount to Griffin error.
(AOB 109-110.) Respondentdistinguishes Lockett as “too general” a case
to warrant a grantofrelief. (RB, pp. 38-39.) Appellant did not rely on
Lockett, standing alone, but cited it to show how “broken promise” and
Griffin error cases relate. He maintains that, together, these two lines of
authority establish prejudicialerror.
30
analogy between defense counsel’s ineffective assistance and a prosecutor’s
commission of Griffin error. It continued, “[h]ad the prosecutor called
attention to Williams’s failure to testify, he would clearly have violated
Williams’s Fifth Amendmentprivilege against incrimination.” (bid,
citing Griffin v. California, supra, 380 U.S. 609.) Lockett and Williams
indicate that a defense attorney’s broken promise of the defendant’s
testimony encourages the same negative inference invited by a prosecutor’s
impermissible comment on a defendant’s decision to remain silent.
United States v. Gonzalez-Maldonado, supra, 115 F.3d is also
_ instructive. As appellant explained (see AOB 119), there,the trial court
madea pretrial ruling that certain psychiatric testimony was admissible.
Defense counsel relied on the ruling and mentioned the anticipated
testimony in opening statement. Subsequently,thetrial court reversed its
ruling and excluded the evidence. (/d. at p. 14.) Gonzalez-Maldonado
granted relief due to the broken promise ofthis testimony even though the
error wasattributable to the trial court, not defense counsel’s ineffective
assistance. (/d. at pp. 14-15.) It found Anderson v. Butler, supra, 858 F.2d
15, an ineffective assistance of counsel case, persuasive. Regardless of
who wasto blame, reasoned Gonzalez-Maldonado, the effect on the jurors
wasthe same as in Anderson v. Butler: the jurors were apt to draw the
adverse inference that the witness did not appear because the promised
testimony wasfalse, and, thus,“the defense was flawed.” (/d. at p. 15.)
Therefore,it is appropriate to consider “broken promise”cases as bearing
on the nature of the inference that jurors would have drawn from the broken
promise of appellant’s testimony.
Appellant does not argue that, standing alone,his silence encouraged
jurors to draw an adverse inference against him. But because appellant
31
invoked his absolute right to remain silent burdened by the prosecutor’s
promise ofhis testimony,it did. The prosecutor’s claim that appellant
wouldtestify to dramatic and highly significant events drew the jurors’
attention to appellant’s decision to remain silent in a mannerthat
encouragedjurors to draw a negative inference against appellant. (Williams
v. Woodford, supra, 859 F.Supp.2d 1154, 1164; Ouber v. Guarino, supra,
293 F.3d 19, 27.) It invited the inference that appellant did not testify as
expected because his testimony wasfalse. (Williams, supra, at p. 1164.)
Whena prosecutor’s remarks encourage jurors to draw an inference adverse
to a defendant dueto his invocation ofhis right to silence, this violates the
Fifth Amendment. Part and parcel of the Fifth Amendment guaranteeis the
right to invokeit freely, unburdened by adverse consequences. (Griffin v.
California, supra, 380 U.S. 609, 614 [it is impermissible to penalize a
defendantfor his right to silence “by makingits assertion costly”]; see also
Salinas v. Texas (2013) 133 S.Ct. 2174, 2190 (Breyer, J., dissenting) [5™
amend.prohibits “forcing [the defendant] to choose betweenincrimination
through speech and incrimination through silence”’]; Brooks v. Tennessee
(1972) 406 U.S. 605 [government cannot “cast[] a heavy burden” on
defendant’s right to remain silent by requiring defendantto testify first or
not at all].) The prosecutor’s promise of appellant’s testimony burdened
appellant’s assertion of his right to silence by inviting jurors to use his
silence against him.
Respondent emphasizesthat the prosecutor did not explicitly
comment on appellant’s exercise of his right to remain silent. (RB 35, 38.)
The prosecutor did not need to. An indirect commentinviting an adverse
inference is constitutionally impermissible. (People v. Taylor (2010) 48
Cal.4" 574, 632 [5" amend.“prohibits a prosecutor from commenting,
directly or indirectly, on a defendant’s decision notto testify”].) The
32
prosecutor’s broken promise of appellant’s testimony was a “speaking
silence” that was the functional equivalent of an adverse comment on
appellant’s assertion of his Fifth Amendmentright. (See Andersonv.
Butler, supra, 858 F.2d 16, 18 [promised witnesses’ failure to testify was
“surely a speaking silence” which caused jurors to draw a “heavy
inference” against the defense]; see also Lockett v. Ohio, supra, 438 U.S.
586, 595; Williams v. Woodford, supra, 859 F.Supp.2d 1154, 1164.)
4, The Court’s Limiting Instructions Were Inadequate to
Prevent Jurors from Drawing a Negative Inference from
Appellant’s Exercise of His Right to Silence.
Respondentalso arguesthat there was no reasonable likelihood
jurors would have drawnan adverse inference against appellant because
they were instructed not to under a modified version of CALJIC No. 2.60.
(RB 35-36.) Appellant explained at length in his opening briefwhy
CALJIC No. 2.60 wasinsufficient to stop jurors from drawing an inference
harmful to appellant from his decision to remain silent. (AOB 140-147.)
As appellant argued, the pattern version of CALJIC No.2.60 is not
designed to cure Griffin error but to instruct jurors not to draw any adverse
inference when a defendant remainssilent in the absence of such error.
Whenjurors are encouraged to draw an adverse inference from the
defendant’s invocation ofsilence, more is at issue,i.e., “the totality of the
opening and the failure to follow through.” (Ouber v. Guarino, supra, 293
F.3d 19, 35.) The pattern instruction does not address this. (/bid.; AOB
141-142.)
The first sentence ofthe paragraph added to modify the pattern
instruction did, however. It told jurors, “[y]ou are further instructed that
any references in the prosecutor’s opening statement concerning the
33
expected content of the testimony of the defendant is to be disregarded and
not enter into your deliberations in any way.” (31RT 11112; 2CT 587.)
This sentence, however, was inadequate to accomplish its objective for a
numberofreasons.
It was given two and one-half days after both sides rested without
appellant taking the stand. (2CT 518, 31RT 11112.) This period gave
jurors plenty of time to draw an adverse inference from appellant’s silence
and to have the inferencesolidify in their minds. The time lapse
significantly diminished the instruction’s palliative effect. (See Lesko v.
Lehman (3" Cir. 1991) 925 F.2d 1527, 1546-1547 [because cautionary
instruction was not “immediate,” it did not render harmless the prosecutor’s
improper remarks].) Respondent arguesthat the time lapse does not matter
because, prior to the prosecutor’s opening statement, the court instructed
the jurors that opening statements are not evidence. (RB 44, citing 15RT
6297.) That the prosecutor’s remarks in opening statement were not
evidence did not block the jurors from drawing an adverse inference.
Jurors would have drawnit due to the chasm betweenthe evidencethat the
prosecutor promised and the properly admitted evidence that wasactually
presented. Drawing the inference did not depend on jurors viewing the
prosecutor’s description of appellant’s testimony as actual evidence. To the
contrary, it involved jurors drawing an inference extraneous to the evidence
from the /ack of evidence presented: because appellant did not testify to
coercion as promised, the promised testimony mustbe false.
Additionally, because appellant’s promised testimony was both
dramatic and highly relevant, jurors would have eagerly anticipated it and
been severely disappointed whenit did not materialize. This is especially
so because appellant was oneof only three people (the other two being the
34
Hodges) who couldtestify about what happened. (See Williamsv.
Woodford, supra, 859 F.Supp.2d 1154, 1172-1173 [where promised
testimony is of witness in key position to view events, jurors are more apt
to draw negative inferences from its absence].) His testimony was key to
answering numerous questionsraised by the evidence throughout the
proceedings, including, inter alia, why was appellantso afraid of the
Hodges? (31CCT 9006, 9012.) What happened during the halfhour
between when appellant approached McDade and when McDade wasshot?
(19RT 7583-7586; 31CCT 9020; 16RT 6521, 6558-6559, 6562-6563.)
What did John Hodges do to manipulate appellant? (31CCT 9144-9146,
9154-9156.) How did Terry Hodges makeappellant “kill the
motherfucker” (28RT 10195; 32 CCT 9314) even though appellant was
“chickenshit” and “didn’t have no heart?” (25RT 9498; 32 CCT 9315).
Jurors would have naturally wanted to hear appellant’s testimony,as
promised, to shed light on these and other matters. They would have been
frustrated by appellant’s invocation ofhis rightto silence after they had
been led to believe he wouldtestify.
Moreover, the testimony that the prosecutor outlined in his opening
statement bore a very close resemblance to the evidence that defense
counsel emphasized for appellant’s mental state defense of fear and
pressure. Jurors would have been constantly reminded of the undelivered
testimony when evaluating appellant’s actual defense. They were more
likely to draw an inference adverse to appellant from his failure to testify
because his promised testimony resembled the defense which counsel
pursued. (See, e.g., Williams v. Woodford, supra, 859 F.Supp.2d 1154,
1170 [having been told defendant’s girlfriend would testify she spent the
night with him at his residence and no crime occurredthere, jurors would
naturally wonder whythe girlfriend did not testify when they heard
35
testimony from neighbors, who werefurther from the scene,that they did
not hear any loud noises].) For example, when defense counsel argued that
appellant was referencing the Hodges whenhetold detective Lee he was
still scared (31RT 11287), jurors would havenaturally seen the image,
painted by the prosecutor’s opening statement, of Terry Hodges bearing
downon appellant with a shotgun while John Hodgesput a derringerto
appellant’s chest and told him, “[w]e ain’t leaving no witnesses.” (15RT
6344-6345). They would have seen the same scene whenevaluating
whether Terry Hodges walked away from appellant and McDade,as he told
Leisey, or stayed on the scene to ensure appellant killed. (31RT 11314.) It
was an impossible mental gymnastic for jurors to so frequently encounter
evidence and argument reminiscent of appellant’s promised testimony that
he was coerced without then considering appellant’s failure to testify as
promised. As Williams v. Woodford, supra, 859 F.Supp.2d 1154 observed,
“the promise that [the defendant] would testify and speak extensively about
the circumstances of the case would have madeit nearly impossible for the
jurors to put out of their mindsthe fact that he did not testify.” (Jd. at p.
1173; see also Bruton v. United States, supra, 391 U.S. 123, 131 [“A jury
cannot ‘segregate evidence into separate intellectual boxes’”].) Appellant
argued these points in his opening brief (AOB 141-147), but respondent
does not address them. Respondentoffers only the conclusory assertion
that jurors would have heeded the court’s instruction. (RB 35, 44.) For the
reasonsset forth in appellant’s opening brief, they would not have doneso.
Therefore, the prosecutor’s broken promise that appellant would
testify he killed under duress from the Hodges encouragedjurors to draw
the negative inference that a claim of coercion wasfalse. This violated
appellant’s Fifth Amendmentprivilege against self-incrimination and due
processright to a fundamentally fairtrial.
36
C. The Error Prejudiced Appellant
Respondent argues that appellant was not prejudiced by the
prosecutor’s broken promise of appellant’s testimony by analogizing
appellant’s case to Davenport and contending that there was no reasonable
likelihood jurors construed the prosecutor’s remarks in a prejudicial way,
the trial court’s instructions dissipated any harm and overwhelming
evidence supports the judgment. (RB 41-54.) Respondent’s position fails
to carry the government’s heavy burden of proving beyond a reasonable
doubt that the error did not contribute to the verdict. (Chapman v.
California (1967) 386 U.S. 18, 24; People v. Low (2010) 49 Cal.4" 372,
392-393 [a constitutional violation does not contribute to the verdict under
Chapmanifit is “unimportantin relation to everything else the jury
considered on the issue in question, as revealed in the record’”], citation
omitted.)
1. Davenport Does Not Aid Respondent
In People v. Davenport, supra, 11 Cal.4" 1171, this Court rejected
the defendant’s argumentthat the prosecutor’s “prediction” in opening
statement about the defendant’s testimony and what the defense would be
violated, inter alia, the defendant’s Fifth Amendmentright to remainsilent
by setting jurors up to draw an inference adverse to the defendant if he
remained silent. (/d. at p. 1213.) Davenport addresses this issue in only a
short paragraph. Nowhere does the opinion use any term or legal standard
(such as Chapman) relating to prejudice. (/bid.) In concluding that
Davenport found any error harmless, respondent reads too muchinto the
opinion.
37
Davenportheld that no Fifth Amendmentviolation (error) occurred
without reaching the question ofprejudice. Davenport makesthree points:
(1) the prosecutor’s remarks were a fair comment on the expected evidence,
(2) there is no reasonable likelihood jurors construed them in an
objectionable way, and (3) jurors heard the substance of the defendant’s
testimony from an interrogating police officer whotestified to appellant’s
extrajudicial statements. (People v. Davenport, supra, 11 Cal.41171,
1213.) Although this portion ofDavenport did not so note, there is also a
fourth salient point that the opinion notes elsewhere: the defendant
testified, just not about what the prosecutor predicted. (/d. at p. 1192.) All
these points are most consistent with the opinion simply rejecting that any
error occurred — i.e., rejecting that jurors drew any adverse inference --
without reaching the issue of prejudice.
First, if a prosecutor makes a “fair comment”on the evidence, he
does not make a commentthat is constitutionally impermissible,i.e., a
comment that is erroneous. Second, case law recognizes that the
“reasonable likelihood” standard goes to assessing whether arguably
ambiguous conductor instruction constitutes error. It does not go to
prejudice. (See People v. Frye (1998) 18 Cal.4% 894, 962, disapproved on
other grounds in People v. Doolin (2009) 45 Cal.4" 390, 421, fn. 22
[finding no reasonable likelihood jurors applied instruction in mannerthat
violates the constitution and, therefore, there was noerror]; id. at p. 970
(“To prevail on a claim of prosecutorial misconduct based on remarks to
the jury, the defendant must show a reasonable likelihood the jury
understood or applied the complained-of comments in an improper or
erroneous manner”, italics added; People v. Clair (1992) 2 Cal.4" 629,
662-663 [same].) Third, since jurors heard the substance of the defendant’ s
testimony from evidence of the defendant’s statements, they were unlikely
38
to draw an adverse inference from the discrepancy between what they were
promised and what they heard. Indeed, since the defendanttestified, there
wasno adverse inference for jurors to draw from his silence.
Davenport’s structure also supports that the opinion only addresses
error. After discussing the points addressed above, the opinion shifts to
rejecting two other asserted constitutional violations (errors) alleged in
connection with the prosecutor’s opening remarks, whether the prosecutor’s
statements shifted the burden ofproof or presented the prosecutor as
knowledgeof special facts....” (Davenport, supra, 11 Cal.4" 1171, 1213.)
This indicates that the points discussed above are part ofDavenport's
discussion ofwhether error occurred. Therefore, becauseit discussed only
error, not prejudice, Davenport does not support respondent’s claim of
harmlessness.
Even if assuming, for the sake of argument, that Davenportis
relevant to prejudice, appellant has demonstrated above (§ B, ante) that the
factors which distinguish it from appellant’s case lead to the conclusion, by
wayof contrast, that the defendant there wasnotentitled to relief whereas
appellantis.
2. The Reasonable Likelihood Standard Goesto Error, Not
Prejudice.
Respondent’s next contention is that there was no reasonable
likelihood that jurors construed the prosecutor’s remarksin a prejudicial
way. (RB 41-42.) As appellant has explained above, the reasonable
likelihood standard goes to assessing whethererror occurred, not whetherit
was prejudicial.
39
In any case, respondent’s point is unpersuasive. Respondent argues
that because the prosecutor billed his opening statementas a “preview” of
the evidence (15RT 6304), jurors would have believed that it was “not
infallible” and would not have accordedit “evidentiary weight.” (RB 42.)
The contention misconstrues appellant’s claim. The prosecutor’s broken
promise of appellant’s testimony caused jurors to draw an inference adverse
to the properly admitted evidence which wasextraneoustoit.
Respondent’s point that jurors would not have seen the prosecutor’s
comments as evidence does not address appellant’s claim. Therefore,it
fails to refuteit.
3. The Harm Was Not Cured by the Trial Court’s Limiting
Instruction
Respondentnext arguesthat the court’s directive to jurors to
disregard the prosecutor’s opening statement remarks dispelled any
prejudice that might have resulted from them. Appellant has already
addressed this claim at length in his opening brief (AOB 140-147) and
above (§ B, ante). The instruction was given two and one-half days after
the close of evidence, whichleft jurors plenty of time to draw a negative
inference about appellant’s failure to testify; jurors would have been
seriously disappointed by appellant’s failure to testify because his promised
testimony was dramatic and highly relevant; also, it would have been
impossible for jurors to consider the mental state defense of fear and
pressure which appellant actually presented without also considering the
adverse inference that appellant was not coerced. (AOB 140-147.) In light
of these circumstances, it is unrealistic to expect jurors to have successfully
applied the modification to CALJIC No. 2.60. (See Williams v. Woodford,
supra, 859 F.Supp.2d 1154, 1173 [jurors could not have put out of their
minds the broken promise that the defendant would give extensive].)
40
4. The Effect on the Defense Theory and the Strength of the
Evidence
Respondent’s main point regarding prejudiceis that the evidence of
appellant’s guilt was so strong that even ifjurors drew the negative
inference that appellant was not coerced, it would have made no difference.
(RB 45-54.) Respondent’s position must be rejected. Thetrial court
precluded defense counsel from arguing duress becauseit believed there
waslegally insufficient evidence to warrant an instruction on it. 31RT
11052, 11055.) Instead, appellant presented a mental state defense closely
related to coercion. Counsel argued that the Hodges brothers caused
appellant to experience such fear and feel such pressure that these emotions
clouded appellant’s mindto the degree that appellant did not actually form
the mental state elements of specific intent to rob and deliberation and
premeditation. (E.g., 31RT 11249-11250.) The evidence gave jurors a
solid basis for entertaining a reasonable doubt concerning appellant’s
mental state as necessary for conviction for robbery andfirst degree
murder. Fear and pressure are what a person acting under duress would
experience. Because appellant’s defense theory wasso closely related to
duress, jurors’ drawing an adverse inference that appellant did not act under
duress undermined appellant’s efforts to raise a reasonable doubt
concerning his mentalstate.
Respondent barely acknowledges appellant’s position even though
appellant clearly articulated it in his opening brief. (RB 54, citing AOB
137-140.) Respondentreplies that jurors would not have drawn any
adverse inference due to the court’s limiting instruction. (RB 54.)
Appellant has already demonstrated above whythis is incorrect. (See §§
B.4 & C.3, ante.) Additionally, respondent contends that overwhelming
evidence of appellant’s guilt rendered any error inconsequential. (RB 54.)
41
The claim is unpersuasive. There wasa solid basis for jurors to entertain a
reasonable doubt about appellant’s mental state.
Appellant told detective Lee that he could not reveal everything that
happenedout of deep fear that the Hodges would harm his family. He said,
“T’m not, not gonna give everything I know” because “I don’t’ want my
family ... done up...” (30CCT 8978.) He also said, “I don’t want nothing
done to my family .... I’m not, not gonna give everything I know.....”
(30CCT 8981.)
Additionally, appellant repeatedly told Lee that he was scared when
he shot McDade. (31CCT 9001 [“I'm scared.I'm,I'm like this. I don't
know what, I don't know what to do”]; 31CCT 9002 [“I was scared ... [Js]
I waslike, just scared ... [{] I was already just scared.... I was just
scared”’]; 9003 [“I was scared”].) Appellant also stated multiple times that
he was underpressure. (30CCT 9000, 31CCT 9002, 9003, 9019.) Defense
counsel argued that although appellant told Lee he was scared of andfelt
pressure from McDade,this made no sense; appellant wasreally scared of
and pressured by the Hodges, whom heshielded out of fear. (31RT 11255-
11257, 11285-11286, 11334.) John Hodges told Banks that the youngster
“took it,” which meantthat appellant accepted all blame for the crimes.
(31CCT 9142.) Appellant told Lee that even as he spoke with him, he was
“still scared.” (31CCT 9006.) Defense counsel argued that appellant’s
being “still scared” pointed to the Hodgesas the source ofhis fear. (31RT
11285-11286, 11334.)
The evidence revealed an obviousbasis for appellant’s fear. The
Hodges wereolder and bigger than appellant. Appellant was only 18 years
old and weighed 130 pounds,and one ofhis typical associates was even
younger, a boy who wasonly 15. (23RT 8850, 31CCT 9022.) John
42
appeared around 36 and weighed 200 pounds, and Terry appearedinhis
early 20’s and weighted 250 to 300 pounds. (30CCT 8967, 8980, 31CCT
9295; People’s Ex. No. T-49A.) The Hodges were also more criminally
sophisticated than appellant. Appellant told Lee that he had never been
involved in anything like the charged crimes and he did not know whatto
do. (31CCT 9001-9002.) In contrast, John had beento prisonatleast
twice. (25RT 9471, 9472.) Terry was a drug dealer who was customarily
armed and owned a shotgun. (32CCT 9303, 9311.) This supported that
Terry had a shotgun on the night of the crimes. Banks believed that John
was armed as well. (31CCT 9155.) The brothers had a reputation for
committing drive-by shootings, and Terry was known as an “enforcer.”
(32CCT 9311.) He told Leisey, “we don’t play.” (28RT 10195; 32CCT
9314.)
Respondent argues that appellant’s incriminating the Hodgesto the
extent that he did showedthat he did not really fear them. (RB 52.) This
overlooks that appellant waseasily led by others, including Detective Lee.
(See 31CCT 9270.) Further, although appellant did incriminate the
Hodges, he held back additional informationfurther incriminating them.
(30CCT 8978, 8981, 31CCT 9012.) It did not serve appellant to merely
hint at its existence. This supports that appellant truly feared them, as he
said.
Notonly did appellant tell Lee he was withholding information,
appellant madesimilar remarksto Littlejohn. Accordingto Littlejohn,
appellant said that there was more to the story than anyone knew. Hesaid,
“nobodyreally know the truth about whyI killed him, the papers gotit all
wrong.’” (31CCT 9263.) He also said, “’nobody knew nothing, he was
underpressure.’” (31 CCT 9269.) Respondentfails to address these
43
remarks. Indeed, respondent arguesthat Littlejohn was a generally credible
witness. (RB 46.)
The evidence also supported that John and Terry Hodges
manipulated appellant and bent him to their will. Plenty of evidence
supported that appellant did not wantto kill McDade. (25RT 9426; 30RT
8983-8984, 32CCT 9315 [appellant was a “wimp”and “chicken-shit” and
“didn’t have no heart” when it came time to commit the crimes]; see also
31CCT 9015, 9018-9019, 9146, 9151.) According to Banks, John admitted
that he had manipulated a “youngster”into doing his dirty work (31CCT
9146, 9151, 9154, 25RT 9426.) The youngster did not wantto kill, but
John gave the order. (31CCT 9146; see also 31CCT 9151, 25RT 9426.)
Terry told Leisey he was the “Big Daddy”on the scene and he hadto lead
appellant like a child to “just whack the motherfucker.” (25RT 9494, 27RT
10034; see also 25RT 9498 & 32CCT 9315.)
As the foregoing shows, appellant’s efforts to raise a reasonable
doubt that he harbored the necessary mental state for robbery andfirst
degree murder were groundedin the evidence. Contrary to respondent’s
claims, this was not an open andshutcase.
This is so even though there was substantial evidence that appellant
wasthe shooter and he considered robbing McDade"before he associated
10 Respondentasserts that appellant’s intent to rob McDade was
demonstrated by evidence that (1) appellant warned KFC employee
Martinez to be careful about making a deposit on Halloween because it was
a wild night and something could happen, and (2) appellant stoppedcalling
Kim Scott after telling her that he would not want her present if he robbed
KFC. (RB, pp. 50.) The inference that appellant was contemplating
robbing KFC cannotlogically be drawn from this evidence. Warning
44
with the Hodges. Appellant told Lee and Littlejohn that he wasthe shooter.
(31CCT 9003, 9263.) He waslinked to the gun recovered through
Littlejohn, which waslikely used in the crimes. (1ORT 7543-7545, 28RT
10403-10405, 10148-10151.) In November and Decemberof 1991,
appellant also told Kim Scott that he wanted to “get y’all” and rob KFC.
(18RT 7255-7258, 7286, 7350.) After he began associating with Terry and
John, appellant continued to harborinterest in robbing KFC. (31CCT
9015.) Even so, appellant never wanted to kill McDade. (25RT 9426;
30RT 8983-8984.) He looked up to McDade and respected him and hoped
one day to get his job back. (18RT 7290-7291.)
Appellant was a mentally slow, immature 18 year-old at the time of
the events at issue. (23RT 8850, 28RT 10412, 10431; see also 31RT
11255-11256 [counsel’s argument].) Rational jurors could have seen
appellant as full of bravado and much moreofa talker than an actor.
(18RT 7286, 7288-7289; 31CCT 9261, 9263 [appellant bragsto girls after
crime]; see also 31RT 11275, 11331 [counsel’s closing remarks].) As
defense counsel argued, appellant was a “sneak thief,”i.e., he was willing
to steal from the KFC safe, but nothing indicated he wasa violent
individual willing to confront someone and rob him at gunpoint. (31RT
11276, 11326-11327.) Although appellant talked about robbing KFC to
Kim Scott a couple of months before the charged crimes, appellant did not
put his words into action. Scott testified that she thought he was joking and
did not take him seriously. (18RT 7327-28; 21RT 8288-89.) The arrival of
someoneto be careful does not mean the person giving the warningis
considering victimizing the person he warns. Further, if appellant did not
want Scott present, he would have called to find out her whereabouts or
warn her rather than breaking off contact.
45
the Hodges changedthings. It was only after they were on the scenethat
appellant confronted McDade. (30CCT 8979-8981, 31CCT 9012.) As
Littlejohn testified, appellant was “weak”and “follower” and the other guys
must have forced him to do it. (31CCT 9270, 9288.) The Hodges’
manipulating appellant, coaching him, leading him like a child, putting him
into a state of fear and under pressure is whatit took to make appellant
commit the crimes.
Rationaljurors could have seen appellant as an immature,
unsophisticated youth who was ambivalent about what to do even when he
approached McDade. Appellant had onefoot in the law-abiding world,as
represented by KFC. He desperately wanted his job back because, as he
said, it was the only job he was ever good at. (30CCT 8992, 8999.) He
looked up to and respected McDade. (18RT 7290-7291.) When Detective
Lee suggested appellant wanted to work at KFC againto steal from it,
appellant vehemently denied the accusation. (30CCT 8991-8992.) Instead,
he stressed how hard and well he worked. (30CCT 8996.) Calvin,his
brother, was also pressuring him to get ajob. (30CCT 8999.)
On the other hand, appellant was attracted to the criminal lifestyle as
represented by the Hodges. He showed off a gun to Ruben Martinez and
Junnell Rodriquez as they worked at KFC around Halloween of 1991.!!
(16RT 6570-6571, 6616-6617, 6722-6723.) He displayed a gun and threw
bullets at a park trashcan in the company ofEversole and Brogdon. (17RT
1! Respondentclaimsthat the gun appellant displayed could have been
the gun used in the charged crimes. (RB 47.) For the reasons advanced in
his opening brief (AOB,Arg. V, 266-267, 272) and herein (see Arg. VII,
post), this is wrong. The evidence showsthat the gun appellant displayed
wasnot used in the charged crimes.
46
6853, 6918-6919.) He talked about robbing KFC to Kim Scott. (18RT
7255-7258, 7286, 7350.) He associated with Terry Hodges, a drug dealer
and “enforcer,” and eventually John Hodges, who had beento prison
multiple times. (18RT 7255-7258, 7286, 7350, 25RT 9471, 9472; 32CCT
9303, 9311.)
Jurors bring their life experiences to deliberations. (Peoplev.
Leonard (2007) 40 Cal.4th 1370, 1414.) They had cause to see appellant as
a youth who was struggling to form his identity amidst these conflicting
worlds. In Roper v. Simmons (2005) 543 U.S. 551, the United States
Supreme Court banned imposition of the death penalty on juvenile killers.!?
(Id. at pp. 568, 578.) In reaching this conclusion, the court recounted
certain signaturequalities of youth and observed that they “do not
disappear when an individual turns 18 but instead gradually subside over
time. (Ud. at pp. 570, 574.) Key amongtheseis a search for identity. (/d.
at p. 570.) Youths also lack maturity, have a diminished sense of
responsibility and are prone to reckless behavior. (Jbid.) Additionally,
youths are especially vulnerable to outside influences, particularly peer
pressure, and lack the resources to extricate themselves from harmful
environments. (/bid.) Because jurors bring their life experiences and
commonsenseto their roles as fact-finders, they could have easily seen
appellant as searching for his identity and as undecided about whatto do
when he encountered McDade — go downthestraight or the criminal path?
Being undecided about whetherto rob andkill is different from actually
harboring the specific intent to commit these crimes.
12 Hadappellant been born only oneyear later, Roper v. Simmons would
prohibit the State from sentencing him to death.
47
Reasonable, fair-minded jurors could have seen the evidencein this
nuancedlight rather than in respondent’s simplistic view. Ifthe jurors did,
they had solid cause to question whether appellant’s mind became so
clouded with fear and pressure from the Hodgesthat appellant did not
necessarily form the mental states required for the robbery andfirst degree
murder ofMcDade. While the evidence of appellant’s guilt for the crimes
wascertainly substantial, it was not so “overwhelming”that this Court can
say beyond a reasonable doubt that a verdict more favorable to appellant
wasout ofthe question.
The adverse inference jurors would have drawn concerning
appellant’s undelivered testimony, that appellant’s claim that he acted due
to duress was false, would have severely hampered to effectiveness of
appellant’s mental state defense. Appellant’s efforts to raise a reasonable
doubt about whether he harbored the mental state for robbery and murder
was but a shadow ofan actual duress defense such as outlined in
appellant’s promised testimony.'? Jurors notice when they are promised
significant and dramatic defense testimony but it never materializes. They
also notice when the defense actually presented is a weaker substitute for
the promised testimony whichtheyfail to hear.
The court madethese points in Williams v. Woodford, supra, 859
F.Supp.2d 1154. There, defense counsel promised jurors that the defendant
13 Appellant disagrees with respondent’s conclusionthat the recordis
devoid of evidence that appellant acted under duress. (RB 46-47, 54.) He
maintains that the evidence waslegally sufficient to require instruction on
the defense. (AOB,Arg. VI, 241-263; see also Arg. VI, post.)
Respondent’s point, however, underscores the gap between whatthe jurors
were promised and the evidence that was actually presented.
48
andhis girlfriend would testify to alibi and the defendant’s testimony
would also explain certain prosecution evidence. (Ud. at pp. 1162-1163.)
Counselfailed to call either to the stand. Ud. at p. 1163.) Then, “[ijn
marked contrast to counsel’s opening statement, which consists largely of
promises of ... exculpatory evidence, his summation consists entirely of
trying to poke holes in the prosecution’s case. ... But priming the jury for
the former and delivering only thelatter is a recipe for disaster.” (Id. at p.
1170.) The court explained that once a jury has heard a promise of
affirmative exculpatory evidence, then,if all that is presented is an
argument that the governmenthas failed to carry its burden ofproof, it
becomesvery difficult for jurors to accept that argument. (Ibid.) “The jury
will draw negative inferences form the unexplained absenceofthe
promised testimony, and these inferences will fill any gaps that might
otherwise exist in the prosecution’s case.” (Ibid.)
Here, once jurors drew the inference that appellant did not act in
duress,i.e., in response to immediate threats against his life by the Hodges,
it was highly likely that they would also infer that appellant did not act out
of fear and underpressure from the Hodges. The claim of duress about
which jurors drew a negative inference was quite closely related to the
mental state defense which appellant presented. The governmentfails to
show beyond a reasonable doubt that jurors’ rejection of the former had no
effect on their rejection of the latter. As noted, a person whoacts under
duress will almost invariably feel fear and pressure. Jurors could well have
reasoned that because appellant did not act under duress, he did not feel
overwhelming fear and pressure when he encountered McDade. It cannot
be said beyond a reasonable doubtthat, in the absence of the adverse
inference jurors drew from appellant’s silence, the defense’s and
prosecution’s cases would have remainedessentially the same. (United
49
States v. Inzunza (9™ Cir. 2011) 638 F.3d 1006, 1023.) Appellant’s efforts
to raise a reasonable doubt were greatly hampered, and this madeit easier
for the State to prove its case. The governmentoffers a simplistic, black
and white view ofthe evidence which turnsa blind eye to this dynamic.
While simplicity has its appeal, in this case it is unpersuasive andfails to
provethat the broken promise of appellant’s testimony was harmless
beyond a reasonable doubt.
50
I.
THE JUDGMENT MUST BE REVERSED BECAUSE
THE TRIAL COURT CONDUCTED AN INADEQUATE
INQUIRY INTO THE EXISTENCE OF AN
IRRECONCILABLE CONFLICT BETWEEN
APPELLANT AND TRIAL COUNSEL.
Appellant demonstrated in his opening brief that the trial court erred
in failing to conduct an adequate inquiry during his Marsden hearings
(People v. Marsden (1970) 2 Cal.3d 118) into whether appellant and
counsel were embroiled in an irreconcilable conflict despite strong
indications that they were. Appellant’s complaints at the Marsden
hearings, combined withtrial developments of which the court was well
aware, clearly suggested that the attorney-client relationship had broken
down over whether appellant would testify against the Hodges brothers and
appellant’s perception that his defense attorneys were siding with the
prosecution. Becausethetrial court’s inquiry into this matter was
insufficient, the judgment must be reversed. (AOB 149-167.) Respondent
disagrees, (RB 55-65.)
“To compel one charged with [a] grievous crimeto undergoa trial
with the assistance of an attorney with whom he has become embroiled in
[an] irreconcilable conflict is to deprive him ofthe effective assistance of
any counsel whatsoever.” (Brown v. Craven (9" Cir. 1970) 424 F.2d 1166,
1170.) Respondent downplays or simply ignores numerousindications in
the record suggesting that appellant, who wasontrial for his life, did not
trust his attorneys and had groundsto question their loyalty.
Appellant repeatedly complainedto the trial court that his attorneys
had sided with the prosecution. (27RT 10134, 10136, 10628.) He stated
that Castro “threw the case” and had “given the case to the D.A.” (27RT
51
10136.) Appellant explained that he felt “very uncomfortable” with how
close Castro was to the prosecutor. (27RT 10134.) Appellant expressed his
mistrust of the cozy relationship between defense counsel andthe district
attorney: “[T]his don’t seem like they doing they — The defense job. They
prosecuting; I mean,I see that he stipulate and agree with everything that
[the prosecutor] says, and how do I knowthatif [the prosecutor] say do
something wrong to me, he won’tstipulate to that? That’s chances I can’t
take.” (27RT 10628.) Appellant voiced repeated complaints that counsel
had not filed any motions on his behalf or voiced proper objections. (27RT
10136, 29RT 10572, 10631, 30RT 10886.) Castro himself acknowledged
that appellant had expressed his “misgivings” to him on “a numberof
occasions” and this caused Castroto feel “very ... worried” that appellant
mistrusted him. (27RT 10135.)
The attorneys for the Hodges brothers certainly helped fuel
appellant’s perceptions. Appellant heard them frequently call his counsel
an additional prosecutor (SRT 2059-2060, 27RT 9966, 29RT 10562) and
accused the prosecutor and defense counsel of collusion (17RT 6807, 15RT
6274, 29RT 10695). For example, Sherriff noted that Castro’s actions were
detrimental to appellant and would workto “secure the death penalty”for
appellant and for the Hodges. Hesaid, “if Mr. Castro continuesto try to be
a prosecutor and work with the State of California to try to secure ... the
death penalty forall three of these individuals, I’m not going to participate
in it. [[] And what I see him doingis doing that to his client, and thatis
whatI told him.” (27RT 9966.)
Respondentpoints out that “an irreconcilable conflict is rarely
established” and cites this Court’s observation that a defendant’s mistrust in
or inability to get along with his attorney cannot give him “veto power”
52
over whohis appointed counsel is. (RB 60, citing People v. Jackson (2009)
45 Cal.4" 662, 688.) While this may beso, it does not address appellant’s
argument. Appellant contended notthat the trial court had to appoint
substitute counsel due to an irreconcilable conflict but, rather, that it needed
to conduct an appropriate inquiry into whether such a conflict existed in
orderto intelligently rule on whether substitute counsel was necessary.
Simply becauseirreconcilable conflicts may be rare does not excusea trial
court’s duty to inquire into whether one exists in the case beforeit.
Likewise, a general concern that criminal defendants not be given “veto
power”over appointmentof counsel should not thwart legitimate inquiry
into whetherthe constitutional right to effective assistance has been
compromised in a specific case.
Respondent’s attempt to dismiss the distrust which appellant voiced
about his counsel as merely a disagreementovertrialtacticsis
unpersuasive. (RB 61.) An attorney and a client may disagree about how
to approach a case withoutthe disagreement blossoming into an
irreconcilable conflict. On the other hand, a disagreement abouttactics
may be severe enoughto signal a complete breakdown ofthe attorney-
client relationship. (People v. Cole (2004) 33 Cal.4 1168, 1193; People v.
Robles (1970) 2 Cal.3d 205, 215 [same, in context of disagreement about
defendant’s testifying].) Here, several highly unusual circumstances,
affecting fundamental aspects of the attorney-client relationship, combined
to threaten to irrevocably poison appellant’s relationship with his attorneys.
Oneofcounsel’s most fundamental duties is to safeguard client
confidences. (People v. Navarro (2006) 138 Cal.App.4" 146, 156-157.)
Asthetrial court was aware, Castro turned over appellant’s statement about
what happenedon the night at issue to appellant’s adversary, the
53
prosecutor, who wasintent on convicting appellant and sentencing him to
death. (1SRT 6267, 31RT 11340; 29CCT 8486.) Castro did so without
obtaining any consideration for appellant. (14RT 5954-5956.) Counsel’s
conduct raised serious concerns about whether counsel wasacting as a
zealous advocate on appellant’s behalf. Although young, mentally slow
and uneducated (23RT 8850, 28RT 10412, 10431, 31RT 11960-11962),
appellant sensed that counsel wasnotprotecting his interests. Thetrial
court should have realized that something much deeper than a mere
disagreement abouttrial tactics brewed underneath appellant’s complaints.
Appellant had understandable reasonsto fear that his attorneys were
disloyal to him. It should have inquired to determineif appellant’s trust in
them had been so shattered that effective representation had been
compromised.
Respondentattempts to blame appellant for the situation by
contending that appellant first promised counsel he would testify and then
backed out of his “agreement,” thereby causing friction with his attorneys.
(RB 62-62.) Respondent arguesthat if appellant’s own “intransigence and
failure to cooperate” causedhis difficulties with counsel, appellant
deserved the consequencesofhis behavior. (RB 62.) Respondent’s
assumption that if a defendant contributes to his problems with counsel he
must suffer the consequence of being represented by counsel with whom he
has become embroiled in an irreconcilable conflict is questionable. For
example, in Daniels v. Woodford (9" Cir. 2005) 428 F.3d 1181, the
defendant’s paranoid mental state contributed to the breakdownofthe
attorney-client relationship. (/d. at p. 1197.) Nevertheless, the reviewing
court observed, “Daniels's paranoia led him particularly to distrust a lawyer
whohad spent mostofhis career as a prosecutor and whom he thought was
appointed to see that he was convicted and sentenced to death. Although
54
Daniels's belief may have been unwarranted, the court still had an
obligation to try to provide counsel that Daniels would trust.” (/d. at p.
1199.)
Respondent’s claim that appellant was to blameforhis difficulties
with counsel should be rejected. Respondent fails to point to any statement
by appellant acknowledging that he unequivocally agreedtotestify.
Instead, respondentrelies on statements by his attorneys reflecting their
belief and desire that he would take the stand. (RB 62, citing 30RT 10886-
10888.) Castro’s remarksare particularly telling ofhow he and Holmes
approachedthe issue of appellant’s testifying. Castro told the court that he
and Holmesadopted a defense strategy which depended on appellant’s
testifying “regardless of what [appellant’s] desires were” because this was
“the only possible defense” which they could imagine. (30RT 10887,
emphasis added.) Castro’s cavalierattitude regarding appellant’s right to
remain silent so obvious that Macias criticized defense counselbytelling
the court, “I believe that the prosecutor and counsel to Mr. Powell have
agreed among themselves, not necessarily to the inclusion of Mr. Powell,
that he would testify.” (17RT 6807.) Appellant’s attorneys apparently
believed that they could makeappellantto testify even if he did not wantto.
Counsel knew that appellant was mentally slow, uneducated and, not
only young, but especially young for his age. (23RT 8850, 28RT 10412,
10431, 31RT 11960-11962; 31CCT 9022; see 31RT 11256 [Castro argues
that appellant was a “boy” who acted youngerand associated with
Coleman, who was younger than he was].) They also characterized him as
someone who wanted to please others and easily succumbed to more
forceful personalities. (31RT 11294, 11327 [Castro’s closing argument]).
Indeed, the defense they presented was premised on portraying appellant as
55
a “youngster” who had been manipulated by older, more sophisticated
individuals. (31RT 11300-11301, 11309-11310, 11313-11314, 11318
11327, 11334 [Castro’s closing argument].)'4 Appellant was simply no
match for his older, more intelligent and more experienced attorneys. Any
notion that appellant caused his own difficulties or sought to manipulate the
proceedings by vacillating about whether he would testify must be soundly
rejected.
The very characteristics that would have caused counselto believe
that they could convince appellantto testify “regardless of his wishes”
(30RT 10887) were also those that should havealso alerted counsel that
appellant might vacillate about his decision. As a young person,appellant
was prone to exhibit poor judgment and makerash decisionsin his search
for his identity. His ability to plan and foresee the consequencesofhis
actions was undeveloped. (Roper v. Simmons (2005) 543 U.S. 551, 569-
570; Miller v. Alabama (2012) SUS. ___—s[132 S.Ct. 2455, 2464-2465];
see also id. at p. 2464 [decisions recognizing the reduced culpability of
youthful offenders rest largely on commonsense and “what every parent
knows”].) One can expect that these characteristics would have been
4 Appellant’s Marsden motions were brought towardsthe close of the
guilt phase conducted primarily by attorney Castro. Holmes, who wasin
charge ofthe penalty phase, also drove home these same points during the
penalty phase. There, Doctor Nicolastestified for the defense that appellant
had an I.Q. of 75, which meansthat 96 percent ofthe population was more
intellectually capable than appellant was. (34RT 12002, 12006-12007.)
Holmesalso argued that appellant associated with teenage boys a few years
younger than he was, indicating that appellant’s developmental age was
lower than his actual age 36RT 12582-12583), and that he waseasily led
(35RT 12549, 36RT 12592).
56
exacerbated, not ameliorated, by appellant’s intellectual deficiencies.
Additionally, appellant’s trait ofwanting to please others and his tendency
to let more forceful personalities manipulate him suggested that he would
acquiesce to whoever madethe strongest demands upon him in the moment
at hand.
While appellant’s attorneys no doubt believed they could influence
appellantto testify, they also knew full well, as did the trial court and the
otherparties, that appellant wasterrified of the Hodges brothers, whom he
would devastatingly incriminate if he testified to the anticipated defense of
duress. Appellant’s testifying against the Hodges would have been the
ultimate betrayal which, in appellant’s mind, would have labeled him a
snitch and put his and his family’s safety in danger." (See 30CCT 8978,
8981, 31CCT 8997, 9012 [appellant’s statements to Det. Lee regarding fear
for self and family if he incriminated the Hodges]; 15RT 6268 [Macias
argues that appellant’s testimony serves no purposeother than getting
appellant a snitch jacket]; People v. Sisneros (2009) 174 Cal.App.4® 142,
15 Notably, evidence presented at the penalty phase demonstrated that
appellant’s fear of testifying against the Hodges’s brothers was well-
founded. Gang expert Reverend Robert E. Leetestified that older gangsters
“prime” younger gang membersnotto give them upif arrested. (33RT
11889-11890.) As Reverend Lee explained, talking would putthe lives of
the younger gang memberandhis family at risk. (/d. at pp. 11890-11892.)
ReverendLeealsotestified that it is especially dangerous for someone who
is considered a “rat” or “snitch” to go to prison because he will be subject
to sexual assault and assassination there. (Jd. at pp. 11890-11891.) The
testimony of Dr. Nicholas, the defense mental health expert who had
worked with California Youth Authority inmates for many years, also
confirmed that once an individual testifies against another, his reputation as
a “snitch” follows him everywhere — into CYA and the CDC. (34RT
12050.)
57
147 [snitches are in dangerofretribution].) Although appellant had already
incriminated the Hodgesin his statement to Detective Lee, actually
testifying against them would have been far worse. Appellant held back
information from Leeso as notto incriminate the Hodgesas fully as he
could. (31CCT 9012.) Also, to the extent he did incriminate them in his
statement to Lee, so long as he remainedsilentattrial, the prosecution
could not introduce the statement against the Hodges under Aranda-Bruton.
(17RT 6941-6942, 20RT 7726-7727.) This protected the Hodges and, as a
result, protected appellant from the worst consequencesofsnitching. (See
2RT 1014-1015, 1020 [prosecutor admits that without appellant’s
statement, the state’s case against the Hodges was weak].)
Appellant cannot be faulted for exercising his “absolute right not to
testify’” as guaranteed by the Fifth Amendmentprivilege against self-
incrimination. (Salinas v. Texas (2013) _U.S.__—«[133 S.Ct. 2174,
2179], citation omitted.) The right is personal to a criminal defendant, who
may chooseto either testify or remain silent even overhis attorney’s
objection (Rock v. Arkansas (1987) 483 U.S. 44, 49-53) and may do so up
until the close of evidence. (Brooks v. Tennessee (1972) 406 U.S. 605).
Despite Castro’s representations that appellant wouldtestify (e.g., 2RT
1018-1023), everyone, even Castro, recognized there was no way to ensure
that appellant would do so given that he had an absolute right to personally
chooseto assert his right to silence. (2RT 1022, 4RT 1787, 1788). Even if
appellant may haveinitially agreed to testify (see 2RT 1018-1023, 30RT
10819), counsel knew or should have anticipated that appellant might
exercise his right to change his mind.
Although uncertainty about whether appellant would testify
complicated defense counsel’s representation of appellant, appellant’s
58
attorneys had a duty to zealously protect appellant’s rights with undivided
loyalty, including his right not to testify if he choseto assert it. Difficulties
with clients are to be expected in the capital arena, and they do notrelieve
an attorney’s duty to protect his client’s rights. (See, e.g., Hamilton v.
Ayers (9" Cir. 2009) 583 F.3d 1100, 1118-1119 [unless defendant actively
tries to thwart counsel, counsel must investigate penalty phase mitigating
evidence of even an uncooperative client]; ABA Guidelines for the
Appointmentand PerformanceofDefense Counsel in Death Penalty Cases
(2003) pp. 1007-1008 [mental impairments amongcapital clients are to be
expected, and competent counsel must take appropriate measures to work
around them]; id. at p. 1009 [“Often, so called ‘difficult’ clients are the
consequenceofbad lawyering...”].)'® Instead, appellant’s attorneys dug in
their heels and stubbornly insisted until the end oftrial that appellant would
acquiesce to their wishes and take the stand. Counsel inflexibly adopted
this approach and candidly admitted doing so “regardless of what
[appellant’s] desires were.” (30RT 10887, emphasis added.) These
dynamics — appellant’s continuing to assert his right to silence while his
attorneys continued to assert that he would testify — should have alerted the
trial court that the attorney-client relationship may have broken down and
that there was a need for inquiry into the matter.
Respondentassertsthat the trial court did conduct an adequate
inquiry into the existence of an irreconcilable conflict because it allowed
appellant to state his grievances and counsel to respond. (RB 59, 63-64.)
16 Appellant’s case was consistent with the expectation that mental
impairments amongst capital clients are to be expected. In addition to
testifying to appellant’s very low I.Q., Doctor Nicolas testified that
appellant tested high on the anxiety scale (34RT 12030) and on the
paranoid scale. (34RT 12027).
59
Appellant disagrees that merely letting appellant and his attorneys talk was
sufficient. As this Court has observed, when a defendant requests
substitution of counsel, the trial court shall not only permit the defendant to
air his grievances and counselto respond,it shall itself also conduct an
inquiry sufficient to permit it to intelligently rule on whether substitution is
required. (People v. Mungia (2008) 44 Cal.4" 1101, 1128; People v.
Valdez (2004) 32 Cal.4 73, 95-96.) A fundamental break downin the
attorney-client relationship is cause for appointmentof substitute counsel.
(Valdez, supra, at pp. 95-96; People v. Smith (1993) 6 Cal.4" 684, 696.)
Appellant repeatedly told the court that his trust in his attorneys had been
shattered because his attorneys were siding with the prosecutor and not
defending him, and Castro admitted having serious concerns about whether
appellant trusted the defense team. This wassufficient to trigger the trial
court’s duty of inquiry into whether an irreconcilable conflict existed.
(People v. Eastman (2007) 146 Cal.App.4th 688, 695-696 [defendant’s
complaint that counsel “was acting in cahoots with the district attorney”
signaled a potential breakdownin the attorney-client relationship].)
Respondentfails to cite to anywhere in the record wherethetrial court
actually probed whetherthe attorney-client relationship had broken down.
Thetrial court did not do so. (See AOB 162-163.) This waserror.
Respondent attempts to distinguish several cases which appellant
cited in his opening brief: People v. Eastman, supra, 146 Cal.App.4" 688,
People v. Munoz (1974) 41 Cal.App.3d 62, United States v. Adelzo-
Gonzalez (9 Cir. 2001) 268 F.3d 772 and United States v. Walker (9" Cir.
1990) 915 F.2d 480. (RB 63-65.) Since it is extremely rare for any two
cases to ever be factually identical, respondent managesto point out factual
differences between these decisions and appellant’s case. This misses the
mark. Appellant cited these decisions as examples of whena trial court is
60
or should be aware of circumstancesthat trigger its duty of inquiry into an
irreconcilable conflict and analogized the circumstances of his case to them.
For example, in Eastman, supra, the defendant complainedthattrial
counsel “wasacting in cahoots with the district attorney” and the reviewing
court held that this “set forth an arguable case that a fundamental
breakdown had occurredin the attorney-client relationship that required
replacement of counsel.” (146 Cal.App.4" 688, 696-696.) Thetrial court
erred becauseit did not hold a Marsden hearing and thusdid not inquire
into the matter. (/d. at p. 696.) Here, appellant’s complaints that suggested
an irreconcilable breakdownin the attorney-client relationship that required
further inquiry. Appellant likewise complainedthat his attorneys were not
doing their job and were siding with the prosecution. (E.g., 27RT 10124-
10125, 29RT 10628.) Althoughthetrial court held Marsden hearings
where appellant and defense counsel were allowed to speak, the court never
inquired into whether anirreconcilable conflict existed between them. As
in Eastman, this was error.
In Munoz, supra, the defendant made a general complaintthat his.
attorney wasnotfighting for him and asked for substitute counsel. (41
Cal.3d 62, 64-65.) While the trial court listened to the defendantair his
general complaint, it failed to inquire into the matter to flesh it out. (Jbid.)
The reviewing court rejected the Attorney General’s contention that the
trial court discharged its duty. It ruled that the trial court erred by failing to
conduct an inquiry sufficient to permit it to rule intelligently on whether
substitute counsel was required. (/d. at pp. 66-67.) Here, similar to Munoz,
appellant’s complaints against his attorneys were sufficient to trigger the
trial court’s duty of further inquiry. As explained above, the inquiry should
have gone to whether appellant and counsel were embroiled in an
61
irreconcilable conflict. The trial court likewise erred in failing to conduct
an inquiry permittingit to intelligently rule on the matter.
In United States v. Adelzo-Gonzalez, supra, 268 F.3d 772, the Ninth
Circuit found that there were “striking signs of a serious conflict” between
the defendant and his attorney. (/d. at p. 778.) The defendant’s attorney
was openly hostile to the defendant and tried to block him from seeking
substitute counsel. The reviewing court foundthat the district court erred
in only inquiring into whether counsel’s level of representation was
competent and neglecting to inquire into whether there was a fundamental
breakdownin the attorney-client relationship. (/bid.) The Ninth Circuit
ruled similarly in United States v. Walker, supra, 915 F.2d 480, 482-483.
There, the defendant’s complaints andtrial court’s dissatisfaction with the
attorney-client relationship warranted inquiry into not simply counsel’s
competence but also whether the attorney-client relationship had broken
down. Here, there werealso striking signs of a conflict between appellant
and his counsel. Appellant voiced mistrust of counsel and a beliefthat
counsel had sided with the prosecutor. Castro acknowledged appellant’s
mistrust ofhim. Thetrial court was aware of highly unusual circumstances
which supported appellant’s distrust of counsel: without obtaining any
consideration in return, Castro had madeappellant available as a
prosecution witness and had turned over appellant’s confidencesto the
prosecutor bent on appellant’s annihilation. Nevertheless, as in Ade/zo-
Gonzalez, the trial court inquired only into the effectiveness of counsel’s
representation (see AOB 151-152, citing 29RT 10628-10630, 10633) but
neglected to inquire into whetherthe attorney-client relationship had
irreparably broken down.
62
Respondent argues that any error was harmless because it was
unlikely that an inquiry by the trial court would have revealed that appellant
and his attorneys were embroiled in an irreconcilable conflict. (RB 65.)
Respondentpoints out that neither appellant nor his attorneys established
such a conflict when they addressed the court during the Marsden hearings.
(Ibid.) The claim must be rejected. The erroneousfailure to inquire into an
irreconcilable conflict between a defendant and his appointed counselis
subject to Chapman’s stringent prejudice analysis for federal constitutional
error: reversal is required unless the government provesthe error harmless
beyond a reasonable doubt. (People v. Marsden, supra, 2 Cal.3d 118, 126;
People v. Eastman, supra, 146 Cal.App.4" 688, 697.) As noted, there was
cause to concludethat the attorney-client relationship had broken down.
Thetrial court did not inquire into the matter. We can only speculate about
what the omitted inquiry would have revealed. Such speculation cannot
establish to a near certitude that an inquiry would not have revealed an
irreconcilable conflict. Accordingly, the governmenthasfailed to satisfy
its heavy burden ofproving the error harmless beyond a reasonable doubt.
63
III.
APPELLANT’S TRIAL WITH THE HODGES
BROTHERS USING DUAL JURIES RESULTED IN
IDENTIFIABLE PREJUDICE AND GROSS
UNFAIRNESS IN VIOLATION OF DUE PROCESS
AND REQUIRES REVERSAL OF THE JUDGMENT.
In his opening brief, appellant demonstrated that appellant’s trial
with the Hodges brothers by wayofdual juries was prejudicial and grossly
unfair to him. Not only did the dual jury procedureresult in logistical
difficulties (trouble seeing, hearing and remembering the evidence)(see
AOB 197-201), it was the root cause of multiple factors which combined to
undermine appellant’s defense: the prosecutor’s unfulfilled promise that
appellant would testify to acting under duress from the Hodges,the
presentation of antagonistic defenses by appellant and the Hodges, severe
antagonism between counsel, and the Hodges’s mysterious disappearance
form the case. (AOB 180-196). These factors, extraneousto the properly
presented evidence,invited jurors to infer that appellant’s mental state
defense was false. As a result, the judgment must be reversed. (AOB 168-
201.) Respondent argues that any error was forfeited and no prejudice or
gross unfairness resulted. (RB 65-81.)
A. Appellant’s Claim Has Been Preserved for Review
Respondent arguesthat appellant did not adequately object to the
employment of dual juries so as to preserve his challengeto their use for
review. (RB 68-69.) Respondent emphasizes that defense counsel Castro
expressed the desire that appellant be tried jointly with the Hodges brothers
with one or two juries. (Jbid.) The claim mustberejected.
64
The record reflects that appellant unsuccessfully objected to having
his trial severed from that ofthe Hodges brothers. (1RT 81-84.) Trial by
dual juries is an alternative form of severance. (People v. Cummings
(1994) 4 Cal.4 1233, 1287.) Respondenttreats it in this fashion. (E.g.,
RB 70-71.) Therefore, appellant’s objection to severance encompassed an
objectionto trial by dual juries.
Terry Hodges movedtoseverhistrial from appellant’s. (1RT 80.)
The issue was addressedat a pretrial hearing conducted on January 21,
1994. (IRT 80, et seq.) The prosecutor indicated that he sought to
introduce appellant’s statement to Detective Lee, which substantially
incriminates both Hodges. (1RT 81-82.) The court found that the
statement could not be effectively redacted to protect the Hodges’ Aranda-
Bruton rights. (1RT 82.) Once it confirmed the prosecutor’s intention to
introduce appellant’s statement, the court ordered severance. (1RT 81.)
This exchange occurred (ibid. ):
THE COURT:Allright. Then I would grant the
motion to sever based on that. There are Aranda problemsand
he’s [Terry Hodges] entitled to have the trials severed.
Mr. — Mr. Castro, do you have an objection to that?
MR. CASTRO: Oh,yes.
Castro then argued that appellant’s statement could be sanitized to comply
with the Hodges’s Aranda-Bruton concerns. He offered to retrieve a recent
case for the court which he claimed supported his position. (1RT 81-83.)
The prosecutor explained that the State sought to admit additional
statements by appellant which incriminated the Hodges. (1RT 83-84.) The
court declined Castro’s offer to present the recent authority and reiterated
its ruling. (LRT 84.) “No, I’m going to grant the motion to sever.” (Ibid.)
65
Thus,the record reflects that defense counsel Castro objected to appellant’s
trial being severed from that of the Hodges.
Respondent argues that Castro’s objection to severance does not
count when it comesto appellant’s challenge to trial by way of dualjuries.
(RB 69.) Respondent is mistaken. Whenthepretrial judge granted
severance, he did not rule on how it would be put into effect; he left this
decision to the trial judge. (1RT 84-85.) Once severance was granted,it
was necessary to choose from amongseveral possibilities for how it would
be effectuated: (1) appellant would betried alonefirst, and, after his trial,
the Hodges would betried together; (2) appellant, Terry Hodges and John
Hodges would betried in a single proceeding with one jury for appellant
and one jury for the Hodgesbrothers; or (3) appellant and the Hodges
would be tried together by three juries, one for each defendant. (1RT 80-
81, 84-85.)
None ofthese three options would have been possible had the
pretrial judge sustained defense counsel’s objection to severance.
Severance was like a grand river and the three options described above
werelike its tributaries. Defense counsel objected to severance
unsuccessfully. Had the court ruled in his favor, dual juries would not have
been employedto try appellant and the Hodges. Appellant’s objection to
the greater (severance) encompasses an objection to the lesser (trial by way
of dualjuries).
While respondentis correct in pointing out that Castro argued in
favor of dualjuries (RB 68-69), this was only after severance had been
granted. After appellant’s objection to severance wasoverruled, the
defense had to decide what position to take about how severance should be
effectuated. Simply becauseit chose one option(trial by dual juries) out of
66
several available (trial by dual juries, trial by triple juries or a separatetrial
for appellant and a separatetrial for the Hodges) after it had lost on
severance does not mean its challengeto trial by dual juries has been
forfeited. An objection “endeavoring to makethe best of a bad situation for
which[a party] is not responsible” does not waive a claim oferrorin
regardsto the ruling creating it. (People v. Calio (1986) 42 Cal.3d 639,
643.) Respondent argues that appellant’s stated preference for onetrial by
dual juries was not a “defensive move” because counsel consistently stated
that they wanted appellant tried with the Hodges brothers. (RB 69.) The
record showsthat defense counsel wanted appellant tried with the Hodges
in a single trial with one jury. (1RT 81-84.) Appellant expressed a
preference for a single trial by way of dualjuries over totally separate trials
for appellant and for the Hodgesonly after he lost having a single trial with
one jury. Thus, defense counsel’s stated preference for dual juries was a
defensive move which doesnotforfeit appellant’s challenge to the dual jury
procedure for review.
Appellant also argued that a specific, pretrial objection to use of dual
juries should be excused because if appellant had made such an objection,it
would have been overruled. Other than the expectation that the defendants
would present antagonistic defenses, appellant could not have pointed
pretrial to any of the defects resulting from use of dual juries which
appellant urges on review. Such harm only becameapparentas the
proceedings progressed. (United States v Lewis (D.C.Cir. 1983) 716 F.2d
16, 20.) As respondentnotes, antagonistic defense, standing alone, do not
ordinarily warrant any remedy. (RB 72.) Thus, appellant would have been
basically relegated to making a general objection to the use of dual juries.
Asappellant observed, this Court had approvedofuse of dual juries in
general in People v. Harris (1989) 47 Cal.3d 1047, 1075, which was
67
decided several years before appellant’s trial. (AOB 176-177.)
Respondent’sassertion that appellant should havestill objected to use of
dual juries despite Harris ’s general approval of the procedure, misses the
mark. An objection is required to call an error to the superior court’s
attention in order to give the court a chanceto correct it. (Cf. People v.
Scott (1994) 9 Cal.4" 331, 351 [in context of imposing sentence].)
Respondentfails to persuade that the superior court would have ruled
differently had appellant madea general, pretrial objection to use dual
juries.
Respondentalso asserts that defense counsel not only could have but
actually did make a prejudice assessmentpretrial and this is why counsel
adopted his specific position concerning severance and dualjuries. (RB
69.) Respondent confuses counsel’s tactical assessment (to oppose
severance but, upon losing that issue, accept dual juries) with an assessment
of prejudice. As appellant noted, trial using dual juries is not inherently
prejudicial. (See. e.g. People v. Harris, supra, 47 Cal.3d 1047, 1071; AOB
178 & fn. 68 and cases cited therein.) Pretrial, inherent prejudiceis all that
defense counsel could have argued. The superior court would have
overruled such an objection. (/bid.) Appellant’s failure to raise it should,
therefore, be excusedas futile. (People v. Hill (1998) 17 Cal.4" 800, 820.)
In pressing for forfeiture, respondent ignores appellant’s reliance on
People v. Cummings, supra, 4 Cal.4" 1233. (AOB 179.) Cummings
recognizes that even if trial court’s ruling concerning use of dual juries
was proper when it was made,the defendant maystill obtain relief by
showing that the dual jury procedure resulted in “identifiable prejudice or
‘gross unfairness ... such as to deprive the defendantofa fair trial or due
process of law.’ [Citations.]” (4 Cal.4" 1233, 1287.) Because dualjuries
68
are not inherently prejudicial and appellant could have only lodged a
general, pretrial objection to them, the superior court would have properly
denied appellant’s objection. Under Cummings, this does not block
appellant from obtainingrelief by later showing “identifiable prejudice”or
“gross unfairness.” Accordingly, this Court should reach the merits of
appellant’s claim to determine if the employmentof onejury for appellant
and another jury for the Hodgesbrothers violated due process.
Appellant also demonstrated that, even if his objection was
inadequate, this Court could still reach the merits of his challenge to the use
of dual juries becauseit raises a due process challenge to the fundamental
fairness of the proceedings. (AOB 175.) Respondentasserts that the
authority on which appellant relied for this proposition is outdated andcites
this Court’s 1993 decision in People v. Saunders (1993) 5 Cal.4" 580, 590
for what respondentclaimsis the current rule: a constitutional right may be
forfeited by failure to object. (RB 68-69.) Post-Saunders authority makes
clear that a reviewing court may reach the merits of a fundamental, federal
constitutional issue despite lack of objection. (E.g., People v. Hill, supra,
17 Cal.4" 800, 843, fn. 8; People v. Vera (1997) 15 Cal.4"* 269, 276-277;
People v. Bradford (2007) 154 Cal.App.4® 1390,141 1; People v. Sanborn
(2005) 133 Cal.App.4" 1462, 1466.) “A defendantis not precluded from
raising for the first time on appeal a claim asserting the deprivation of
certain fundamental, constitutionalrights. [Citations.]” (Vera, supra,at p.
276.) This includes claims that he defendant has been deprived of a
fundamentally fair proceeding. (Hill, supra, atp. 843, fn. 8 [rejecting
Attorney General’s claim that defendant’s failure to object resulted in
forfeiture of claims that implicate defendant’s fundamentalrightto a fair
trial.].)
69
Therefore, appellant’s challenge to use of dual juries is properly
before this Court.
B. Identifiable Prejudice and Gross Unfairness
In addressing appellant’s claim on the merits, the Attorney General
stresses two points: (1) there is a Legislative preference for and overall
valueto joint trials of multiple defendants, whether by single or multiple
juries; and (2) the presentation of antagonistic defenses by codefendants
does not by itself merit severance. (RB 68-73.) These are general points.
Appellant acknowledged them in his opening brief. (AOB 177, 183-184.)
These general points do not defeat his claim because his showing was
highly specific. Appellant demonstrated that, notwithstanding these points,
he wasentitled to reversal due to the presence and cumulative effect of
several factors which would not have occurred had appellant and the
Hodgesbeentried separately rather than by dual juries. (AOB 179-201.)
Appellant showed that these factors combined to encourage jurors to draw
inferences, adverse to appellant’s theory of defense, which were based on
matters extraneous to the properly admitted evidence. (lbid.)
Hadthetrial court granted complete severance so that appellant and
the Hodges were eachtried at different proceedings, the prosecutor’s highly
damaging, unfulfilled promise of appellant’s testimony that the Hodges
robbed McDadewithouthis participation and then coerced appellant to
shoot McDade would not have happened. (See Arg.I, ante.) Recently, in
Saesee v. McDonald (9" Cir. 2013) 725 F.3d 1045, the Ninth Circuit Court
ofAppeals joined the First, Third and Seventh Circuit Courts of Appeals in
recognizing the deep harm created by a broken promise ofwitness
testimony. Saesee explains, “[i]f the promised witness never takes the
stand, the juror is left to wonder why. Thejuror will naturally speculate
70
why the witness backed out, and whether the absence of that witness leaves
a gaping hole in the defense theory. Having waited vigilantly for the
promised testimony, counting onit to verify the defense theory, the juror
mayresolve his confusion through negative inferences.” (/d. at p. 1049.)
This is especially likely to occur if the promised witnessis “key to the
defense theory” andhis “absence goes unexplained....” (/bid.)
In response, respondentcites to the government’searlier reply to
appellant’s claim that the prosecutor’s broken promise that appellant would
testify to duress invited jurors to draw an inference adverse to appellant due
to his invocation ofhis right to silence. (RB 73.) Appellant has already
addressed this claim and respectfully directs this Court to that portion of his
brief. (See Arg. I, ante.) Otherwise, respondent dismisses appellant’s
assertion as “speculative” without offering any supporting argument. (RB
73.) The assertion must berejected.
It is only because the Hodges remainedintrial with appellant that
the extremely unusual circumstancesleading to the broken promise of
appellant’stestimony arose. Defense counsel’s offering appellant as a
witness to the prosecution at appellant’s owntrial for capital murder,
without any consideration in return, and furnishing the prosecutor with
appellant’s otherwise confidential statement outlining his expected
testimony, was completely unprecedented. Defense counsel’s stated
purpose for doing so wasto “make sure that the Hodges brothers don’t get
away.” (2RT 1019.) Had the Hodges been absent from appellant’s
separatetrial, appellant’s testimony could not ensure that the Hodges “don’t
get way.” (/bid.) Counsel would not have had a reason to offer appellant’s
testimony to the prosecution.
71
Likewise, the prosecutor would have lacked the motivation to decide
to call appellant as his own witness and, thus, to tell the jurors to expect his
testimony. The prosecutor did not need appellant’s anticipated testimony to
provethe state’s case against appellant. The prosecution already had
appellant’s damaging statement to Detective Lee, which was admissible
against appellant as a party admission. (1CCT 440-446 [summary of
appellant’s statement to Det. Lee attached to Terry Hodges’s motion to
sever]; 23RT 8891-8894 [People’s Ex. No. T-51, videotape of interview,
playedat trial]; Evid. Code, § 1220 [party admission exception to hearsay
rule].) Rather, the prosecutor needed appellant’s testimony to bolster the
State’s weak case against the Hodges. (2RT 1014-1015, 1020 [prosecutor
admits his case against the Hodgesis weak “[u]nless Powell testifies], 1021
[prosecutorstates, “if Carl Powell testifies, I see the case as fairly good
against both the Hodges brothers”]; 14RT 5905-5906 [prosecutor seeks
appellant’s testimony to guard against Hodges’s acquittal motion].)
Appellant’s anticipated testimony addedto the state’s case, beyond the
testimony and statements of Banks and Leisey, by clearly placing both
brothers at the crime scene with guns, making them participants in
McDade’s robbery and making them responsible for his murder. (15RT
6343-6345.) In addition to its substantive value against the Hodges,
appellant’s testimony would have eliminated any Aranda-Bruton barrier to
admission against the Hodgesof appellant’s statement to Lee, which
severely incriminated them. Aranda-Bruton protections only apply if the
prosecution seeks to admit the extrajudicial statement of a non-testifying
defendant against a codefendant. (Aranda, supra, 63 Cal.2d 518, 528-531;
Bruton v. United States, supra, 391 U.S. 123, 135-137.) The prosecutor’s
motivation to call appellant as a witness andto tell jurors he would do so in
opening statement would have been absentat appellant’s separatetrial. By
72
keeping appellant’s trial linked with the Hodges’s, the dual jury procedure
set the stage for the prosecutor’s broken promise of appellant’s testimony.
Asappellant has demonstrated, that appellant chose to assert his
right to remain silent after the prosecutor promised jurors they would hear
him testify to acting under duress severely prejudiced appellant’s mental
state defense that appellant did not actually form the mental state required
for robbery and first degree murder because his mind was so clouded by
fear and pressure from the Hodges. Because appellant’s defense theory was
just one step removed from his promised testimony that he acted under
duress, the negative inference jurors would have drawn whenappellant did
not testify — that appellant’s promised testimony about duress wasfalse —
would have naturally extended to appellant’s mental state defense as well.
(See Arg. I, § C.4, ante; AOB, Arg. I, § C.5.) The use of dualjuries,
therefore, made this prejudice. Without dual juries, the prosecutor’s broken
promise of appellant’s testimony would not have occurred.
The dual jury procedure also “’caused specific prejudice to
[appellant’s] defenseat trial’” in additional ways. (People v. Harris, supra,
47 Cal.3d 1047, 1076, quoting United States v. Lewis (D.C. Cir. 1983) 716
F.2d 16, 19.) As appellant argued, his defense theory wasirreconcilable
with that of the Hodges brothers. (AOB 183-189.) Based on the testimony
and statements of Banks and Leisey, he maintained that the Hodges
manipulated him into shooting McDadeand,dueto the intense fear and
pressure hefelt from them, he did not form the mental state necessary for
robbery and first degree murder. (See, AOB,Arg., I, § C.5 [outlining
defense theory]; see also 31RT 11258, 11299-11320 [defense counsel
argues in favor ofBanks’s and Leisey’s credibility].) The Hodges, in
contrast, sought to raise a reasonable doubt about their involvement, and
73
they maintained they were not involved and appellant lied about their
involvementto protect his buddies, Bruce Goulding and the youngsters
with whom appellant went to Los Angeles. (See, e.g., 1SRT 6457-6458,
6461-6463, 6471, 6473-6475 [opening statements by attorneys for the
Hodges].) The Hodges vigorously sought to undermine Banks’s and
Leisey’s credibility. (23RT 8761-8806, 24RT 9025-9036, 9045-9081,
9115-9130 [John Hodges’s cross-examination of Banks]; 25RT 9503-9526,
25-26RT 9534-9586, 26RT 9590-9627, 9652-9706, 9720-9737, 9769-9818
[Terry Hodges’s cross-examination ofLeisey].) Appellant’s and the
Hodges’s defenses wereirreconcilable: ifjurors accepted appellant’s
defense, they had to find the Hodges guilty; ifjurors accepted the Hodges’s
defense, they would find appellant guilty. Because of this, appellant had to
endure a trial where he had to defend against not only the prosecutor’s
assertions, but also against those of his two codefendants. This severe
conflict madeit difficult for jurors to accept appellant’s defense and
threatened to make the prosecution’s case look moreattractive than
otherwise.
It did not help that contentiousness between the attorneys sprung
from this conflict. (AOB 193-196.) For example, Castro complainedthat
Terry Hodges’s attorney, Sherriff, threatened to “hang or crucify” him and
his client if Castro continued attempting to rehabilitate Leisey. (27RT
9965.) Sherriff and John Hodges’s attorney, Macias, both frequently
accused appellant’s attorneys ofbeing a “second prosecutor.” (E.g., 17RT
6808, 27RT 9965-9966.)
Appellant cited a numberof decisions recognizing that forcing a
defendant to endure a single trial wherein he and one or more codefendants
present irreconcilable or antagonistic defenses can create a serious risk that
74
jurors will be unable to makea reliable judgment about guilt or innocence.
(Zafiro v. United States (1991) 506 U.S. 534, 539; United States v. Tootick
(9Cir. 1991) 952 F.2d 1078, 1082; People v. Hardy (1992) 2 Cal.4" 86,
168; People v. Carasi (2008) 44 Cal.4 1263, 1296; People v. Massie
(1967) 66 Cal.2d 899, 917; People v. Rodriguez (Ill.Ct.App. 1997) 680
N.E.2d 757, 759-762, 766-767.) The net result ofthe logical inconsistency
in the defenses and antagonism maybethat jurors will hold the government
to a lower burden of proof. (Zafiro, supra, at pp. 543-544 (Stevens, J.,
conc.); Tootick, supra, at p. 1081-1082; Hardy, supra, at p. 168.)
Respondentreplies that mutually antagonistic defenses, standing
alone, do not mandate complete severance or rendera trial fundamentally
unfair. (RB 71-72, 74, 76.) For example, respondent quotes a portion of
People v. Letner (2010) 50 Cal.4" 99, whichstates,“the conflict between
defendants did not lead by itselfto Letner’s conviction, and therefore
severance was not required.” (/d. at p. 153, emphasis added.) (RB 74.)
Similarly, respondent quotes People v. Turner (1984) 37 Cal.3d 302 as
follows, “[N]o denial ofa fair trial results from the merefact that two
defendants whoare jointly tried have antagonistic defenses and one
defendant gives testimony that is damaging to the other and thus helpful to
the prosecution.” (/d. at p. 313, emphasis added.) (RB 72.) Respondent’s
point fails to overcome appellant’s showing. While it may betrue that
irreconcilable defenses do not per se result in gross prejudice, appellant did
not rely on this factor in isolation. Rather, appellant showed that it was one
in a conglomeration of factors which combined to underminehis defense.
Together, they created gross unfairness in violation of appellant’s right to a
fair trial.
75
Appellant demonstrated that the Hodges’s mysterious andstartling
disappearance from the trial on the eve of deliberations also detracted from
appellant’s defense and contributed to the overall unfairness of the
proceedings. (AOB 189-193.) Unquestionably, appellant’s jurors would
have paid serious attention to the Hodgesduring trial. The prosecutor had
promised, after all, that appellant would testify that the Hodges forced him
to kill McDade. (15RT 6343-6346.) The Hodges were also physically
imposing. Terry wasparticularly large and John looked quite scary.
(People’s Ex. No. T-49A; 30CCT 8967; 31RT 11257.) Because appellant’s
jurors had endured a lengthy trial with the Hodges,their attorneys and
investigators and jurors in a relatively small courtroom, the sudden absence
of the Hodges would have surely been palpable to appellant’s jurors. As
defense counsel recognized, there was as danger that once the Hodges were
gone, appellant’s jurors might treat him more harshly because he wasthe
only defendant left and they feared that he, too, would escape liability.
(31RT 11154.) Appellant’s jurors would have naturally wondered why the
Hodges disappeared, and the most natural explanationsfor this would be
that the Hodges had been victimized by somesort of legal error or managed
to obtain a favorable disposition. Both scenarios implied that the Hodges
wereless culpable than appellant, who remainedontrial for his life. These
inferences detracted from appellant’s defense, which sought to portray the
Hodgesas ruthless criminals who manipulated appellant, who was younger,
mentally slow and unsophisticated, and thus the Hodges were to blame for
the crimes.
Respondent dismisses as speculative appellant’s claim that his jurors
would have drawn inferences negative to appellant from the Hodges’s
disappearance. (RB 78.) Respondent offers no argument to support the
government’s conclusory position. Surely appellant’s jurors would have
76
wondered why the Hodges suddenly disappeared. Since the Hodges were
already on trial for capital murder, the jurors would not have imagined that
they faced even more dire consequencesthan they had just faced.
Inferences negative to appellant were the most natural and inevitable ones
for the jurors to draw, especially in the absence of any alternative
explanation. (See 30RT 10867-10868 [trial court tells appellant’s jurors
that the Hodges will no longer be present without providing any
explanation for their sudden absence]; see Saesee v. McDonald, supra, 725
F.3d 1045, 1049 [in the context of a broken promise of an important
witness’s testimony,it is natural for jurors to draw a negative inference for
the gaping hole left in the case if they are not provided with any alternative
explanation].)
Indeed, here the record actually shows that many jurors learned from
media reports that the Hodges had been granted a mistrial. (See AOB,Arg.
XXI, 448-460.) Six jurors and twoalternates stated that they read at least
some of an August 27, 1994, Sacramento Beearticle reporting that the
charges against the Hodgeshad been dismissed. (32RT 11390-11391,
11154-11155.) This article included comments damaging to appellant by
Hodges jurors. (32RT 11392-11393.) Further, two jurors and three
alternates reported that they had been exposed to an August 24, 1994,
Sacramento Beearticle reflecting that the Hodges’s case had mistried.
(3CT 669.) Juror knowledge of the Hodges’s mistrial created pressure on
appellant’s jurors to hold appellant accountable, even despite doubts, lest
no one be held to answerforthe tragic killing.
Respondent acknowledgesthat appellant’s jury was excused when
certain tapes of Banks’s and Leisey’s statements were played. (RB 80,
citing 26RT 9829, 9835-9836, 9839-9842; People’s Ex. No. T-53; 29RT
77
10683-10688; People’s Ex. No. T-62.) As discussed above, Banks and
Leisey were crucial witnesses to appellant’s mental state defense.
Respondent contends that appellant’s jurors would have followedthetrial
court’s directives not to speculate about what testimony or evidence they
were missing when they were excluded from the courtroom andsolely the
Hodges jury remained. (RB 80-81.) Limiting instructions are not a cure-
all, particularly when they are heaped on each other andall address a
particularly sensitive area — here, appellant’s efforts to present a defense--
whosepropertreatmentis crucial to a fundamentally fair trial. Appellant’s
jurors were told not to speculate about what evidence they were missing
when the Hodges jury was present. (/bid.) They werealso told not to
speculate about why the Hodges suddenly disappeared from trial.0RT
10867-10868.) Further, they were twice told to ignore newspaperarticles
to which they had exposed reporting that the Hodges’s case had mistried.
(31RT 11156, 32RT 11402.) Additionally, as discussed in ArgumentI,
ante, they were directed not to speculate about appellant’s undelivered
testimony. (See 31RT 11112 & 2CT 587 [court gives modified version of
CALIIC No. 2.60].) All these instructions were given because there was a
danger jurors would draw inferences negative to appellant from matters
extraneous to the properly presented evidence. All the negative inferences
that jurors were likely to draw tended to undermine appellant’s efforts to
defend himself. At somepoint, “‘the risk that the jury will not, or cannot,
follow instructions is so great, and the consequencesoffailure so vitalto
the defendant, that the practical and humanlimitations of the jury system
cannot be ignored.’” (People v. Burney (2009) 47 Cal.4™ 203, 230, quoting
Bruton v. United States, supra, 391 U.S. 123, 135.) Piling limiting
instruction upon limiting instruction in areas directly impacting the
defendant’s efforts to defend himself is such a context.
78
Thus, the dual jury procedure allowed multiple factors to combine to
undermine appellant’s defense and lighten the state’s burden ofproof.
Respondent’s simply analyzes each asserted factor in isolation. This
approachfails to acknowledge the sum total of the unfairness created by the
dualjury trial of appellant and the Hodges.
79
JUROR RELATED ISSUES
IV.
THE TRIAL COURT’S ERRONEOUS REFUSAL TO
EXCUSE PROSPECTIVE JURORS LESLIE GONZALEZ
AND JUDITH PERELLA FOR CAUSE REQUIRES
REVERSAL.
In his opening brief, appellant demonstrated that the trial court erred
in denying his challenges for cause against prospective jurors Leslie
Gonzalez and Judith Perella. (AOB 202-220.) Both jurors’ views in favor
of the death penalty were so strong as to prevent or substantially impair
their ability to impartially consider imposing a sentenceoflife without
possibility of parole. (See AOB 209-220.) Additionally, Gonzalez, who
found police officers more credible than citizen witnesses, could not
adequately assure the court that she would set that opinion aside and follow
its instructions to evaluate the testimonyofpolice officer witnesses under
the same standardsas civilian witnesses. (See AOB 205-208.)
Respondent argues that appellant has not properly preservedthis
issue, notwithstanding his exhaustion ofall peremptory challenges. (RB
82.) Respondent further argues that (1) the trial court did not abuseits
discretion in denying the two challenges for cause because the jurors’
responses were merely equivocal or conflicting and the court’s rulings were
fairly supported by the record (RB 82-88); and (2) there was no prejudice.
(AOB 88-92.) None of respondent’s arguments withstand scrutiny.
A. This Claim Should Be Reviewed On Its Merits.
Despite the fact that appellant exhausted all 20 of his allotted
peremptory challenges, including against prospective jurors Gonzalez and
Perella, respondent claimsthat he has forfeited this claim by not also
80
expressly stating dissatisfaction with the jury as selected. (RB 82.) In the
openingbrief, appellant acknowledged that in People v. Crittenden (1994)
9 Cal.483, this Court ruled that in order to preserve for review the denial
of a challenge for cause, a defendant must not only exhaust his peremptory
challenges but also express dissatisfaction with the jury ultimately selected.
(d., at p. 121, fn. 4; see AOB 203-204.) However, he arguedthat this
additional requirement should not be applied here because his jury selection
occurred before Crittenden was decided. (See People v. Wallace (2008) 44
Cal.4 1032, 1055 [Because jury selection occurred before decision in
Crittenden which “made it clear that a defendant must express
dissatisfaction with the final jury,”“that rule does not apply”]; accord,
People v. Riggs (2008) 44 Cal.4" 248, 285-286.)
Respondent arguesthat this Court madethis additional condition
clear in two cases decided before appellant’s jury selection, People v. Raley
(1992) 2 Cal.4" 870, 904-905, and People v. Morris (1991) 53 Cal.3d 152,
184, overruled on other grounds by People v. Stansbury (1995) 9 Cal.4"
824, and thus this Court should apply the condition here and find
appellant’s claim forfeited. (RB 82.)
Respondentis mistaken.It is true that in Morris, this Court
suggested that a defendant must both exhaust all peremptory challenges and
express dissatisfaction with the ultimately selected panel.!” But as found by
"7 In Morris, this Court stated that in order to raise claims regarding the
erroneous denial of challenges for cause, a defendant must show:(1) he
used a peremptory challenge to removethe juror in question; (2) he
exhausted his peremptory challengesor can justify his failure to do so; and
(3) he was dissatisfied with the jury as selected. (People v. Morris, supra,
53 Cal.3d at p. 184.) Because Morris did not exhaust his challenges and
81
this Court in Wallace, it was not until Crittenden that this Court made clear
that the latter condition was, in fact, an additional requirement. Prior to
Crittenden, “language in past cases suggested that counsel’s expression of
dissatisfaction with the jury was not alwaysa necessary prerequisite to
challenging on appeala trial court’s decision denying a challenge for
cause.” (People v. Weaver (2001) 26 Cal.4" 876, 911; accord, People v.
Blair (2005) 36 Cal.4" 686, 742; see, e.g., People v. Coleman (1988) 46
Cal.3d 749, 770 [To complain on appeal, the rule in California is that a
defendant must exhaust his peremptory challenges].) In another case where
this Court refused to apply the additional requirementto a trial which
occurred after the decisions in Ra/ey and Morris, the Court recognized that
“the law wasin state offlux on this point at the time of defendant’s 1993
trial.” (People v. Boyette (2002) 29 Cal.4 381, 416 [Comparing Peoplev.
Crittenden, supra, 9 Cal.4" at p. 121 [statementofdissatisfaction required]
with People v. Bittaker (1989) 48 Cal.3d 1046, 1087-1088 [suggesting
reliefwould still be granted if a defendant could show denial of an
“his conduct indicated no dissatisfaction with the jury that heard his case,”
the Court rejected his claim. (/bid.)
Raley, however, did not makeclear that express dissatisfaction was an
additional requirement. There, this Court stated:
“At the conclusion ofvoir dire, defendant had used only 18 of his 26
peremptory challenges. He offers no justification for his failure to
exhaust his peremptory challenges, and he did not indicate any
dissatisfaction with the jury when it was sworn. Thus he cannot
complain on appeal ofanyerror in refusing to excuse the jurors for
cause.”
(People v. Raley, supra, 2 Cal.4" at pp. 904-905.)
82
impartial jury]; accord, People v. Blair, supra, 36 Cal.4th at pp. 741-742;
People v. Weaver, supra, 26 Cal.4" at p. 911.)
Notably, in several cases decided either after or during the same
period as the decisions in Raley and Morris, this Court continued to
formulate the procedural prerequisite as requiring only one condition — the
exercise of all peremptory challenges. (See, e.g., People v. Kelly (ID)
(1992) 1 Cal.4 495, 518-519 [“To complain on appealthat a prospective
juror should have been excusedfor cause, the defendant must have
exercised and exhausted his peremptory challenges.”]; People v. Stankewitz
(1990) 51 Cal.3d 72, 103 [“It is well settled that a defendant cannot
complain an objectionable juror was forced on him where he could have
exercised a peremptory challenge;” defendant had three challenges
remaining].) And, in Crittendenitself, the Court declined to apply its rule
requiring a defendant to both exhaust his challenges and express
dissatisfaction in view ofprevious case law “suggesting an express
statement of dissatisfaction is unnecessary if a defendant exhausts his or her
peremptory challenges, and the consequentdifficulty in identifying this
issue as ineffective assistance of counsel.”(Crittenden, supra, 9 Cal.4" at p.
121, fn. 4.) Because the law onthis issue wasnot, in fact, clarified until
Crittenden was decided, following the jury selection in this case, the Court
should decline to find this claim forfeited.
Moreover, as discussed below in section (C),it is inconceivable that
counsel wassatisfied with the jury as it contained several undesirable jurors
for the defense. (SeePeople v. Weaver, supra, 26 Cal.4" at p. 911.)
Finally, “because the presence of even a single juror compromising
the impartiality of the jury requires reversal, counsel would be
constitutionally ineffective if [they] had failed to voice dissatisfaction with
83
the jury as constituted, all the while knowing that [two] biased juror[s]
[were] sitting among the 12 seated jurors.” (See People v. Weaver, supra,
26 Cal.4" at p. 911.)
Forall ofthese reasons, this Court should decline respondent’s
invitation to apply the rule elucidated in Crittenden andinstead review the
merits of this claim.
B. Error.
In the opening brief, appellant established that the trial court erred in
denying appellant’s challenges for cause against both Leslie Gonzalez and
Judith Perella because neither could assure the court that they would
consider the penalty oflife without possibility of parole as a reasonable
possibility. (See AOB 209-220.) Moreover, Gonzalez should have been
excused because she foundpolice officers more credible than citizen
witnesses and never indicated that she would set aside her personal opinion
to judge the credibility of both by the same standards. (See AOB 205-208.)
The State’s responseis based on the principle that "[w]hen a
prospective juror’s responsesto voir dire questionsare halting, equivocal,
or conflicting, the reviewing court is bound bythe[trial court’s] ruling.”
(RB 83, citing People v. Mendoza (2000) 24 Cal.4% 130, 169.) That
principle, however, is only applicable where the prospective juror has, in
fact, given conflicting answers. (People v. Velasquez (1980) 26 Cal.3d 425,
442.) Where prospective jurors, like Gonzalez and Perella, stay firm in their
beliefs that an intentional killer should be sentenced to death, the
prerequisite for activating the preferencefortrial court resolution ofthe
conflict is absent.
1. Gonzalez’s Bias In Favor of Police Officer Witnesses.
84
On the subject of police officers, respondent argues that Gonzalez’s
answers were conflicting, because although “she felt that police officers
were truthful and were trained to look for specific things,” she “also stated
that she could judgeall witnesses by the samestandards.”!* (RB 84.)
Respondentfurther argues that after the Court instructed Gonzalez that
police officers and lay witnesses wereto be evaluated by the samecriteria,
she affirmed that she could evaluate police officers in that manner. (RB 85.)
Respondent is wrong; Gonzalez’s answers were not conflicting. As
established in the opening brief, she never wavered from her view that
police officers were more credible than citizen witnesses. (AOB 205-207;
see 11RT 3755-3759, 3767-3768.) Although she respondedaffirmatively
whenasked whether she could judgeall witnesses by the samecriteria, she
could not agree to set aside her opinion that police officers were more
18 Respondentarguesthat “[i]n response to a question by the
prosecutor, Gonzalez said that she would not accept an officer’s testimony
at face value.” (RB 84-85; see 11RT 3763-3764.) In fact, after the
prosecutor gave Gonzalez a detailed example concerning a police officer
testifying to an identification made under questionable circumstances and
asked whether she would be able to consider those circumstances or just
assumethe officer was right, Gonzalez agreed that she would take the facts
under consideration. (1 1RT 3763.) The prosecutor then asked: “So you
would considera police officer — Ifa police officer testifies and another
witnesstestifies, and they’re diametrically opposed about what they’re
saying, you wouldn’t just accept the police officer on face value, would
you? But you would look at the circumstances?” (/d., at pp. 3763-3764.)
Gonzalez responded: “Yes, I would.” (/d., at p. 3764.) As the Court can see,
in this exchange, Gonzalez simply acknowledged she would not
automatically accept an officer’s testimony or acceptit over the testimony
of a civilian witness. It did not, however, negate Gonzalez’s constant
opinion that police officers were generally more credible than lay
witnesses. (See 11RT 3755-3759, 3768.)
85
credible.'? (11 RT 3768.) Indeed, her last wordonthetopic, after the
prosecutor and the court attempted to rehabilitate her, was that police
officers are more credible than other witnesses. (/bid.)
2. Gonzalez’s Pro-Death Penalty Views.
Asestablished in the opening brief, Gonzalez also could not assure
the court that she would consider the penalty of life without possibility of
parole as a “reasonable possibility.” (AOB 209-215.) She favored the death
penalty for murder convictions (11RT 3752), admitted that she would
“probably not” be able to view the penalty phase evidence ofboth sides
with impartiality (bid.), and admitted that she would vote for death even if
aggravating and mitigating circumstances were evenly balanced. (11RT
3754-3755.)
The State responds: “After the court provided instructions making
clear that the prosecutor had to prove that the aggravating factors
substantially outweighed the mitigating factors before the jury could vote
for death, Gonzalez repeatedly confirmed that she could follow the law.
(11RT 3755.)” (RB 86.) However, as argued in the openingbrief, thetrial
court’s subsequently extracting from Gonzalez a general agreementto
follow the law did not undermineherspecifically stated unwillingness to
impartially view the defense penalty case or her specifically stated
9 Notably, Gonzalez’s view was based on personal bias arising from
her relationship with her husband,a police officer. When asked why she
felt that police officers were more credible than other witnesses, Gonzalez
answered: “Because living with a policeofficer, I hear all the goings-on
that a lot ofpeople don’t understand, and I feel
like they’re truthful.” (11RT 3756.)
86
willingness to vote for death upon less of a showing in aggravation than the
law demands. (See AOB 213.)
3. Perella’s Pro-Death Penalty Views.
As demonstrated in the opening brief, Judith Perella believed that
someone whointentionally kills, using a firearm, should always be
sentenced to death. (See AOB 215-220; see 9RT 3317, 3319, 3323-3327,
3334.)
Respondent acknowledges,as it must, that Perella, in her
questionnaire, “stated that her attitude about the death penalty was onethat
would substantially impair her ability to vote for life without parole.” (RB
86.) Indeed, as the State notes, Perella even underlined “substantially
impair” in her questionnaire response (ibid.), thereby emphasizing her
unwillingness to considerlife without parole as a realistic sentence choice.
(SSCT4A 16175 [question 104, Perella underlined “substantially impair’’].)
Respondent argues, however, that “[a]t worst, Perella’s responsesat voir
dire were equivocal or conflicting” and “Perella indicated her willingness to
obey the law, despite some of the views she had expressedearlier in the
process.” (RB 88.) Respondent contends that because Perella gave
conflicting and equivocal answers, this Court is bound bythetrial court’s
determination. (/bid.)
Here, again, respondent’s attempt to bring this juror under the
umbrella of “conflicting and equivocal answers” must be rejected. As
established in the openingbrief, Perella never retracted her opinion that
anyone who commits an intentional killing, particularly if committed by a
gun, deserves death. (See AOB 215-220.) Respondent does not identify
any answers conflicting with that view or answers which suggest Perella
87
ever equivocated on that point. (See RB 88.) Moreover, as explained in the
opening brief, the exchange in which the Court asked Perella if she could
follow the law by considering aggravating and mitigating factors and not
imposing death unless the aggravating factors substantially outweigh the
mitigating factors, did not address Perella’s view that an intentional killer
whouses a gun should always be sentenced to death and doesnotrise to the
level of a conflicting statement. (See AOB 217-218.) Perella did not say
that she would, or could, actually rendera life without parole verdict. This
exchange did not rehabilitate her opinion that imposition of the death
penalty was “cut and dry” for an intentional killing. (QRT 3323-3324,
3334.)
The State’s responsefails to confront the many instances where
Perella made very clear her opinion that anyone whointentionally killed
deserves death. (See AOB 215-217; 9RT 3323-3327, 3334.) Nor has
respondent addressed appellant’s concerns, expressed in his openingbrief,
that the exchange, in which the Court asked Perella if she could follow the
law by considering aggravating and mitigating factors and not imposing
death unless the aggravating factors substantially outweigh the mitigating
factors (1) left Perella free to individually decide that aggravating factors
automatically outweighed mitigating factors in cases of intentionalkillings;
and (2) effectively told Perella that she was free to vote according to her
pro-death views because the defendant would be sentencedto life without
parole if the jury was not unanimous, thereby removing Perella’s
responsibility for considering and giving effect to any mitigating evidence.
(See AOB 217-218.)
88
For the reasons expressed in the opening brief and herein,thetrial
court erred in denying appellant’s challenges for cause against both Judith
Perella and Leslie Gonzalez.
C. Prejudice.
In his openingbrief, appellant argued that this error was prejudicial
becauseit affected the composition of the jury in violation of the Sixth
Amendment, underminedappellant’s Eighth Amendmentrightto a reliable
penalty determination and violated his due processright to a state created
liberty interest in jury selection conducted via the use of peremptory
challenges. (See AOB 220-223.) As explainedin that brief, had appellant
not been forced to use two of his peremptory challenges to remove
Gonzalez and Perella, he could have struck two jurors (Juror No. 1 and
Juror No. 5), who displayed attitudes strongly influencing them against a
minority defendant, such as appellant, charged with capital murder
involving gun use. (See AOB 220-221.)
Respondent acknowledges that both jurors made statements which
would or could cause concern for the defense, but arguesit is speculative to
assert that the defense would havestruck either juror had it had not had to
use its peremptory challengesto strike Gonzalez and Perella. (RB at 89-90.)
This is so, respondent contends, because the jurors also made statements
which were not harmful to the defense and the defense passed for cause on
both. (/bid.) Of course, the fact that the defense passed for cause does not
mean that Jurors Nos. | and 5 were desirablejurorsfor the defense. As
recognized by this Court in People v. Williams (1981) 29 Cal.3d 392, a
89
juror might survive a challenge for cause,”° butstill be highly objectionable
to a defendant. (/d., at p. 402 [A juror’s protestations of impartiality may
immunize him from a challenge for cause, but the juror maystill exhibit
bias on which prudent counsel would base a peremptory challenge].) When,
as in the case here, there was an improperdenial of a defendant’s
challenges for cause, it makes no difference that the final jury was made up
ofpersons, such as Jurors Nos. 1 and 5, who purportedly agreed to befair,
follow the court’s instructions andlisten to the evidence. That these two
jurors may not havefallen into the class ofpersons who could have been
removed for cause is not relevant. Whatis relevantis that appellant was
forced to relinquish twocritical peremptory challenges in order to keep
constitutionally inadequate jurors (Gonzalez and Perella) off the jury.
Moreover,the record belies the State’s attempt to paint Juror No. 1
as an unremarkable juror, who “raised no red flags from the defense
standpoint.”?! (RB 90). Respondentpoints to her questionnaire answerthat
a “defendant’s guilt should have to be proven”as evidence ofher neutrality.
20 “[A] juror may be challenged for cause based uponhis or her views
concerning capital punishment only if those views would ‘prevent or
substantially impair’ the performanceofthe juror's duties as defined by the
court's instructions and the juror's oath.” (People v. Crittenden, supra, 9
Cal.4" at p. 121, quoting Wainwright v. Witt (1985) 469 U.S. 412, 424.)
al Respondentalso characterizes Juror No. 1’s attitude toward the
death penalty as ambivalent. (RB 89.) The record showsthat although she
believed some crimes warranted the death penalty, she would findit
difficult to make the decision herself. (47CT4A 13705, 13712, 3715,
13724.) During voir dire, she affirmed that it would not be easy, but there
weresituations where she could vote for the death penalty, she could vote
for it if aggravating circumstances outweighed the mitigating
circumstances, and she would voteforit if it was the appropriate
punishment. (1ORT 3691-3692; 11 RT 3704-3705.)
90
(RB 89.) However, given the ambiguous contextof this answer? and the
bulk ofher other answers evidencing a strong belief otherwise as well as
otherattitudes against defendants, the record showsthat this was a juror
wholeanedstrongly in favor of the prosecution.
Juror No. 1 admitted that she would “tend to lean towards the
prosecution because “J have a hard time with the term ‘innocent’ until
proven guilty” and strongly agreed that a defendant in a criminaltrial
should be required to prove his or her innocence. (47CT4A 13706, 13711,
emphasis added.) When informedin the questionnaire that a defendantin a
criminaltrial is presumed to be innocent unless and until his guilt is proved
beyond a reasonable doubt and to a moral certainty, she answered that she
had a problem with that burden ofproof, explaining “I find it difficult not
to associate guilt with a criminal defendant. I believe more burden should
be placed on the defendant proving innocence.” (/d., at p. 13713.)
During voir dire, she explained that she understood “that’s what the
law says” (a defendant is presumed innocent and the burdenis on the
prosecution to prove guilt beyond a reasonable doubt) and could try to
follow it even though she disagreed with it, but did not know that she would
22 Question no. 51 stated: “the law does not require the People to prove
the defendant’s guilt beyondall possible doubt. Do you have any quarrel
with this burden ofproof?” (47CT4A 13713). Juror No.1 answered yes and
then wrote: “Guilt should have to be proven if the law says a defendantis
innocent until proven guilty.” (/bid.) In the question immediately preceding
no. 51, which stated that “[a] defendantin a criminal case is presumedto be
innocent unless and until his or her guilt is proved beyond a reasonable
doubt and to a moral certainty,” Juror No. 1 answered that she did have a
quarrel with that burden ofproof and explained:“I findit difficult not to
associate guilt with a criminal defendant. I believe more burden should be
placed on the defendant proving innocence.” (Ibid.)
91
ct
be able to set aside her personalfeelings to follow the court’s “rules.”
(10RT 3698-3699, emphasis added.) Juror No. 1 also stated that she was
angry that criminals are given so manyrights and she believed that
problemsin the criminal justice system should be solved by “less money
into jails and swifter punishments. Take away prisoner’s rights.” (47CT4A
13706, 13710.) She admitted, in her questionnaire, that she was not sure
that she could apply the law and reach a decision without prejudice against
the defendant(id., at p. 13712) and during voir dire, was never asked to
repudiate this opinion. (See 1ORT 3689-3700; 11RT 3701-3706.)
Given these attitudes, there was ample cause for appellant’s counsel
to use a peremptory challenge to remove Juror No.1 had they been
provided the opportunity.
The State also characterizes Juror No. 5 as a “neutral” and
“thoughtful” on the basis of his questionnaire answers that he had no
quarrel with the reasonable-doubt standard, that he had once been accused
of a crime, and that he wasneutral towards both sides. (47CT4A 13866-
13867, 13873; see RB 90.) The fact that this juror provided some neutral
answers did not changethe fact that this was not a good juror for the
defense, given his death penalty attitudes and prejudices against criminal
defendants. Juror No. 5 favored the death penalty and believed it should be
used moreoften; he also strongly agreed that any person whokills another
should get the death penalty and strongly disagreed that even the worst
criminal should be considered for mercy, explaining “That’s why our
system is not up to par 100%.” (47CT4A 13872, 13884, 13890.)
Respondent arguesthat during voir dire, Juror No. 5 stated that he would
listen to background evidenceat the penalty phase. (RB 90.) However,
during that questioning, the juror never retreated from his strong opinions
92
in favor of the death penalty (see 9RT 3181-3198) and when askedifhe
could consider evidence about the defendant’s background, merely
respondedthat he “probably would consider someofthat.” (/d., at p. 3186.)
Juror No. 5 also admitted that he could not be fair in a case (such as the
instant) where gun use wasalleged. (47CT4A 13881.)
Moreover, despite his ownarrest, Juror No. 5 possessed very strong
attitudes against criminal defendants. (See 47CT4A 13870 [stating that
problems with criminal justice system are “[l]oopholes in our laws,
politicians not carrying out penalties (death sentence) imposed by jurors &
judges”]; id., at p. 13871 [believed that a defendant broughtto trial was
probably guilty and strongly believed that a defendant should be required to
prove his innocence]; id., at p. 13872 [strongly believed that harsher
treatment of criminals wasthe solution to the crime problem]; id., at p.
13878 [believed that mental defenses are used as a means to escape
responsibility most ofthe time].) In short, the record establishes that both
Juror No. 5 and Juror No. | were not desirable jurors for appellant and had
he not been forced to use peremptory challenges to remove Gonzalez and
Perella, he would have been able to strike these two jurors.
Respondentalso argues that Ross v. Oklahoma (1988) 487 U.S. 81
supports the conclusion that there was no prejudice here. (RB at 90-91.)
Appellant has previously replied to this point and respectfully directs this
Court to his opening brief discussion of Ross.?3 (See AOB 221-223.)
23 Appellant notes that this Court has granted review in Peoplev.
Black (No. 8206928, hg. granted January 30, 2013) to decide whether a
conviction should be reversed because of the erroneous denial of challenges
for cause when the defendant exhausts his peremptory challenges by
removing the jurors, seeks to remove another prospective juror who could
93
For the reasons advancedhere and in the openingbrief, appellant
submits that the trial court erred in denying appellant’s challenges for cause
against prospective jurors Gonzalez and Perella and that this error, which
affected the composition of the jury selected to try appellant, was
prejudicial.
not be removed for cause, and is denied additional peremptory challenges,
or must the defendant also show that an incompetentor biased juror sat on
the jury?
94
V.
THE TRIAL COURT’S ERRONEOUS REMOVAL OF
JUROR NO.11, WITHOUT SUFFICIENT CAUSE TO
CONCLUDE SHE COULD NOT DISCHARGE HER
DUTIES AS A JUROR, REQUIRES REVERSAL OF THE
JUDGMENT.
Juror No. 11 informed the court that she was very tired due to
insomnia and her lack of sleep was causing herto feel intense emotions.
Shesaid she felt afraid (mainly dueto lack of sleep), felt empathy for
everyone involvedin the trial and was experiencing scary feelings due to a
past episode (unrelated to trial) where someoneleft threatening messages
on her answering machine. Taking sleep medication the previous night
causedherto feel better. Juror No. 11 did not ask to be excused. She did
not say that she had trouble discharging her duties as a juror. She
expressed a desire to continue with jury service. She said a break would
help and that she wantedto see a counselorto help her processherfeelings
over the phonethreat incident. Appellant demonstrated that thetrial court’s
decision to excuse Juror No. 11 wasprejudicial error. (AOB 224-240.)
Respondentdisagrees. (RB 92-101.) Respondent’s position fails to
withstand analysis.
Removalofa sitting juroris a “serious matter” that must be
approached with caution. (People v. Barnwell (2007) 41 Cal.4™ 1038,
1052.) Under Penal Codesection 1089, a reviewing court will uphold a
trial court’s exercise of discretion in removing a juror only if her inability
to continue serving for either physical or emotional reasonsaffirmatively
appears in the record as a “demonstrable reality.” (bid.)
In arguing in support of the ruling, respondent downplaysthat Juror
No. 11 did not ask to be excused. (RB 96.) Thetrial court asked her
95
directly if this was her request, but she did not answeraffirmatively. (27RT
10108.) To the contrary, Juror No. 11 indicated that she wanted to continue
serving. Respondent omits from the government’s synopsis of relevant
evidence Juror No. 11’s statement that she had talked to her supervisorat
work, and her supervisor had advised her to continue on the jury because
she had already invested so muchin it. (27RT 10112-10113.) Although
Juror No. 11 did not expressly adopt her supervisor’s remarks,thisis the
obvious implication from herrelating them. The sameis true concerning
her desire to see a counselor downtown. (27RT 10117-10118.) She wanted
to see a counselor concerning her personal issues and wantedto find one
who was downtownin order to accommodate her continued jury service.
The Sacramento County Superior Court, where appellant’s trial was
conducted,is located in the downtown Sacramento area.”* A juror’s desire
to continue serving despite encountering challenges in doingsois
significant. (People v. Bennett (2009) 45 Cal.4" 577, 619-621 [upholding
trial court’s retention ofjuror who appeared upset about continued service
but wanted to keep serving on jury].) Respondent implies that Juror No. 11
did want to be excused because she phoned the court totell it of her
situation. (RB 96.) She did not ask to be excused in her phone message or
during her audience with the court. As noted below, between her phone
call and the hearing, her situation had improved somewhat.
Respondentcites three cases in whichtrial court decisions to excuse
jurors were upheld on review. (RB 97-99.) Notably,in all three, the
excusedjurors asked to be excused. (People v. Fudge (1994) 7 Cal.4%
1075, 1098-1099 [juror Asherepeatedly asked court to remove her from
2424 See http://www.saccourt.ca.gov/jury/transport.aspx [describing
location of courthouse].
96
jury service due to anxiety over employmentissues and her daughter’s
move]; People v. Collins (1976) 17 Cal.3d 687, 690 [juror asked to be
removedbecause she could not follow the court’s instructions concerning
deliberations; People v. Van Houten (1980) 113 Cal.App.3d 280, 285-286
[juror asked to be excused due to physical and emotional upset overgrisly
pictures in murdertrial].) While a juror’s self-assessmentis not dispositive
of whether good cause exists for her removal(e.g., People v. Barnwell,
supra, 41 Cal.4" 1038, 1049 & 1053), where, as here, a juror wants to
continue despite facing challenges in doing so,this is a significant indicator
that the juror is a strong person whois fit to serve. As Juror No. 11 noted,
she wasable to handle “explosive situations” at work if she was sleeping
enough. (27RT 10115.)
Nordid Juror No. 11 state that she could not discharge her duties as
a juror. She assured the court and counsel that she was fair and impartial.
(27RT 10115.) She never said she had a closed mindor she could notlisten
to the evidence, judge witness credibility, follow the court’s instructions
concerning the law, refrain from discussing the case until it was submitted
to the jurors for deliberations, or deliberate with the other jurors. (27RT
10108-10118.)
Respondent contends that Juror No. 11’s physical exhaustion
established good cause for her removal, particularly when coupled with her
psychological condition. (RB 96.) It is clear from the record that both
Juror No. 11’s physical and psychological conditions were attributable to
her lack of sleep. In regards to her physical condition, the record shows
that she wasvery tired from not having slept well for five nights. (27RT
10112.) The trial court described her as moving andtalking slowly and
appearing physically fragile. (27RT 10118.) In regards to her
97
psychological condition, Juror No. 11’s inability to sleep was the root cause
of her feeling fear and empathy/identifying with the players in the case to
an intense degree. She related that when she hastrouble sleeping, she
becomesfrightened in general. (27RT 10116.) As for empathy and
identifying with others, she stated, “I find myself identifying with all of the
parties and feeling empathy with everybody. ... As each issue is brought
up, I identify it with myself. [§]] But I think that’s just because of the sleep
deprivation.” (27RT 10110.) When she had enoughsleep, Juror No. 11
reported being able to handle even “explosive” situations at work. (27RT
10115.) Thus, Juror No. 11 explained that her difficulty sleeping was
evoking strong emotionsin addition to causing her physicaltiredness.
Respondent glosses over that Juror No. 11 reported that, after
bottoming out, she was feeling “okay” because she had taken somesleep
medication on the previous night, and it had helpedherstart feeling better.
(27RT 10111-10112.) This undercuts the trial court’s determination that
Juror No. 11 was unable to continue serving as a juror. The medication
improved her physical and emotional condition. Juror No. 11 reported that
after taking the medication, she was not confused andshefelt “okay.”
(27RT 10112, 10115.)
Thetrial court’s decision to excuse her was premature. Juror No. 11
reported having difficulties from not sleeping but explained that she had
begun to sleep and was feeling better. Rather than asking to be excused,
she indicated her desire to stay on the jury. She neverrelated inability to
discharge any duty required of a juror. As appellant argued,thetrial court
was unduly concerned the Juror No. 11 might suffer a breakdownin the
future if she continuedas a juror, but speculation about future harm is not
good cause for juror removal. (AOB 234-235; see People v. Holt (1997) 15
98
Cal.4" 619, 658-659 [speculation fails to establish good cause to excuse a
seated juror]; People v. Fudge, supra, 7 Cal.4" 1075, 1098-1100 [court was
not require to discharge juror when juror’s inability to serve has not yet
becomeclear]; People v. Lucas (1995) 12 Cal.4" 415, 489 [a “court must
not presumethe worst” of a juror].) Penal Code section 1089 authorizes
removal of a juror who “is” unable to serve, not a juror who “is or might be
later” unable to serve. While a trial court need not wait to removeajuror
until he or she is in the midst of an actual breakdown,the record fails to
disclose to a “demonstrable reality” that Juror No. 11 was either unable or
sufficiently close to being unable to serve.
It seemsthatthe trial court’s decision was heavily influenced byits
erroneousbelief that Juror No. 11’s desire to see a counselor to address her
emotional issues would constitute misconduct because it would involve
discussing the case. (27RT 10118-10119.) As appellant explained, jurors
may discuss their emotions as long as they do not discuss the substantive
aspects of the case. (AOB 236,citing People v. Danks (2004) 32 Cal.4™
269, 300, 304; People v. Marshall (1996) 13 Cal.4" 799, 844.) Respondent
replies that the court was rightly concerned that Juror No. 11 steer clear of
misconduct because “someofher psychological issues were related to the
case(e.g., the association between Leisey’s testimony andthe harassing
phonecalls the juror received and her fear of the defendants).” (RB 96-97.)
The law, however, does not support respondent’s position. It does not
broadly prohibit discussion of any “psychological issues ... related to [a]
case.” (RB 97.) For example, People v. Danks found acceptable a juror’s
discussion with her husbandofthe stress she was feeling about making a
penalty decision. (32 Cal.4" 269, 300, 304.) Also, People v. Marshall
found no juror misconduct whereajuror told her husbandshe feared
getting shot if the jury convicted because this remark did not address the
99
substantive aspects of the case. (13 Cal.4 799, 844.) Here, Juror No. 11’s
feelings of “general fear” “that I’m not going to be able to sleep” (27RT
10116), fear due to recalling threatening phonecalls unassociated with the
case (triggered by Leisey’s testimony he had been harassed by phone)
(27RT 10108-10110, 10114) and empathy/identification with everyone
(27RT 10110) did not require discussion of substantive matters. They were
Juror No. 11’s own feelings triggered by, but unrelated to,the case.
Respondent offers no coherent responseto this point.
Therefore, respondent has failed to demonstrate that the trial court’s
decision to excuse Juror No. 11 was supported by good causeto a
“demonstrablereality.” Thetrial court erred.
Respondent’s contention that the error was harmless must be
rejected. (RB 99-101.) Respondent argues that because Juror No.11 did
not demonstrate she wasa lone hold-out in favor of the defense or a juror
who openly opposed the death penalty, appellant suffered no prejudice.
Under respondent’s approach, the erroneous removalof a juror could never
be prejudicial to a defendant unless the record showedthat the juror
intended to or was actually in the process ofthwarting a verdict for the
prosecution. Respondentcites no authority for this broad proposition.
Appellant argued that the Chapman standard for prejudice from
federal constitutional error applies to the erroneous removal of a seated
juror. (See AOB 237 & casescited therein.) Even under California’s
Watson standard, the harm need notbeas ironclad as respondent suggests.
An error will be deemed prejudicial under Watsonifthere is a “reasonable
chance, more than an abstract possibility” that the defendant would have
obtained a more favorable verdict in its absence. (College Hospitals, Inc. v.
100
Superior Court (1994) 8 Cal.4 707, 715, emphasis in original.) The record
establishes prejudice underthis standard.
Defense counsel emphasized that Juror No. 11 was a “very excellent
juror” for the defense. (27RT 10120.) She empathized with everyone and
knew whatit waslike to experience raw fear. She said that she felt fear
when she saw the Hodgesafter the courtroom seating had been rearranged.
In closing argument, defense counsel argued that the Hodges’ exposureto
the Powell jurors was perhaps“the best thing that ever happenedin this
trial for [appellant] because the Hodges wereso visibly scary. (31RT
11257.) In any case, Juror No. 11’s qualities made her especially open to
appellant’s claim that his mental state was so clouded by fear and pressure
from the Hodgesthat appellant did not form the specific intent required for
robbery andfirst degree murder.
That Juror No. 11 was favorable to the defense is apparent from the
prosecutor’s questions of her. The prosecutor explicitly asked herif she
wascapable ofvoting for guilt. (27RT 10115-10116.) Juror No. 11 did not
directly reply because the court sustained defense counsel’s objection to
this line of questioning. Nevertheless, that the prosecutor was moved to ask
his questionistelling.
Therefore, there are strong indications in the record which showthat
Juror No. 11 was favorable to the defense. Thetrial court’s erroneous
removal of her prejudiced appellant.
101
GUILT PHASE ISSUES
VI.
THE TRIAL COURT COMMITTED PREJUDICIAL
ERRORBY FAILING TO INSTRUCT THAT DURESSIS
A DEFENSE TO ROBBERY AND MURDER AND MAY
RAISE A REASONABLE DOUBT ABOUT THE
EXISTENCE OF SPECIFIC INTENT TO ROB OR
DELIBERATION AND PREMEDITATION;
THEREFORE, APPELLANT’S CONVICITONS FOR
ROBBERY AND MURDER AND THE
ACCOMPANYING ENHANCEMENTSAND SPECIAL
CIRCUMSTANCEFINDINGS MUST BE REVERSED.
Appellant’s theory of defense was that he acted under duress due to
threats and menaces from the Hodgesbrothers. Appellant demonstrated
that there was substantial evidence to warrant an instruction on duress, both
in regards to the charge of robbery, on whichthe prosecutionalso relied to
provefirst degree robbery felony-murder and the robbery felony-murder
special circumstance, and in regards to the deliberation and premeditation
elementof first degree murder. To preserve the issue for review, appellant
also argued that, notwithstanding this Court’s decision in Peoplev.
Anderson (2002) 28 Cal.4" 767, a duress instruction was also required for
the charge of murderitself. Because there was substantial evidence that
appellant robbed and killed under duress, the trial court erred in failing to
instruct on the defense, and the error was prejudicial. (AOB 241-263.)
Respondentreplies that the trial court properly refused to instruct on
of duress because the evidence wasinsufficient to support the instruction.
Further, appellant forfeited the argument that duress applies to the charge of
102
murder, and any error was harmless. (RB 101-118.) Respondent’s position
fails to withstand analysis.”
A. Substantial Evidence Supported an Instruction on Duress.
Respondentdisputes that there was substantial evidence that
appellant robbed and killed McDade under duress from the Hodges
brothers. (RB 106-111.) According to respondent, appellant’s own
statements to detective Lee and to Angela Littlejohn refute that he acted
under duress. (RB 106-107.) It is true that appellant did not explicitly tell
either Lee or Littlejohn that he acted in response to the Hodges’s threat to
kill him if he did not carry out the robbery and murder. (30CCT 8973-
31CCT 9036 [appellant’s statement to Lee]; 31CCT 9253-9292 [Littlejohn
recounts appellant’s statements to her].) Nevertheless, everyone agreed that
appellant’s statements could not be taken entirely at face value. (31RT
11167 [prosecutor argues point], 31RT 11252, 11284-11285, 11287, 11334
[defense counsel argues point].) Appellant gave several inconsistent
versions of what happened. (Compare 30CCT 8975-8977[appellant sat in
car while Hodges committed crimes] with 30CCT 8999-9001 [appellant
shot McDadeaccidentally], 31CCT 9003 [appellant shot McDade because
he was pressured and scared] and 31CCT 9263, 9277-9278 [appellant shot
McDadeafter they argued and because McDade “had it coming”].) Jurors
had to shift through appellant’s statements, disregard portions, accept
others and draw reasonable inferences from what they concludedrangtrue.
25 In his petition for writof habeas corpus, appellant alleges that trial
counsel provided ineffective assistance by failing to investigate, prepare
and present evidence of the Hodgesbrothers’ long history ofviolence to
support appellant’s duress defense. (PetHC, Claim V, 263-284.)
103
It is disingenuous for the government to now argue that appellant’s
statements must be takenliterally.
Notably, appellant told both Lee and Littlejohn that he was holding
back information about what happened. Hetold Lee,“if I went and told
everything that really, really happened, ya’ll ... would go swipe them [the
Hodges], and they [would get] locked up....” (31CCT 9012.) Hetold
Littlejohn, “nobodyreally know the truth about whyI killed him, the papers
got it all wrong.” (31CCT 9263; see also 9277.) Respondent simply
ignores these statements, and other evidence discussed below, because they
do not advance respondent’s position. It is necessary underthe law to
consider them as well as all other evidence supporting appellant’s claim
that the trial court erred in failing to instruct on duress.
Whenevaluating if the record contains substantial evidence in
support of an omitted instruction, the court must view the evidence in favor
of the party alleging instructional error. (People v. Wilson (1967) 66 Cal.2d
749, 763.) The court cannot weigh evidence or resolve conflicts in it
becausethese are tasks exclusively reserved for the jury. (People v.
Breverman (1998) 19 Cal.4" 142, 162.) Further, on substantial evidence
review, the evidence must be evaluated as a whole. (People v. Bassett
(1998) 17 Cal.4" 1044, 1146.) This approach acknowledgesthe jury’s
powerasthe fact-finder to decide what evidence to believe and what weight
to assign it. In its exclusive role as the determineroffact, the jury can
decide to believe only select portions of a witness’s testimony. (People v.
Wickersham (1982) 32 Cal.3d 307, 328, overruled on other grounds in
People v. Barton (1995) 12 Cal.4" 186, 200-201.) It is free to draw any
reasonable inferences it chooses to draw from the evidence which it credits.
In reviewing if substantial evidence supports an omitted instruction, the
104
reviewing court must honorthe jury’s poweras fact-finder consistent with
the jury trial guarantee. (U.S. Const., amend. VI; Cal. Const., art. 1, § 16.)
Respondent’s approachis inconsistent with these principles. Respondent
simply emphasizes the evidence that supports the judgment. Whilethisis
properin responseto a defendant’s claim ofinsufficient evidence (People
v, Hatch (2000) 22 Cal.4" 260, 272), it is the opposite from what is
required on review ofa defendant’s claim ofinstructional omission. In
determining if substantial evidence supports an omitted instruction,all
doubts must be resolved infavor ofthe instruction. (Wilson, supra, 66
Cal.2d 749, 763.)
Viewed in this manner, appellant’s statements to Lee and Littlejohn
do not defeat his duress claim. Rather, they fit into an evidentiary mosaic
which supports it. Appellant told Lee that he acted under fear and under
pressure from threats. (31CCT 9001-9003, 9019, 9021.) The record
showed that appellant was only a teenager, immature for his age (he
associated with teenagers younger than he was), and mentally slow. (23RT
8850, 28RT 10412, 10431; see also 31RT 11255-11256 [counsel’s
argument].) It also supports that appellant did not want to harm McDade.
(25RT 9426 [appellant did not want to kill], 30RT 8983-8984 [appellant
told his companionsnot to harm McDade], 32CCT 9315 [appellant was a
“wimp”and “chicken-shit” and “didn’t have no heart” when it came time to
commit the crimes]; see also 31CCT 9015, 9018-9019, 9146, 9151.) He
told Littlejohn he approached to McDadeto ask about getting his job back.
(31CCT 9277-9278.) He had done this many times before (16RT 6517,
6548-6549, 6575), because, as appellant put it, that job “was the only job I
was good at.” (30CCT 8999-31CCT 9000). According to appellant, the
encounter escalated into an argument and culminated in the shooting
(31CCT 9277-9278), but, again, no one knew whatreally happened
105
(31CCT 9263). Based on this evidence, jurors could have credited
appellant’s claim that he acted out of fear and under pressure and harmed
McDadeeventhough he did not want to. Jurors were not required to credit
appellant’s explanation that this was because McDadethreatened him
(31CCT 9001-9003, 9019; see 31RT 11255-11257, 11285-11334 [defense
counsel argues McDade did not threaten appellant].) If McDade wasnot
the cause of appellant’s fear and pressure, who was? Obviously, the jurors
could infer it was the Hodgesbrothers.
Respondentarguesthat there was insufficient evidence to place John
Hodgesat the crime scene and, although Terry Hodges admitted he was
there, Terry claimed he returned to the car when appellant shot McDade.
(RB 110.) Whether the Hodges werepresent in close proximity to
appellant bears on duress’s immediacy requirement. (People v. Heath
(1989) 207 Cal.App.3d 892, 900 [defendant must act in response to threat
of immediate, not future, harm].) Again, respondent applies the wrong
standard of review. Respondent simplistically views the evidence at face
value and in the light most favorable to the judgmentrather than crediting
the reasonable inferencesin favor of the omitted instruction which fair-
minded jurors could have drawn from the evidence as a whole.
The evidence established that both John and Terry Hodgeswereat
the crime scene. Balwinder Chatha, who workedat the Quick Stop Market
close to KFC, saw appellant in their presence a few hours before the
shooting. (21RT 8182-8183, 8185, 22RT 8372, 8375-8376, 8394, 8410,
8414.) Terry Hodges was driving his black Chevy Caprice. (21RT 8188,
22RT 8380-8381, 8411.) Around the time ofthe crime, Henrietta Senner
walked past KFC and saw a vehicle, very similar to Terry Hodges’s
Caprice, driving with its lights off in the lot behind the store. (1 8RT 7359,
106
7361-7362, 7372, 7374, |ORT 7405, 7444.) There were twoor three
silhouettes inside the car. (18RT 7364, 7376-7378, 19RT 7417-7418.)
Appellant told Lee he was there with both Hodges brothers. (30CCT 8978-
8980, 8999, 9010-9014, 9019-9020.) Although appellant claimed the
Hodgesstayed in Terry’s car, he also said that he wasafraidtotell
everything he knew, the Hodges “wantedit all to be on me,” and he shot
because he wasscared. (30CT 8981, 31CCT 9016, 9020-9021.)
Reasonable jurors could have seen through appellant’s claims that he
confronted McDadealone. John Hodgestold Eric Banks that he
manipulated appellant, a “youngster,” into committing the crimes. (31CCT
9146, 9151, 9154, 25RT 9426.) Banks, who wasfamiliar with John
Hodges’s modus operandi, spelled it out — for John to have donethis, he
would have remained by appellant. (31CCT 9144-9145, 9155.) John had
to be present, probably with a pistol, to enforce his orderto kill. (31CCT
9155-9156, 9158, 25RT 9462-9463.) Further, Terry Hodgestold Darryl
Leisey that he had to “coach” appellant like his own child to commit the
offenses because appellant was “chickenshit.” (25RT 9492, 9494, 9498,
27RT 10032-10034, 32CCT 9311, 9315.) Jurors could haverationally
concluded that Terry stayed by appellant to ensure appellant did as he was
told. Moreover, both of the Hodges brothers wanted McDadekilled so he
could not identify them as witnesses. Both used language indicating that
McDade had seen them: John said he ordered McDade killed so McDade
would notidentify “us.” (25RT 9462-9463, 31CCT 9156, emphasis
added.) Terry said, “I tell the reason whyhe had to kill him. ... Because
no witnesses, no can find. ... That’s why they can’t charge me.... [fs]
No witness, no can find me.” ([bid. emphasis added; see also 32CCT
9314.) The Hodgesbrothers would not have been concerned about
McDadeidentifying them unless they had been present with appellant
107
during the crimes. Respondent simply ignores this point and hencefails to
refuteit.
Respondent devotes the bulk ofthe government’s response to
marshalling the evidence supporting that appellant wanted to rob McDade.
(RB 107-109.) Unquestionably, there waslegally sufficient evidence to
support appellant’s robbery conviction. Even so, this does not mean that
appellant did not act under duress. A more nuancedinterpretation of the
evidence supports that appellant did not necessarily encounter McDade
with a clear intent to rob and kill him.
As appellant argued elsewhere, rational jurors could have interpreted
the evidence to depict appellant as an immature teenager who was
straddling two worlds as he was formulating his identity. When he
approached McDade, he was undecided about what he would do. (AOB,
Arg. XVII, 403-404; see also Arg. I, C.4, ante.) As appellant explained
(AOB 403-404):
One [world] wasthe criminallifestyle represented by
the Hodgesbrothers, a couple of “bad dudes,” who were
actively encouraging appellant to rob and kill McDade. (30RT
11005, 31RT 11054, 11257 [defense counsel argues Hodges
are “bad dudes”); 25RT 9471, 9474, 31CCT 9155, 32CCT
9303, 9311 [Hodgesare linked to guns, drugs, drive-by
shootings and prison]; 31CCT 9154-9155 [John Hodges
manipulates appellant to do his will and gives the orderto kill],
25RT 9494 & 32CCT 9305-9306 [Terry Hodgestells
appellant, “just whack the motherfucker”].) The other was the
straight and narrow path, represented by the hard-working
McDade (16RT 6505-6505, 6509) and appellant’s brother, who
waspressuring appellant to find work. (30CCT 8999).
108
The evidence warranted the inference that when
appellant encountered McDade, he was undecided about
whether he would carry out the Hodges’ directives. Appellant
did not act decisively to rob McDadeandeliminate him as a
witness; instead, he stalled for time. (16RT 6521, 6558-6559,
6562-6563, 6578 [McDade leaves KFC around 10:20 to 10:30
p.m.], 19RT 7583-7586 [Senner hears shot at 10:45 or 10:50
p.m.]; 32CCT 9315 [Terry Hodgestells Leisey the shooter
“didn’t have no heart”); 31RT 11280 [counsel arguesthatif
appellant confronted McDade simplyto rob and kill him, he
could have accomplished this in mere moments].) Appellant
still desperately wanted his old job back at KFC, which
appellant said was“the only job ... that I’m really goodat.”
(30CCT 8999.) If appellant robbed McDade, he would destroy
any chance of regaining it. (See 31RT 11287-11289, 11324-
11325 [defense counsel characterizes appellant’s job as his
“lifeline” and chanceat life as a law-abiding citizen].)
Appellant’s indecision about whetherto try to get his job back or victimize
McDadedoes not amountto specific intent to rob or kill. .
Roper v. Simmons (2005) 543 U.S. 551 held that the Eighth
Amendmentprohibits imposition of the death penalty on a defendant who
wasajuvenile whenhe killed. (/d. at pp. 568, 578.) It observed that
certain signature qualities of youth “do not disappear when an individual
turns 18” but instead gradually subside over time. (/d. at pp. 570, 574.)
Key amongtheseis a search for identity. (/d. at p. 570.) Youths also lack
maturity, have a diminished sense of responsibility and are prone to
reckless behavior. ([bid.) Additionally, youths are especially vulnerable to
outside influences, particularly peer pressure, and lack the resources to
extricate themselves from harmful environments. (/bid.) Jurors could have
seen appellant as searching for his identity and as undecided about what to
do when he encountered McDade. They could haverationally viewed
appellant’s expressed interest in robbing McDade as youthful bravado
109
rather than a concrete plan. It took the Hodges to finally force appellant to
side with their criminal objectives by threateninghislife if he did not doso.
Appellant demonstrated that the evidence showed that the Hodges
were frightening, criminally oriented individuals who were typically armed
and prone to violence. (AOB 251-252.) Appellant wasterribly afraid of
them. (AOB 252-253.) According to Leisey, Terry Hodges gave appellant
the gun appellant used against McDade. (32CCT 9303.) It had only one
bullet in it. (31CCT 9004.) As noted, the Hodgesbrothers told appellant
that they would leave no witnesses who could identify them. (25RT 9462,
9462-9463, 31CCT 9156 [John Hodges’s statements], 32CCT 9314 [Terry
Hodges’s statements].) This statement, combined with Terry’s providing
appellant with just one bullet, conveyed that if appellant was not with the -
Hodges he wasagainst them and would haveto be eliminated.
Respondent’s effort to analogize appellant’s case to People v. Wilson
(2005) 36 Cal.4" 309, 331-332 is unpersuasive. (RB 111-112.) In Wilson,
the defendant argued on appeal that the evidence showed heacted under
duress when heaided and abetted an on-going robbery which wasthe
underlying felony in a felony-murderprosecution. (/d. at pp. 331-332.)
The defendant admitted he did not see Anderson,the third-party who
supposedly threatened him, with a gun. (Ibid.) Nor wasthere evidence, as
here, that Anderson manipulated the defendant, ordered him to commit the
crime and stood by armedto ensure that the defendant carriedit out.
For these reasons, and the reasons advancedin appellant’s opening
brief, there was substantial evidence that appellant committed the crimes
against McDade underduress from the Hodges brothers. Thetrial court
erred in failing to instruct on duress as a defense to robbery and the element
ofpremeditation and deliberation required for first degree murder. ~
110
B. Duress is a Defense to Murder.
Next, respondent contendsthat appellant forfeited his argumentthat
the Legislature cannot constitutionally preclude duress from serving as a
defense to murder. (RB 104; see AOB 254-257.) Appellant disagrees.
Appellant’s requested version ofCALJIC No. 4.40 was worded broadly
enough to apply the defense of duress to the crime ofmurder. (2CT 529.)
Appellant also objected to the court giving CALJIC No. 4.41 once the
prosecutor requested it. (30RT 10934, 10940-10941.) CALJIC No. 4.41
provides that duress is not a defense to a crime punishable with death.
(2CT 655.) Thetrial court decided not to instruct on duress becauseit
believed there was insufficient evidence to support the instruction. (30RT
11023, 11048, 31RT 11051.) It would not have instructed on duress even if
trial counsel had articulated appellant’s position differently. Defense
counsel’s failure to do so should, therefore, be excused as futile. (People v.
Boyette (2002) 29 Cal.4" 381, 432 [party need not makefutile objection to
preserve claim oferror].)
Further, the claim is also preserved because the parties extensively
discussed what CALJIC No. 4.41 meant whenit stated that duress is not a
defense to a capital charge, particularly in light ofPenal Code section
26(6), which recognizes the defense of duress butlimitsit if “the crime be
punishable with death.” (30RT 10934-10937, 10940-10941, 10960-10963.)
The lengthy discussions on this topic gave the court an opportunity to
decide that duress is a defense to murder. Because the purposeofthe
forfeiture rule — to give thetrial court an opportunity to correct an alleged
error — was Satisfied, appellant’s claim has been preserved. It has also been
preserved because a court may reach a challengeto the constitutionality of
a statute despite lack of objection below. (See Jn re Dixon (1953) 41 Cal.2d
111
756, 763 [challenge to the constitutionality of a statute can be raised for the
first time on habeas corpus].)
On the merits, respondent argues whythe Legislature could
rationally choose to limit the defense of duress to non-murderoffenses.
(RB 112-114.) This sidesteps appellant’s argument rather than answering
it. Appellant’s argument does not depend on whether the Legislature acted
rationally. Rather, it depends on how the Legislature has defined murder.
“TA] State maynotfirst determine the elements of the crime it wishes to
punish, and then thwart the accused’s defense by categorically disallowing
the very evidence that would prove him innocent.” (Montana v. Egelhoff
(1996) 518 U.S. 37, 68 (O’Connor, J., dissenting).) Duress evidence tends
to negate proof of implied malice and specific intent. (People v. Anderson
(2009) 28 Cal.4" 767, 780-781; People v. Graham (1976) 57 Cal.App.3d
238, 239-240.) Both are essential elements ofmurder. (Pen. Code, § 187.)
Byside-stepping this claim, respondentfails to overcome appellant’s
showing.
C. The Instructional Omission Prejudiced Appellant.
Respondentalso fails to persuadethat thetrial court’s erroneous
failure to instruct on duress was harmless. (RB 114-118.) Initially,
respondent contendsthat the Watson standard for assessing prejudice from
state law error applies without citing any supporting authority. (RB 114.)
In contrast, appellant cited authority indicating that a criminal defendant
has a federal constitutional right under the Fourteenth Amendmentto
present a defense.”° This right also implicates the Sixth Amendmentrights
26 The United States Supreme Court recently affirmedthe right in
Nevada v. Jackson (6/3/2013) __ U.S.__ [133 S.Ct. 1990, 1992].)
112
to counsel andjury trial and the Eighth Amendmentrightto a reliable
penalty determination. (AOB 248, 257-258.) A trial court’s erroneous
failure to instruct on a theory of defense violates these federal constitutional
rights and is, therefore, evaluated for prejudice underthe stringent
Chapmanstandard for federal constitutional error: reversal is required
unless the governmentproves the error harmless beyond a reasonable doubt
(Chapman v. California (1967) 386 U.S. 18, 24). (AOB 248, 257-258.)
In contending that any error was harmless, respondent observes that
jurors were instructed on the mental state elements necessary for conviction
for robbery and murder. According to respondent, the prosecutor’s and
defense counsel’s closing arguments implicitly highlighted duress as a
defense theory, and the jurors nevertheless chose to convict. (RB 115-117.)
Respondent’s position fails to withstand analysis.
The prosecutor’s closing argument never mentioned duress or the
elements of the defense. It never acknowledged that the duress is a formal
defense. Instead, the prosecutor argued, “[a]nd so whatifthe [Hodges]
were [pressuring appellant]? That is not a defense....” (31RT 11347.) The
prosecutor dismissed defense counsel’s argumentas a “Svengali defense.”
(31RT 11339.) Additionally, he discredited defense counsel’s position by
contending that counsel “doesn’t care about a just verdict. He cares about
the defense ofhis client....” (31RT 11341.) The jurors would not have
been aware that duress is an actual defense sanctioned by law from the
prosecutor’s remarks. Lay jurors are not expected to correctly guess at
legal principles about which they are not correctly instructed. (People v.
Eid (2010) 187 Cal.App.4" 859, 883; People v. Franco (2009) 180
Cal.App.4® 713, 725.)
113
Likewise, defense counsel’s closing argument never mentioned
duress or the elements of the defense. Counsel never argued that duressis a
formal defense which supported a verdict favorable to appellant. After it
ruled that it would notinstruct on duress, the trial court expressly |
prohibited defense counsel from arguing the duress. (30RT 11053-11055.)
Without the benefit of an actual instruction from the court, the defense
remained in the shadows, unformulated for the jurors to squarely decide
whetherits elements applied. Giventhetrial court’s order precluding
defense argument on duress, defense counsel was only able to argue a
second-rate version ofpart of the defense, i.e., that appellant did not
actually formulate the specific intent to rob or engage in deliberation and
premeditation because he felt so much fear and pressure due to the Hodges.
(31RT 11249-11250, 11327, 11330-11331, 11337-11338.)
Contrary to respondent’s claim, counsel’s fear and pressure
argument wasnot an adequate substitute for an actual instruction from the
court on duress as a defense theory. Words ofadvocate do notcarry the
same weight with jurors as do legal instructions from the court. (Peoplev.
Matthews (1994) 25 Cal.App.4" 89, 99.) Whenan attorney is forced to
argue without the benefit of supporting instructions, jurors are especially
likely to mistrust his argumentas the artful invention of an advocate
attempting to persuade them. (People v. Clair (1992) 2 Cal.4™ 629, 663,fn.
8.)
Defense counsel’s claim that appellant did not actually form the
mental state necessary for conviction for robbery and murder becausehis
mind was so clouded by fear and pressure emanating from the Hodges was
not the equivalent of an argument contendingthat all the elements of the
duress defense had been established. The elements of the duress do not
114
directly address whether the defendantfailed to actually formulate the
necessary elementof intent required for commission of the charged crime.
The pattern jury instruction which counsel unsuccessfully requested,
CALJIC No. 4.40, set forth the elements of the defense as follows (2CT
529):
A personis not guilty of a crime whenhe engaged in
conduct, otherwise criminal, when acting under threats and
menaces underthe following circumstances:
1. Where the threats and menacesare such that they
would cause a reasonable person to fear that his life would be
in immediate dangerifhe did not engage in the conduct
charged, and,
2. If such person then believed that his life was so
endangered.
This rule does not apply to threats, menaces, and fear of
future dangertohislife.’
This pattern instruction does not track defense counsel’s argument. It does
not address the effect of the threatener’s threats on the defendant’s
formulation of the element of intent. Rather, it excuses when the defendant
has “engaged in conduct otherwise criminalifthe defendant (1) reasonably
and (2) subjectively believed his life would be in immediate dangerifhe
did not commit the crime.
Respondent’s argument must be rejected becauseit suggests that the
jurors rejected elements of a defense which were never presented to them,
27 Defense counsel asked that the pattern instruction be modified to add
a concluding paragraph providing that duress, “through its immediacy
requirement, negates criminal intent” andinstructing jurors to give the
defendant the benefit of a reasonable doubt about the matter. (2CT 529.)
115
even in the form of counsel’s argument. Jurors may have rejected the fear
and pressure defense counsel advancedbased on a belief that one mental
state (such as fear and/or pressure) cannot preclude actual formulation of
another. Yet even ifjurors harboredthis belief, it would not have blocked
them from finding duress under CALJIC No. 4.40. Respondent
characterizes appellant’s argumentthat jurors did not reject a defense of
whichthey did not know as “hair splitting” and “sophistry.” (RB 117.)
The undisputed elements ofthe defense speak for themselves.
“Permitting a defendantto offer a defense is oflittle value if the jury
is not informedthat the defense,if it is believed orif it helps create a
reasonable doubt in the jury’s mind, will entitle the defendant to a judgment
of acquittal” or other favorable result. (United States v. Escobar de Bright
(9% Cir. 1984) 742 F.2d 1196, 1201.) For the above reasonsandthose also
advancedin appellant’s opening brief (AOB 257-263), respondent has
failed to overcome appellant’s showing that he was prejudiced bythetrial
court’s erroneousfailure to instruct on duress as a defense.
Therefore, the judgment must be reversed dueto the trial court’s
instructionalerror.
116
Vil.
THE ERRONEOUS ADMISSION OF EVIDENCE
CONNECTING APPELLANT TO FIREARMS NOT
USED IN ANY OF THE CHARGED OFFENSES
VIOLATED APPELLANT’S RIGHT TO DUE
PROCESS AND A RELIABLE PENALTY
DETERMINATION AND REQUIRES REVERSAL.
Appellant demonstrated in his opening briefthat the trial court erred
to his prejudice in admitting evidence linking him to three guns that could
not have been the murder weapon. (AOB 264-284.) Such evidenceis
“highly prejudicial” (People v. Henderson (1976) 58 Cal.App.3d 349, 360)
becauseit tends to prove “not that [the defendant] committed the crime, but
only that he is the sort ofperson whocarries deadly weapons.” (People v.
Riser (1956) 47 Cal.2d 566, 577, overruled on other grounds in People v.
Morse (1964) 60 Cal.2d 631, 648-649). Consequently, such evidence in
inadmissible. (Riser, supra, at p. 577.) Respondentreplies that the claim
must be rejected. (RB 118-131.) Respondent’s position fails to withstand
analysis.
A. The Claim Has Been Preserved for Review
Initially, respondent contendsthat appellant forfeited his challenge
to three items of evidence linking him to gunsnot used in the charged
crimes. (RB 119-120.) This is incorrect. Contrary to respondent’s
assertion (ibid.), appellant’s objection to introduction of appellant’s
connection to a .32 caliber firearm, which appellant referenced in his
statement to detective Lee, wassufficiently timely and specific to preserve
appellant’s challenge to this evidence. The court’s remarks in overruling
117
the objection indicate that further objections to the other challenged gun
evidence would have beenfutile.2? (AOB 268-270.)
Respondentcorrectly points out that counselfirst objected to the .32
caliber firearm references out of concern that they might open the doorto
introduction of gang evidence in the form of a photograph showing
appellant and William Akens flashing gang signs and holding guns to each
other’s heads. (RB 119; 23RT 8864.) In overruling the objection,the trial
court found that there was no gang angle to appellant’s remarks about the
.32 caliber firearm. It stated, “this .32 ... does not, as far as I can tell, have
any references to gangs....” (/bid.) Contrary to respondent’s implication,
however,thetrial court did not limit itself to the finding that this evidence
did not implicate gangs whenit ruled that it was admissible. (See RB 119-
120.) The trial court explained that the .32 caliber firearm was relevant
because it *may or may not be a weapon that witnesses havetestified
[appellant] had possession ofearlier.” (23RT 8864.) The court’s remarks
referred to the earlier testimony ofKFC employees Junnell Rodriquez and
Ruben Martinez that appellant had showed them a gun shortly after
Halloween of 1991 while they worked a shift at KFC. (16RT 6570-6571,
6617, 6757 [Martinez’s testimony], 6595-6597, 6614 [Rodriquez’s
testimony].) Significantly, defense counsel challenged the court onthis
point. He stated that the evidence did not show that the .32 caliber firearm
had played anyrole in the case. Hesaid, “[y]our Honor, ... there has been
no reference ... in the trial up until this point of a .32 automatic.” (23RT
8 Iftrial counsel failed to preserve appellant’s challenge to the admission
of the firearm evidence, appellant contendsin his petition for writ ofhabeas
corpus that counsel renderedineffective assistance. (PetHC, Claim VI, §
A, 287-312.)
118
8865.) Unpersuaded,the trial court found that the references to the .32
caliber firearm were relevant and not unduly prejudicial, and, therefore,
they were admissible. (23RT 8866.) It told counsel, “I don’t agree with
you thatit is irrelevant, prejudicial or inadmissible.” (/bid.) This exchange
demonstrates that the trial court understood defense counsel to object to the
.32 caliber firearm references based on irrelevance and undue prejudice
irrespective of any gang angle. The court had found there was no gang
connotation to the evidence and proceededto find it relevant and not
unduly prejudicial, regardless of gang issues. Where the record
demonstrates that the trial court understood the basis for counsel’s
objection, even though the objection may have beeninartfully phrased, the
objection is sufficient to preserve the issue for appeal. (People v. Scott
(1978) 21 Cal.3d 284, 290.) If any doubt remains, defense counsel’s
further comments clearly dispel it. Counsel stated that, regardless of any
gang angle, “I wouldstill objectto it,” Le., appellant’s remarks concerning
the .32 caliber firearm. (23RT 8866.) This was in plain reference to
counsel’s earlier objections, as understood by the trial court, based on
irrelevance and undue prejudice. (Jbid.) Therefore, whether thetrial court
properly admitted appellant’s statements to Detective Lee concerning
ownership of a .32 caliber firearm over appellant’s irrelevance and undue
prejudice objections has been preserved for review.
Respondentdisputes that appellant’s unsuccessful objection to the
.32 caliber firearm evidence showsthat it would have been futile for
appellant to object to evidence linking him to two other firearms which
could not have been the homicide weapon,the gun appellant displayed
around Halloween to Martinez and Rodriquez and the shotgun appellant
sold. (RB 120.) Characterizing these as “unrelated objections,” respondent
cites the principal that “the court’s treatment of unrelated objections”fails
119
to demonstrate “that all objections would have been futile.” (bid., citing
People v. Arias (1996) 13 Cal.4" 92, 159-160.) The claim mustberejected
because appellant’s objection to the .32 caliber firearm evidence was
related to the evidence of the other two firearms given howthetrial court
viewed appellant’s connection to firearms in general.
Sincethetrial court reasoned that the .32 caliber firearm evidence
was relevant and not unduly prejudicial because it could be the gun
involved in the Halloween gun display (23RT 8864, 8866), it is evident that
the court believed that the Halloween gun display wasitselfproperly before
the jury. It maintained this belief even though it had heard evidence clearly
demonstrating that the gun appellant showed to Martinez and Rodriquez
could not have been the homicide weapon. Both witnesses described the
gun they saw around Halloweenas a different color from People’s Exhibit
No. 18A (compare 29CCT 8664 with 16RT 6595-6599, 6628 and with
16RT 6722-6723, 6728-6729), the gun which the prosecution claimed was
the murder weapon (28RT 10147-10151; 31RT 11187). Also, both
witnesses refused to identify People’s Exhibit No. 18A as the gun they had
observed. (16RT 6598, 6724-6726.) Giventhis belief, it is clear that the
court would have overruled an objection to the Halloween gun evidence.
Therefore, appellant’s failure to object to the Halloween gun display should
be excusedas futile. By the same token, so, too, should appellant’s failure
to object to evidence that he had sold a shotgun. The record demonstrates
that the trial court considered appellant’s connection to firearms not used in
the homicide to be relevant and not unduly prejudicial. Accordingly,
respondent, fails to demonstrate that appellant forfeited his challenge to
introduction of evidence linking him to three guns not used in the shooting.
120
B. The Trial Court Erred in Admitting Evidence Connecting
Appellant to Three Firearms That Could Not Have Been the
Murder Weapon.
Respondentarguesthatthe trial court properly admitted evidence of
appellant’s Halloween gun display because that gun could have been the
murder weapon. (RB 121.) Appellant disagrees. As noted above, both
Martinez and Rodriquez described the gun they saw as being a different
color than People’s Exhibit No. T-18A. People’s Exhibit No. T-18A is a
silver revolver with a dark handle. (29CCT 8664.) Martinez described the
gun he saw as black with a dark handle. (16RT 6723, 6729.) Rodriquez
described seeing a dark gun with a brown handle. (16RT 6625-6626.)
Both witnesses would have to be wrong aboutthe color of the gun they saw
for that gun to have been People’s Exhibit No. T-18A. Additionally, both
Martinez and Rodriquez refused to identify People’s Exhibit No. T-18A as
the gun that appellant displayed. (16RT 6598, 6724-6726.) They would
likewise had to have both been mistaken for People’s Exhibit No. T-18A to
be the gun involved in the Halloween gundisplay.
Respondentasserts that at one point in her testimony Rodriquez
stated that she was unsure that People’s Exhibit No. T-18A was not the gun
that she saw. (RB 121, citing 16RT 6598-6599.) The record does not
support the claim. Defense counsel asked her, ““’[d]oes this look like the
gun that you saw just after Halloween?” Rodriquez replied, “[nJo.” (l6RT
6598.) Subsequently, defense counsel asked, “do you knowifthis is the
gun or not?” Rodriquez replied, “I don’t think so.” (16RT 6599.) Clearly,
Rodriquez denied that People’s Exhibit No. T-18A was the gun she saw.
Notably, this is consistent with her statement to Detective Lee on January
20, 1992, when the events were freshest in her mind; describing the gun she
121
saw as dark with a brown handle. (16RT 6625-6626.) This is inconsistent
with People’s Exhibit No. T-18A. (29CCT 8664.)
Respondentalso fails to show that Martinez left open the possibility
that People’s Exhibit No. T-18A wasthe gun appellant displayed around
Halloween. Respondent observes that Martinez recalled the gun he saw
was a revolver with a brown or dark handle. (16RT 6725, 6726, 6729,
6772-6774.) (RB 121.) At trial, Martinez testified that the gun he saw was
black. (16RT 6723, 6729.) This is inconsistent with People’s Exhibit No.
T-18A. (29CCT 8664.) Further, he testified that People’s Exhibit No. T-
18A was not the gun he saw. (16RT 6729.)
Martinez’s and Rodriquez’s testimony cannot be reconciled with
respondent’s claim that People’s Exhibit No. T-18A might have been the
gun used in the homicide. That claim is based on speculation, not evidence,
and mustberejected.
Respondentalso argues that the Halloween gun display was properly
admitted for another reason,i.e., it tended to show that appellant was
contemplating robbery at the time. (RB, p. 122.) Respondent offers no
supporting argument for why appellant’s displaying a gun in a non-
threatening manner (16RT 6618-6619, 6758-6759) to KFC employees with
whom he wason good terms (16RT 6733) supports the conclusion that he
was contemplating robbing KFC. The claim makesno sense. If appellant
wanted to rob KFC, he would not have advertised his intention to his
would-be victims. The claim must also be rejected as speculative.
Resorting to propensity reasoning, respondent also contendsthat the
Halloween gun display was properly admitted because it showedthat
appellant was the type ofperson whocarried a gun;in turn, this tended to
122
show that, on the night of the shooting, appellant approached McDadewith
the gun used in the shooting and tendedto refute that appellant was gun-
free and only obtained the gun at the scene from one or both of the Hodges.
(RB 123-124.) Respondent’s argument does not identify a permissible
theory of admissibility for evidence connecting appellant to guns not used
in the charged crimes becauseit is based on propensity reasoning.
Propensity evidence is inadmissible. (Evid. Code, § 1101, subd. (a); People
v. Thompson (1980) 27 Cal.3d 303, 317 [“The inference of a criminal
disposition may not be used to establish any link in the chain oflogic
connecting the uncharged offense with a material fact”].) As appellant
demonstrated, none of the challenged instances of appellant’s prior gun
possession involved the murder weapon. (AOB 272-273.) To infer from
evidence that appellant possessed guns that were not the murder weapon
that appellant approached McDade armed with the murder weaponrequires
resort to propensity reasoning. One must deducethat appellant has armed
himself on prior occasions with guns that were different from the gun used
in the crime; therefore, appellant is the type ofperson whoarmshimself
with guns; therefore, it is likely that on the night of the shooting, appellant
was armed with yet another gun,1.e., the gun used in the shooting. The
sametype of reasoning was advancedbythestate in McKinney v. Rees (9%
Cir. 1993) 993 F.2d 1378 in an effort to justify admission of evidence
connecting the defendantto a knife that could not have been the murder
weapon in the defendant’s prosecution for murder committed with a knife.
The reviewing court rejected it as based on propensity reasoning: “The
only inference the jury could have drawn from such evidenceis that
because McKinney had owned a knife in September 1983, he owned a
knife in January 1984 [when the murder was committed], i.e., that he was
the type of person who would own a knife. The evidence thus was
123
evidence of another act offered to prove character and givingrise to a
propensity inference, and did not tend to prove a fact of consequence.” (Id.
at pp. 1382-1383.) This Court has likewise recognized that evidence
linking a defendant with weaponsthat could not have been usedin the
charged crimeis character evidence because it showsthat the defendant“is
the sort ofperson whocarries deadly weapons.” (People v. Riser, supra, 47
Cal.2d 566, 577.)
Respondentrelies on language in People v. Ewoldt (1994) 7 Cal.4"
380, 402 stating that “’the recurrence of a similar result ... tends
(increasingly with each instance) to negative ... innocent mental state, and
tends to establish .... [t]he presence of ... criminal, intent accompanying
such an act.’” (RB 123.) Respondent then arguesthat the challenged
evidence linking appellant to the three instances of firearm possession was
properly admitted to prove appellant’s “criminal intent.” (RB 124.) This
misapplies Ewoldt. The passage respondent quotes addressesestablishing
the element of intent for a charged crime to defeat a claim of mistake or
accident by showing that the defendant previously committed crimes
similar to the charged crime. (Ewoldt, supra, at p. 402.) Appellant’s
previously possessing a gun without usingit in a crime is quite dissimilar
from him using it in the charged crimes. There is no “recurrence of a
similar result.” (Jbid.) Ewoldt also states that “[i]n order to be admissible
to prove intent, the uncharged misconduct must be sufficiently similar to
support the inference that the defendant probably harbor[ed] the sameintent
in each instance. [Citations.]” (bid., citations omitted.) Here, the charged
crimes andthe three disputed instances of gun evidence were clearly
dissimilar. Therefore, the uncharged acts were inadmissible “to prove that,
ifthe defendant committed the act alleged, he or she did so with the intent
that comprises an element of the charged offense.” (Jd. at p. 394,fn. 2.)
124
Even if appellant possessed the gun he displayed around Halloween,
the shotgun he sold and the .32 caliber firearm he mentioned to Detective
Lee with somesort of nefarious mentalstate, this would simply tend to
prove appellant’s criminal predisposition. It does not satisfy the strict
requirements for admission ofuncharged misconduct evidence to prove
intent under Evidence Code section 1101, subdivision (b). (Peoplev.
Ewoldt, supra, 7 Cal.4% 380, 394, fn. 2.; People v. Williams (1988) 44
Cal.3d 883, 905 [because uncharged misconduct evidenceis inherently
prejudicial, its admissibility must be scrutinized with great care]; People v.
Thompson, supra, 27 Cal.3d 303, 316 [Ifthe connection between the
uncharged offense and the ultimate fact in dispute is not clear, the evidence
should be excluded”),italics in original, fns. & citations omitted.)
Anticipating an argumentthat the challenged evidence impeached
appellant’s assertion to Detective Lee that the .32 caliber firearm was the
only gun which appellant ever owned, appellant cited the rule against
impeachment on a collateral matter. (AOB 267,citing 30CCT 8982.)
Respondent does not take issue with the principle that collateral
impeachmentis disfavored becauseits probative value is slight whereasits
potential for prejudice and confusionis strong. (AOB 281-282,citing
Witkin, 3 Cal. Evid. (4% ed. 2000) Presentation at Trial, §§ 341, 346, pp.
426, 431-433 & People v. Lavergne (1971) 4 Cal.3d 735, 744; RB 125-
126.) Rather, respondent devotes considerable energy to factually
distinguishing People v. Lavergne, supra, 4 Cal.3d 735, a decision on
which appellant relied to set forth the general rule against collateral
impeachment. (RB 125-126.) Since appellant cited Lavergne for a general
principle, respondent’s factually distinguishing it misses the mark.
Appellant made a meritorious objection to his statements to Detective Lee
connecting him with a .32 caliber firearm, but the trial court erroneously
125
overruled it. The .32 caliber firearm which appellant referenced was not
the murder weapon (which was a .38 caliber firearm), and appellant’s
statements about it were not probative of any material fact. Since
appellant’s remarks to Lee about the firearm should have been excluded,
their erroneous admission cannotjustify introduction of even more firearm
evidence which would not be independently admissible.
Therefore, respondentfails to persuade that evidence connecting
appellant to three guns that were not used in the charged shooting was
properly admitted.
Cc. The Erroneous Introduction of the Gun Evidence Prejudiced
Appellant.
Appellant demonstrated that the erroneous introduction of his
connection to the Halloween gun display, the shotgun sale and the .32
caliber firearm prejudiced his efforts to defend against the charge of capital
murder. The harm was substantial enoughto violate his right to a
fundamentally fair trial, as guaranteed by the Due Process Clauseofthe
Fourteenth Amendment, and underminedhisright to a reliable penalty
determination, as guaranteed by the Eighth Amendment. (AOB 270-280,
283-284.)
Respondent contends that any error was harmless because there was
“overwhelming evidence of appellant’s guilt.” (RB 126.) Appellant has
already addressedthis contention and respectfully directs the Court to that
portion of his brief. (See Arg. I, § C.4, ante.)
Further, respondentasserts that CALJIC No. 2.50, with which the
jury wasinstructed, cured any potential for prejudice becauseit told jurors
not to consider evidence of appellant’s uncharged misconduct to show that
126
he “is a person of bad characteror that he has a disposition to commit
crimes.” (RB 126-127; 31RT 11110 & 2CT 580-581 [CALJIC No. 2.50].)
The claim fails to withstand analysis. Although CALJIC No. 2.50
prohibited jury consideration of other crimes evidence for bad character and
criminal predisposition,it also told the jury it could consider other crimes
evidence on the issue of “intent which is a necessary elementofthe crime,”
identity of the perpetrator, knowledge or that appellant “possessed the
means that might have been useful or necessary for the commission ofthe
crime charged.” (31RT 11110 & 2CT 580-581.) The challenged gun
evidence did not logically tend to show anyofthe instruction’s authorized
purposes. It did not show that appellant possessed the means necessary to
commit the charged crime becauseit failed to show that any of the guns
which appellant possessed before the shooting could have been the gun
used in the shooting. For the same reason, the challenged gun evidence did
not tend to prove appellant’s identity as the perpetrator since the inference
of identity flows from possession of the instrumentality of the crime.
(People v. Hamilton (1985) 41 Cal.3d 408, 430.) Nor did the challenged
evidence support an inference that appellant harbored “intent whichis a
necessary element of the crime”dueto the lack of sufficient similarity
between the uncharged misconductand the charged crime. (Peoplev.
Ewoldt, supra, 7 Cal.4"" 380, 394 & 402.) Likewise, the disputed gun
evidence did not logically tend to establish knowledge because knowledge
wasnot an essential element.
Appellant argued that in order for jurors to rely on the challenged
gun evidence to draw the inferences whichthe instruction authorized, they
would have hadto first draw impermissible inferences about appellant’s
bad character and criminal predisposition. For example, for jurors to infer
from the gun evidence that appellant possessed the means necessary to
127
commit the crimé, jurors would have neededto reason that because
appellant possessed various firearms which were not the firearm used in the
shooting, appellant is the type ofperson who possess deadly weapons,and,
therefore, he likely possessed the gun used in the crime. This is precisely
the type of reasoning condemnedin theinstruction andthe rule against
admission ofpropensity evidence. At worst, the instruction encouraged
jurors to rely on bad character and propensity reasoning in drawing
authorized inferences based on the gun evidence. At best, the instruction’s
conflicting directives — do not use propensity reasoning butfeel free to
draw an authorized inference that depends on propensity reasoning —
cancelled each other out, leaving jurors adrift without appropriate guidance.
Either way, the instruction did not cure the harm flowing from the
erroneous admission of the gun evidence.
Respondent’s reliance on Estelle v. McGuire (1991) 502 U.S. 62is
misplaced. (RB 127.) There, the defendant was prosecuted for infanticide.
His defense wasthat the victim sustained her fatal injuries whenshefell off
a couch whenthe defendantleft the room. (Estelle v. McGuire, supra, at
pp. 65-66.) Evidence that the victim had sustained priorserious injuries
was properly admitted to prove that the injuries she sustained the day she
died had been inflicted intentionally, not accidentally. (/d. at p. 68.) An
instruction informed jurors that they could consider the prior acts on the
issue of the defendant’s guilt ifthey concluded that the defendant
committed them and found a “clear connection” between them and the
charged murder. (/d. at p. 67.) The instruction explicitly told jurors that
they could not consider the prior act evidence to prove the defendant’s
criminal predisposition. (/bid.) The opinion reasonedthat jurors would
have understood theinstruction to allow them to consider the victim’s prior
injuries for permissible purposes, such as intent, identity, motive or plan.
128
(Id. at pp. 73-75.) One ofthe permissible purposes framed by the evidence
waslack of accident or mistake. (/d. at pp. 68-69.)
In contrast to Estelle v. McGuire, the challenged evidence here was
not admitted for any proper purpose. Nor was there any way that jurors
could considerit for the purposes permitted in CALJIC No. 2.50 without
drawing impermissible inferences about appellant’s criminal predisposition.
Respondentalso attempts to minimize the prosecutor’s reliance on
the challenged evidence. (RB 127.) The record belies the assertion. The
prosecutor referencedthe gun evidence multiple times in his opening
statement. (SRT 6356, 6369 [referring to possession of .32 caliber firearm],
6309-6311 [referring to post-Halloween gun display].) Presenting it during
the state’s case consumed approximately 55 pages of transcript. (16RT
6626-6628, 6570-6571, 6595-6599, 6608-6611, 6615-6619, 6625-6628,
6637, 6722-6726, 6728-6732, 6750-6751, 6753-6765, 6770-677 1, 6773-
6774, 30RT 10793, 10805; 30CCT 8982, 8984.) Additionally, the
prosecutor referenced it four times during his closing argument. Notably,
the prosecutorrelied on it to encourage jurors to draw impermissible
inferences about appellant’s criminal predisposition. He argued, “why does
he have a gun? Becausehe’s thinking, he’s on the criminal, criminal path.
... He’s a Street kid, and he’s thinking that this gun can get me some
money. If he’s thinking this gun can get me some money,he’s thinking
about doing an armed robbery.” (32RT 11359.) The prosecutor also
asserted that appellant “doesn’t get that gun becausehelikes to go target-
shooting out in the woods. He’s got that gun because he’s headed downthe
criminal path.” (31 RT 11341-11342.) The prosecutor drew the jurors’
attention to the gun evidence bystating, “It soundslike as far back as
Halloween of 1991 Carl Powell is thinking about robbing Kentucky Fried
129
¢
€
Chicken. [{] Then one and a half to two months before the murder,
according to Ruben Martinez, Carl Powell came to Kentucky Fried Chicken
and showed Reuben a gun.” (31RT 11186.) Additionally, the prosecutor
contendedthat appellant’s Halloween gun display constituted an uncharged
crime and was addressed in CALJIC No. 2.50. (31RT 11162-11163.)
Thus, the prosecutor took advantage of the erroneously admitted gun
evidence, which took considerable time to present, by repeatedly drawing
the jurors’ attention to it and relying onit to argue that appellant was
criminally oriented. This exacerbated its prejudicial effect. (People v.
Woodward(1979) 23 Cal.3d 329, 341; McKinney v. Rees, supra, 993 F.2d
1378, 1386.)
Respondentalso argues that because there were permissible
inferences that the jurors could have drawn from evidence of appellant’s
connection to three guns not used in the shooting, appellant’s due process
right to a fundamentally fair trial was respected. (RB 128.) A due process
violation occurs “[o]nly if there are no permissible inferences the jury may
draw from the evidence”andit is of “’” such quality as necessarily prevents
a fair trial.”’” ([bid., quoting Jammal v. Van de Kamp (9" Cir. 1991) 926
F.2d 918, 920.) Appellant has demonstrated there were no permissible
inferences which jurors could have drawn from the erroneously admitted
gun evidence. (See § B, ante; AOB 270-280.) Moreover, evidence
wrongly linking appellant to numerousfirearmsnot usedin the killing was
of sufficient quality to deprive appellant of a fair trial. This Court has long
recognized the potent prejudicial effect of such evidence. (People v. Riser,
supra, 47 Cal.2d 566, 577, citing People v. Wong Ah Leong (1893) 99
Cal.440; People v. Yee Fook Din (1895) 106 Cal. 163, 165-167; People v.
O’Brien (1900) 130 Cal. 1, 5; People v. Riggins (1910) 159 Cal. 113, 121.)
So, too, has federal authority. (McKinney v. Rees, supra, 993 F.2d 1378;
130
Alcala v. Woodford (9 Cir. 2003) 334 F.3d 862.) “Rightly or wrongly,
many people view weapons,especially guns, with fear and distrust.”
(United States v. Hitt (9™ Cir. 1992) 981 F.2d 422, 424.) Such evidence
may cause jurors to conclude that the defendantis “the sort ofperson who
... [iS] So dangerous he should be locked up regardless of whetheror not he
committed this offense.” (/bid.)
Respondent’s efforts to distinguish appellant’s case from the federal
decisions on which appellantrelied are unpersuasive. (RB 128-129.) In
McKinneyv. Rees, supra, 993 F.2d 1378, the prosecution presented
evidence in the defendant’s prosecution for murder committed with a knife
connecting him with multiple knives that could not have been the murder
weapon. Evidence was admitted that the defendant was proudofhis knife
collection, strapped a knife to his body while wearing camouflage clothing
and had scratched “death is his” on his door. (/d. at pp. 1381-1382.)
McKinney observedthat the knife evidence was “emotionally charged.”
(Id. at p. 1385.) The prosecution portrayed the defendantas leading a
“commandolifestyle” and created an image ofhim as “a man with a knife
collection, who sat in his dormitory room sharpening knives, scratching
morbid inscriptions on the wall, and occasionally venturing forth in
camouflage with a knife strapped to his body. This evidence, as discussed
above, was not relevant to the questions before the jury. It served only to
prey on the emotionsofthe jury, to lead them to mistrust McKinney, and to
believe more easily that he was the type of son who would kill his mother
in her sleep without much apparent motive.” (/bid.) Appellant’s case
shares parallels with McKinney. Here, the prosecution also portrayed
appellant as proud of his gun ownership as shownbythe Halloween gun
display. It emphasized that his connection to guns evidencedhis criminal
lifestyle, i.e., that he was a “street kid” headed down the “criminal path.”
131
(31RT 11341-11342, 32RT 11359.) Indeed, the prosecution speculated that
appellant’s Halloween gun display meant that appellant was contemplating
robbery. (/bid.) The impermissible uses to whichthe state put the gun
evidence in appellant’s case are on par with those in McKinney.
Although appellant’s case is distinguishable from McKinney because
appellant, unlike McKinney, confessed, appellant’s confession was only
one of several versions of the incident which he gave tothe police.
(30CCT 8973 - 31CCT 9036.) Jurors had to decide to what extent they
foundit believable, particularly in regards to a delicate assessment of
appellant’s mental state. Did appellant approach McDade with innocent
intent to talk about getting his job back, only to succumbto pressure from
the Hodgesto rob and kill or did appellant set out with these criminal
objectives clearly in mind? There were no eyewitnessesto the shooting.
Appellant’s mental state was based on circumstantial evidence, which
warranted competing inferences. The prosecution’s portrayal of appellant
as a criminally oriented “street kid” who was proudofpossessing firearms,
frequently possessed them and, as evidenced by his connection to firearms,
was contemplating robbery, was emotionally charged and, as in McKinney,
deprived appellant of a fairtrial.
In Alcala v. Woodford, 334 F.3d 862, the Ninth Circuit ruled that
erroneous admission of knife sets that were not the murder weapon
constituted constitutional error. The prosecutor emphasizedthe irrelevant
knives in his closing argument,they fit into the state’s theory of “strange
coincidences” (the murder weapon and knife sets were made by the same
manufacturer), and they tendedto bolster proof ofthe defendant’s identity
as the killer, where identity was in significant dispute. (/d. at pp. 886-888.)
Although respondent correctly points out that appellant admitted to
132
shooting McDade (RB 131), Alcala nevertheless supports appellant’s
position. Here, too, the prosecution emphasizedthe irrelevant weapons
evidence. As noted above,the prosecutor outlined it in his opening
statement, devoted substantial time to developing it duringtrial and
repeatedly mentionedit in his closing argument. Further, the evidence was
used to strengthen the state’s case concerning the disputed issue of
appellant’s intent. It did so based not on legitimate inferences but based on
impermissible propensity reasoning.
Therefore, respondenthas failed to overcome appellant’s showing
that erroneous introduction of evidence linking appellant to numerous
firearms that could not have been used in the homicide requires reversal of
appellant’s convictions for robbery and murder, the robbery-murder special
circumstance and the penalty determination of death.
133
VIII.
THE ERRONEOUS INTRODUCTION OF BAD
CHARACTER EVIDENCE PERTAINING TO GANGS
VIOLATED APPELLANT’S RIGHTTO A FAIR TRIAL
AND REQUIRES REVERSAL.
Appellant demonstrated that the trial court erred to his prejudice in
allowing introduction ofirrelevant and prejudicial gang evidence. (AOB
285-308.) Respondentreplies that the claim has beenpartially forfeited,
there was noerror and any error was harmless. (RB 131-140.)
Initially, respondent contendsthat appellant forfeited appellate
claims concerning admission of (1) evidence that appellant’s friend,
Roosevelt Coleman, was a Crip with the street name “Baby Snake;” and (2)
Schuyler’s testimony describing appellant’s mannerofdress as “Crippin’.”
(RB 134-135.) The claims were preserved for review. As appellant
pointed out, he made a successful in limine objection to introduction of any
gang evidence. (SRT 2116.) Thetrial court broadly ruled that all gang
evidence wasirrelevant and inadmissible because there was no gang angle
to the case. (SRT 2116-2117.) It subsequently reiterated its ruling on
multiple occasions (1SRT 6235, 16RT 6791-6794, 6798, 17RT 6822-6823)
and madeclear that no gang references could be admitted unless the matter
wasfirst litigated outside the jury’s presence and the court found that the
probative value of the gang evidence outweighedits potential for prejudice.
(16RT 6799-6800, 17RT 6801, 6803, 6822-6823). Respondentcites
authority for the proposition that in limine rulings are not binding because
subsequent developments duringtrial may give thetrial court solid grounds
for reconsideringits pretrial decision. (RB 134-135 & cases cited therein.)
Respondent, however, fails to point to any subsequent developments which
134
would have given the trial court reason to part from its in limine
determination.
Whenthetrial court made this ruling, it understood how the gang
evidencefit into the context of the case. Consequently, appellant did not
need to reiterate his in limine objection each time gang evidence was
referencedat trial. (People v. Morris (1991) 53 Cal.3d 152, 190, overruled
on other grounds in People v. Stansbury (1995) 9 Cal.4® 824, 830, fn. 1.)
This Court has observed that an in limine objection can preserve a claim of
evidentiary error under Evidence Codesection 353 undercertain
circumstances:
... [A] specific objection to a particular body of
evidence can be advanced andruled upon definitively on a
motion in limine, thus satisfying the requirements of the
statute. In this case, for example, defendant made a
motion in limine to excludeall ofthe testimony of the two
female witnesses based on allegedly coercive termsin their
written plea agreements. The motion wasclearly and
unequivocally denied. The objection wasspecific, it was
directed to an identifiable body of evidence, and it was
advancedat a time whenthetrial judge could give fair
consideration to the admissibility of the evidencein its
context. Moreover, the Attorney General does not point to
any event in the trial occurring after the in limine ruling and
before the evidence wasoffered that so changed the context
as to constitute a basis for reconsideration ofthe ruling.
Under these circumstances, defense counsel wasjustified in
concluding that a mere repetition of the same objection
advanced on the motion in limine would serve no useful
purpose. The objection having been madeand ruled upon,
the issue was preserved for appeal.
([bid.; citation omitted.)
135
Here, too, appellant made a timely and specific objection to an identifiable
body of evidence whenthe trial court could fairly consider its admissibility
in context. Thetrial court likewise made an unequivocal ruling on the
objection. Additionally, nothing transpiredto give thetrial court reason to
reconsiderits decision. Accordingly, appellant’s in limine objection to
introduction of gang evidence wassufficient to preserve the issues raised
for review.
Appellant’s claims have not been forfeited for additional reasons.
As appellant demonstrated, his request for a curative admonition
concerning Schuyler’s testimony that appellant was “crippin’”satisfied the
requirement for a timely and specific objection under Evidence Code
section 353. (AOB 298.) Appellant relied on two decisions to support his
position. In People v. Jennings (1991) 53 Cal.3d 334, 375 this Court found
a claim of error preserved because the defendant sought “some ... form of
remedial action” to combat improperly admitted evidence. Also, in People
v. Elliot (2005) 37 Cal.4" 453, 481, it recognized that a requestfor a
limiting instruction serves the same purpose as a contemporaneous
objection to evidence. Respondentfails to address and hencedistinguish
these decisions. Because appellant brought the error in Schuyler’s
testimonyto the trial court’s attention in time forit to rectify it, appellant
satisfied the purposes of the contemporaneousobjection rule. (People v.
Marchand(2002) 98 Cal.App.4" 1056, 1060.) Appellant’s claim has,
therefore, been preserved.
In light of the trial court’s refusal to admonish the jury to disregard
Schuyler’s gang reference that appellant was “crippin” (18RT 7194-7195,
7198-7199), appellant’s failure to later object to or otherwise request
remedial action concerninghis reference to detective Lee that Coleman as a
136
Crip with street name Baby Snake must be excusedas futile. (AOB 298-
299.) Respondent characterizes the comparison as “inapt” (RB 135), but
both referred to the Crip criminal street gang and both should have been
excluded underthetrial court’s in limine ruling, Moreover, any objection
to the Coleman gang references would have comeonthe heels ofthe trial
court’s overruling appellant’s objection to other gang referencesin his
statement to Lee, i.e., references to his own street name and house name
andto associating with “homies” and a “road dog.” (23RT 8867-8868,
8893-8894.) This, too, supports that an objection directed at the Coleman
gang references would have beenfutile. (See People v. Roberto V. (2001)
93 Cal.App.4" 1350, 1365 & fn. 8 [where counsel's hearsay objection was
overruled as to one statement, same objection to similar statements was
unnecessary and, hence,the failure to object to the latter statement did not
waivethe asserted error for appeal].) Respondentreplies to appellant’s
futility argument with only conclusory assertions which, by their nature, are
unpersuasive. Thetrial court’s persistent, unfavorable rulings concerning
gang evidence oncethe evidentiary portion ofthe guilt phase started excuse
appellant’s failure to object to the Coleman gang references. Accordingly,
appellant’s claim of error has been preserved.”?
Next, respondent’s defense ofthetrial court’s challenged rulings on
their merits is feeble and must be rejected. (RB 135-136.) Respondent
simply observesthat a trial court has discretion in determining whether to
admit gang evidence. (RB 136.) While this is true, respondent offers no
9 If trial counselfailed to preserve appellant’s challenge to the gang
evidence for review, appellant maintains in his petition for writ of habeas
corpus that counsel rendered ineffective assistance. (Pet HC, Claim VI, §
B, 312-335.)
137
é&
é
«€
reason in support the trial court’s exercise of discretion here. Nor can
respondent. Asthe trial court aptly observed, there was no gang angle to
the case and gang evidence wasirrelevant and prejudicial. (SRT 2116-
2118.) The court should not have admitted it in contravention ofits pretrial
ruling.
Nor, as respondent claims, was any error was harmless. (RB 136-
140.) As respondent correctly points out, the defense did not dispute that
appellant was the shooter; rather, it contested appellant’s mental state at the
time of the charged robbery and murder. (RB 136; see 31RT 11249-
11250.) Respondent fails to logically support the government’s claim that
the gang evidence was harmless becausetheissue in dispute had been
narrowed to intent. The inherently prejudicial nature of gang evidence
threatens to invite jurors to reason that the accused has a criminal
disposition and, therefore, committed the charged crimes. (People v.
Williams (2009) 170 Cal.App.4" 587, 612.) This danger applies when
intent is in dispute. Once jurors conclude that a defendant has a criminal
disposition, they are likely to find him guilty of the charged crimes by
failing to hold the state to its burden of proof. (People v. Albarran (2007)
149 Cal.App.4" 214, 230 [gang evidence threatens to cause jurors to reason
that, regardless ofwhether the defendant committed the charged crimes,
defendant “had committed other crimes, would commit crimesin the future,
and posed a dangerto police and society in general and thus he should be
punished”’].)
Moreover, contrary to respondent’s assertions (RB 136-138), jurors
would have suspected gang connotations to the challenged evidence of
appellant’s street name, style of dress described as “crippin,” association
with his “homie” and “road dog,” and association with a Crip who also had
138
a street name. Respondent addresses each item of evidencein isolation in
an effort to downplay its significance. (/bid.) The fact is, however,that a//
the challenged evidence was admitted and it a// combined to create and
reinforce gang connotations harmful to the defense. Jurors are astute and
live in the real world. They did not need the gang aspect of the evidence to
be explicitly spelled out for them. (See People v. Cardenas (1982) 31
Cal.3d 897, 905 [although the prosecution did not explicitly call the youth
group appellant andhis friends belong to a “gang,” jurors undoubtedly
identified it as such, either from their personal knowledge or from their in-
court observations of the witnesses' age, ethnicity, and tattoos”].) Because
the prosecutor knew this, he sandwiched references to appellant’s street
namebetweenreferences to appellant’s Halloween gun display in his
Opening statement to imply that appellant was a gun-toting gang member.
(15RT 6310-6311.) As appellant pointed out, a “homie”is by definition a
gang-member. (AOB,p. 304; see www.thefreedictionary.com and
www.dictionaryreference.com [defining “homie” as “homeboy” and further
defining “homeboy”as a “fellow gang member”].) Further, it is common
knowledge that gang members have monikersor street names. (AOB 302 &
cases cited therein.) Moreover, if there was any doubt about whether a
street name suggests gang membership, detective Lee dispelled it by
explicitly linking Coleman,a Crip, to having a street name. (34CCT 9023,
9030.) When appellant hesitated to tell lee Coleman’s street, Lee chided
him by saying, “you know he’s got a street name.” (/bid.) Lee implied that
Coleman hada street since he was a Crip and gang membershavestreet
names. Respondentdismisses as speculative the notion that because
appellant associated with Coleman,a Crip, jurors would have also
suspected that appellant was also a Crip. (RB 137.) This naive assertion
mustbe rejected. Guilt by association has a powerful appeal. (E.g., People
139
v. Perez (1981) 114 Cal.App.3d 470, 477 [irrelevant gang membership
evidence allowed jurors to draw unreasonable inferences about defendant’s
guilt based on theory of guilt by association].) Counsel for John Hodges
was so concerned that the Hodgesjurors would infer John Hodges’sguilt
from his association with appellant that he requested that the court give a
curative admonition distancing John Hodges from Schuyler’s testimony
that appellant was “crippin.” (18RT 7194.) Further, by the time jurors
heard that Coleman was a Crip who obviously had a street name (24RT
8893-8894 [jurors watch videotape of appellant’s statement to Lee]), they
had already heard that appellant himself had a street name (see 34CCT
8974 & 34CCT 9023, 9030) and Schyuler’s description of appellant as
“cripping.” (18RT 7170). There can belittle doubt that, considering the
evidence as a whole, jurors concluded that appellant was Crip who
associated with other Crips, such as Coleman andhis “road dog” and
“homies.”
Respondentdistinguishes appellant’s case from decisions on which
appellant relied because, according to respondent, the gang evidence in
those cases was more pervasive than in appellant’s. (RB 138-140.)
Appellant cited these decisions to argue that because gang evidenceis
highly inflammatory, its admissibility should be examined with great care,
and it should be excludedif its probative value is weak. (AOB 300-301 &
case cited therein.) Respondent’s factually distinguishing these opinions
fails to advance the government’s cause. Unquestionably, the principles
they stand for are good law. (See, e.g., People v. McKinnon (2012) 52
Cal.4" 610, 655 [because gang evidence “’may have a highly inflammatory
impact on the jury trial courts should carefully scrutinize such evidence
before admitting it’ [citation]’’].)
140
Appellant also pointed out that the erroneous introduction of gang
evidencewill result in reversal, particularly if the gang evidenceis
cumulative of other, less prejudicial evidence, and he cited several
supporting decisions. (AOB 301, citing People v. Cardenas, supra, 31
Cal.3d 897, 904-905; People vy. Albarran, supra, 149 Cal.App.4" 214, 225-
232; People v. Bojorquez (2002) 104 Cal.App.4" 335, 345.) Respondent
argues that the gang evidencein these decisions was more pervasive and
inflammatory than the gang evidencein appellant’s. (RB 138-140.)
Contrary to respondent’s claim, the gang evidence in People v. Cardenasis
comparable to that here. Cardenas reversed the defendant’s robbery
conviction in a case where the defendant’s identity as the culprit was open
to doubt due largely to the erroneous introduction of evidence that the
defendant and certain defense witnesses all belonged to a youth group
called El Monte Flores. (Cardenas, supra, at pp. 902-903, 910.) Some of
the witnesses were askedto display their tattoos before the jury. (/d. at pp.
902-903.) The prosecutor also asked questions advancing the speculative
suggestion that the charged robbery had been a gang operation. (/d. at p.
905-906.) The gang evidence was offered to show that defense witnesses
werebiased in favor of appellant due to their commonassociation with
him, but appellant’s friendship with these individuals was amply
established by other, properly admitted evidence. (/d. at p. 904.) Cardenas
found that the gang evidence created substantial danger of undue prejudice
because “[t]here was a real danger that the jury would improperly infer that
appellant had a criminal disposition because (1) the El Monte Flores was a
youth gang; (2) such gangs commit criminal acts; and (3) appellant was a
memberofthe Flores gang.” ([bid.)
Similar to the identification evidence in Cardenas, the evidence of
appellant’s mental state was subject to competing inferences. (See Arg.I, §
141
é&
C.4, ante.) Jurors would have understood the challenged evidenceto
pertain to gangs based on reasonable inferences drawn from thetotality of
the evidence and from their common knowledge. (People v. Cardenas,
supra, 31 Cal.3d 897, 905.) The gang evidence waseither irrelevantor, as
in the case of Schuyler’s description of appellant’s dressing like a Crip,
cumulative. As in Cardenas, jurors werelikely to draw highly damaging
inferences concerning appellant criminal predisposition and rely on them to
convict appellant irrespective of whether the prosecution had met its burden
of proof. Additionally, the gang evidence also combined with other
improperly admitted and inflammatory evidence, namely appellant’s
connection to various firearms that could not have been used in the charged
crimes. (See Arg. VII, ante.) Accordingly, this case is like Cardenas and
also requires reversal.
This case stands in contrast to People v. Abel (2012) 53 Cal.4" 891,
which found introduction of evidence of the defendant’s gang membership
to be harmless. (/d. at pp. 925-926.) There, the prosecutorelicited from a
witness that she feared her son would be harmed dueto hertestifying and
started to explain that he wasaffiliated with a gang to which the defendant
had once belonged. (/d. at p. 923.) Assuming the reference was
erroneously elicited, this Court deemed it harmless becauseit wasfleeting
and the prosecutor quickly changed the subject rather than exploitingit
during the witness’s testimony;the trial court gave a curative admonition
and jurors otherwise heard that the “defendant was a dangerous man who
had committed numerous violent crimes and had spent a substantial portion
of his life in prison.” (/d. at p. 925.) In contrast, here evidence suggesting
appellant’s gang membership andassociation with other gang members was
repeatedly presented. Thetrial court did not take remedial action but
simply let it in without admonishing the jury to disregard it. Additionally,
142
the evidence portrayed appellant as an immature teenager, without violence
or incarceration in his past, who was slow and easily dominated by more
forceful individuals. (See also People v. Fuiava (2012) 53 Cal.4"* 622, 689
[defendant could not have been prejudiced by prosecutor’s alleged
misconduct in unduly emphasizing gang membership wheretrial court
sustained defense counsel’s objections to prosecutor’s questions and other
evidence already indicated defendant was a gang member].)
Therefore, respondent’s efforts to defend the introduction of
prejudicial gang evidence against appellant must be rejected.
143
IX.
APPELLANT’S STATEMENTSTO LITTLEJOHN
THAT HE INTENDED TO COMMIT ROBBERYIN THE
FUTURE SHOULD HAVE BEEN EXCLUDED AS MORE
PREJUDICIAL THAN PROBATIVE.
Appellant demonstrated in his opening brief that the trial court
committed prejudicial error in admitting over appellant’s objection his
statement to Angela Littlejohn that he wanted to get his gun backto “get ...
money.” (AOB 309-320.) Respondent disagrees. (RB 140-147.)
Initially, respondent claimsthat portions of appellant’s claim have
been forfeited because trial counsel did not make the same exact points
below as appellant makesin his openingbrief: i.e., that the challenged
evidence was cumulative andits prejudicial effect was exacerbated by
Littlejohn’s commentary that appellant and his associates would use the
gun to kill, a commentary which, considered in context, preyed on fears
associated with race and gangs. (RB 142.) Respondentcites People v.
Saunders (1993) 5 Cal.4 580, 589-590 as support, but Saunders simply
provides that a party must makea timely and specific objection below to
preserve a claim of error for appeal. (Jbid.) Appellant did so. Counsel
objected to specific evidence: appellant’s statements to Littlejohn about
getting his gun back to do more robberies. Also, counsel objected on
specific grounds: counsel cited Evidence Code sections 352 and 1101 and
argued that the challenged evidence was“too prejudicial,” particularly
becauseit related to hypothetical future conduct. (1SRT 6788-6790, 28RT
10372-10373.) Counsel’s timely objection to specific evidence on specific
legal grounds wassufficient to preserve the argument appellant now raises.
(Evid. Code, § 353.) It fairly apprised thetrial court of the issue presented
144
so as to give the court a chance to cure the error. (People v. Seaton (2004)
34 Cal.4" 193, 198.)
It was not necessary for counsel to explain in detail every reason
whythe challenged evidence was moreprejudicial than probative or evoked
the prohibition against admission ofpropensity evidence in order to
preserve appellant’s rights to advance these reasons on appeal. Respondent
fails to cite any authority requiring appellate arguments to parrot exactly
what wassaid below. The law is more flexible. For example, in People v.
Livaditis (1992) 2 Cal.4" 759,trial counsel objected to “other crimes”
evidence but not to a specific cocaine-related other crime. Livaditis found
the argumentpreserved for review: “[a]lthough defendant did not
specifically object to the evidence regarding the cocaine, webelieve that
defendant's general objections on the grounds argued on appealtoall ofthis
evidence, which were overruled, were sufficient to satisfy the
contemporaneousobjection rule. (Evid. Code, § 353.)” (Ud. at p. 775, fn. 3;
see also People v. Briggs (1962) 58 Cal.2d 385, 410 [issue preserved
“Telven if ... the objection was not properly phrased, and evenif it was not
stated in the mostprecise terms”].) Therefore, appellant’s challenge to his
statements concerning future robberies has been preservedin its entirety.°°
In defending thetrial court’s ruling, respondent ignores the inherent
potential for prejudice which this Court has recognized exists in statements
of possible future criminal conduct in a hypothetical situation. People v.
Karis (1988) 46 Cal.3d 612 acknowledged that such statements haveat
30 If trial counsel failed to preserve appellant’s challenge to the
admission of appellant’s statement of future intent to rob, appellant
contendsin his petition for writ of habeas corpus that counsel rendered
ineffective assistance. (PetHC, Claim VI, § C, 335-349.)
145
ro
least as much potential for prejudice in suggesting criminal propensity as
does evidence of other crimes, which is well-recognized to be “highly
prejudicial.” (/d. at p. 312.) Dueto their great potential for prejudice, such
statements should be admitted only after having been “carefully examined.”
(Ibid.) Respondent devotes the bulk of the government’s reply to asserting
the relevance of appellant’s statements about wanting his gun back to “get
... money.” (RB 143-144.) Appellant did not dispute that the statements
had some relevance. (AOB 314.) Rather, he demonstrated thattheir
potential for prejudice outweighed their probative value.
Appellant observed that the statements were about hypothetical
circumstancesin the future made by an immature teenager who was
bragging to girls about his bravado. (AOB 315; 31CCT 9023, 9261, 9263;
23RT 8850; see also 31RT 11256 [defense counsel argues that appellant
was immature becausehe associated with Roosevelt Coleman, who was
only 15 years old].) Moreover, appellant made the statements when he was
already wanted by the police and had nothing to lose. (30CCT 8987
[appellant’s mothertells him to turn himself in because he is wanted by the
police].) Since appellant had become an outlaw, even if he had acted under
duress or without the requisite criminal mental state, nothing stopped him
from confirming or exaggerating his criminal reputation. His stated post-
offense intent to rob was not necessarily probative ofhis earlier intent,
whencircumstances weredifferent! (Cf. People v. Karis, supra, 46
31 In the film, Thelma and Louise, Louise encounters her drunkenfriend,
Thelma, being raped in a parkinglot bar and fatally shoots the rapist. The
two womenflee and becomeoutlaws. They assumeauthorities will not
believe that Louise acted in self-defense ofher friend. Having become
outlaws, Thelma commits an armed robbery and the two threaten and
falsely imprison a state trooper in pursuit oftheir new, nothing-left-to-lose
146
Cal.3d 612, 637 [statementofintent is not probative if circumstances
suggestit is transitory].) Further, Littlejohn described appellant as mentally
“slow” and “stupid.” (28RT 10412, 10431; 31CCT 9263.) While the
statements did have someprobative value, it was limited by the context in
which they were made. (People v. Karis, supra, 46 Cal.3d 612, 636-637
[circumstances under which statements are made mustbe carefully
examined to determine if they detract from proof of defendant’s claimed
intent].) Talk is cheap. People, especially immature teenagers trying to
impress others, say things they do not mean. People are especially apt to do
this when talking about hypothetical circumstances. Why not fantasize and
embellish about something that is not real? As appellant pointed out, he
also told Littlejohn that he would resist police when they cameafter him
(31CCT 9265), but what actually happened wasthat the police apprehended
appellant when he cowered behind a closet door in a child’s room. (19RT
7534, 7536-7537). When appellant’s statements are considered with a
basic understanding of humannature andin light of their context, it is clear
that their probative value was tempered. Respondentreplies in a
conclusory mannerthat this is not so. (RB 143-144.) Appellant stands on
the showing he has made.
Asappellant demonstrated, another factor that diminished the
statements’ probative force was that they were cumulative of other
evidenceestablishing appellant’s intent to rob at the time of the charged
crimes. Respondent arguesthat there was significant evidence presented of
appellant’s intent to rob but nevertheless maintains that the statements were
lifestyle. It is plain that their intent in their post-shooting crimes does not
reflect their earlier mental state before they became outlaws. (See
http://en.wikipedia.org/wiki/Thelma_%26_Louise.)
147
e
not cumulative because they “were not replicated by any other witness.”
(RB 145.) This is wrong. The other evidence establishing intent to rob
consisted mainly of appellant’s statements to Detective Lee. (30CCT 8976,
31 CCT 9015.) Even under respondent’s own terms, appellant’s challenged
statements were cumulative.
Further, appellant also showedthat his statements to Littlejohn about
wanting his gun back to “get ... money”carried significant potential for
prejudice given their context. Littlejohn related the statements along with
her running commentary that she refused to return the gun because,if she
did, appellant and his friends would commit murder. (31CCT 9265, 9267,
9285.) Whenanalyzing the probative value versus potential for prejudice
of other crimes evidence, a close cousin to statements of future intent, it is
proper to consider the source of the evidence andhowitis related in court.
(People v. Ewoldt (1994) 7 Cal.4" 380, 405.) Similarly, the mannerin
which challenged evidence maylink to other evidence presented may also
augmentits potential for prejudice. (E.g., People v. Cardenas (1982) 31
Cal.3d 897, 906.) Littlejohn’s gloss was severely damaging. It portrayed
appellant, as well as his associates, as willing to not only rob butalso kill
simply because they were young, reckless and “stupid” and “money makes
your head swell.” (31CCT 9266, 9291.) Littlejohn painted a portrait of a
group of reckless, young, African-American men predisposed to commit
violence under unspecified circumstances. Appellant contended that such
an image would haveeasily preyed on jurors’ fears of gangs and possibly
even have evoked negative stereotypes which jurors held about racial
minorities. (AOB 317-318.) Respondent’s replies to these points are
superficial and conclusory. According to respondent, there was no danger
jurors would take Littlejohn seriously, appellant’s statements did not refer
to ganzs, and there is no showing anyjuror actually harboredracialbias.
148
(RB 145-146.) Because Littlejohn knew these young men,jurors were
likely to take her concerns seriously. She also had a forceful personality,
which comes through even on the “cold record” on appeal. (See 31RT
11293 [in argument, counsel characterizes Littlejohn a “pretty severe
woman”who reminded him ofthe song,“pork salad and a meanrazor-
toting woman”].) Consequently, jurors would have registered her concerns
clearly.
In regards to respondent’s remaining points, respondent overlooks
that evidence with undue potential for prejudice threatens to evoke an
emotional bias against the accused which lacks any legitimate bearing on
the issues. (People v. Karis, supra, 46 Cal.3d 612, 638.) Determining
whether such potential for prejudice exists requires more than just
skimming the surface of the evidence presented or jurors’ admissions about
their prejudices or lack thereof. For example, People v. Cardenas, supra,
31 Cal.3d 897 deemed evidence of the defendant’s association in a youth
group unduly prejudicial because it had clear gang connotations and jurors,
like the public at large, harbor fears about gangs in general. Appellant’s
case deserves the samesort of sophisticated scrutiny, especially because the
statements at issue are, like other crimes evidence, inherently prejudicial.
(Karis, supra, at p. 636.) Further, this is a capital case where thereis a
heightened needfor reliability in the verdict. (Beck v. Alabama (1980) 447
U.S. 625, 638.)
Respondent also argues that there was overwhelming evidence
against appellant so any error was harmless. (RB 146.) Appellant
respectfully directs this Court to his earlier response to this claim. (See
Arg.I, § C.4, ante.)
149
Therefore, respondenthasfailed to overcome appellant’s showing
that the trial court committed prejudicial error in admitting his statements to
Littlejohn that he wanted his gun back to “get ... money.”
150
X.
ADMISSION OF AN IRRELEVANT AND UNDULY
GRUESOME PHOTOGRAPH OF THE DECEDENT,
PEOPLE’S EXHIBIT NO. T-4, REQUIRES REVERSAL.
Appellant demonstrated in his opening brief thatthe trial court
abusedits discretion in admitting, over appellant’s objection, People’s
Exhibit No. T-4, a close-up photograph of the decedent showing a large
amountofblood. (AOB 321-330.) Respondentreplies that the claim was
partially forfeited, the photograph was properly admitted and any error was
harmless. (RB 147-152.)
Initially, respondent arguesthat “[p]art of this argument has been
forfeited and it must be denied.” (RB 147.) Because respondent offers no
supporting argument (see RB 147-152), the claim must be rejected. As
appellant demonstrated, defense counsel objected to People’s Exhibit No.
T-4 as inflammatory, and he joined in the arguments of the Hodges brothers
(19RT 7475, 7555-7556), who asserted that the exhibit’s potential for
prejudice outweighedits probative value under Evidence Code section 352.
(2CT 460-465; 1SRT 6259-6261; 19RT 7475, 7549-7550, 7553-7556).
Giventhis context, it is clear that the trial court understood the basis for
counsel’s objection. (People v. Scott (1978) 21 Cal.3d 284, 290.)
Therefore, appellant’s challenge to admission ofPeople’s Exhibit No. T-4
has been preserved.
Next, respondentasserts that People’s Exhibit No. T-4 wasrelevant.
(RB 150.) Appellant conceded that the exhibit was relevant to show the
nature and placementofthe fatal wound. (AOB 326.) Specifically,it
illustrates that the victim was shot in the temple and, due to the presence of
gunpowderfouling and tattooing around the wound,it supports witness
151
testimony that the shot wasfired from close range. (AOB 326; AOB 324
[citing coroner Schmuck’s testimony].) Simply because evidenceis
relevant, however, does not render it admissible under Evidence Code
section 352. It must be excluded underthat provisionif its potential for
prejucice substantially outweighs its probative value. (People v. Turner
(1984) 37 Cal.3d 302, 321; In re Cortez (1971) 6 Cal.3d 78, 85-86.) Thisis
the case here.
Appellant argued that the disputed photograph exhibited substantial
potential for prejudice because it showed the victim with a significant
amount of blood on his chest. The large amount ofblood was gruesome
and inflammatory and thus threatened to evoke an emotional response from
jurors against appellant due to the “horror of the crime....” (People v.
Chavez (1958) 50 Cal.2d 778, 792.) The victim’s loss of blood did not add
to the state’s case. (AOB 328-329; see also AOB 323, citing 19RT 7553-
7556 |defendants argue that principal value ofphotograph to state was how
it tenced to inflame jurors by showing more blood than did other photos].)
The coronertestified that death would have been nearly instantaneous and
did nct factor blood loss into the cause of death. (27RT 9986, 10002.)
Notably, respondent does not argue that the victim’s blood loss was
probative.
Additionally, appellant demonstrated that the inflammatory nature of
People’s Exhibit No. T-4 substantially outweighed the photograph’s
probative value because the exhibit was unnecessary to the state’s case.
Two other photographs were admitted which also showed the nature and
placernent of the fatal wound and visible powder burn around the wound:
People’s Exhibit Nos. T-3 and T-59B. (AOB 324-325.) Coroner Schmuck,
the witness most knowledgeable about the significance ofpowder burns out
152
of the three prosecution witnesses who addressed the topic (coroner
Schmuck,officer Chapmananddetective Lee), admitted that the disputed
exhibit was unnecessary to his rendering an expert opinion that the victim
wasshot at close range. (AOB 324, 328-329.) The coroner madeclear that
the other exhibits also illustrating the wound and powder burn wereall that
he required. (Jbid.) Thus, although People’s Exhibit No. T-4 offers a
close-up of the wound and powder burn, the close-up was unnecessary to
illustrate the coroner’s testimonyorto serve asa basis for his expert
opinion. Respondentoffers no answerto this point and, therefore, fails to
refute it. (RB 150-151.)
At best, respondent observes that People’s Exhibit No. T-4
illustrated a basis for the opinions of the coroner and officer Chapman that
the gunshot wasfired at close range. (RB 150.) Appellant has already
addressed coroner Schmuckabove. In regards to officer Chapman,the
officer was not deemed an expert in powder burns, and his primary
significance as a witness wasthat he discovered the body and secured the
crime scene. (See AOB 328-329.) The testimony of a witness of minor
importance concerning powder burns should not be used as a gateway to
admission of such a gruesome exhibit.°* (/bid.) By ignoring this
contention, respondentfails to overcomeit.
32 Appellant pointed out that Detective Leealsotestified that McDade
had been shot at close range as evidence by the powder burn aroundhis
wound, and Lee confirmed that McDade appeared as shownin People’s
Exhibit No. T-4. (AOB 324,citing 23RT 8828-8829.) No evidence was
presented about Lee’s expertise in interpreting powder burns. Thus, Lee
was even more peripheral of a witness on this topic than wasofficer
Chapman,whotestified that he had been taught about them in the police
academy and on-the-job training. (1ORT 7467, 7470-7471.)
153
Otherwise, respondentresorts to conclusory reasoning to argue that
the exhibit’s potential for prejudice failed to outweigh the exhibit’s
probative value. (RB 151.) The nature of the assertion precludes a
meaningful reply, and appellant stands on the showing he haspreviously
made.
Respondentalso argues that the error was harmless. (RB 151-152.)
First, respondent asserts that “it does not appear that the jury used the
photos during deliberations. (3CT 670, 672.)” bid.) The claim overlooks
the court’s commentto the jurors that the evidence and exhibits would be
madeavailable to them in the jury room. (32RT 11375; see also 32RT
11378-11379 [court and counsel discuss counsel’s verifying with court
clerk that only those exhibits properly admitted against appellant would be
made available to the jurors].) Second, respondent contends that any error
was harmless because the evidence of appellant’s guilt was
“overwhelming.” (RB 152.) Appellant has previously replied to this point
and respectfully directs this Court to that portion of his brief. (See Arg.I, §
C.4, ante.)
154
XI.
APPELLANT’S ABSENCE FROM CRITICAL
PROCEEDINGS PERTAINING TO WHETHER HE
WOULD TESTIFY AND THE SUBSTANCEOFHIS
TESTIMONY CONSTITUTES REVERSIBLE ERROR.
Appellant demonstrated that his absence from multiple proceedings
pertaining to a key issue which dominatedhis trial — whether and for whom
he would testify — constituted reversible error. (AOB 331-342.) At the
proceedings which appellant missed (April 18, April 19, May 17, July 6,
and July 11, 1994), defense counsel described appellant’s anticipated
testimony and assured everyonenot only that appellant wouldtestify, but
that he would do so as a witness for the state, which was actively seeking to
convict him of capital murder and sentence him to death. Counsel
acknowledgedthat the state had not offered appellant any consideration in
exchange for his testimony. Further, in violation ofthe attorney-client
privilege, counsel outlined appellant’s testimony. What occurred at these
proceedings wasdirectly relevant to the prosecutor’s highly prejudicial
broken promise of appellant’s testimony. (See Arg. J, ante.) Respondent
replies that no error occurred due to appellant’s absence and, evenif it did,
it was harmless. (RB 152-160.)
A criminal defendant has a due process right under the federal and
state constitutions to be personally present at any proceeding whichis
critical to the outcomeofhistrial if his presence would contribute to its
fairness. (U.S. Const., amend. XIV; Cal. Const., Art. I, § 15; Kentucky v.
Stincer (1987) 482 U.S. 730, 745.) A defendant may personally waive the
right if the waiver is knowing,intelligent and voluntary. (Peoplev.
Robertson (1989) 48 Cal.3d 18, 60-62.) Further, a capital defendant has a
statutory right to be present at all proceedings unless the defendant executes
155
a written waiver in open court.*? (Pen. Code, §§977, 1043.) Respondent
does not contend that appellant personally entered a knowing,intelligent
and voluntary waiver or a written waiver. Rather, respondent argues that
because the hearings appellant missed were not substantially related to his
opportunity to defend, counsel’s proceeding in appellant’s absence was a
sufficient waiverof appellant’s right to be present.*4 (RB 159,citing
People v. Cooper (1991) 53 Cal.3d 771, 825.) Appellant now turns to the
question of whether the proceedings appellant missed were substantially
related to his opportunity to mounta defense.
Respondentasserts that appellant’s presence was unnecessary
because the proceedingsat issue addressed questions of law. (RB 152, 157-
158.) Certainly, some of the discussions did address questions of law. But
extremely important questionsoffact directly pertaining to appellant’s
defense, which were uniquely within appellant’s knowledge and control,
were also substantially addressed in appellant’s absence. At the
proceedings at issue, defense counsel revealed the factual nature of
appellant’s defense,i.e., that appellant acted under duress from the Hodges.
(2RT 1020 [4/18/94 hearing]; 14RT 5963-5964 [7/6/94 hearing].) Counsel
also represented that the defense would be established through appellant’s
testimony. (/bid.) Plainly, appellant had intimate knowledgeofthese
crucial facts. They affected the “whole complexionofthe trial” by making
33 Acapital defendant mayalso forfeit his right to be present by
disruptive behavior. (Pen. Code, § 1043.) It is undisputed that appellant
did not engage in disruptive behavior.
34 If defense counsel’s proceeding in appellant’s absence waived
appellant’s right to be present, appellant maintains in his petition for writ of
habeas corpusthat counsel rendered ineffective assistance. (PetHC, Claim
VII, § A, pp. 352-353.)
156
appellant a potential ally of the prosecutor against the Hodges. (See 14RT
5960.) Because the substance of appellant’s testimony was revealed,
appellant’s presence at these hearings bore a “substantial relationshipto ...
defendant’s opportunity to better defend himself.” (Kentucky v. Stincer,
supra, 482 U.S. 730, 746.)
Further, the court and parties discussed at length in appellant’s
absence if appellant would take the stand andtestify that he was coerced by
the Hodges. (2RT 1019-1022 [4/18/94 hearing], 2RT 1103-1109 [4/19/94],
14RT 5900-5901, 5911, 5932-5933, 5934, 5938, 5947-5948, 5965-5967
[7/6/94], 6095, 6108 [7/11/94].) The court and the attorneys took divergent
positions on whether appellant wouldtestify at all, and particularly whether
he would testify for the prosecution. Castro stated that appellant would
testify for the state. (2RT 1019-1022.) Holmes, on the other hand,
emphasized it was impossible to say one wayorthe other since the decision
was entirely appellant’s and he could makeit at any time. (14RT 5934.)
Thetrial court expressed disbelief that appellant would testify for the
prosecution. (2RT 1022.) It cautioned everyone to proceed with the
understanding that appellant could chooseto assert his right to testify or
remain silent throughouttrial. (2ART 1022, 14RT 5947-5948.) The
prosecutor was uncertain about whether appellant would testify. (14RT
5911.) Later, he decided to call appellant. (14RT 6095, 6108.) Counsel
for the Hodges emphasized that it was impossible to know whetheror not
appellant would testify. (2RT 1022, 14RT 5938, 5966.)
Appellant had an unconditional, constitutional right to decide to
either testify or remain silent, even over his counsel’s objection. (Rock v.
Arkansas (1987) 483 U.S. 44, 52.) Whether or not appellant would testify
was a factual matter uniquely within appellant’s knowledge and control.
157
What and when appellant would decide abouttestifying or remainingsilent
was uncertain either until appellant took the stand or the trial ended without
his testimony. As defense counsel Holmes expressedat the July 6, 1994,
hearing held in appellant’s absence,“[t]he thing we have to rememberhere
is Mr. Powell himself is the one that ... is in control up to the very last
minute if he wants to get on the stand or not. And I think where somebody
is setting themselves up for a couple of mistrials here if he in fact doesn’t
testify. He’s already got up andtold both juries what he’s going to say.”
(14RT5934.)
Had appellant been present at the proceedings he missed, he could
have madean earlier, better-informed, decisive decision about whetherto
testify or remain silent given that the prosecution was not offering him any
consideration in exchangefor his testimony against the Hodges (14RT
5954-5956) and such testimony would label him a snitch. (15RT 6268).
Instead, the issue of appellant’s testimony remained unresolved until trial
ended without it. Counsel for appellant expressed the belief that appellant
would. testify “when tell him to,” whereas counsel for John Hodgesrelated
different information, that appellant would nottestify. (2RT 1019, 16RT
6667, 30RT 10819-10820; see Brooks v. Tennessee (1972) 406 U.S. 605
[defendant has 5amend.right to wait and see how casesprogresses before
he decides whetherto testify or assert his right to silence].) Given how
critical appellant’s decision abouttestifying or remaining silent was to how
the trial progressed (see generally, AOB, Arg. I, §B, pp. 79-99 [factual
summary]), and given his personal knowledge and control overthat
decision,the trial court erred in holding the April 18, April 19, May 17,
July 6 and July 11, 1994, proceedings in appellant’s absence.
158
Respondent’s efforts to analogize the proceedings held in appellant’s
absence to those from which the defendants were permissibly excluded in
People v. Box (2000) 23 Cal.4® 1153, 1190-1192 and People v. Holloway
(1990) 50 Cal.3d 1098, 1115-1116 are unpersuasive. (RB 156-157.) In
both cases, the court and parties discussed the admissibility of the
defendant’s out-of-court statements. Obviously, the defendants had
knowledge about the contents of their statements. Unlike in appellant’s
case, however, the defendants’ statements had already been made and were
thus static pieces of evidence. (Box, supra, at p. 1191; Holloway, supra, at
pp. 1112, 1116.) They were not factual matters in the process of taking
form. The defendants in Box and Holloway, therefore, were in no position
to develop facts at the hearings which they missed. Here, in contrast,
appellant was. He could have informed counseloffacts pertaining to the
defense theory of duress or taken a definitive stance abouttestifying or
remaining silent. Consequently, appellant’s case is more like People v.
Davis (2005) 36 Cal.4" 510. Davis found that the defendant’s right to be
present had been violated by his exclusion from a pretrial hearing wherein
the court and parties came to agreements aboutunintelligible words on
jailhouse tapes of conversations in which the defendant had participated.
(Id. at pp. 523, 531.)
In addition to having special knowledge about developing facts
highly relevant to presentation of his defense, appellant was also in the
uniqueposition ofbeing ableto assert the attorney-client privilege against
Castro’s disclosure of his anticipated defense. It is plain from the hearings
from which appellant was excluded that Castro’s description of appellant’s
coercion defense came from confidential attorney-client communications
with appellant. Castro told the court and parties that appellant wouldtestify
he had been coerced. (2RT 1019-1022 [4/18/94 hearing].) The attorney-
159
client privilege may be asserted by either the client or counsel to block
disclosure of privileged information, but only the client can waive it to
authorize such disclosure. (Dickerson v. Superior Court (1982) 135
Cal.App.3d 93, 98; People v. Vargas (1975) 53 Cal.App.3d 516, 527; Evid.
Code, §§ 953, 954, 955.) Appellant was absent from the April 18, 1994,
hearing where Castrofirst disclosed that appellant would testify he acted
underduressso that “the Hodges brothers don’t get away.” (2RT 1019.)
Had appellant been present, he could have directed Castro notto violate the
privilege. Respondentreplies that Castro must have madethe disclosure
with appellant’s authorization, but respondent points to nothing to support
the claim. (RB 159.) Respondent’s conclusory allegation is unpersuasive.
Respondentnextasserts that because appellant’s attorneys did not
think :t was necessary for appellant to be present at the hearings he missed,
this supports that appellant’s presence ““‘did not, in fact, bear ... a
substantial relation’ to the fullness of his opportunity to defend.” (RB 159,
citing People v. Jennings (2010) 50 Cal.4" 616, 683.) Counsel’s judgment
in this case is questionable. Counsel boldly asserted that appellant would
testify on behalf of the prosecution, without any consideration, and
furnished the prosecution with appellant’s anticipated testimony in
violation of the attorney-client privilege. (2RT 1019-1023, 14RT 5954-
5956, 5963-5964.) Counsel did so even though the prosecution desperately
needed appellant’s testimony to bolster an otherwise weak case against the
Hodges brothers. (2RT 1020-1022.) The prosecution took a position
harmful to appellant: appellant’s testimony was credible to the extentit
tended to condemn the Hodgesand appellant but, to the extentit helped
appellant, it was false. (14RT 5926-5927, 6108 [prosecutorstates he
intends to introduce appellant’s statements inconsistent with his anticipated
testimony].) Further, defense counsel Castro asserted that appellant would
160
testify “wheneverI tell him to” (2RT 1020) even though appellant had an
absolute right to testify or remain silent despite counsel’s wishes. (Rockv.
Arkansas, supra, 483 U.S. 44). Counsel’s furnishing appellant’s most
precious confidencesto his adversary intent on his annihilation under these
unprecedented circumstances and the arroganceofhis false claim that he
could control appellant’s testimony indicates that counsel’s judgment does
not deserve the weight respondentattributesto it.
In regards to prejudice, respondent contendsthat it is appellant’s
burden to show prejudice. (RB 160.) Consistent with this Court’s opinion
in People v. Davis, supra, 36 Cal.4" 510, 533, the Chapman standard for
federal constitutional error applies: the error is prejudicial unless the
governmentprovesit harmless beyond a reasonable doubt. (Chapmanv.
California (1967) 386 U.S. 18, 24.) Chapmanis the proper standard
becausethe error, appellant’s exclusion from hearings at which his presence
bears a reasonably substantial relation to his opportunity to defend against
the charges, implicates the Fourteenth Amendmentright to due process.
(Kentucky v. Stincer, supra, 482 U.S. 730, 745.) Federal authority also
supports that Chapman applies. (E.g., Rushen v. Spain (1983) 464 U.S.
114, 117-118, 120 (per curiam); United States v. Gordon (D.C. Cir. 1987)
829 F.2d 119, 129, fn. 10.)
Respondentalso suggests that appellant’s absence from the
proceedingsat issue made no difference because appellant was present at
other hearings which also addressed whether he would testify. (RB 154-
157 [summarizing various proceedings relevant to issue of appellant’s
testifying].) While appellant did attend other hearings concerningthis
issue, the ones he missed were amongstthe most, if not the most,
significant ones. The April 18, 1994 hearing set the stage for the others and
161
¢
the July 6, 1994, hearing thoroughly explored the issue of appellant’s
testifying. At the first hearing, Castro announcedthat appellant would
testify he acted under duress from the Hodges and would do so as a
prosecution witness. (2RT 1019-1023.) Once Castro revealed appellant’s
anticipated testimony, the cat was out ofthe bag. After this hearing, Castro
stated his desire to “lock in” appellant’s testimony. (2RT 1108.) He often
expressed the expectation that appellant would testify or assured the
prosecutor that he would. (E.g., 4RT 1787, 1871-1872, 5RT 1916, 14RT
6095, 1SRT 6266.) Subsequently, Castro stated that he adopted the defense
theory of duress and decided that appellant would testify “regardless of
what appellant’s desires were.” (30RT 10887, emphasis added.) The
comments in appellant’s presence madeit seem like the fact that appellant
wouldtestify had already been determined, and they thus exerted pressure
on appellant to live up to this expectation. Counsel for John Hodges
accused Castro ofusing his representations that appellant would testify as a
meansofpressuring appellant into taking the stand. (29RT 10604.) At the
July 6, 1994, hearing, it became clear that the prosecutor was extremely
interested in presenting appellant’s testimony to bolster what he had
previously admitted was a weak case against the Hodges, and appellant’s
testimony stood to seriously impactthe entire trial. (14RT 5900-5901,
5905-5906, 5934, 5947-5948.) It was also apparent that the prosecutor
woulc. not give appellant any consideration for his valuable testimony.
(14RT 5954.) The July 11, 1994, proceeding established the prosecutor’s
plan to use appellant’s testimony while arguing that the real truth lay in
appellant’s January 27, 1992, statement to detective Lee. (14RT 6108.)
Because the hearings from which appellant was absent madeclear that
appellant’s testimony waspivotal and set up the expectation that appellant
wouldtestify to duress for the prosecution for no consideration, appellant’s
162
exclusion from them mattered. Appellant could have asserted himself in a
mannerthat altered the course of the trial. He could have said he would not
testify no matter what and thereby precludedthe prosecutor’s broken
promise of his testimony. (See Arg. I, ante.) The prosecution fails to prove
beyond a reasonable doubtthat this would not have happened.
Respondent’s position that appellant’s absence from certain
important hearings concerning whether he wouldtestify is insignificant
because appellant attended others cannot withstand analysis when taken to
its logical extreme. It would mean, for example, that a defendant’s absence
during testimony by one witness identifying him as the culprit would be
rendered harmless by his presence for the testimony of another witness also
identifying him. Such an approachis untenable because a defendant may
have knowledge offacts affecting the one witness but not the other.
Even more importantly, it is impossible to say when exactly
appellant’s presence would haverealized its potential. Respondent implies
that if appellant did not do or say anything at the hearings he attended, there
is no reason to believe that his attending the crucial hearings he missed
would have made any difference. The position must be rejected. The
accused is not a well-calibrated machine who necessarily takes advantage
of each opportunity to assert his own bestinterests in the clearest and
strongest terms. He may be mentally slow (as appellant was). He may be
shy to speak up. He may notnecessarily understand whatis going on in
court. His position may becomeclear to him only overtime and repeated
exposure to the same topic. Respondent’s approach is more appropriate for
an attorney, whois trained in the law,the art of persuasion and understands
how to make an appropriate record. A layperson person accused of
violating the law should not be held to such a high standard.
163
€
This is especially true for a defendant such as appellant. Appellant
was only 21 years oldat the timeoftrial, immature for his age and mentally
slow. (23RT 8850, 28RT 10412, 10431; see also 31RT 11255-11256
[counsel’s argument].) He wasstill growing. (23RT 8849-8850.) His
brain wasstill developing and so washis identity. (Roper v. Simmons
(2005) 543 U.S. 551, 570, 574.) Further, appellant was mentally
challenged. Littlejohn described him as “slow”and like he should be
receiving SSI benefits.> (28RT 10412, 10431.) Respondent does not show
beyond a reasonable doubtthat, had appellant been presentat the
proceedings he missed, nothing would havefallen into place for him about
whether he should testify and nothing would have changed. Respondent
fails to demonstrate to a near certitude that appellant would not have
complained about Castro’s violating the attorney-client privilege or taken a
definitive stance against testifying so as to preclude the prosecutor’s broken
promise of his testimony. (See Arg. I, ante [discussing serious prejudice to
appellant’s defense resulting from prosecutor’s broken promise].)
Accordingly, respondenthas failed to persuade that appellant’s
absence from proceedings conducted on April 18, April 19, May 17, July 6
‘and July 11, 1994, was harmless beyond a reasonable doubt.
*5 According to Doctor Nicolas’s penalty phase testimony, appellant
had an I.Q. of 75, which meansthat his intellectual abilities are below 96
percent of the population. (34RT 12002, 12006-12007.)
164
XII.
THE TRIAL COURT ERRED, TO APPELLANT’S
PREJUDICE, BY INSTRUCTING THE JURY UNDER
CALJIC NO.2.50 THAT EVIDENCE OF APPELLANT’S
UNCHARGED CRIMES COULD BE USED TO PROVE
INTENT, IDENTITY, KNOWLEDGE OR POSSESSION
OF THE MEANS NECESSARY TO COMMIT THE
CHARGED OFFENSES.
Thetrial court gave CALJIC No.2.50, directing the jury that it could
consider evidence of appellant’s uncharged misconductfor only the limited
purposes of demonstrating intent, identity, possession ofthe means
necessary to commit the crime and knowledge; it also prohibited jurors
from considering such evidence to prove appellant’s bad character or
criminal predisposition. The instruction pertained to evidence of
appellant’s uncharged conductofcarrying a concealed firearm. (30RT
10943-10944; 31RT 11162-11163.) Appellant demonstrated that the
instruction erroneously permitted jurors to draw irrational and prohibited
inferences. The error violated appellant’s right to a fair trial and lightened
the prosecution’s burden ofproof. (AOB,pp. 343-357.) Respondent
argues that the claim has been forfeited, the instruction was proper and any
error was harmless. (RB, pp. 160-166.) The claim mustbe rejected.
Respondent contends that the claim ofinstructional error was
forfeited because defense counsel did not object to CALJIC No. 2.50. (RB,
p. 162.) As appellant demonstrated, defense counsel asserted that the
instruction was inapplicable.O0RT 10942-10944.) This wassufficient to
preserve appellant’s challenge to the instruction becauseit informed the
court why the defense foundthe instruction objectionable. (Peoplev.
Marks (2003) 31 Cal.4" 197, 228-229.) Further, even if defense counsel
did not adequately object, the claim shouldstill be reviewed. The forfeiture
165
rule applies to the failure to object to instructions that are correct under the
law arid responsiveto the evidence. (People v. Hudson (2006) 38 Cal.4"
1002, 1012.) Appellant submits that the instruction was legally incorrect
and unresponsive to the evidence and,therefore, his claim of error must be
considered. Moreover, the failure to object to an instruction will not forfeit
a claim that the instruction is erroneousif the error affected the defendant’s
substantial rights. (Pen. Code, § 1259.) It is necessary, therefore, for this
Court to review the instructional error claim to determine if appellant’s
substantial rights were violated. (People v. Prieto (2003) 30 Cal.4" 226,
247 &268.) Respondent’s conclusory assertion of forfeiture fails to
overcomethese points, which appellant made in his opening brief.*° (AOB,
pp. 246-348.)
Appellant agrees with respondent’s observation that the issue
presented by appellant’s challenge to CALJIC No. 2.50 waslargely.
addressed in Argument VII, ante, which addressed introduction of
appellant’s connection to various guns not used in the charged offenses.
(RB, p. 162.) Accordingly, appellant respectfully requests that his response
to the present issue be considered in conjunction with his response to
Argurnent VII.
Respondentargues that CALJIC No. 2.50 properly allowed jurors to
consider appellant’s carrying a concealed firearm as proofofhisintent.
(RB,pp. 162-163.) The instruction told the jurors that evidence of
appellant’s other crimes “may be considered by you only for the limited
36 If objection to CALJIC No.2.50 was required and defense counsel did
not sufficiently object to the instruction, then appellant asserts in his
petition for writ ofhabeas corpus that counsel provided ineffective
assistance. (PetHC, Claim VII, § B, pp. 354-356.)
166
purpose of determiningif it tends to show the existence ofthe intent which
is a necessary elementofthe crime charged....” (31RT 11110 & 2CT 580-
581, emphasis added.) Respondent does not contend that appellant’s
carrying a concealed firearm tended to show the elementofintent necessary
for proof of any of the charged crimes. Rather, respondent maintains that
the uncharged misconduct showedthat appellant harbored somesort of
culpable intent which wasnot “innocent.” (RB, pp. 162-163.) According
to respondent, because appellant previously carried a concealed firearm
with this culpable intent, then, when he encountered McDade during the
charged crimes, he also (1) had the same culpable mental state and (2) was
armed with a firearm of his own accord rather than having the Hodges force
~ the gun on him. (/bid.) Respondent’s claim is unpersuasive.
It has long been recognized that other crimes evidenceis inherently
prejudicial. (E.g., People v. Williams (1988) 44 Cal.3d 883, 904.) Other
crimes evidenceis inadmissible to prove criminal propensity. (Evid. Code,
§ 1101, subd. (a).) It may be admitted, however, to prove an intermediate
fact from which guilt may then be inferred, such as motive, intent, identity,
plan or absence of mistake (Evid. Code, § 1101, subd. (b)), so long as
propensity reasoning doesnotplay anyrole in the chain of inferences
necessary to make the wrongdoing relevant. (People v. Thompson (1980)
27 Cal.3d 303, 317). Dueto its inherent potential for prejudice, other
crimes evidence may be admitted only after it has been “’scrutinized with
ecogreat care’” and subjected to a “’closely reasoned analysis’” (Williams,
supra, at p. 905) andif it exhibits “substantial probative value.’” (People
v. Foster (2010) 50 Cal.4" 1301, 1331, quoting Thompson, supra,at p. 318,
italics in Thompson.) “If the connection between the uncharged offense
and the ultimate fact in dispute is not clear, the evidence should be
excluded.” (People v. Daniels (1991) 52 Cal.3d 815, 856.)
167
Respondent’s explanation for why appellant’s carrying a concealed
firearm prior to the charged robbery and murder could properly be
considered under CALJIC No.2.50 forintent, i.e., lack of an “innocent
state of mind”(RB,p. 163), fails to withstand the rigorous analysis required
for other crimes evidence. Theinstruction explicitly told jurors that they
could consider appellant’s uncharged misconduct to prove the element of
intent necessary for proof of the crime charged. (31RT 11110 & 2CT 580-
581, emphasis added.) The mental state involved in carrying a concealed
firearm is intentionally carrying the weapon with knowledgeofits
presence. (People v. Jurado (1972) 25 Cal.App.3d 1027, 1030-1031;
CALJIC No. 12.41.1; CALCRIM No. 2520.) This mental state does not
correspond to any element of any of the charged crimes or robbery, murder
and theft. (AOB, p. 352.) Moreover, the manner in which the uncharged
misconduct and the charged crimes were committed wastoo dissimilar to
warrant an inference that appellant harbored the same intent on both
occasions. (People v. Ewoldt, supra, 7 Cal.4" 380, 402.) Respondent’s
claim that appellant’s carrying a concealed firearm could properly be
considered for some other type of intent that was not a necessary element of
the charged crimefails to defend the instruction. The instruction told jurors
that they could om/y consider the uncharged wrongdoing for the purposes
specified in the instruction and they were “not permitted to consider such
evidence for any other purpose.” (31RT 11110.) By failing to defend the
instruction as allowing uncharged misconductto be considered for the
necessary elementofintent, respondentfails to overcome appellant’s
showingthat the instruction authorized jurors to consider the uncharged
misconduct for an unauthorized purpose. (See AOB,pp. 351-354.)
Respondent’s assertion also fails on its own terms becauseit runs
afoul of the rule prohibiting character evidence. (Evid. Code, § 1101, subd.
168
(a).) For jurors to infer from appellant’s previously carrying a firearm that
on the night at issue he armed himself of his own accord rather than
obtaining the gun from the Hodges, they would have needed to draw
impermissible inferences about appellant’s propensity to carry concealed
firearms.*” Similarly, for jurors to deduce from appellant’s previously
carrying a firearm that he harbored somesort ofnefarious mental state
during the encounter with McDade which wasrelevant to prove robbery or
murder, jurors would have had to draw impermissible inferences
concerning appellant’s bad character. Althoughit is illegal to carry a
concealed firearm (Pen. Code, § 12025), as noted above, the offense
requires simply general criminal intent and knowledge. People
37 Respondentarguesthat appellant’s prior conduct ofcarrying a
concealed firearm tendedto refute the claim that appellant approached
McDadegun-free to discuss getting his job back only to have one or both
Hodges force a gun on appellant to use against McDade. (RB,pp. 162-
163.) Appellant did not describe such a scenario in his statements to
detective Lee (30CCT 8973 - 31CCT 9036) or Angela Littlejohn (34CCT
9253 - 9292) which were admitted into evidence. Rather, the scenario
arose from the prosecutor’s outline of appellant’s anticipated testimony
(15RT 6343-6346), which never materialized because appellant ultimately
decided to exercise his right to remain silent. (30RT 10820; see generally,
AOB,Arg.I).
Some evidencedid, however, suggest that the Hodges brothers may
have given appellant the gun used in the shooting. According to Banks,
John Hodges must have been on the scene with a pistol to enforce his order
to kill. (31CCT 9155-9156, 9158, 25RT 9462-9463.) According to Darryl
Leisey, Terry Hodges gave appellant the gun. (32CCT 9303.) Defense
counsel maintained in his closing argumentthat appellant approached
McDade with innocentintent to discuss getting his job back. (31RT
11333.) He never argued that appellant was gun-free. Counsel also
intimated that the Hodges manipulated appellant’s gun so it only had one
bullet. (31RT 11268-11270.)
169
intentionally and knowingly arm themselves without necessarily harboring
somesort of additional culpable mental state, such as that required to prove
robbery or murder. As appellant demonstrated, the prosecutor’s argument
that appellant’s arming himself prior to the charged crimes supports that he
was contemplating robbery was based on speculation. (AOB,pp. 273-274.)
The sameis true concerning appellant’s gun possession in the park with
Eversole and Brogdon about a week before the charged crimes. Further, for
the reasons discussed in Argument IX, deducing from appellant’s post-
offense remarksto Littlejohn that he wanted his gun back to “get money”
that appellant had the mental state for robbery during the encounter with
McDadealso required resort to speculation. There was nota sufficiently
“direct relationship” (People v. Daniels, supra, 52 Cal.3d 815, 857)
between appellant’s carrying a concealed firearm in Littlejohn’s presence
beforeshe took it and the element ofintent in the charged crimes against
McDadeto allow jurors to consider the formeras proofofthe latter.
Therefore, respondentfails to demonstrate that CALJIC No. 2.50
properly authorized jurors to infer “the existence of the intent which is a
necessary element ofthe crime charged...” from evidence that appellant
previously carried a concealed firearm.
Respondent does not attempt to defend CALJIC No. 2.50 on the
groundthat it permitted jurors to consider evidence of appellant’s
uncharged misconductas proof of knowledge. Therefore, respondent fails
to overcome appellant’s showing that the erred in this regard. (AOB,p.
354.)
Next, respondent argues that the instruction correctly allowed jurors
to consider appellant’s carrying a concealed weaponto prove appellant’s
possession of the means necessary to commit the crimes. This also goes to
170
the issue of identity. (People v. Hamilton (1985) 41 Cal.3d 408, 430.)
Appellant has previously demonstrated why it was impermissible for jurors
to conclude that because appellant carried a concealed firearm which could
not have been the murder weapon around Halloween of 1991, he possessed
the murder weaponin January of 1992. (See Arg. VII, ante; AOB,Arg.
VH, 264-284.)
Appellant concededthat appellant’s firearm possession before the
crimes, when he wasin the park with Eversole and Brogdon, andafter the
crimes, when he wasreturning from Los Angeles, had some tendency to
prove identity and possession of the meansuseful or necessary to commit
the crimes. (RB, pp. 163-164; AOB,p. 355.) Because the instruction
permitted jurors to use the gun possession for numerous other
impermissible purposes, however, it was erroneous. (See People v.
Carrasco (1981) 118 Cal.App.2d 936, 944 [instructions should be clear
and simple to avoid misleading the jury],’” quoting Guerra v. Handlery
Hotels, Inc. (1959) 53 Cal.2d 266, 272.) The prosecutor compounded the
error by arguing to the jury that the instruction addressed appellant’s
Halloween gun display. (RT 11162-11163.) As appellant has
demonstrated, the Halloween gun display did not allow jurors to draw any
of the inferences authorized by the instruction.
Respondentalso arguesthat the instruction did not lighten the state’s
burden ofproof becauseit prohibited jurors from relying on other crimes
evidence to prove criminal disposition. (RB, p. 164.) Respondentrelies on
Estelle v. McGuire (1991) 502 U.S. 62, 75, where the United States
Supreme Court ruled that a different other crimes instruction did notinvite
jurors to rely on propensity reasoning. Appellant has previously
171
distinguished McGuire and respectfully directs this Court to that portion of
his brief. (See Arg. VII, ante.)
Therefore, respondenthasfailed to overcome appellant’s showing
that CALJIC No. 2.50 was erroneous.
Next, respondentasserts that any error was harmless under the
Watson standard. (RB, pp. 165-166.) It bears emphasis that the error in
CALJIC No. 2.50 directly affected the issue of intent by permitting
unauthorized inferences about it in a case where intent was the crucial issue
.-.-in-dispute.--Otherwise,-appellant-haslargely-anticipatedthis-claim-and
respectfully directs this Court’s attention to that portion of his opening
brief. (AOB,pp. 356-357.)
172
XIII.
THE JUDGMENT CANNOT STAND BECAUSE THE
TRIAL COURT ERRED TO APPELLANT’S
PREJUDICE IN INSTRUCTING THE JURY IT COULD
CONSIDER APPELLANT’S EFFORTS TO SUPPRESS
EVIDENCE PURSUANTTO CALJIC NO.2.06.
Appellant demonstrated in his opening brief that the trial court erred
to his prejudice by giving CALJIC No. 2.06, which provided that jurors
could draw an inference of consciousnessofguilt on finding that appellant
engaged in “concealing evidence.” (AOB,pp. 358-365.) The trial court
and parties discussed if Littlejohn’s disposing of the gun in a dumpster
supported the instruction. (30RT 10937-10939.) Thetrial court initially
agreed with the defense that there was no evidentiary basis for the
instruction given Littlejohn’s testimony that she forced appellant to give her
the gun and then she herself decided to dispose of it even though appellant
wanted it back. (30RT 10897, 10899, 10938.) The prosecutor conceded
that this was the only reasonable wayto view Littlejohn’s testimony.
(30RT 10938.) He argued, nevertheless, that the jurors could disregard
parts of Littlejohn’s testimony andattribute the gun’s winding up in a
dumpster to appellant because Littlejohn, the mother of appellant’s friend,
put it there. (30RT 10938-10939.) Ultimately, the trial court accepted this
position and gavethe instruction. (30RT 10939, 2CT 565 & 31RT 11104.)
The Attorney General contendsthat the trial court properly gave
CALJIC No. 2.06, and, even if it erred, any error was harmless. (RB,pp.
166-169.) Notably, respondent makesno effort to defend the evidentiary
basis for the instruction on the theory advanced below. (RB,p. 168.) Nor
could respondent. There wasnorational reason for jurors to dissect and
selectively credit Littlejohn’s testimony as suggested. Even if they did,
173
only speculation, not rational inferences, linked appellant to the gun’s
winding up in the dumpster. (AOB,pp. 361-363.)
Respondent contendsthat other evidence of appellant’s efforts to
conceal evidence supported CALJIC No. 2.06. (RB, pp. 167-168.) First,
respondent cites two stories that appellant gave to detective Lee about what
happenedon the night at issue: a third-party shot McDadeandthe shooting
was accidental. (RB, p. 167.) Respondent’s reliance on this evidence is
unpersuasive. Jurors would have seen these statements as more
appropriately qualifying under CALJIC No. 2.04, which wasalso given.
(2CT 564 & 31RT 11104.) CALJIC No. 2.04 provided that, ifjurors found
that appellant had tried to fabricate evidence, they could infer his
consciousness of guilt from these efforts. (/bid.) Jurors would have viewed
CALJIC No. 2.04 as applying to appellant’s false statements because the
statements were ‘“‘fabricate[d] evidence” created to mislead. (/bid.,
emphasis added.) CALJIC No.2.06, in contrast, spoke of a defendant’s
efforts “to suppress evidence ... by concealing evidence.” (2CT 565,
emphasis added.) Only undera strained view ofthe plain language of
CALJIC No. 2.06 does the instruction to apply to the invention offalse
stories about how a crime occurred, particularly when the instruction is
juxtaposed against CALJIC No. 2.04. Respondent’s reliance on People v.
Jackson (1996) 13 Cal.4" 1164 for a contrary proposition is misplaced.
(RB, p. 167.) There, the defendantlied to the police that a gun wasnot at a
certain location when the police asked him aboutit; this was, in effect, an
effort to conceal the gun from the police. (Jackson, supra, at p. 1225.)
Here, appellant’s “claims that a third party shot McDadeor the shooting
was accidental” (RB, p. 167) were not efforts to conceal any specific
evidence from the authorities. Consequently, the jurors would have
logically assumed that CALJIC No. 2.06 applied to other evidence. After
174
all, this is how the trial court and parties viewed the evidence applicable to
the instructions. In short, there is no “reasonable likelihood”that jurors
would have viewed CALJIC No. 2.06 in the manner respondent suggests.
(Boyde v. California (1990) 494 U.S. 370, 380.)
Second, respondentrelies on evidence that debris from the robbery
was foundscattered in the streets at Mangrum and Golf Viewasa basis for
CALJIC No. 2.06. (RB, pp. 167-168.) The claim must be rejected.
Leaving items in plain view in a public place does not qualify as an effort
to “suppress” evidence by “concealing”it. Therefore, respondent fails to
overcome appellant’s showingthat the trial court erred in giving CALJIC
No.2.06.
Nor, as the Attorney General claims, wasthe error clearly harmless
because evidenceof appellant’s guilt was “overwhelming.” (RB,p. 168.)
Appellant demonstrated that whether he possessed the culpable mentalstate
required to convict him offirst degree murder and robbery was subject to
debate. (See AOB, Arg. I, § C.5, 127-137.) Further, while respondent
attempts to downplay the significance of the negative inference that
CALJIC No. 2.06 warranted (RB, p. 169), the fact is that the prosecutor
fought to have the instruction given because he believed it would help him
win appellant’s conviction. This Court should not view the instruction as
any less significant than the prosecutor did. (Cf., People v. Cruz (1964) 61
Cal.2d 861, 868 [refusing to treat erroneously admitted evidence sought by
prosecution as any less important than how the prosecution viewedit].)
175
XIV.
THE INSTRUCTION ON FLIGHT, CALJIC NO.2.52,
AUTHORIZED AN IRRATIONAL PERMISSIVE
INFERENCE.
Appellant demonstrated in his opening briefthat the trial court erred
to his prejudice in giving CALJIC No. 2.52, which permitted jurors to draw
an inference of consciousness of guilt from evidence of appellant’s “flight”
without further defining the term. (AOB,pp. 366-372.) “Flight” is defined
as movement through space,” a definition without any guilty connotations.
(AOB, p. 367; see also People v. Clem (1980) 104 Cal.App.3d 337, 344;
AOB,p. 367.) In light of this definition, CALJIC No. 2.52 allowed jurors
to draw an irrational inference. (AOB,pp. 366-368.) It should have
specified that to draw an inference of consciousnessofguilt, the jury must
find that the flight was for the “purpose to avoid being observed or
arrested” (People v. Crandell (1988) 46 Cal.3d 833, 869) or wordsto that
effect. (AOB,pp. 367-368). Respondentreplies that the instruction was
properand any error was harmless. (RB, pp. 169-173.)
Respondentfails to explain whythe trial court was absolved from
defining “flight” in a mannerthat logically warrants an inference of
consciousnessof guilt. Notably, respondent does not dispute that the word
“flight” is defined as movement through space,a definition that lacks guilty
connotations. Respondent, therefore, fails to persuade that the instruction
supported a rational inference of consciousnessofguilt from evidence of
mere“flight.”
38 http://dictionary.reference.com/browse/flight.
176
Respondentrelies on several decisions which foundthat the flight
instruction had been properly given under the evidence presented. (RB,p.
171, citing People v. Carter (2005) 36 Cal.4" 1114, 1182; People v.
Smithey (1999) 20 Cal.4" 936, 982; People v. Bradford (1997) 14 Cal.4*
1005, 1055.) Next, respondentasserts that the jurors in appellant’s case
could have found underthe evidence that appellant fled for the purpose of
avoiding detection. (RB, p. 172.) Appellant did not argue, however, that
there was no evidentiary basis for CALJIC No. 2.52. The evidence allowed
for the jurors to draw competing inferences about why appellant traveled,
i.e., he traveled (1) for innocent reasons(recreation, to visit his mother) or
(2) with a guilty purpose (to avoid capture). The plain language of the
instruction allowed for an inference of consciousnessof guilt under either
view,but, logically, it was warranted only under the second. Consequently,
CALJIC No. 2.52 permitted jurors to draw anirrational inference. The
cases respondentcites for evidentiary sufficiency do not speak to this point.
Respondentalso relies on this Court’s decisions approving CALJIC
No. 2.52 in People v. Mendoza (2000) 24 Cal.4" 130, 179-180 and People
v. Abilez (2007) 41 Cal.4" 472, 521-523. (RB, pp. 170-171.) Appellant
addressed these decisions in his opening brief by arguing that they did not
squarely govern the claim he presents — that, because “flight.” by definition,
does not necessarily warrant an inference of consciousnessofguilt,
CALJIC No. 2.52 should have defined “flight” in a manner which did.
(AOB,pp. 369-370.) Respondentfails to persuade to the contrary.
Respondentrelies on Mendozaforthe proposition that due process allows
for an inference of consciousness of guilt to be drawn from evidence of
flight. (RB, p. 170.) This fails to answer appellant’s pointthat only flight
for a guilty purpose warrants such an inference.
177
Additionally, respondentrelies on Abilez’s explanation that CALJIC
No. 2.52 is derived from Penal Code section 1127c. (RB, p. 171.) Penal
Code section 1127c, however, does not define “flight” in a way that
necessarily warrants a logical inference of consciousness ofguilt. It, too,
fails to address appellant’s point. A jury instruction couchedin statutory
language is not necessarily correct under the law. (People v. Thomas
(1945) 25 Cal.2d 880, 895; People v. Cortez (1994) 30 Cal.App.4143,
166-167.) Thus, neither Mendoza nor Abilez assist respondent.
In regards to prejudice, appellant has already addressed respondent’s
claim that the evidence ofhis guilt was “overwhelming.” He respectfully
directs this Court to that discussion. (See Arg. I, § C.4, ante.) For the
reasons previously stated, the claim must be rejected. (Ibid.)
Respondent’s contention that the phrasing ofCALJIC No. 2.52 was
too vazue to harm appellant must also be rejected. An inference of a
defenc.ant’s consciousness of guilt makesit easier for jurors to infer actual
guilt. (United States v. Harris (9" Cir. 1986) 792 F.2d 866, 869.) The
prosecutor requested CALJIC No. 2.52 to makeit easier to convict
appellant. The nuanced issue of appellant’s state was in dispute. It is
appropriate to assumethatthe instruction fulfilled the purpose for which
the prosecutor requested it. Accordingly, the erroneousinstruction,
permitting jurors to irrationally infer appellant’s consciousnessofguilt,
prejudiced appellant.
178
XV.
THE TRIAL COURT ERRED TO APPELLANT’S
PREJUDICE BY INSTRUCTING JURORS UNDER
CALJIC NO.2.71.7 TO VIEW APPELLANT’S
EXONTERATING UNRECORDED ORAL
STATEMENTS WITH CAUTION.
Appellant demonstrated in his opening brief that the trial court’s
version of CALJIC No. 2.71.7 was erroneous. It told jurors to view all of
appellant’s pre-offense, oral statements of “intent, plan, motive or design”
with caution, regardless of whether they were incriminating or exculpatory.
Asthis Court has noted, oral pre-offense statements and oral admissions are
treated similarly for purposes of cautionary instructions. (People v. Beagle
(1972) 6 Cal.3d 411, 455, fn. 5, superseded by statute on other grounds as
stated in People v. Castro (1985) 38 Cal.3d 301, 307-308.) The cautionary
languagein such instructions applies “only to statements which tend to
prove guilt and not to statements which do not.”3? (People v. Slaughter
(2003) 27 Cal.4" 1187, 1200, emphasis added.) (AOB, Arg. XV, 373-379.)
Respondentarguesthat appellants claim wasforfeited due to defense
counsel’s failure to object to CALJIC No.2.71.7, the instruction was
correct, and, if not, any error was harmless. (RB 173-178.) Respondent’s
claimsfail to withstand analysis.
39 Thecurrent version of the instruction, CALCRIM No.358 supports
appellant’s argument. It does nottell jurors to view all oral statements with
caution but only those which tend to prove guilt. It provides in pertinent
part: “Consider with caution any statement made by the defendant tending
to show his guilt unless the statement was written or otherwise recorded.”
(Emphasis added.)
179
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A claim ofinstructional error is not forfeited for review despite lack
of objection below if the error undermined the defendant’s substantial
rights. (Penal Code, sec. 1259.) It is necessary for this Court to review
appellant’s claim to determine if appellant was deprived ofhis substantial
rights.*° (People v. Prieto (2003) 30 Cal.4" 226, 247 & 268.)
Respondent’s forfeiture claim must, therefore, be rejected.
Appellant and respondentagree that the instruction addressed
appellant’s pre-offense statements to Kim Scott, as related by Scott, and his
statements to John Hodges,as related by Eric Banks. (AOB,pp. 375-376,
citing 30RT 10904, 10945-10946.) Respondent contendsthat the
instruction was proper becauseall of appellant’s statements related by Scott
and Banks were incriminating. (RB, p. 176.) This is an overly simplistic
view cf appellant’s statements in light of the charges, evidence and parties’
theories of the case.
The most serious charge against appellant was murder. The
prosecution advanced theories that (1) appellant was the direct perpetrator
and intentionally killed to eliminate a witness as a theory of second degree
murder(e.g., 31RT 11160, 11165, 11176-11177) and (2) appellant killed
with deliberation and premeditation as a theory offirst degree deliberate
and premeditated murder(e.g., 31RT 11159, 11163-11164, 11171-11174,
11193). Although the prosecutor maintained appellant wasthe actualkiller,
he argued that jurors could instead find that appellant acted as an aider and
abettor to the Hodges brothers, who werethe actual killers, as theories of
40 Ifan objection to the instruction was required to preserve appellant’s
claim oferror, appellantasserts in his petition for writ of habeas corpusthat
trial counsel rendered ineffective assistance by failing to object. (PetHC,
Claim VII, § C, 356-361.)
180
appellant’s guilt for first or second degree murder. (31RT 11175, 11219;
see 2CT 599 [court gives CALJIC No.3.01, setting forth elements of aiding
and abetting].) These theories required proof that appellant specifically
intended to kill McDade. (2CT 599 [CALJIC No. 3.01].) Appellant’s
statements related by Scott and Banksthat appellant did not want McDade
killed were exonerating in regards to these theories.
Respondent arguesthat because appellant’s statements wereall
madein the context of planning a robbery, they wereall incriminating in
regards to the charges ofrobbery andfirst degree murder based on a felony-
murder theory. (RB, p. 176.) As noted, the prosecution sought to prove
murder on more than just a felony-murder theory. Its doing so supports that
the jury could rationally viewthe evidence, including appellant’s pre-
offense statements to Scott and John Hodges, more broadly than just going
to felony-murderrobbery. It is disingenuous for the government to now
disowntheories of liability on which it openly relied below. Respondent’s
claimsthat the instruction was proper must, therefore be rejected.
Moreover, appellant’s statements that he did not wantto kill
McDadewerehelpful to appellant even in regards to robbery felony-murder
and the robbery felony-murderspecial circumstance. It was the defense
theory of the case that when appellant approached McDade,it was with the
intention to talk about getting his job back, not with an intention to rob or
kill him. (31RT 11333-; see generally, AOB, pp. 131-136.) Defense
counsel argued that the Hodges brothers, who were much more criminally
sophisticated than appellant, put appellant in such a state of fear and
pressure that appellant committed the crimes while his mental state was so
clouded by fear and pressure that he did not form the intent to rob orkill.
(31RT 11313-11315, 11318, 11329-11330, 11334.) Appellant’s statements
181
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that he did not want to kill McDade tended to support this theory through a
process of inferential reasoning. Respondent completely ignoresthis line
of argument even thoughit is based on valid inferences that could be drawn
from the evidence.
Next, respondent argues that any error was harmless because jurors
would have viewed Scott’s and Bank’s testimony onanall-or-nothing
basis. (RB, pp. 176-178.) Appellant fails to see how the instruction’s
wrongly directing jurors to treat evidence helpful to appellant with caution
is harmless becauseit also correctly told them to view evidence harmful to
appellant with caution. That the instruction was partially beneficial to the
defense does not cancel out how the error harmed the defense.
Appellant presented a mental state theory of defense that required
the jury to piece together various items of evidence. (See 31RT 11252,
11284-11285, 11287, 11334 [counsel argues that because appellant’s
statements were inconsistent and incomplete, jurors had to pick out what
facts rang true and piece together what happened].) Appellant has
summarized his defense in substantial detail in his opening brief. (AOB,
Arg. I, § C.5.a, 127-137.) In short, the defense sought to show that
appellant was mentally slow, young for his age and easily manipulated by
the Hodges, who were older and morecriminally sophisticated than
appellant; appellant was willing to steal but he was notviolent; appellant
liked and respected McDade and desperately wanted to get his job back; he
did not wantto kill or rob McDade when he approachedhim,but he acted
out of fear and pressure from the Hodges, who were on the scene; the fear
and pressure were so great that they clouded his mental state when he
ultimately shot McDade. Appellant’s statements to Scott and Banksthat he
did not want to kill McDade were an important piece in this evidentiary
182
mosaic. The erroneousinstruction wrongly told jurors to give these helpful
statements less credit than ordinary evidence not subject to a cautionary
instruction. This harmed the defense and madeit easier for the prosecution
to win a conviction.
Notably, the prosecutor wanted the jury to parse witness testimony
with a finer comb than does the Attorney General’s “all-or-nothing”
position. The prosecutor took issue with that portion of Scott’s testimony
relating appellant’s remark, “I’m going to get y’all”(in reference to the
KFC employees) rather than stating that he was going to rob KFC. (31RT
11190-11191 [prosecutor’s closing argument].) That the government
advances a position on appeal at odds with its position below demonstrates
the hollownessofits current stance.
Jurors have the inherent powerto selectively credit portions of
witness testimony and assign whatever weight they chooseto assign to the
portions that they credit. (People v. Wickersham (1982) 32 Cal.3d 307,
328, overruled on other grounds in People v. Barton (1995) 12 Cal.4" 186,
200-201; CALJIC Nos. 2.20 & 2.27.) For example, because Banks was
motivated to obtain leniency in his own cases and knew that authorities
wereinterested in information incriminating John Hodges, jurors could
have suspected that Banks sought to augment John Hodges’srole in the
killing while downplaying appellant’s. The instruction, however, told
jurors to view with caution Banks’s rendition of appellant’s remarks which
tended to downplay appellant’s role. Additionally, because Scott was
appellant’s friend, jurors may have harbored somesuspicion to those parts
ofher testimony in which she related appellant’s statements favorable to
the defense. The instruction told jurors to view with caution the helpful
parts of appellant’s statements related through Scott. CALJIC No.2.71.7’s
183
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erroneousdirective that they treat even appellant’s favorable pre-offense
oral statements with caution would have wrongly pushed jurors to reach
such conclusions.
Bysimilar reasoning, jurors could have believed appellant’s
statements that he did not wantto kill and disbelieved his statements that he
wanted to rob. As defense counsel argued, appellant had no violencein his
background: he was willing to steal but not steal at gunpoint and certainly
notsteal andkill. (31RT 11326-11327.) The instructional error would
have undermined the jurors’ belief in appellant’s favorable statements.
Because they were a key part of the evidencethat fit together to support
appellant’s mental state defense, this would have negatively impacted the
jurors’ assessmentofdisbelief in appellant’s statements about wanting to
rob.
In short, respondent’s “all-or-nothing” position must be rejected.
The instructional error prejudiced appellant by undermining evidence
important to appellant’s theory of defense.
184
XVI.
THE INSTRUCTIONS THAT THE HODGES WERE
“ACCOMPLICES AS A MATTER OF LAW” BECAUSE
THEY WERE AIDERS AND ABETTORS WRONGLY
DIRECTED THE JURORS TO FIND THAT
APPELLANT WASTHE DIRECT PERPETRATOR OF
THE ROBBERY AND MURDER AND REQUIRE
REVERSAL OF THESE CONVICTIONS AND
ATTACHED ENHANCEMENT AND SPECIAL
CIRCUMSTANCEFINDINGS.
Appellant demonstrated in his openingbriefthat the trial court erred
to his prejudice in instructing jurors under CALJIC Nos. 3.10 and 3.16 that
the Hodges brothers were “accomplices as a matter of law” because they
were “subject to prosecution for the identical offense[s]” charged against
appellant “by reason ofaiding and abetting.” (AOB, Arg. XVI, 380-398.)
The evidence permitted jurors to rationally find that the Hodges brothers,
not appellant, were the direct perpetrators. The accomplice instructions,
however, wrongly directed the jurors away from this interpretation of the
evidence by directing them to view the Hodgesbrothers as aiders and
abettors. As a consequence,the instructions compelled jurors to view
appellant as the direct perpetrator. This was error which prejudiced
appellant. (/bid.) Respondentreplies that any error was forfeited or
invited, the instructions were correct and, even if they were not, any error
was harmless. (RB, pp. 179-186.)
Appellant’s claim was not forfeited. Although appellant did not
object to the instructions, his claim may be reviewed under Penal Code
section 1259. This statute provides a claim of instructional error to which
no objection was lodged below maybe reviewed on appealifthe error
affected the defendant’s “substantial rights.” Review of appellant’s claim is
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necessary to determineifthe instructional error affected his “substantial
rights.”"*! (People v. Prieto (2003) 30 Cal.4" 226, 247 & 268.)
Nor wasappellant’s claim invited. Respondent arguesthat “it
appears” that defense counsel wanted the challenged instructions. (RB,p.
180.) The trial court had a sua sponte duty to correctly instruct on the need
for accomplice corroboration. (People v. Gordon (1973) 10 Cal.3d 460,
466; People v. Verlinde (2002) 100 Cal.App.4® 1146, 1158-1159.) Defense
counsel did not request the challenged instructions or explicitly argue that
they must be given. Rather, counsel accededtothe trial’s decision to give
them. This is not enoughto establish invited error. For invited error to
apply whena party accedesto an erroneousinstruction, the record must
reflect that counsel expressed a deliberate tactical purpose for doing so.
(People v. Barraza (1979) 23 Cal.3d 675, 683-684.) Otherwise,thetrial
court shall be held to its duty to give correct sua sponte instructions. (/bid.)
A “trial court’s duty to instruct fully on the relevant legal theories is not
dependent on counsel” and will not be excused unless counsel “deliberately
caused” the court to err. (People v. Wickersham (1982) 32 Cal.3d 307,
334-335, disapproved on other grounds in People v. Barton (1995) 12
Cal.4" 186, 200-201.) Respondent’s claim that “it appears” defense counsel
wantedthe instructions fails to show that counsel expressed a deliberate
tactical reason for acceding to them. Therefore, the error was not invited.
Next, respondent arguesthat the trial court’s instructions directing
the jurors to view the Hodgesas aiders and abettors as a matter of law were
41 If trial counsel’s failure to object to the instruction forfeited review of
appellant’s claim, appellant asserts in his petition for writ of habeas corpus
that counsel rendered ineffective assistance. (PetHC, Claim VII, pp. 361-
368.)
186
correct because there was “overwhelming evidence”that the Hodges aided
and abetted appellant. (RB, pp. 180-182.) Respondent’s point must be
rejected. Respondent fails to cite any authority establishing that trial
court’s duty of instruction is circumscribed by someone’s view of
“overwhelming evidence.” Adopting such a standard would usurp the
jury’s exclusive role as fact-finder. (See United States v. Martin Linen
Supply Co. (1977) 430 U.S. 564, 573 [trial court cannot “override or
interfere with the jurors’ independent judgment’’].) Rather, the law
provides that a trial court must instruct on general principles of law where
they are closely and openly connected with the case. (People v. St. Martin
(1970) 1 Cal.3d 524, 531.) In regards to evidence basedinstructions, they
must be supported by “substantial evidence.” (People v. Barton, supra, 12
Cal.4" 186, 201, fn. 8.) Substantial evidence is evidence sufficient to
convincea rational jury. (/bid.) The duty to instruct on principles of law
supported by substantial evidenceis not limited “to those ... theories which
seem strongest on the evidence, or on which the parties have openlyrelied.”
(People v. Breverman (1998) 19 Cal.4" 142, 155.) Because respondent’s
position is inconsistent with this authority, it must be rejected.
There were various ways in which jurors could haveinterpreted the
evidenceto cast the Hodges brothers, not appellant, as the direct
perpetrators. First, defense counsel argued that appellant liked and
respected McDade, wantedhis job back andit was notin his character to
rob at gunpoint. (31RT 11256, 11287-11291, 11324-11327.) Also, in his
initial version of events, appellant told Lee that he just stayed in thecar.
(30CCT 8976.) Jurors could haverationally pieced together this evidence to
acquit appellant. Further, the trial court instructed on the lesser included
crime of receiving stolen property because there was evidence sufficient to
convince a rational jury that appellant did not commit the murderor
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robbery (see above) but only received a share of the proceeds from the
Hodges, who were the direct perpetrators. (32 RT 11366-11367 & 3CT
635-636 [court gives CALJIC No. 14.65, defining receiving stolen
property].) Third, evidence established that appellant told the Hodges
wherethey could obtain easy money. (30CCT 8976-8977, 8983-8984,
31CCT 9154-9156.) When combined with that portion of his statement to
Lee in which he said he waspresentat the scene in the car (30CCT 8976),
it supported a rational finding that appellant was an aider and abettorto the
robbery committed by the Hodges. Notably, the trial court instructed on
aiding and abetting as a theory of appellant’s liability. (2CT 598 & 31RT
11117 [court gives CALJIC No. 3.01, defining aiding and abetting].)
Therefore, there was substantial evidence ofvarious scenarios casting the
Hodgesbrothers as the direct perpetrators, not accomplices “as a matter of
law ... by reason ofaiding and abetting.” (3CT 600 & 3CT 604 [CALJIC
Nos. 3.10 & 3.16].) Thetrial court erred in instead instructing that they
were.
Next, respondent argues that any error was harmless. (RB,pp. 182-
186.) Many ofrespondent’s points go to whether there is a reasonable
likelihood that the jurors would have viewed CALJIC Nos. 3.10 and 3.16 as
instructing them that the Hodges were aiders and abettors as a matter of
law. Whether there is a reasonable likelihood that jurors would have
interpreted arguable ambiguousinstructions in an erroneous mannergoesto
the issue oferror, not prejudice. (Boyde v. California (1990) 494 U.S. 370,
380-381.) Appellant argued at length why there was such a reasonable
likelihood. (AOB,pp. 387-393.) He argued that the plain language of
CALJIC Nos. 3.10 and 3.16 -- that “[a]n accomplice ... is subject to
prosecution for the identical offense[s] charged” against appellant “by
reason of aiding and abetting” and “Terry and John Hodges were
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accomplices as a matter of law” — supported his position. Additionally,
nothing in the parties’ arguments disabused the jurors from viewing the
challenged instructions consistent with their plain language. They focused
their arguments not on whether appellant was an aider and abettor but about
whether he wasthe direct perpetrator. If John and Terry Hodges were
aiders and abettors “as a matter of law,” then appellant was the only logical
candidate under the evidencefor the direct perpetrator. Additionally, the
remaining instructions were consistent with appellant’s being the direct
perpetrator and the Hodgesbrothers being his aiders and abettors.
Althoughthetrial court instructed the jurors with CALJIC No.3.01,
defining aiding and abetting, and CALJIC No.14.65, defining receiving
stolen property, the jurors were also instructed that notall instructions
given necessarily applied. Thus, the instructions easily lent themselves to
the erroneousinterpretation appellant challenges — that the Hodges were
appellant’s aiders and abettors and, thus, appellant was the direct
perpetrator. ([bid.)
Respondentalso argues that appellant was not prejudiced because
CALJIC Nos. 3.10 and 3.16 did not direct jurors to find that appellant was
the direct perpetrator. The jurorsstill had to find that appellant committed
the crimes beyond a reasonable doubt. (RB,pp. 182-183.) Respondent
misses an essential point of appellant’s prejudice claim. Even ifjurorsstill
had to ultimately find appellant guilty beyond a reasonable doubt ofthe
charged crimes on the theory that appellant was the direct perpetrator, the
instructional error constrained them into seeing appellant as the direct
perpetrator rather than in a different light tending to support a verdict more
favorable to the defense. The prohibition against directed verdicts certainly
applies to the obvioussituation wherea trial court directs jurors to find a
defendant guilty. (Rose v. Clark (1986) 478 U.S. 570, 578.) It also applies
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whenthe directive is more subtle. “The prohibition against directed
verdicts ‘includes perforce situations in which the judge’s instructionsfall
short of directing a guilty verdict but which nevertheless have the effect of
399so doing by eliminating other relevant considerations....’” (People v.
Figueroa (1986) 41 Cal.3d 714, 724.) The question, therefore, is whether
appellant was prejudiced by the erroneous wayin whichthe instructions
constrained the jurors’ fact-finding powers.
Respondentasserts that the error must be reviewed for prejudice
under the Watson standard (People v. Watson (1956) 46 Cal.2d 818, 824)
for state law error under People v. Flood (1998) 18 Cal.4" 470, 489-490.
(RB,p. 182.) Flood underminesrather than supports respondent’s position.
Floodruled that California’s near-automatic-reversal standard for removal
of an element from the jury’s consideration no longer applied and such
error must instead be assessed for prejudice under California’s general
Watson standard. (/d. at pp. 480-491.) Flood, however, also ruled that
whentheerror is of federal constitutional magnitude, it must be assessed
underthe stringent Chapman standard for federal constitutional error. (/d.
at p. 504.) Chapman applies whenthe trial court’s instructions remove an
essential element from the jury’s consideration because they “effectively
prevent the jury from finding that the prosecution failed to prove a
particular element ofthe crime beyonda reasonable doubt.” (/d. at p. 491.)
A trial court cannot direct a “partial verdict” for the prosecution by
preventing the jury from deciding if it proved an essential componentofits
case. (/d. at p. 492.) Such an error violates the federal constitutional rights
to due process (U.S. Const., amend. XIV) and the right to jury trial (U.S.
Const., amend. VI). (/d. at p. 491.) In a capital case, it also violates the
Eighth Amendmentrightto a reliable penalty determination. (Beckv.
Alabama (1980) 447 U.S. 625, 637-638, 642-643.) Here, the court’s
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instructional error directed jurors to find the essential elementofthe direct
perpetrator’s identity. (People v. Hogue (1991) 228 Cal.App.3d 1500,
1505.) It, therefore, must be assessed for prejudice under the Chapman
standard: reversal is required unless the government shows beyond a
reasonable doubtthat the error did not contribute to the verdict. (Chapman
v. California (1967) 386 U.S. 18, 24.)
Appellant demonstrated in his opening brief that there were solid
reasons underthe evidence to doubt his identity as the direct perpetrator
and respectfully directs this Court to his more detailed discussion there.
(AOB,pp. 396-397.) To summarize, no physical evidence or disinterested
eyewitness clearly supported this theory.’? Banks, Leisey and Schuylerall
had personal motivesto please the prosecution with their accounts. The
Hodgesbrothers, in their statements related by Banks and Leisey, had
strong reasons to augmentappellant’s role and minimize their own.
Additionally, appellant himself gave multiple, inconsistent accounts of the
crimes. His strong fear of the Hodges gave him a compelling motive to
cast greatest blame on himself. (/bid.) Angela Littlejohn characterized
appellant as “weak” and a “follower,” and defense counsel arguedthat
appellant was just a “sneak thief,” not a violent robber and killer. (AOB,p.
397.) At the same time, the Hodges werelinkedto prison, drugs, violence,
42 While it was the prosecution’s theory that the gun retrieved through
Littlejohn was the homicide weapon (31RT 11187), the prosecution’s
ballistics expert could only testify that this gun was consistent with the one
used in the homicide. (28RT 10147-10148, 29RT 10153, 10155, 10161).
Appellant waslinked to it via his statements (31CCT 9008-9009, 9021-
9024) and Littlejohn’s account. (31CCT 9263-9264, 9276, 9285-9286;
28RT 10403-10405), not through physical evidence indicating that he was
the triggerman. As noted, appellant gave multiple inconsistent statements
abouthis role in the killing.
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&
drive-by shootings and weapons. Theyinstilled deep fear in appellant.
Recognizing that the evidence did not invariably demonstrate appellant’s
identity as the direct perpetrator, the trial court instructed on aiding and
abetting and receiving stolen property as theories of appellant’s liability.
(Ubid.) For these reasons, respondent’s claim that there was “overwhelming
evidence”that appellant robbed and killed McDade must be rejected.
Respondent’s efforts to distinguish cases on which appellantrelied
failed to advance the government’s contention that the error was harmless.
(RB,pp. 183-186.) Appellant relied on these cases to demonstrate that
there was a reasonable possibility that the jurors interpreted CALJIC Nos.
3.10 and 3.16 in an erroneous manner. (AOB,pp. 387-393.) Respondent’s
distinguishing them onthe issue of prejudiceis largely off the mark.
Notably, respondentrelies on People v. Heishman (1988) 45 Cal.3d
147 on the groundthatit rejected a similar claim. (RB, pp. 183-184.)
Heishmanrejected a claim of error and since been disapproved on that very
point. There, the defendant faulted the instructions for providing that a
witness, Gentry, was an accomplice as an aider and abettor. It was the
defense theory that Gentry was the actual perpetrator and acted alone. The
opinion parsed the instruction’s language to concludethat, under them,
jurors werestill free to find that Gentry was indeed the perpetrator and
acted alone. (/d. at pp. 162-163.) People v. Ward (2005) 36 Cal.4" 186
disapproved Heishman onthis point because its view ofthe instructional
language wasstrained. (/d. at p. 212.) Respondent distinguishes Ward on
the facts. (RB, p. 184.) However, respondentfailed to distinguish it in
regards to the proposition for which appellantcitedit.
Next, respondent seeks to distinguish People v. Hill (1967) 66
Cal.2d 536 on the groundthat there the source of the evidence concerning
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whether or not a codefendant was an accomplice as a matter of law was the
codefendant’s testimony. (/d. at pp. 184-185.) Respondentfails to explain
why it should matter whether the supporting evidence is a codefendant’s
testimony on the stand or another type of evidence. It does not. Appellant
cited Hill for the proposition that instructing jurors that another player is an
accomplice “as a matter of law”creates a danger that jurors will infer the
defendant’s guilt from the player’s legally mandated accomplicestatus.
(AOB,pp. 388-389.) Hill remains good law onthis point.
Respondentalso distinguishes People v Riggs (2008) 44 Cal.4" 248
on groundsthat continue to miss the mark. Appellant cited Riggs for the
proposition that a trial court properly refuses to give CALJIC No.3.16,
directing that a player is an accomplice “as a matter of law,” to avoid
directing a factual finding that undermines the defendant’s alibi defense.
(AOB,p. 389.) Respondent points out that in Riggs the player at issue was
not an accomplice as a matter of law whereas here the Hodges were.
Appellant relies on his previous response to the claim that the Hodges were
accomplices as a matter of law.
Next, respondent addresses People v. Bittaker (1989) 48 Cal.3d
1046. (RB, p. 186.) Appellant cited Bittaker for the simple proposition
that this Court has adhered to Hill decadesafter issuing it. (AOB,p. 389,
citing Bittaker, supra, at p. 1100.) There, this Court ruled that there was no
dangerthat the jurors would impute the defendant’s guilt from his
codefendant’s confession in light of an instruction that the codefendant was
an accomplice as a matter of law. (/d. at p. 1100.) Respondent theorizes
that this is because the defendant and codefendant were both “equally
guilty” and then argues that appellant and the Hodges were “equally guilty”
as well. (RB, p. 186.) Bittaker, however, does not explain the basis for its
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opinion. An aider and abettor and direct perpetrator are both liable for the
crime they commit andin this sense they are typically “equally guilty.”
(Pen. Code, § 31; but see People v. McCoy (2001) 25 Cal.4" 1111 [aider
and abettor can be convicted ofmore serious crime than direct perpetrator if
evidence warrants].) Taken to its logical conclusion, the “equally guilty”
rationale would be inconsistent with Hil] becausethere it could also be said
that the defendant and codefendant were “equally guilty.” Bittaker,
however, cited Hil] with approval. (Bittaker, supra, at p. 1100.)
Respondent’s reliance on Bittaker fails to advance the government’s cause.
Therefore, respondent has failed to overcome appellant’s showing
that the trial court erred to appellant’s prejudice in directing jurors that the
Hodgeswereaiders and abettors as a matter of law.
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XVII.
BECAUSE THE TRIAL COURT ERRED IN FAILING
TO INSTRUCT ON THEFT AS A LESSER INCLUDED
OFFENSE TO ROBBERY,IT IS NECESSARY TO
REVERSE THE ROBBERY, FIRST DEGREE MURDER,
FIREARM USE AND SPECIAL CIRCUMSTANCE
VERDICTS AND THE ENSUING JUDGMENT OF
DEATH.
_ Appellant argued in his openingbriefthat the trial court erred to his
prejudice in failing to instruct the jury with theft as a lesser-included
offense to robbery. (AOB,pp. 399-416.) Respondent disagrees. (RB,pp.
186-190.)
First, respondent attempts to recharacterize appellant’s argumentas
one asking for a pinpointinstruction on after-formed intent. (RB, pp. 187-
188.) Respondent argues that such an instruction must be requested, and,
since defense counsel did not request any suchinstruction,the trial court
acted properly in failing to give it. (/bid.) Respondent’s claim must be
rejected because it addresses an argument that appellant did not make and
sidesteps the argument he did make.
A pinpoint instruction is one which clarifies or highlights a legal
conceptin order to draw jurors’ attention to a basis for entertaining
reasonable doubt. (People v. Ward (2005) 36 Cal.4" 186, 214.) Such an
instruction, therefore, pertains to one or moreinstructions whichthetrial
court has already decided to give regarding to the charge(s) that the
defendant faces. This Court has ruled that the standard CALJIC
instructions defining robbery and robbery felony-murder properly conveyed
the concept ofafter-acquired intent. (People v. Hughes (2002) 27 Cal.4®
287, 358-360.) There was no need, therefore, for trial counsel to request a
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pinpointinstruction concerning it. Accordingly, appellant did not raise any
claim of error regarding the omission of any such a pinpoint instruction.
An instruction on a lesser-included offense, in contrast, gives the
jury an additional option for conviction supported by the evidence beyond
the options presented in connection with the charged crime(s). (People v.
Breverman (1998) 19 Cal.4" 142, 155.) Givingjurorsthis additional option
promotesthereliability of the verdict by guarding against the risk that
jurors will convict when given anall-or-nothing choice between conviction
or acquittal. (/bid.) Giving the jurors an appropriate third option is
mandated underthe federal constitution in a capital case due to an enhanced
need to ensure a reliable verdict. (U.S. Const., amend. VIII; Beckv.
Alabama (1980) 447 U.S. 625, 639; Schad v. Arizona (1991) 501 U.S. 624,
645-648.) A trial court has a sua sponte duty to instruct onall lesser-
included offenses supported by the evidence whenthe evidencealso raises
the question whetherall elements of the greater, charged crime have been
proven. (Breverman, supra, at p. 162; see also Schad, supra, at pp. 647-
648 [in capital case, court must only instruct on a factually supported third-
option thatrealistically offsets danger jury will convict of capital murder
rather than acquit].) Appellant now turns to respondent’s arguments in
regards to whetherthetrial court prejudicially erred in failing to give a sua
sponte instruction on the lesser included offense oftheft.
Respondentarguesthat the record is devoid of substantial evidence
that appellant committed theft, not robbery. (RB, p. 188.) Not so.
Appellant related several versions of events to detective Lee and told
Angela Littlejohn that the papers “got it all wrong,” “nobody really [knew]
the truth,” and he had been “underpressure.” (31CCT 9263, 9269.) Both
parties acknowledgedthat given the state ofthe evidence, the jurors had to
196
pick through it to decide what to believe. (31RT 11167, 11252 [attorneys
argue jury must shift through the evidence andcredit it selectively]; People
v. Jeter (1964) 60 Cal.2d 671 [since jurors could have believed some but
notall of defendant’s testimony,trial court should have instructed on lesser
included crime].)
As appellant demonstrated, jurors could have rationally concluded
that when appellant obtained the money from McDade,he did so without
resort to force or fear and without actually forming the specific intent to
steal it because he was undecided about whether he wanted to follow the
straight and narrow path pursuantto his brother’s wishes or side with the
Hodges’ criminalplans to rob and kill. Further, while holding the bank
bag, appellant shot McDade motivated not by intent to steal but out of one
or more out of several possible motivations, including animus, confusion,
fear and pressure. After the shooting, appellant made offwith the money
and only then actually formed the intent to steal. (AOB, pp. 403-408.)
Appellant relied on that portion of his statement to detective Lee in
which appellant said that he approached McDadeto ask aboutgetting his
KFCjob back and the two engaged in small talk and discussed
employment; McDadeput him off about the job, as he had donebefore; this
caused appellant stress because his brother was pressuring him to find work
and appellant kept trying unsuccessfully to get back his old job, “the only
job ... that I’m really good at....” (30CCT 3999-31CCT 9000.) Appellant
told Lee, “I was talking to him about getting my job back and he waslike,
come back tomorrow. AndI, he didn’t say nothing. You know,hejust
gave me the money. And then hejuststarted talking....: (30CT 8999,lines
17-19, emphasis added.) Appellant described talking out his gun only after
McDade“just gave me the money,” when McDade “wantedto get out of
197
the car and hurt me. But I waslike Jpulled my gun out and he’s like kinda
just sat back down. And thenhe started talking off the wall stuff...”
(31CCT 9000, emphasis added.) Jurors couldrely on this portion of
appellant’s statement to conclude that appellant did not use force or fear to
obtain the money. Further, they could also logically find that appellant was
undecided aboutstealing from McDadeat this crucial junction. The
evidence allowed jurors to see appellant was being torn between two
divergent paths: (1) to lead a law-abiding life and obtain legitimate
employment, as his brother wanted (31CCT 8992-8993, 8999); or (2) to
engagein the criminallifestyle, represented by Hodges, and carry out their
plans to rob and kill McDade (31CCT 9154-9155 [John Hodges
manipulates youngsters to do his will and gives the orderto kill; 25RT
9494 &32CCT 9305-9306 [Terry Hodgestells appellant to “whack the
motherfucker”]). A state of being undecided between two competing
alternatives is not equivalent to specifically intending either one.
Additionally, jurors could have inferred that appellant shot McDade while
still in this undecidedstate, i.e., without actually forming the intentto steal
but in responseto other internal pressures. Because McDaderefusedto
rehire appellant (1SRT 6517-6518), appellant had a motive to kill him out
of animus. Appellant also stated that McDade threatened him andhis
family and this caused appellant fear, pressure and confusion. (30CCT
8999, 31CCT 9000-9003.) These intense feelings, singularly or
cumulatively could have caused appellant to explode in violence and shoot
McDade.
Respondent’s arguing that this was not a valid interpretation of the
evidenceis inconsistent with the government’sposition at trial. The
prosecutor wasso seriously concerned that jurors mightfind that appellant
killed for a reason other than robbery that he repeatedly argued against such
198
an interpretation of the evidence in his closing remarks. (31RT 11164,
11170, 11174-11175, 11179-11180, 11185, 11190-11191, 11195-11196,
11227.) Thus, there was substantial evidence that appellant committed
theft, not robbery. Jurors could find that appellant obtained the money
without force or fear and without actually forming the specific intent to
steal; he shot McDadefor reasons other than to facilitate the theft and then,
only after the shooting, when he made offwith the loot, did appellant
actually form the intent to permanently deprive.
Respondentargues that there was “overwhelming evidence”that
appellant formed the intent to steal before killing McDade. (RB, p. 188.)
Respondentcites no authority for applying a test of “overwhelming
evidence” to whetherinstruction on a lesser included crime is warranted.
To the contrary, the substantial evidence test governs. (People v.
Breverman, supra, 19 Cal.4" 142, 162.) In applyingit, the court cannot
weigh the evidence or make credibility determinations because these tasks
are exclusively reserved for the jury. (/bid.)
Next, respondent focuses on a slightly different portion of
appellant’s statement to Lee than did appellant to argue that appellant
obtained the moneyafter taking out his gun andthusonly after applying
force or fear. (31CT 9001, lines 1-8.) In this version, appellant took out
his gun and then demanded the money. (Jbid.) Appellant acknowledges
that the evidence can be viewed in the mannerthat respondent advances.
But this does not mean it cannot be viewed in the mannerthat appellant has
described. It was up to the jury to decide what to believe. Because
substantial evidence supported the theft scenario,the trial court erred in
failing to instruct on theft as a lesser-included offense to robbery.
199
Respondentalso argues that any error was harmless. (RB,p. 189.)
Referring back to the government’s earlier discussion of the evidence,
respondent argues that the evidence in support of the judgment was
“overwhelming.” (bid.) Appellant has already replied to this claim and
respectfully directs this Court to that portion of his brief. (See Arg. I, §
C.4, ante.) Several matters, however bear emphasis because they
undermine respondent’s position that this was a straight-forward case of
robbery and murder. Appellant did not shoot McDade until after the two
had been talking for about 30 minutes. (19RT 7583-7586 [Senner heard
shot at 10:45 or 10:50 p.m., just before movie ended at 11 p.m.]; 31CCT
9020 [appellant and Hodgesarrived around 10:15 p.m., when McDade was
getting off work]; 16RT 6521, 6558-6559, 6562-6563, 6578 [McDade
leaves KFC around 10:20 to 10:30 p.m.].) This lapse of time is inconsistent
with appellant’s robbing and killing according to a premade plan. Further,
appellant was a mentally slow teenagerat the time of the crimes. (23RT
8850, 28RT 10412, 10431; see also 31RT 11255-11256 [counsel’s
argument].) His approaching McDade while straddling two worlds would
havefit jurors’ understanding of human nature, particularly of someone
with appellant’s characteristics. Additionally, appellant told Littlejohn that
no one knewthe real reason forthe killing, the papers “gotit all wrong,” he
had been “under pressure,” he shot McDadeafter they argued and McDade
“had it coming.” (31CCT 9263, 9269, 9277-9278).
Next, respondenttersely asserts that the standard instructions were
adequate to convey that appellant had to form the specific intent to stealat
or before the application of force. (RB, p. 189.) Likewise, respondent
notesthat the jurors found that appellant used a gun during commission of
robbery. (/bid.) As appellant argued in greater detail (AOB,pp. 415-416),
correct instructions on a greater including offense do not render harmless
200
the failure to instruct on a lesser included offense because they do not give
jurors a choice between the two. (People v. Breverman, supra, 19 Cal.4®
142, 178, fn. 25.) Although the standard instructions “adequately cover[ed]
the issue of the time of the formation ofthe intent to steal” (People v.
Hendricks (1988) 44 Cal.3d 635, 643), none of them highlighted it.
(People v. Kelly, supra, 1 Cal.4" 495, 530.) Thus, they did not tend to
lessen the harm resulting from the instructional omission. (/bid.)
Respondentalso notes, again without any analysis, that the jury was
instructed on the lesser crime of receiving stolen property. (RB,p. 189.)
As appellant argued in his openingbrief, this lesser option for conviction
depended on jurors finding that appellant did not steal or kill, a scenario
quite different from the findings that jurors would need to maketo convict
appellant of the lesser-included offense theft as outlined above.
Consequently, the jurors’ rejection of receiving stolen property does not
render harmlessthetrial court’s failure to instruct on theft. (See AOB,pp.
409-411.)
Therefore, the trial court’s failure to instruct on theft as a lesser-
included offense to robbery wasprejudicial error. Appellant’s convictions
for robbery, murder and the robbery felony-murder special circumstance
must be reversed.
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XVIII.
THE TRIAL COURT ERRED TO APPELLANT’S
PREJUDICE IN USING THE DISJUNCTIVE BETWEEN
PARAGRAPHS ONE AND TWO OF CALJIC NO.
8.81.17.
Appellant demonstrated that the trial court committed prejudicial
error in using the disjunctive between paragraphs one and two of CAJIC
No. 8.81.17, defining the felony-murder special circumstance. (AOB,pp.
417-426.) Respondent disagrees. The governmentargues that the claim of
error was forfeited, no error occurred and any error was harmless. (RB,pp.
190-194.) Respondent’s position must be rejected.
Appellant’s claim has not been forfeited even though defense
counsel did not object to the instruction. Penal Code section 1259 provides
that a reviewing court may review a claim ofinstructional error to which no
objection wasraised if the error affected the defendant’s substantial rights.
It is necessary for this Court to review appellant’s claim to determineif
appellant’s substantial rights were compromised.(People v. Brents
(2012) 53 Cal.4" 599, 612, fn. 6 [addressing claim of error in CALJIC No.
8.81.17 despite lack of objection below]; People v. Prieto (2003) 30 Cal.4"
226, 247 & 268.) Respondent contendsthat a “similar claim” was deemed
forfeited in People v. Valdez (2004) 32 Cal.4" 73, 113. (RB, p. 191.)
There, the trial court omitted paragraph two. This Court rejected the claim
on the merits because there was no evidenceto support the instruction.
(Valdez, supra, at pp. 113-114, citing People v. Kimble (1988) 44 Cal.3d
43 If trial counsel’s failure to object to the instruction forfeited
appellant’s challenge to it, then appellant maintainsin his petition for writ
ofhabeas corpus that counsel rendered ineffective assistance. (PetHC,
Claim VII, § E, pp. 368-376.)
202
480, 501: People v. Navarette (2003) 30 Cal.4" 458, 505.) Valdez is
distinguishable because there the error did not affect the defendant’s
substantial rights, and, therefore, the claim was forfeited under Penal Code
section 1259. Here, use of “or” between paragraphs one and twodid affect
appellant’s substantial rights. Appellant now turnsto that issue.
Concerning the merits, respondent argues that using the disjunctive
between paragraphs one and two in CALJIC No. 8.81.17 was acceptable
becausethere is no reasonable likelihood that the jurors would have
interpreted the instruction to allow them to find the felony-murderspecial
circumstancetrue even if the robbery was merely incidental to the murder.
(RB,p. 191.) Respondent arguesthat the concluding “merely incidental”
language ofparagraph twologically applies to both paragraphs one and to
the rest ofthe language in paragraph two. (RB,pp. 191-192.) The claim
fails to withstand analysis given the instruction’s plain language. (See
AOB,p. 417 [quoting CALCJI No. 8.81.17]; 3CT 619 & 31RT 11125-
11126 [instruction].) First, the “merely incidental” language” is presented
in paragraph two asan alternative to paragraph oneas indicated by use of
the disjunctive, “or,” between paragraphs one and two. Second, the
“merely incidental” languageis also presented as a restatement of the
earlier part ofparagraph two. Thisis indicated by use of “[i]n other
words,”to start the sentence containing the “merely incidental” language.
(People v. Brents (2012) 53 Cal.4"" 599, 613; People v. Dement (2011) 53
Cal.4" 1, 47, fn. 25.) For these reasons, jurors would not have concluded
that the “merely incidental” language applied to paragraph one and was a
necessary prerequisite to finding the special circumstance true in lightofall
the requirements set forth in CALJIC No. 8.81.17. Use ofthe conjunction
“and” between paragraphs one and two wasnecessary to convey this
concept. Third, this Court has repeatedly madeclear that the disjunctive
203
should not be used between paragraphs one and two. (People v. Friend
(2009) 47 Cal.4" 1, 79 [“[u]sing the disjunctive (or) between the elements
of CALJIC No.8.81.17 would indeed be inappropriate”]; People v. Harris
(2008) 43 Cal.4" 1269, 1299 [Defendant correctly observes that use of the
disjunctive ‘or’ between the enumerated paragraphs was erroneous”);
People v. Prieto, supra, 30 Cal.4" 226, 256-257 [agreeing that instruction
using “or” was defective]; People v. Rayley (1992) 2 Cal.4" 870, 903 [use
of disjunctive was “indeed inappropriate”’].) Respondent’s position is
inconsistent with these opinions. Fourth, the editors of CALJIC revised the
instruction to use “and” between the two paragraphsrather than “or.”
There would have been no needfor this revision under respondent’s
interpretation.
Respondent’s efforts to distinguish two opinions on which appellant
relied to argue that it is unacceptable to use “or” between paragraphs one
and two, People v. Friend, supra, 47 Cal.4" 1 and People v. Prieto, supra,
30 Cal.4" 226, do not advance respondent’s position. (RB, p. 192; AOB,p.
418.) Appellant relied on them for the basic proposition that it is wrong to
use “or” between paragraphs one and two. (AOB,p. 418.) That the
paragraphs were notlinkedatall, either by “and”or “or” in Friend does not
underminethe validity ofFriend’s observation that use of “or”is improper.
(Friend, supra, at pp.78-79.) In Prieto, the trial court used the disjunctive
between the paragraphs in CALJIC No.8.81.17 and this Court found that
the instruction was defective. (Prieto, supra, at p. 256.) Prieto therefore
supports the proposition for which appellant cited it. Accordingly, use of
“or” between the paragraphs in CALJIC No. 8.81.17 was inappropriate.
In regards to prejudice, respondent maintains that the Watson
standard (People v. Watson (1956) 46 Cal.2d 818) for state law error
204
applies, not the Chapman standard for federal constitutional error
(Chapman v. California (1967) 386 U.S. 18). (RB, pp. 192-193.)
According to respondent, even if use of the disjunctive in CALJIC No.
8.81.17 meansthat jurors found the special circumstance true withoutresort
to paragraph two, paragraph twodo notset forth an “element”ofthe special
circumstance. (/bid.) Respondentthus argues that the Chapmantest,
which applies to omission of an essential element, does not apply. (Neder
v. United States (1999) 527 U.S. 1, 19.) Respondentis mistaken.
Chapman's stringent test, which requires reversal unless the government
provesthe error harmless beyond a reasonable doubt, must be used.
This Court’s recent opinions makeclear that Chapman applies.
People v. Rountree (2013) 56 Cal.4™ 823 called the independent felonious
purpose requirementan essential “requirement” of the felony-murder
special circumstance, and it emphasized that this requirement must be
fulfilled for the special circumstance to apply. (/d. at pp. 854-855.) In
another recent opinion, People v. Riccardi (2012) 54 Cal.4" 758, this Court
madeclear that, regardless of whether the independent felonious purpose
requirement is called an element or a requirement, the trial court’s failure to
instruct on it when it is supported by substantial evidenceis error that must
be assessed for prejudice underthe “beyond a reasonable doubt” standard,
i.e., the Chapman standard. “Instructional error under People v. Green“is
reversible unless it was harmless beyond a reasonable doubt. [Citations.]”
(Id. at p. 838.) Riccardi reversed the felony-murderspecial circumstance
due to thetrial court’s failure to instruct that the “burglary special
circumstance wasnotestablished if the burglary was merely incidentalto
44 People v. Green (1980) 27 Cal.3d 1.
205
the murder.” (/d. at pp. 838-839.) Additionally, People v. Brents, supra,
53 Cal.4" 599, called the independent felonious purpose requirement an
“element” of the felony-murderspecial circumstance. After finding that the
trial court’s version of CALJIC No. 8.81.17 misinstructed on this element,
it applied Chapman’s harmless beyond a reasonable doubt standard to find
the error prejudicial. (/d.at pp.613-614.)
Next, respondent argues that any error was harmless because “[e]ven
in this arguably imperfect form,”i.e., using the disjunctive between
paragraphs one and two, “CALJIC No. 8.81.17 conveyed that the robbery
could not simply be incidental to the murder.” (RB, p. 194.) The
contention is simply another way of saying that the instruction was
adequate. As shown aboveandin appellant’s opening brief, the instruction
waserroneous. Respondent’s point is unpersuasive.
So, too, is respondent’s claim that the parties’ arguments cured any
resulting harm. (RB, p. 194.) The arguments ofthe parties are no
substitute for legal instructions from the Court. “[I]nstruction by the court
would weigh more than a thousand words from the most eloquent defense
counsel.” (People v. Matthews (1994) 25 Cal.App.489, 99.) Jurors
cannot be expected to divine legal principles on which they are not
instructed. (People v. Eid (2010) 187 Cal.App.4® 859, 88.) The prosecutor
argued repeatedly that appellant committed a robbery and murder and the
reason for the murder wasto eliminate the robbery victim as a witness.
(31RT 11164, 11170, 11174-11175, 11179-11180, 11185, 11190-11191,
11195-11196.) The prosecutor advanced this theme on numerous
occasions, no doubt, becausehe realistically feared that jurors would find
no independentfelonious purpose,i.e., they would find that appellant’s
primary purpose wasto kill McDade out of animus because McDade would
206
not rehire him (16RT 6517-6518) and the robbery wasa rusetodistract the
victim or confuse authorities. Significantly, the evidence showedthat the
loss of the KFC job was hard on appellant. Appellant’s brother pressured
him to find work, and appellant felt that the KFC job wasthe only job he
was good at. (30CCT 8999-31CCT 9000.) After losing his job, appellant
returned to KFC about a dozen times and askedto be rehired, but to no
avail. (16RT 6517-6518, 6548-6549, 6575.) Appellant told Littlejohn that
he shot McDadeafter they argued and McDade“had it coming.” (31RT
9263, 9277-9278.) Also, after he lost his job, appellant also told Kim
Scott, “I’m going to get y’all” in reference to KFC. (18RT 7286, 7350.)
There was ample cause for jurors to find that appellant’s primary purpose
was murder.
For this reason, respondentfails to persuade that People v. Prieto,
supra, 30 Cal.4" 226, 256-257 supports that the instructional error was
harmless. In Prieto, there was no evidence to support that the murder was
the defendant’s primary purpose and the defendant’s commission ofvarious
felonies was merely incidentalto this objective. (/d. at p. 257.) Here, in
contrast, appellant has shown that jurors could reasonably interpret the
evidence in such a manner. (AOB,pp. 422-424.)
Additionally, respondent reiterates the claim that the evidence of
appellant’s guilt was “overwhelming.” (RB, p. 194.) Appellant has already
addressedthis contention and respectfully directs this Court to that portion
of his brief. (See Arg. I, § C.4, ante.)
Therefore, the felony-murder special circumstance mustbe reversed
due to the use of “or” between paragraphs one and two.
207
XIX.
THE TRIAL COURT ERREDIN INSTRUCTING
APPELLANT’S JURY ON FIRST DEGREE
PREMEDITATED MURDER AND FIRST DEGREE
FELONY-MURDER BECAUSE THE INFORMATION
CHARGED APPELLANT ONLY WITH SECOND
DEGREE MALICE-MURDERIN VIOLATION OF
PENAL CODE SECTION187.
Appellant demonstrated in his opening briefthat the trial court erred
_in instructing on first degree murder because he was charged with only
second degree murder. (AOB,pp. 427-434.) Respondent argues that the
claim must be rejected. (RB, pp. 195-196.) Appellant has anticipated
respondent’s arguments and submitsthe issue on the points he madein his
openingbrief.*°
45 Iftrial counsel’s failure to object to the instruction forfeited
appellant’s challenge to it, appellant asserts in his petition for writ of
habeas corpusthat counsel provided ineffective assistance. (PetHC, Claim
VII, § F, 376-383.)
208
XX.
MULTIPLE INSTANCES OF PROSECUTORIAL
MISCONDUCT REQUIRE REVERSAL OF THE
JUDGMENT.
Appellant demonstrated in his opening brief that the prosecutor
engaged in misconduct on multiple occasions during his opening and
rebuttal arguments. Theseerrors prejudiced appellant and require reversal
ofthe judgment. (AOB,pp. 434-447.) Respondentreplies that the
prosecutor did not commit misconduct and any error was forfeited and
harmless. (RB, pp. 197-208.)
A. Denigrating Role of Defense Counsel
Appellant demonstrated that the prosecutor committed misconduct
by (1) attacking defense counsel for asking “leading type questions” which
enabled counsel to cause “witnesses ... to be manipulated” (AOB,pp.435;
31RT 11191); (2) contending that defense counsel had put on a “Svengali”
defense (AOB,pp. 436-437; 31RT 11339) and (3) arguing that defense
counsel “doesn’t care about a just verdict” but merely cares about
defending his client. (AOB,pp. 437-438; 31RT 11341). Respondent
replies that the prosecutor’s remarks were legitimate comments on use of
“defense tactics.” (RB, pp. 200-202.)
Respondentrelies on People v. Medina (1995) 11 Cal.4 694, where
this Court upheld a prosecutor’s remarks whichstated “that an experienced
defense counsel will attempt to ‘twist’ and ‘poke’ at the prosecution’s
case....” (Ud. at p. 759.) (RB, p. 201.) The prosecutor’s first two remarks,
which had to do with manipulation, do not compare to those in Medina.
Manipulation is use oftrickery or force to make someone do something
209
they would not otherwise do.** Resorting to deception or force to control a
witness or present a defense is reprehensible conduct, whereas challenging
the State’s case is not.
Respondentalso cites People v. Gionis (1995) 9 Cal.4" 1196, 1215-
1217 in defense of the prosecutor’s remarks. (RB, p. 201.) Gionis upheld
prosecutorial comments that lawyers can “change black to white,” represent
“bad people” and approachthetruth “loosely.” The opinion upheld the
remarks as simply establishing that lawyers are “schooled in the art of
persuasion.” (Gionis, supra, at p. 1216.) The prosecutor’s challenged
comments here about manipulating witnesses by use of leading questions
were more like another comment condemned in Gionis: “‘ “You're an
attorney. It's your duty to lie, conceal and distort everything and slander
99 9 99everybody. (Ibid.) Using trickery to cause a witness to say something
the witness does not wantto say or to present a defense crosses the line
from persuasion to use of concealment anddistortion. Becauseit is
deceptive, it is also similar to lying. (See also People v. Bell (1989) 49
Cal.3d 502, 538 [remarks that “suggest that counsel was obligated or
permitted to present a defense dishonestly” are improper].)
Indeed, the prosecutor’s comment concerning use ofleading
questions wasitself deceptive. It implied that there is something wrong
with an attorney’s asking leading questions. Thepractice is, of course,
46 See http://wordnet.princeton.edw/perl/webwn?s=manipulate [defining
“manipulate” as tampering with for purpose of deception and as controlling
another to one’s advantage].
See also http://en.wikipedia.org/wiki/Svengali (“The word
‘Svengali’ has entered the language meaning a person who,with evil intent,
manipulates another into doing whatis desired”).
210
permissible. (Evid. Code, § 767, subd. (a)(2).) The prosecutor himself
asked leading questionsofcertain witnesses. (E.g., 23RT 8721-8724,
8744; 29RT 1073 et seq.) It is impermissible for a prosecutor to “deceive '
the jury on any material issue.” (People v. Espinoza (1992) 3 Cal.4™ 806,
820.) Respondentfails to address this point and hencefails to overcomeit.
Respondent’s claim that the prosecutor’s third comment,that
counsel wasjust “trying to defend his client ... [and h]e doesn’t care about
a just verdict,” was merely a commenton defensetactics rings hollow.
(RB, p. 201.) As respondent observes, the prosecutor’s comment appears
to be in reply to defense counsel’s concluding remarks. Counsel argued for
a second degree murderverdict, stating “[w]e would ask not that he be
found not guilty, but that he be judged accordingto his guilt.” (31RT
11339.) Attacking defense counsel personally for just caring about
defending his client but not about a just verdict was improper. To the
extent it addressed tactics, it portrayed defense counsel as a hired gun
willing to do or say anything to benefit his client, even if it resulted in
injustice. The real point of the claim was not to commentontactics,
however. It sought to personally demonize defense counsel for being
sleazy. The prosecutor should haveinstead limited his argument to what
the evidence showed and what conclusionsjurors should draw from it.
Appellant relied on People v. Hawthorne (1992) 4 Cal.4" 43, which
condemnedprosecutorial reliance on Justice White’s dissent in United
States v. Wade (1967) 388 U.S. 218, 256-258. (AOB,p. 438, citing
Hawthorne, supra, at p.59.) Appellant contended that the prosecutor’s
challenged remarks resembled Justice White’s statement in Wade that the
prosecution has a duty to ascertain “the true facts surrounding the
commission ofthe crime” whereas the defense does not. (Jbid.)
211
Prosecutorial argument based on Justice White’s dissent, observed this
Court, interjects “an extraneous generalization” before the jurors about
defense counsel’s role which threatensto divert their attention away from
the law and facts. (/d. at p. 60.) Respondentreplies that here the
prosecutor’s remarks were not “‘an extraneous generalization” and thus did
not “divert[] the jury from the specifics of the case at hand.” (RB,p. 203.)
Because respondent simply advancesthis conclusory allegation without
offering any support, it is unpersuasive andfails to overcome appellant’s
showing.
Therefore, respondent has failed to persuade that the prosecutor’s
challenged remarks disparaging defense counsel were proper argument.
B. Statements of Personal Opinion and References to Matters
Beyondthe Evidence
Appellant also faulted the prosecutor for engaging in misconduct by
injecting his personal opinionsinto the case andalluding to his knowledge
of evidentiary incongruities in other cases to shore up the State’s proofin
this one. (AOB,pp. 438-440; 31RT 11340, 32RT 11351.) Respondent
defends the prosecutor’s remarks. (RB, pp. 203-205.)
Addressing defense counsel’s argumentthat the defense and
prosecution shared a commonview of muchofthe evidence (for example,
the testimony of Leisey or Banks), the prosecutorstated, “I resent him
continuing to say that he and I agree.” (31RT 11340.) The prosecutor
wrongly injected his personal resentment at defense counsel into the
proceedings. (People v. Mendoza (2007) 42 Cal.4" 686, 703-704
[prosecutor commits misconductby referring to his own personal
feelings].) This commentis indefensible. Respondent simply ignoresit.
This fails to overcome appellant’s showing it was misconduct.
212
Next, respondent argues that a numberofthe prosecutor’s first-
person references (see AOB,p. 439; 31RT 11340) were acceptable because
they were “referring to the evidence” and the “prosecution view.” (RB,p.
204). The prosecutorsaid, inter alia, “Carl Powell is a cold-blooded
murderer. That’s what Carl Powell is, and that’s what I think he is.”
(31RT 11340.) He also said, “A4y purpose from the very beginningin this
case was to convict Carl Powell, John Hodges and Terry Hodgesoffirst-
degree murder, with the special circumstances.” (/bid.) He also said, “J am
not aligned” with defense counsel and disputed that “7 agree with him on
these various facts...” (bid.) If the prosecutor were simply expounding
on the prosecution’s viewpoint, as respondentasserts (RB, p. 204), he did
not need to continually refer to himself in the first-person. His remarks
suggested that the jurors choose between the prosecutor and defense
counsel as individuals rather than focus on the evidence. The prosecutor’s
remark that appellant was a cold-blooded killer “and that’s what I think he
is” was misconduct. It unequivocally expressed the prosecutor’s personal
opinion about appellant’s guilt. (People v. Bain (1971) 5 Cal.3d 839, 848
[prosecutor cannot express personal opinion about defendant’s guilt].)
Respondent’s claim that it was a comment on the evidence is simply wrong.
Nordoes respondent persuade that the prosecutor engaged in
permissible argument whenhesaid,“in a case like this, everything never
fits.” (32RT 11352.) Respondent claims this remark merely conveyed that
all the pieces of evidence did not neatly fit together in this case duetoits
complexity. (RB, p. 205.) Appellant disagrees. The prosecutor did not
say, “in this case everything doesnotfit.” By using the phrase,“case like
this,” the prosecutor indicated that appellant’s case was onein a broad
category of similar cases. Further, by saying “everything never fits,” the
prosecutoralluded to a temporal continuum ofdecisions. Plainly, the
213
prosecutor was comparing appellant’s case to other similar cases to say
that, based on his experience with cases like appellant’s over time, it was
not unusual for everything to notfit together perfectly. In so doing, the
prosecutortried to persuade appellant’s jurors with his special knowledge
of other cases to bolster the state’s proof in appellant’s case. This was
misconduct. (People v. Hill (1998) 17 Cal.4" 800, 828 [prosecutor
commits misconduct by implying there is extra-record information of
whichheis privy which supports defendant’s guilt]; People v. Sandoval
(1992) 4 Cal.4" 155, 183 [same].)
Therefore, the prosecutor committed misconduct by advancinghis
personal opinions and alluding to his special knowledge of extra-record
information.
Cc. Emotional Appeal
Appellant also challenged as misconduct the prosecutor’s comments
that appellant’s family did not “seem real supportive of him”asillustrated
by appellant’s (1) mothertelling him to return to Sacramento when he went
to Los Angelesto visit her and (2) brother “kicking him out on thestreet.”
(AOB,pp. 440-441; 32RT 11353.) These remarks did not address any
material issue and invited jurors to reject appellant as unworthy of anyone’s
concern. (Jbid.) It is misconduct for the prosecutor to make remarks which
encouragejurorsto let “emotion ... reign over reason”or invite “an
irrational, purely subjective response.” (People v. Redd (2010) 48 Cal.4%
691 742, internal quotations omitted.)
Respondentclaims that the prosecutor’s statement that appellant’s
mother and brother did not support him sought to undermine appellant’s
claim to detective Lee that he did not wantto tell everything he knew about
214
the Hodges’ involvementin the crimes becausehe feared that doing so
would jeopardize his family’s safety. (RB, pp. 205-206.) According to
respondent, if appellant’s family was not supportive, this suggested that the
family was not close and appellant did not care about them; if appellant did
not care about them, then he probably did not fear for their safety and he
lied when he said he did not want to incriminate the Hodgesfurther out of
fear for his family’s safety. The claim is unpersuasive. Many people
deeply care for family members even if they have rejected or abused them.
Also, even people who are ambivalent about their family will likely wish to
protect it from affirmative harm. What wasreally at issue was whether
appellant held back information about the Hodges. The connection
between appellant’s mother and brotherfailing to act supportive of
appellant and appellant’s lying about the Hodges’s further involvementin
the crimesis simply notthere.
Therefore, respondenthas failed to demonstrate that the prosecutor’s
injecting remarks about his family’s lack of support of appellant was
permissible argument.
D. Statements About Lack of Remorse
Appellant contendedthat the prosecutor committed misconduct
whenherepeatedly referred to appellant’s lack ofremorse during his
closing remarks to the jury. (AOB,pp. 441-443, citing 31RT 11193-11195,
11207-11208, 11213, 11224, 11237, 32RT 11355-11356.) For example,
the prosecutor argued that, according to John Hodges and Angela
Littlejohn,
... [H]e doesn’t have any remorse. And he’s sitting here ...
you might think that he’s younger than the Hodgesbrothers,
and he looks kind of down. [{] You know,the most
215
remorseful criminal in the world is the guy who’s been caught.
You know,but this showshe didn’t care; he didn’t have any
remorse. [{s] ... [I]ts so outrageous. He shoots a guy in the
head, and then he walks around braggingto thegirls, thinking
it’s a joke and having no remorse.
(31RT 11207-11208.)
A defendant’s lack of remorseis irrelevant during the guilt phase of a
capital trial unless the defense opensthe doorto it during its case-in-chief.
(AOB,p. 441, citing People v. Riggs (2008) 44 Cal.4" 248, 301; Peoplev.
Jones (1998) 17 Cal.4" 279, 307.)
Respondentpoints out that appellant does not challenge the
admission of the evidence (John Hodges’s and Angela Littlejohn’s
statement and/or testimony) on whichthe prosecutorrelied to argue
appellant’s lack of remorse. (RB, p. 206.) While this is so, merely because
evidence has been admitted without objection does not make it grounds for
impermissible argument. The prosecutor may urge jurors to draw only
proper inferences from the evidence. (People v. Thomas (1992) 2 Cal.4%
489, 526.) He may not divert jurors from their duty to “weigh the evidence
and submit a reasoned decision” concerning the defendant’s guilt or
innocence. (United States v. Solivan (6" Cir. 1991) 937 F.2d 1146, 1153;
see also People v. Fosselman (1983) 33 Cal.3d 572, 580, 581; Peoplev.
Vance (2010) 188 Cal.App.4" 1182, 1192), Focusing on a defendant’s lack
ofremorse improperly encouragesjurors to react with hostility to a
defendant due to his bad character. (E.g., People v. Jones, supra, 17 Cal.4%
279, 307 [suggesting that lack of remorse evidence speaks to defendant’s
bad character].)
216
Respondentattempts to defend the prosecutor’s remarks through a
novel interpretation of People v. Jones, supra, 17 Cal.4" 279. (RB,p. 207.)
Jones provides, “unless a defendant opens the doorto the matter in his or
her case-in-chief ... his or her remorseis irrelevantat the guilt phase.”
(Jones, supra, at p. 307.) According to respondent, Jones explains that a
prosecutor can admit lack ofremorse evidence to rebut a defendant’s
reliance on remorse. From this, respondent extracts that a prosecutor can
admit lack of remorse evidence from thestart, to “preemptively rebut”
defense remorse evidence. (RB, p. 207.) Presumably, respondent means to
imply that a prosecutor can also permissibly commentonthis “preemptive
rebuttal” evidence. The claim must be rejected becauseit stretches too far.
Allowing a prosecutor to admit and then argue lack of remorse evidence in
anticipatory rebuttal swallowsthe rule that “unless a defendant opens the
doorto the matter in his or her case-in-chief ... his or her remorseis
irrelevant at the guilt phase.” (Jones, supra, at p. 307, emphasis added.)
Significantly, Jones noted that not just any remorse evidence
presented by a defendant will open the door to the prosecution’s admission
of lack ofremorse evidence. (People v. Jones, supra, 17 Cal.4" 279, 307.)
There, the defendant cried on the stand when hetestified. The trial court
allowed the prosecution to present evidence that the defendant did not cry
when he confessed to the police. (/d. at p. 306.) The defendant challenged
this ruling on appeal and the People defended it. U/d. at p. 307.) Jones
found that the prosecution’s presenting lack ofremorse during the
confession wasnot proper to rebut the defendant’s crying during his
testimony. It explained that the defendant’s demeanoron the witness stand,
if evidence, “only showedthat he currently regretted his conduct.” (Jbid.)
The opinion found, however, that the lack of remorse evidence was
properly admitted for another reason, to rebut the defendant’s testimony
217
that he felt remorse during interrogations held the day after the crimes. The
prosecution’s witnesstestified that he was present during those
interrogations and did not see appellant act remorseful. (/bid.) This was
permissible rebuttal because it was specific and related directly to evidence
of a particular incident or charactertrait put into issue by the defendant.
(Ibid.)
Respondent argues that John Hodges’ and Angela Littlejohn’s
| statements that appellant lacked remorse properly rebutted appellant’s
reliance on the defense theory that he acted under duress from the Hodges
brothers. (RB, pp. 206-207.) Under Jones, this was notspecific rebuttal
whichrelated directly to evidence of a particular incident or charactertrait
put into use by appellant. (People v. Jones, supra, 17 Cal.4" 279, 307.)
Under respondent’s approach,it seems that lack ofremorse evidence could
be presented by the state in virtually any case in which the defendant
admits the act but contests his mental state. Again, this stretches Jones too
far.
Therefore, respondenthas failed to demonstrate that the prosecutor’s
numerousreferences to appellant’s lack of remorse were permissible.} p
E. Appellant’s Claims of Prosecutorial Misconduct Have Been
Preserved for Review
Appellant demonstrated in his opening briefthat his claims of
prosecutorial misconduct were preserved for review even though defense
counsel did not object to each challenged remark. (AOB,pp. 443-445.)
Thetrial court erroneously overruled counsel’s first objection in a manner
that indicated it would handle subsequent objections similarly.
Accordingly, further objections must be excusedas futile.
218
Futility also excuses counsel’s failure to seek a curative admonition
in connection with his first objection. Because the trial court promptly
overruled the objection, counsel did not have an opportunity to request an
admonition, and the omission is excusedas futile. (People v. Hill (1998) 17
Cal.4800, 820.)
Respondent contendsthat appellant’s claims have not been
preserved. (RB, pp. 197-198.) Appellant’s opening brief thoroughly
addresses forfeiture. Hence, appellant respectfully directs this Court’s
attention to his opening brief.‘7 (AOB,pp. 443-445.)
F, Appellant Was Prejudiced by the Prosecutor’s Misconduct.
Respondent argues that the prosecutor’s misconduct was harmless
because the evidence against appellant was overwhelming and the
misconduct wasa relatively brief part of a lengthy argument. (RB, pp. 207-
208.) Appellant has previously respondedto the claim of overwhelming
evidence. (Arg. I, § C.4, ante.) It bears emphasis that appellant’s mental
state was the key matter in dispute, mental state is a delicate issue for jurors
to assess and there was a fair amount of evidence which could have caused
rational jurors to doubt that the state had provedall essential mentalstate
elements for robbery andfirst degree murder. (/bid.)
The misconduct was not simply an isolated remark. It occurred on
multiple occasions interspersed during the prosecutor’s opening and
rebuttal arguments. The prosecutor’s impermissible comments about
47 If defense counselfailed to sufficiently object to the prosecutor’s
misconductin order to preserve appellant’s claims for review, then
appellant asserts in his petition for writ of habeas corpus that counsel
provided ineffective assistance. (PetHC, Claim VI, § G, 384-398.)
219
appellant’s lack of remorse were particularly lengthy and numerous.
Further, much of the misconduct occurred during rebuttal argument. (31RT
11339-11341, 11344-11345, 11351, 11353, 11355-11356.) Misconduct
during rebuttal is especially damaging because rebuttal directly precedes
deliberations. Consequently, the misconduct’s impactis fresh on the
jurors’ mindsas they proceed to determine the defendant’s fate.
The prosecutor’s misconduct wasalso far-rangingin its nature. It
was impermissible for multiple, complimentary reasons which combined to
prejudice appellant. In denigrating defense counsel, the prosecutor
suggested that counsel was stooping to sleazy, underhandedtactics and
sought to subvert justice. Some ofthe prosecutor’s statements of personal
opinion encouraged jurors to view the case as a personal contest between
the prosecutor and defense counsel. This madeit difficult for jurors to
identify with the defense which counsel presented and encouraged them to
consider matters extraneous to the evidence. Further, by condemning
appellant for not showing remorse and questioningif appellant’s family
cared about him, the prosecutor also madeit difficult for jurors to identify
with appellant, and hence his defense, and injected extraneous matters into
the jurors’ consideration. The prosecutor also suggested that the
government’s case was stronger than the evidence showed becausethe
prosecutor wasprivy to out-of-court information withinhis special
knowledge. In short, the prosecutor’s misconduct wrongly put down
defense counsel and appellant wile impermissibly bolstering the strength of
the state’s case.
Therefore, respondent has failed to persuade that the prosecutor’s
misconduct was harmless.
220
XXI.
REVERSAL OF THE JUDGMENT IS REQUIRED DUE TO GUILT
PHASE JUROR MISCONDUCTIN REVIEWING NEWSPAPER
ARTICLES CONCERNING THE MISTRIAL GRANTED TO THE
HODGES AND THE DISMISSAL OF THE CHARGES AGAINST
THEM AND ALSO DUETO THE TRIAL COURT’S INADEQUATE
INQUIRY INTO THE MATTER.
Thetrial court did not inform appellant’s jurors that the Hodges
disappeared from the trial because they had been granted a mistrial; it
simply told them that the Hodges would no longer be in court and the jurors
should not speculate about why they had left. (30RT 10867-10868.) A
numberofthe jurors committed misconduct by viewing newspaperarticles
reporting on the August 23, 1994, grant of a mistrial for Hodges brothers.
(29CCT 8605.) The articles came outin a local newspaper, the Sacramento
Bee, on August 24 and August 27, 1994. (31RT 11153, 32RT 11390-
11391.) Appellant’s jury started its deliberations on August 30, 1994.
(3CT 670.) The articles contained information extraneousto the evidence.
Atleast one ofthe articles contained remarks by the Hodgesjurors which
were damaging to appellant. (32RT 11392-11393.)
Appellant demonstrated that reversal is required due to the jurors’
exposure to these newspaperarticles. He also showedthat heis entitled to
relief because the trial court’s inquiry into the misconduct was anemic and
failed to uncoverthe key facts necessary to determineifthe offending
jurors should be discharged. (AOB,pp. 448-460.) Respondentreplies that
appellant has forfeited review of the adequacyofthetrial court’s inquiry,
the presumption ofprejudice from juror misconduct was overcomeand the
trial court’s inquiry wassufficient. (RB, pp. 208-217.)
221
Respondent contendsthat appellant’s argument challenging the
adequacyofthetrial court’s inquiry into the juror misconduct has been
forfeited because defense counsel expressed satisfaction with the inquiry
conducted. (RB, pp. 210-211.) The claim has not been forfeited. Once a
trial court learns of possible juror misconduct, it has a duty of its own
accord to conduct an inquiry sufficient to determine ifjuror discharge is
warranted. “A court on notice ofthe possibility ofjuror misconduct must
Cee.undertake an inquiry sufficient “to determine if the juror should be
discharged and whetherthe impartiality of other jurors has been affected.”
[Citation.]” (People v, Espinoza (1992) 3 Cal.4" 806, 822.) Likewise,
“To}nce a court is put on notice ofthe possibility that improper or external
influences are being broughtto bear on a juror,it is the court’s duty to
make whateverinquiry is reasonably necessary to determineifthe juror
should be discharged and whether the impartiality of other jurors has been
affected.” (People v. McNeal (1978) 90 Cal.App.3d 830, 839; see also
People v. Burgener (1986) 41 Cal.3d 505, 519 [“an inquiry sufficient to —
determine the facts is required wheneverthe court is put on notice that good
cause to discharge a juror may exist”].) These decisions speak to a court’s
distinct obligation, irrespective of counsel, to conduct a sufficient inquiry
into juror misconduct. *8
Respondent also contendsthatthe trial court’s admonition to the
jurors to disregard the articles was sufficient to dispel the presumption of
prejudice which arose from jurors viewing them. (RB, pp. 214-215.) Not
48 In his petition for writ of habeas corpus, appellant arguesthat if
defense counsel “were required to object to the mannerofthe trial court’s
inquiry in order to preserve the claim for appeal, they failed to render
effective assistance of counsel by failing to do so.” (PetHC, Claim VII, §
H, 398-408.)
222
so. The disappearance of the Hodgesbrothers from the trial was a dramatic
event. The Hodges were key players both in what happened to McDade
and attrial. They and their entourage (the two defendants, their four
attorneys, their investigators and their jury) took up a lot of space in the
courtroom. The defense soughtto portray the Hodges, who wereolder and
more criminally sophisticated than appellant, as the true culprits who forced
appellant to do their dirty work. (See generally, AOB, Arg. I, § C.5
[discussing defense theory].) Appellant’s jurors would have
unquestionably noticed the Hodges’s absence and been naturally curious
about why they suddenly vanished from the proceedings.
The newspaperarticles were inherently prejudicial because they
provided extrinsic information, harmful to appellant, about the individuals
whom appellant soughtto cast as the truly responsible parties. They
indicated that the Hodges had been victimized by legal error (they had
deserved a mistrial) and suggested that they were not responsible for the
crimes (which is why they were no longerontrial, unlike appellant). The
natural inferences which flowed from the Hodges having been granted a
mistrial were prejudicial to appellant. They combined with the negative
inference jurors would have drawn from the broken promise of appellant’s
testimony, i.e., that appellant’s claim that the Hodges coerced him was
false. (See Arg. I, § B.3, ante.) This was simply too muchforthe jurors to
put out of their minds. The jurors would have been reminded ofthe
Hodges’s mistrial each time they entered the courtroom and saw the
emptiness created by the Hodges’s disappearance. They would havealso
recalled the Hodges’s mistrial when evaluating the credibility ofLeisey and
Banks, witnesses to whom the Hodges had supposedly made incriminating
admissions about manipulating appellant. The defense which appellant’s
attorney ultimately presented — that appellant’s mind wasso clouded by
223
fear and pressure form the Hodgeshe did not form the mental state required
for robbery and murder — dependedsignificantly on Leisey’s and Banks’s
credibility. (See 31RT 11299-11320 [Castro argues at length in favor of
Leisey’s and Banks’s credibility]; see Arg. I, § C.4, ante, and AOB,Arg.I,
§ C.5.) The negative inferences the jurors would have drawn from the
newspaperarticles would have arisen frequently. The Hodges’s absence
from the courtroom waspalpable, and it would have been impossible for
jurors to ignore that the Hodges wereless culpable than appellant when
evaluating appellant’s defense. It is unrealistic to expect that the jurors
were able to follow the trial court’s admonitions.
Respondent defends the adequacyofthe trial court’s general, group
inquiries of the jurors concerning the twoarticles becausethetrial court
determined “the extent of the jurors’ exposure”to the stories. (RB,p. 215;
31RT 11155-11156.) The record belies the contention. In regards to the
August 27, 1994,article, the record reveals that the trial court asked only if
the jurors as a group “read the article or the headline ofthe short article.”
(31RT 11155.) In regards to the August 24, 1994, article, the trial court
asked only ofthe jurors as a groupifthey had “read the headline or the
article.” (3CCT 669.) Its inquiry did not determine whichjurors read
whichpart or parts of the article. Although some jurors apparently said
something that defense counsel Holmes overheard about reading just the
caption (32RT 11391), the record only contains Holmes’srelating this
vague, second-hand information. The record doesnot clearly indicate the
accuracy of this statement and,if it was accurate, it does not indicate how
many jurors stopped at just the caption. It is feasible that many ofthe
jurors who respondedaffirmatively to reading the article or headline read
both entire articles. The trial court’s inquiry was pro formaand, as a
consequence,yielded only imprecise information.
224
Appellant relied on a numberof decisions to demonstrate that the
trial court’s inquiry was inadequate. (AOB,pp. 457-460.) From this
authority, several principles emerge. First, a general, group inquiry is
typically insufficient; jurors may be reluctant to admit to misconduct or
may minimize their misconduct and being asked aboutit as a group
facilitates such reticence. (United States v. Accardo (7Cir. 1962) 298
F.2d 133, 136; United States v. Davis (5" Cir. 1978) 583 F.2d 190. 196-
198; Coppedege v. United States (D.C.Cir. 1959) 272 F.2d 504, 506-508;
People v. Andrews (1983) 149 Cal.App.3d 358, 366.) Second, jurors are
reluctant to admit to being influenced by extrinsic material in a manner
impairing their ability to be fair; consequently, their self-assessments are
not dispositive. (Marshall v. United States (1959) 360 U.S. 310, 312; Irvin
v. Dowd (1961) 366 U.S. 717, 728; Silverthorne v. United States (9" Cir.
1968) 400 F.2d 627, 639.) Third, because of the juror reluctance described
above,a trial court inquiring into juror misconduct must seek an objective
basis for determining that a juror exposedto extrinsic material can remain
impartial. (Silverthorne, supra, at p. 639; Davis, supra, at p. 196.)
Respondentdistinguishes these decisions on random grounds which
do not underminethe principles for which they stand. (RB, pp. 216-217.)
For example, respondentobserves that United States v. Davis, supra, 583
F.2d 190 and Silverthorne v. United States, supra, 400 F.2d 627 both
involvedtrial court inquiries of prospective jurors into pretrial publicity.
(RB, pp. 216-217.) Respondentasserts that the measures recommended in
these decisions-- 1.e., individual questioning andtrial court inquiry to
uncoverobjective reasons for concluding that a juror could be fair — should
be more stringent whenthe inquiry is made of prospective jurors because
prospective jurors are more likely to be influenced by newsreports than
seated jurors. A more lax inquiry for seated jurors who havealready heard
225
the evidence is acceptable, according to respondent, because they have
already heard evidence against the accused. (RB, pp. 216-217.) Thisis
nonsense. Assuming, arguendo, that prospective and selected jurors can be
questioned with different degrees of rigor, then selected jurors should be
questioned more rigorously. It is the selected jurors who haveactually
sworn to properly perform their duties and refrain from misconduct, andit
is they who will actually decide the defendant’s fate. They perform a far
more solemn and importantrole (especially in a capital case) than do
prospective jurors merely being considered for jury service. Where, as
here, the selected jurors view newsreports on the eve of deliberations, the
extrinsic information is especially apt to influence the actual verdict.
Respondentdistinguishes several decisions on which appellantrelied
on the groundthat they involved more extensive publicity than in the
present case. (RB, pp. 216-217, addressing United States v. Accardo,
supra, 298 F.2d 133; Coppedge v. United States, supra, 272 F.2d 504; Irvin
v. Dowd, supra, 366 U.S. 717.) Respondent, however,fails to cite any
authority declaring that the sufficiency of an inquiry can diminish where ~
jurors have been exposed to newspaperarticles on the eve of deliberations
which invite them to draw inferences negative to the defendant’s theory of
defense. Asnoted,the articleshere invited the inferences that the Hodges
were not culpable and thus did not exert fear and pressure over appellantto
preclude him from forming the necessary mental state for robbery andfirst
degree murder.
For the foregoing reasons, respondenthasfailed to overcome the
presumption ofprejudice which arose from jurors reading newspaper
articles concerning the Hodges’s mistrial on the eve of deliberations. Nor
has respondent persuadedthat the trial court’s inquiry into the jurors’
226
misconduct wassufficient for it to determine if one or more jurors had to be
excused. Accordingly, the judgment must be reversed.
227
PENALTY PHASE ISSUES
XXII.
THE TRIAL COURT’S FAILURE TO CONDUCT AN
ADEQUATEINQUIRY INTO THE NATURE AND
IMPACT OF PREJUDICIAL PUBLICITY COINCIDING
WITH PENALTY PHASE DELIBERATIONS
REQUIRES REVERSAL OF THE DEATH VERDICT;
REVERSALIS ALSO REQUIRED DUE TO JUROR
MISCONDUCT.
Immediately before and during penalty phase deliberations, publicity
surfaced regarding a robbery-murder which occurred at a McDonald’s in
the samearea as thesite of the capital crime. (36RT 12563-12655.) Like the
instant case, the victim was shot and gang involvement wassuggested. (/d.,
at p. 12655.) Given the strong similarities between that crime and the
instant case, defense counsel requested that the court question the jurors
concerning their possible exposureto this publicity and its effect. (/d., at p.
12654.) The court did so, but only after the jury rendered its verdict of
death, and merely asked, by a show ofhands, whether any had been
exposed to the reports of the “recent McDonalds fast-food robbery/murder
case.” (36RT 12662.) Although ten jurors admitted such exposure, the court
made no attempt to determine what they had seen or whether they had
discussed it during deliberations. (/bid.) The court also failed to
meaningfully investigate the impact of the publicity, only asking the jurors
to raise their hands if any were influenced. (/bid.) None ofthe jurors, who
had already been excusedafter rendering their verdict and were ready to
leave the courtroom, responded. (Jbid.)
Appellant demonstrated in his opening brief that the trial court’s
inquiry was inadequatein thatit failed to uncover the key facts necessary to
determine the extent of exposure and impact of this improperinfluence.
228
(See AOB 463-466.) He also showedthat reversal of the penalty judgment
is required because the court failed to conduct a meaningful investigation,
the ten jurors” exposureto the prejudicial publicity constituted misconduct
raising a presumption ofprejudice, and the State failed to rebut that
presumption. (AOB 466-468.) Respondentargues that appellant has
forfeited this claim, the jurors could not have committed misconduct by
reading newsreports about an unrelated case, any prejudice was overcome
by the court’s instructions, and thetrial court’s inquiry was sufficient. (RB
218-223.) The State is wrong onall counts.
A. This Claim Has Not Been Forfeited.
Respondent argues that appellant has forfeited his claim thatthetrial
court’s inquiry was inadequate because he did not object to the manner of
that inquiry andthetrial court asked the questions proposed by defense
counsel. (RB 219.)
Defense counsel may have proposed questions for the court to ask
and acquiescedto its mannerofinquiry,’ but it wasthetrial court’s
49 MR. HOLMES[Defense counsel]: This is just more of an
inquiry to the Court here—and I don’t know how the Court would
wantto handle this — but I’m sure we’veall read the incident that
happenedherethe other day, the McDonalds on Florin Road,the
shooting and probably somegangrelationship to that as well.
What I’m thinkingis, that perhaps the Court might make some
inquiry whether the jurors have, numberone, have they read
that article, and if they did, whetherit influenced them in any
way. And howeverthe Court wants to handle that, 1 would
leave it up to you.
That’s the only incidence that did come up, becauseit did
comeout during the time ofthese deliberations. It happened
229
responsibility, once it learned that ten jurors had been exposedto the
prejudicial publicity, to determine the nature of that publicity and its impact
on their deliberations. When “put on notice of the possibility a juroris
subject to improper influences,it is the court’s duty to make whatever
inquiry is reasonably necessary to determine if the jurors should be
discharged.” (People v. Burgener, supra, 41 Cal.3d at p. 520; accord,
People v. Adcox (1988) 47 Cal.3d 207, 253; People v. McNeal, supra, 90
Cal.App.3d at p. 839; see also Dyer v. Calderon (9Cir. 1998) 151 F.3d
970, 978 [“[t]he trial judge must assumethe ‘primary obligation .. . to
fashion a responsible procedure for ascertaining whether misconduct
during the time when westarted our argument, and it continued
right to the time that we deliberating. So I would ask the Court
ifmaybe you would make inquiry of, number one, whether
they read the article and, numbertwo,ifthey did, if there was
any consideration made onthat.
THE COURT:Andif I do that, ask the questions of them as a
panel, rather than individually? Has anyonereadthe article,
and if they did, whetherit had any effect in their decision?
MR. HOMES:Right, right.
THE COURT: Anyway,is that your request?
MR. HOLMES:That’s my request.
(G6RT 12653-54.)
Mr. Holmes acquiesced whenthe prosecutor requested that the
inquiry be madeafter the jury renderedits verdict. Holmes merely
responded“that’s fine” if the Court preferred to make the inquiry after
the verdict. (/d., at p. 12656.)
230
actually occurred and if so, whetherit was prejudicial.’”].) As noted in
Argument XXI, supra, these decisions speak to a court’s obligation,
irrespective of counsel, to conduct a sufficient inquiry into juror
misconduct.
Cases cited by respondent (People v. Burgener, supra, 41 Cal.3d
505, and People v. Holloway (2004) 33 Cal.4" 96) do not support
invocation of the waiver doctrine here. In Burgener, this Court did not
invoke waiver andinstead affirmedthat it is the court’s responsibility to
conduct an inquiry sufficient to investigate the possibility ofjuror
misconduct. Whenthetrial court and counsel received information that a
juror may have beenintoxicated during deliberations, the court wanted to
question the juror, but defense counsel objected to any inquiry or
admonition and argued that her behavior might not be a symptom of
intoxication. (Burgener, supra, at p. 517.) On appeal, Burgener argued that
the trial court erred in failing to conduct a hearing and this Court agreed
that the court’s failure to do so waserror, becauseit was the court’s duty to
makea sufficient inquiry once it was put on notice of the possibility that the
juror could be subject to improperinfluences. (/d., at pp. 518, 520.) The
Court found, however, that the record on appeal wasinsufficient to
establish that the juror was actually intoxicated or that her ability to
deliberate had been affected. (/d., at p. 521.) Observing that counsel’s
choice appeared to be tactically motivated, this Court stated that “defendant
cannot be permitted to prevent an inquiry into the condition of a possibly
intoxicated juror on the basis that such an inquiry would ‘destroy the jury’
and subsequently challenge the verdict of that very jury on grounds that the
court’s failure to conduct an inquiry prejudicedhis interests.” (/bid.)
231
@
In Holloway, this Court reviewed a claim of inadequate inquiry into
possible juror bias on its merits despite finding that the claim had been
waived. (People v. Holloway, supra, 33 Cal.4"at pp. 126-127.) Holloway
predicated its waiver ruling on the fact that the trial court did not indicate
any unwillingness to ask additional questions and defense counsel declined
to ask further questions even thoughthe court invited questions from
counsel. (/d., at pp. 126-127.) Holloway cited People v. McIntyre (1981)
115 Cal.App.3d 899, 906, another case where the court explicitly extended
an opportunity for trial counsel to personally question the juror. (Holloway,
supra, at p. 127.) In McIntyre, counsel respondedthat he wassatisfied
whenthe court offered him an opportunity to question the juror further and
that he had nothing further when the court inquired whether he had
anything else to say after the juror had left the room. (People v. McIntyre,
supra, at pp. 905-906.) The McIntyre court found that counsel’s silence
following the judge’s invitation to protest the juror’s conduct, renew his
motion, or seek placementof an alternate juror constituted a waiver. (/d., at
p- 906.)
Thus, in both Holloway and McIntyre, this Court found waiver, but
only where defense counsel declined an express opportunity to pursue
further inquiry. Here, however, counsel wasnot offered an opportunity to
question or request the court to further question the jurors after ten ofthem
indicated their exposure to the prejudicial publicity. (36RT 12662.) In fact,
counsel wasnot even provided an opportunity for argumentor discussion.
(Ibid.) After the court asked for a show of hands ofthose who had been
exposed to the publicity and those who had beeninfluencedbyit, it simply
232
excused the jurors and did not invite any further discussion. (/bid.) The
issue was over and the court moved on to sentencing matters.°° (Jbid.)
0 After the jurors rendered their verdict, were polled and excused,
defense counsel asked if the court was going to make “that one inquiry”
and the court’s inquiry wentas follows:
THE COURT:Oh,before I do that, I had another request, to ask of
you, the deliberating jurors, by a show of hands — And we’ll record
your name — Which,if any of you, were exposedto any of the news
reports, newspaperor TV or any other newsreports, of the recent
McDonalds fast-food robbery/murder case? Were there any of the
deliberating jurors who heardor read any ofthose reports?
All right. I think it would be best just to note the jurors whodid not.
The ones whodon’t havetheir hands up, are Juror No. 3 and Mr. —
JUROR NO.4:[stating last name]
THE COURT:Juror No.4
Andthose whodid receive any information aboutthat, were there
any of you that were influenced in your decision by any of the news
reports concerning that?
If so, raise your hand.
For the record, there is no response.
I will now thenat this time than you again, ladies and gentlemen.If
you wantto leave abruptly, you may doso after you leave the
courtroom.
If you wantto follow Miss Hollingsworth to the deliberating room,
you maydo that. Thank you.
(The jurors depart at 10:45 a.m.)
THE COURT:AIl right. For the record, the jurors are absent, and the
defendant will be remanded to that next appearance in Department
23. [ll have the trailing cases calendared for that time as well.
Between now and Mondayafternoon, counsel, determine your — In
233
In these circumstances, there was nothing resembling waiver or
invited error. Defense counsel asked the Court to investigate the likelihood
that one or more of the jurors had been tainted by exposureto the
prejudicial publicity, suggested possible questions to ask the jurors, and
acquiesced to the court’s manner of questioning. There is no suggestion that
like counsel in Burgener, appellant’s counsel made a tactical choice to
avoid proper questioning. Rather, he acquiesced to the court’s handling of
the situation.*!
Review ofthis Court’s decisions in similar situations suggests that
absentinvited error, an express objection is not required to preserve the
question whethera fully informedtrial court erred in failing to adequately
investigate juror taint, bias or other misconduct. In People v. Osband
(1996) 13 Cal.4" 622, defense counsel informed the court that witnesses
your respective positions what you request. I presume, among other
things, I’ll refer to (sic) case to the probation departmentfortheir
report.
(36RT 12662-12663.)
(As was donein the openingbrief, counsel has redacted the jurors’ names
and replaced them with their identifying numbers. (See 72CT 7A 21373-
21374 [counsel has duty to redact juror namesin certain parts of record];
2CT 422 [6/14/94 minute order ofjury selection]; 1SRT 6282-6283 [jury
sworn].).)
31 Should this Court determine that counsel’s acquiescence has resulted
in forfeiture of this claim, appellant contends, in his petition for writ of
habeascorpus, that counsel rendered ineffective assistance of counsel.
(PetHC, Claim VII(1), 415 [“[t]o the extent trial counsel were required to
object to the trial court’s inadequate inquiry to preserve the claim for
appeal, they failed to render effective assistance of counselbyfailing to do
so.”].)
234
were talking within earshot of the jurors during recess, but did not request a
hearing on whetherthe jurors heard any prejudicial discussions. (/d., at p.
675.) On appeal, when the defendant arguedthatthe court erred in failing to
hold a hearing, this Court did not invoke procedural default. It held that the
trial court did not abuseits discretion in failing to hold a hearing andthat in
any event, the court’s admonition cured any possible prejudice. (/d., at pp.
675-676.)
In People v. DeSantis (1992) 2 Cal.4" 1198, where the trial court
was informed that jurors might have heard a witness talking in the hallway,
the court ordered the parties to keep their witnesses at a distance from the
jury and the matter ended there without any defense objection or material
interjection into the discussion. (/d., at p. 1234.) On appeal, in response to
the defendant’s claim regarding the trial court’s failure to inquire into the
substance of the overheard remarks, this Court did not invoke waiver, but
simply ruled that the record did not support the claim that anything
prejudicial occurred: “Under these circumstances we find noerror in the
court’s failure to hold a hearing.” (/d., at p. 1235.)
In People v. Gallego (1990) 52 Cal.3d 115, where two jurors had
received information from an outside source, they were examined and
insisted that they could retain their impartiality. Defense counsel, who had
been provided a weekend to consider whether he wished to have the jurors
replaced with alternates, informed the court that although he believed the
information was prejudicial, the jurors’ honesty in coming forth on their
own “would nullify any damage.” (/d., at pp. 187-188.) Counsel requested
that the jurors “stay on,” and the court respondedthat it would do nothing
so long as defendant had no objection. (Jbid.) On review,this Court ruled
235
that the issue was “waived’** becauseoftrial counsel’s express desire that
the jurors not be discharged. (/bid.)
Similarly, in People v. Majors (1998) 18 Cal.4" 385, where a juror
inadvertently received outside information concerning the case, defense
counsel, wheninvited to challenge the juror, stated that he did not wantto
do so andthat he hadtactical reasons for wanting the juror to remain on the
panel. (/d., at p. 427.) On review,this Court cited People v. Gallego, supra,
for the proposition that trial counsel’s failure to challenge the juror
waived? the issue for purposesofthe appeal. (/d., at p. 428.)
Thus, California courts have applied procedural default to claims of
trial court failure to adequately dischargeits duty to investigate improper
juror influences only where counsel expressly (1) declines an invitation
from the court to pursue further investigation (Holloway, McIntyre); or (2)
states that no further review is necessary or that he/she does not wish the
juror(s) to be discharged (Gallego, Majors). Trial counsel’s silence or
acquiescence does not merit application ofprocedural default.
°2 This specific form of default might more accurately be characterized
as “invited error,” where review is precluded because counsel acts
affirmatively to causethetrial court to err, despite the court’s own
obligation to apply the law. (People v. Lara (2001) 86 Cal.App.4% 139,
164-165 [“The doctrine ofinvited error is designed to prevent an accused
from gaining a reversal on appeal becauseofan error madebythetrial
court at his behest. If defense counsel intentionally caused the trial court to
err, the appellant cannot be heard to complain on appeal.”].)
33 Again, this is more accurately denominatedas invitederror.
236
Notonly is this rule consistent with this Court’s practice,it is
consistent with constitutional policy. An impartial jury is the essence of due
process and of the Sixth Amendmentrightto trial by jury. (Smith v. Phillips
(1982) 455 U.S. 209, 217; Turner v. Murray (1986) 476 U.S. 28, 36.) The
right to trial by jury is amongthatelite of constitutional rights that can be
waived only through express, personal waiver by the defendant. (People v.
Collins (2001) 26 Cal.4th 297, 307-308; People v. Ernst (1994) 8 Cal.4th
441; Inre Horton (1991) 54 Cal.3d 82, 95.) This places a high
responsibility on the trial court to act without prompting wheneverit
appearsthat the right to an impartial jury is about to be compromised.
(People v. Kaurish (1990) 52 Cal.3d 648, 694 [Whenevercourt is put on
notice of improper or external influences onjurors,it is court’s duty to
make an adequate inquiry, for such an inquiry “is central to maintaining the
integrity of the jury system, and therefore is central to the criminal
defendant’sright to a fairtrial”]; see also Smith v. Phillips, supra, at p. 217;
King v. Lynaugh (Sth Cir. 1988) 850 F.2d 1055, 1058 ["Trial courts bear
the principal responsibility to implement" the Sixth and Fourteenth
Amendmentguarantee ofthe right to an impartial jury.]; People v.
McKenzie (1983) 34 Cal.3rd 616, 627 ["'The adversary nature of the
proceedings doesnotrelieve the trial judge of the obligation of raising on
his orherinitiative, at all appropriate times and in appropriate manner,
matters which maysignificantly promote a just determination of the
trial.""].) If an express, personal waiveris required to forgo so fundamental
a right, how can counsel’s acquiescence to the court’s manner of
questioning in investigating improperjuror influences constitute a waiver
of the right to an impartial jury? (See, e.g. U.S. v. Littlefield (9% Cir. 1985)
752 F.2d 1429, 1430 [“The interest in fair administration ofjustice weighs
against holding that defendants waived any opportunity to seek secondtrial
237
in this case, even though a secondtrial could perhaps have been avoided
had the defense immediately notified the court of the publication of the
article.”]; United States v. Rattenni (2d Cir. 1973) 480 F.2d 195, 197
[Dereliction by defense counselis not groundsto let tainted verdict stand].)
In sum, there was nothing resembling “invited error” or any tactical
choice to avoid a properinquiry in this case, it was the trial court’s
responsibility to determine the extent and effect of the jurors’ exposure to
the prejudicial publicity, and the fundamental nature of appellant’s right to
an impartial jury requires review.
B. The Exposure of Ten Jurors to Prejudicial Publicity Constituted
Misconduct Raising a Presumption of Prejudice, Which the
Trial Court Failed to Adequately Investigate.
Respondent contendsthat the jurors could not have committed
misconduct by reading or viewing newsreports about an unrelated crime.
(RB 220.) Not so. In People v. Pinholster (1992) 1 Cal.4" 865, disapproved
on other grounds by People v. Williams (2010) 49 Cal.4" 405, 459, where
two prospective jurors read a newspaperarticle relating the ambivalence of
another capital defendant toward his death sentence, this Court
acknowledgedthat while the article, on its face, “had absolutely nothing to
do with defendant’s case,” “to the extent that the article implied thata trial
court could reduce a sentence of death to a life term, or that a conviction
might be reversed on appeal, it could be considered extraneous legal
information that would be misconduct for a juror to consider.” (Pinholster,
supra, at pp. 924-925.)
Indeed, the State acknowledgesthat the standard for misconduct
stemming from a juror’s exposure to extraneous influences encompasses
exposure to a broad category ofpublicity and is not limited merely to news
238
articles concerning the case on whichthe jurorsare sitting. (RB 220.) As
stated by this Court in People v. Holloway (1990) 50 Cal.3d 1098,
disapproved of on other grounds by People v. Stansbury (1995) 9 Cal.4%
824, “if the newspaper contains any matter in connection with the subject-
matter of the trial which would beatall likely to influence jurors in the
performance of duty, the act would constitute ground for a motion for a
newtrial.” (/d., at p. 1108.) Respondent, however, asks this Court to create
a new rule limiting a finding of misconduct based on exposure to
extraneous materials “to media accounts pertaining to the case on which the
jurors are sitting.” (RB 220.) According to the State, the Court articulated
this standard in People v. Stanley (1995) 10 Cal.4" 764, whenit stated: “‘It
is well settled that it is misconduct for a juror to read newspaper accounts’ -
or, one could add,to listen to broadcast media reports or otherwise to
acquire extrajudicial information regarding-‘a case on whichheis
sitting....’” (/d., at p. 836; see RB 220.)
Stanley, however, does not stand for such a proposition and did not
articulate any new standard. Stanley argued that an extended hiatus before
the penalty phase created a risk that his jurors would be exposed to
prejudicial extraneous information about the case and complained that the
trial court erred in refusing his request to question the jurors as to whether
anything had occurred duringthe interruption. (Stanley, supra, 10 Cal.4" at
p. 836.) This Court merely quoted the above language from Peoplev.
Holloway, supra, 50 Cal.3d 1098, and found that Stanley had made no
showing that the jurors were exposed to improper material. (bid.) There
wasnoissue in Stanley concerning improperinfluences stemming from
newsarticles about other cases. This Court had no reasonto articulate a
new standard concerning exposure to such publicity.
239
This Court has neverset a standard limiting a finding of misconduct
to media accounts pertaining to the case on whicha juroris sitting, for the
issue is whether any improper or external influence has been broughtto
bear on a juror which either is inherently likely to have influenced the juror
or has been shownto haveinfluenced the juror. As explained by the Court
in People v. Williams (1988) 44 Cal.3d 1127:
“TW]hether a defendant has been injured by jury misconductin
receiving evidence outside of court necessarily depends upon
whetherthe jury's impartiality has been adversely affected,
whetherthe prosecutor's burden ofproof has been lightened
and whether any asserted defense has been contradicted. Ifthe
answerto any of these questionsis in the affirmative, the
defendant has been prejudiced and the conviction must be
reversed. On the other hand, since jury misconductis notper se
reversible, if a review ofthe entire record demonstrates that the
appellant has suffered no prejudice from the misconduct a
reversal is not compelled.” (Citation omitted.) When a court
perceives that the jury has been exposed to extraneous
material, it is the court's duty to ascertain the nature of that
evidence andits effect on the jurors' ability to deliberate
impartially.
(Ud., at p. 1156.)
California and federal courts have considered numerousclaims of
“misconduct” stemming from a juror’s exposure to newsarticles
concerning other cases or matters. In doing so, the courts have notrejected
a claim of misconducton the basis that the publicity did not concern the
case at hand, but rather analyzedthe totality of circumstances, including the
nature ofthe publicity, the extent ofthe juror’s exposure, and the effect of
the exposure, to determine whether the juror’s impartiality had, or could
have, been adversely affected. (See, e.g., People v. Pinholster, supra, 1
Cal.4" at pp. 923-928 [Presumption arising from exposure of two
240
prospective jurors to article regarding another capital defendant was
dispelled because neither served on the jury, there was no indication that
any other venireperson saw thearticle, and the court admonishedthe entire
panelto disregard thearticle, that it contained errors, and that only the
evidenceat trial was to be considered]; People v. Clark (Royal) (2011) 52
Cal.4™ 856, 964-968 [Noerror in court’s refusal to question jurors about
possible exposure to media coverage on other murders (Polly Klass and
Kimber Reynolds) and efforts to enact “Three Strikes” sentencing law
because the publicity did not contain anything innately prejudicial to
defendant and defense request was based on pure speculation]; People v
Gates (1987) 43 Cal.3d 1168, 1198-1199 [Noerror in denial of defense
request to re-voir dire the jury based on general publicity regarding crimes
and criticism of the judicial system because the publicity presented no
cause for concern and defendant’s attempt to show otherwise waspurely
speculative]; U.S. v. Littlefield, supra, 752 F.2d 1429 [Defendants were
entitled to new trial because during deliberations, jurors were exposed to
article concerning tax shelter frauds similar to the one defendants were
charged with].)
Here, ten jurors admitted their exposure to publicity about a crime
similar to the capital crime — a shooting and robbery at another fast-food
establishment in the same area as the McDade’s KFC,likely committed by
young gang members. (36RT 12653-12655, 12662.) Like Littlefield,
appellant’s jury was exposedto this evidence of a very similar tragic crime
at a critical time — when they were deliberating whether to impose a death
sentence. (/d., at p. 12654; see Littlefield, supra, 752 F.2d at p. 1430.) This
publicity was likely to cause fear and outrage and, similar to Littlefield,
movethe jurors to send a message to Sacramento’s gang community by
imposing a sentence of death. (/d., at p. 1432 [no juror could have read
241
¢
article describing tax frauds as a growing national concern and deploring
light sentences “without instantly receiving message that here was
something important related to the very case they were trying”].)
Respondentargues that Littlefield is non-binding. (RB 221.)
Although lower federal court decisions are not binding on this Court, this
Court “consider[s] them carefully for the guidance they provide.” (People
v. Cleveland (2001) 25 Cal.4" 466, 480 [Considering and quoting decisions
by the District of Columbia Circuit, the Second Circuit, and the Ninth
Circuit Courts of Appeal].) As demonstrated in the opening brief, given the
similarities between this case and Littlefield, its principles and holding are
equally applicable here. (See AOB 467-468.)
Respondent attempts to distinguish Littlefield on the basis that the
showing of misconduct was muchgreater there because there was evidence
that the jurors discussed the tax fraud article during deliberations. (RB 222)
However, wherethetrial court has failed to discharge its duty to adequately
investigate allegations ofjuror taint or bias, a defendant cannot be faulted
for not pointing to facts which could makethe claim stronger. (Peoplev.
McNeal, supra, 90 Cal.App.3d at p. 839 [In response to State’s argument
that further inquiry was not required because juror stated she could befair
and impartial and there was noindication that the juror had information as
to facts which could be evidencein the case, court stated that defendants
cannot be faulted for not pointing to such facts wheretrial court avoided
questioning the juror about them].) It is the trial court’s obligation to
develop the relevant facts on the record. (Jbid.; see also Dyer v. Calderon,
supra, 151 F.3d 970, 979 [Where state court failed to properly develop the
facts underlying claim ofjuror misconduct because of inadequate inquiry,
its finding that juror was unbiased wasnotentitled to a presumption of
242
correctness and federal court addressed the question de novo].) Moreover,
as arguedin the openingbrief, the burdenis on the State, not appellant, to
prove that the jurors’ exposure to the publicity was harmless. (See AOB
454.)
A critical componentofthis claim is that the trial court’s inquiry was
inadequate andthus,it failed to develop all relevant facts, including
whetherthe jurors discussed the publicity during their deliberations.
Although the court had learned of the exposure of the majority of the jurors
to prejudicial publicity likely to cause concern and outrage and heighten
their sense of responsibility to impose the sternest sentence possible,it
asked no questions regarding the content of the publicity, failed to inquire
whetherit had been discussed during deliberations, and failed to conduct
any meaningful questioning to determine the impact of the publicity on the
jurors. (36 RT 12662.) It merely inquired of the jurors as a group whether
any had been exposedto publicity regarding the similar crime andif so,
whetherthey had beeninfluenced by any of the newsreports, asking for a
show ofhands. (/bid.)
Respondent acknowledgesthat this inquiry was “limited,” but
nonetheless, argues that it was adequate because the McDonald’s crime was
unrelated to the present case andthetrial court’s penalty instructions
prohibited the jury from considering extraneous information.*4 (RB 222.)
As discussed above, regardless of whether the publicity was about the
instant case, its potential to influence the jurors, especially at the time that
they were debating the appropriate penalty to be imposed, required an
4 This contention is discussed below, under prejudice. (See Argument
XXII(C), supra.)
243
adequate inquiry, including whatspecifically they read or heard and
whether they discussed it during their deliberations.
In response to appellant’s argument that careful inquiry was
especially critical given the jurors’ exposure to the harmful publicity before
and during their penalty phase deliberations, the State responds only that “it
was reasonable for the court to accept the jurors’ indication that they had
not been influenced by the newsreports ofthe McDonald’s crime.” (RB
223.) However, as stated by this Court in People v. Cleveland: “Tt is not
enoughfor the juror alone to evaluate the facts and conclude that they do
not interfere with his or her impartiality. [Citation.]” (People v. Cleveland,
supra, 25 Cal.4" at p. 477, quoting People v. McNeal, supra, 90
Cal.App.3d at p. 838.)
The State made this same argument in McNeal, wherethetrial court
failed to inquire into the facts of the juror’s knowledge and instead simply
inquired whether the juror could set the information aside and deliberate
fairly and impartially. (McNeal, supra, at pp. 835, 838.) McNeal soundly
rejected the argumentthat this inquiry wassufficient for the court to
conclude that the juror could be fair and impartial, becauseit failed to
ascertain the factual basis for the possibility that the juror would be unable
to discharge her duties properly. (U/d., at pp. 837-839.) As explained by
McNeal,it is the court’s obligation to determine the factual basis and then
determine, for itself, whether impartiality has been affected. It is not the
province of the juror to make the ultimate determination whether her
impartiality has been impaired. (/d., at p. 839; see also People v. Holloway,
supra, 50 Cal.3d at p. 1109 [Court must examinethe extrajudicial material
and then judge whetherit is inherently likely to have influenced the juror].)
244
The United States Supreme Court and several federal circuit courts
have also recognized that in order to make a determination whether a
juror’s impartiality has been affected, a court must do more than inquire
whetherthe juror has been affected by his exposure or whether he can
remain impartial despite such exposure.(See, e.g., Marshall v. United
States, supra, 360 U.S. at p. 312 [Supreme Court,in setting aside
conviction where jurors were exposedto prejudicial news accounts, did not
consider dispositive the statement of each juror “that he would not be
influenced by the newsarticles, that he could decide the case only on the
evidence of record, and that he felt no prejudice against petitioner as a
result of the articles.”]; Jrvin v. Dowd, supra, 366 U.S. 717, 728 [Supreme
court set aside conviction even though eachjuror indicated he could render
an impartial verdict despite exposure to prejudicial newspaperarticles.|;
United States v. Davis, supra, 583 F.2d at p. 197 [A “juror is poorly placed
to make a determination as to his own impartiality. Instead the trial court
should makethis determination.”]; Silverthorne v. United States, supra, 400
F.2d at p. 638 [“[I]n the absence of an examination designedto elicit
answers which provide an objective basis for the court’s evaluation,
‘merely going through the form of obtaining jurors’ assurances of
impartiality is insufficient (to test that impartiality).’(citation omitted)”];
U.S. v. Williams (5th Cir. 1978) 568 F.2d 464, 471 [‘“[iJt is for the court,
not the jurors themselves, to determine whethertheir impartiality has been
destroyed by any prejudicial publicity they have been exposedto.’(Citation
omitted)”.)
In Arguments XXI and XXII of the openingbrief, appellant
discussed several cases which demonstrate the inadequacyofthe inquiry in
this case. (See AOB 452-453, 457-460, 463-466.) Respondent argues that
these “cases are distinguishable and inapposite because they involved
245
publicity concerning the case which the jury was deciding or the same
defendant.” (RB 222.) It also advances the same argument made in
response to Argument XXI — that appellant relies mainly on lower federal
court decisions, all of which are factually distinguishable and non-binding.
(RB 216-217, 222.)
Here, again, these factual differences do not underminethe
following principles for which these cases stand and which govern
resolution of this issue: (1) A juror’s exposure to publicity constitutes
misconduct if the publicity pertains to the case at hand or contains any
matter in connection with the subject-matter of the trial which would be at
all likely to influence the juror in the performance of duty; this is so
regardless of whetherthe article is an account of the case on which the juror
is sitting or pertains to another case or matter which mayaffect the juror’s
attitude toward the case at hand (People v. Holloway, supra, 50 Cal.3d at
p-1108; People v. Pinholster, supra, 1 Cal.4™ at pp. 924-925); (2) Once a
court has been put on notice ofthe possibility that a juror may have been
exposed to improper influences,it is the court’s obligation to make
whatever inquiry is reasonably necessary to determineifthe juror should be
discharged; its inquiry mustbe sufficient to uncover the key facts
concerning the exposure so that the court can make its own determination
whether the juror’s impartiality has been affected andits failure to conduct
a sufficient inquiry is error (Remmerv. United States (1954) 347 U.S. 227;
People v. McNeal, supra, 90 Cal.App.3d at pp. 838-840; People v.
Burgener, supra, 41 Cal.3d at pp. 519-520; People v. Davis (1995) 10
Cal.4" 463); (3) A court’s inquiry to jurors as a groupto indicate both
exposure and impartiality by a show of handsis inadequate to discharge the
court’s obligation (Silverthorne y. United States, supra, 400 F.2d at pp.
639-640; United States v. Accardo, supra, 298 F.2d at p. 136; United States
-246
v. Davis, supra, 583 F.2d at pp. 196-198; Coppedge v. United States, supra,
272 F.2d at p. 504; People v. Andrews, supra, 149 Cal.App.3d at p. 366);
and (4) A court cannotrely on a juror’s assurance of impartiality, but rather
must make its own determination whether the juror can remain fair and
impartial (People v. McNeal, supra, at p. 838; Marshall v. United States,
supra, 360 U.S. at p. 312; Irwin v. Dowd, supra, 366 U.S.at p. 728;
Silverthorne, supra, at pp. 639-640; United States v. Davis, supra, at pp.
196-198). (See AOB 452-453, 457-460, 473-466.) As is evident, each of
these principles is supported by either California or United States Supreme
Court case law, as well as by decisions by the lower federal courts.
As demonstrated by this case law, the exposure of ten jurors at the
crucial juncture ofpenalty phase deliberations to prejudicial publicity
constituted misconductraising a presumption of prejudice and the court’s
general group inquiry asking only for a show of hands waspatently
inadequate. (See AOB 452-453, 457-460, 463-466.)
C. The State Has Failed to Show that the Exposure of Ten Jurorsto
the Prejudicial Publicity Was Harmless Error.
Respondent argues that any prejudice has been dispelled bythetrial
court’s general penalty phase instructions. (RB 221.) These instructions
merely told the jurors that they were to determine the facts from the
evidence received during the trial and not from any other source, to
considerall the evidence received during thetrial in determining the
penalty, and what factors were relevant to their penalty decision. (3CT 695-
696, 699, 742-732; 36RT 12625-12626, 12629-12631; see RB 221.)
Although California courts have found that the presumption of prejudice
maybe dispelled by a specific admonition to disregard the improper
247
information,appellant’s research has revealed no case where this Court
has stated that such general instructions are sufficient to dispel prejudice
resulting from the taint of prejudicial publicity. In fact, in People v.
Holloway, supra, 50 Cal.3d 1098, this Court rejected the State’s argument
that the court’s general admonishmentofthe jurors to refrain from reading
newspaperarticles or listening to other media reports wassufficient to
dispel the prejudice resulting from a juror’s exposure to a newspaperarticle
about the defendant. Contrasting situations “in which the presumption of
prejudice has been rebutted by the inherently nonprejudicial value of the
evidence improperly considered or where the court has admonishedjurors
to disregard such evidence,” Holloway foundthat the court’s general
instructions were insufficient to dispel the prejudice caused by the juror’s
exposure to prejudicial information. (/d., at pp. 1111-1112; accord, People
v. Lambright (1964) 61 Cal.2d 482, 486 [prejudicial effect of failure to poll
jurors regarding possible exposure to prejudicial publicity about the case
35 See, e.g. People v. Pinholster, supra, 1 Cal.4™ at p. 925 [prejudice
dispelled where court admonished entire panel to disregard thearticle, that
it contained errors, and that only the evidence presentedat trial was to be
considered and problem aroseat an early stage ofthe proceedings when
attention was not focused on the sentence to be imposed]; People v.
Holloway, supra, 50 Cal.3d at pp. 111-1112 [prejudice might be dispelled
where court admonishesthe jurors to disregard the improper information];
People v. Cooper (1991) 53 Cal.3d 771, 838 [court’s admonishment of
jurors to disregard improperly admitted exhibit reduced the danger of
prejudice]; People v. Craig (1978) 86 Cal.App.3d 905, 919 [immediate
admonishmentcured potential prejudice]; People v. Harper (1986) 186
Cal.App.3d 1420, 1426-1430 [prompt admonition not to consider
dictionary definitions rebutted presumption ofprejudice].
248
was not removed by the general admonition to the jurors not to consider
such evidencein their deliberations].)
Respondentcites two cases, People v. Tafoya (2007) 42 Cal.4" 147,
192-193 and Jn re Carpenter (1995) 9 Cal.4" 634, 654, for its assertion that
these general instructions were sufficient to dispel any prejudice (RB 221),
but neither case supports this proposition. In Tafoya, the Court applied the
principle discussed above,that an admonition to disregard the improper
extraneous information may besufficient to dispel the prejudice, and
concludedthat the trial court’s removal of the offending jurors and
admonishmentto the remaining jurors to disregard that juror’s improper
comments rebutted the presumption ofprejudice. (Tafoya, supra, at pp.
192-193.) In Carpenter, this Court merely stated that if the extraneous
information was notso prejudicial, in and ofitself, as to cause inherent
bias, the totality of the circumstances must be examined to determineactual
bias. (Carpenter, supra, at p. 654.) This requires review ofthe entire
record, including the nature of the juror’s conduct, the circumstances under
whichthe information was obtained, the instructions the jury received, and
the nature of the evidence andissuesattrial.bid.)
For the reasons expressedherein and in the openingbrief,
respondent has failed to overcome the presumption ofprejudice which
arose from the exposureoften jurors at sucha critical juncture to the
prejudicial publicity regarding the McDonald’s robbery/murder. Nor has
respondent persuadedthat thetrial court’s inquiry into the jurors’
misconduct wassufficient. Accordingly, the penalty phase judgment must
be reversed.
249
XXIII.
THE TRIAL COURT ERRED IN PLACING
SIGNIFICANT RESTRICTIONS ON THE TESTIMONY
OF APPELLANT’S MENTAL HEALTH EXPERT,
VIOLATING APPELLANT’S RIGHTS UNDER THE
SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS.
In order to support the heart of its mitigation case, that the older,
experienced Hodgesbrothers used and compelled appellant to shoot
McDade,the defense presented testimony by psychologist Larry Nicholas.
(33RT 11819-11826; 34 RT 12002-12047; 35RT 12435-36, 12440.)
Although the court allowed Dr. Nicholasto testify to his test results, which
showed that appellant’s low I.Q. and personality rendered him ripe for
manipulation and intimidation by the two brothers, it excluded testimony
regarding appellant’s statements to the doctor about the offense, evidence
which wasnecessary to support the doctor’s opinion that appellant was
coerced by the Hodges brothers to kill McDade. (34RT 11988-11990,
12002, 12006-12007, 12032, 12040-12041, 12046-12047, 12083, 12114.)
Thetrial court excluded that proposed testimony on the erroneousbelief
that this Court’s decisions in People v. Coleman (1985) 38 Cal.3d 69, 81-
93, and People v. Price (1991) 1 Cal.4" 324, 415-416, mandated exclusion
of a defendant’s hearsay statements to an expert witness unless they are
admissible under a recognized hearsay exception. (33RT 11845, 11846;
34RT 11988-11993.)
As explained in appellant’s opening brief: (1) the Evidence Code
authorizes an expert to base his opinion on inadmissible hearsay and to
testify to that hearsay in support of his opinion; and (2) California case law
does not mandate automatic exclusion of a defendant’s extrajudicial
statements to an expert witness; rather, such hearsay can be admitted to
250
support and explain an expert’s opinion anda trial court must exerciseits
discretion pursuant to Evidence Code section 352 before determining
whether to admit or exclude it. (See AOB 475-485.)
Appellant demonstrated in that brief that the court never exercised
discretion to admit Dr. Nicholas’s testimony regarding appellant’s
statements becauseofits erroneous belief that case law mandatedits
exclusion. (See AOB 477-479.) This ruling, which rested on a
demonstrable error of law, constituted an abuse of discretion (Peoplev.
Jennings (2005) 128 Cal.App.4th 42, 49), and the trial court’s exclusion of
appellant’s statements, which were highly relevant to critical penalty phase
issues, violated Due Process under the Fourteenth Amendment. (Green v.
Georgia (1979) 442 U.S. 95, 97.)
A. The Trial Court Erred in Excluding Dr, Nicholas’s
Testimony Regarding Appellant’s Statements About the
Offense As Part of the Basis for the Doctor’s Opinion.
Respondentarguesthat “the trial court’s interpretation of the law
[People v. Price and People v. Coleman] wascorrect; accordingly, the court
acted within its discretion.” (RB 225.) Respondent is wrong. Thetrial
court’s interpretation of the law wasnotcorrect andthetrial court did not,
in fact, exercise discretion. Thetrial court interpreted Coleman and Price to
forbid admission of a defendant’s hearsay statements to a mental health
expert unless they are admissible underan established hearsay exception:
“The cases I have read>® have stood for the proposition that the
expert cannot base an opinion upon inadmissible evidence and
56 Later, when the court gave its formal ruling, it identified these cases
as Coleman and Price. (34RT 11988-11989 [“Pursuant to People versus
Coleman, 38 Cal.3", 69, and People versusPrice, 1 Cal. 4", 324, and other
251
cannot, throughtestifying as to his opinion, put before the jury
the inadmissible hearsay evidence. [ ] And ifyou can give me
any cases or authority that allowsit in the context of this case
in a criminal prosecution, a defendant’s statement to a
psychologist or psychiatrist, I'll reconsider that. But I have not
seen any cases that would permit it, and the cases I’ve seen
have been sufficiently analogousto disallow it.”
(33RT 11845; see also id., at p. 11846 [court clarifies that statements which
qualify under exceptions to the hearsay rule can be admitted].) Based on
this misinterpretation, the court excluded Dr. Nicholas’s proposed
testimony. 34RT 11988-11990.)
As madeclear by the authorities discussed in the openingbrief, the
court was wrongin its belief that Coleman and Price mandated automatic
exclusion of appellant’s statements to Dr. Nicholas. (See AOB6-7, 9-14.)
Evidence Code section 801, subd. (b), authorizes an expert to base his
opinion on “hearsay not otherwise admissible” and case law has allowed
experts to testify to otherwise inadmissible hearsay statements made in a
variety of situations, including a defendant’s statements to a defense
psychiatrist regarding his offense behavior in order to support the expert’s
testimony regarding the defendant’s mentalstate at the time of the crime.
(People v. Ainsworth (1988) 45 Cal.3d 984, 1010-1012; see cases cited in
AOBat pp. 6-7, 10-14.)
A careful examination of this Court’s jurisprudence reveals that
contrary to the trial court’s belief, California law does not hold that hearsay
material, I have considered, including counsel’s argument, that this issue is
clearly on point in those cases, that otherwise inadmissible hearsay that
prejudices one side, whetherit was to the D.A.’s prejudice or to the
defendant’s prejudice —”].)
252
statements are never admissible to support and explain an expert’s
opinions. In Price, the defendant argued on appealthat the trial court erred
in precluding a defense mental health expert from testifying to inadmissible
hearsay materials considered in forming his opinions unless such evidence
wasalready before the jury. (Price, supra, 1 Cal.4" at pp. 415-416.) In
finding noerror, this Court stated:
“On direct examination, an expert may give the reasons for an
opinion, including the materials the expert considered in
forming the opinion, but an expert may not underthe guise of
stating reasons for an opinion bring before the jury
incompetent hearsay evidence. (People v. Coleman (1985) 38
Cal.3d 69, 92 [695 P.2d 189].) A trial court has considerable
discretion to control the form in which the expert is questioned
to prevent the jury from learning of incompetent hearsay.
(Ibid.) Here, the restrictions imposed on counsel's examination
by the trial court's rulings, which permitted the main features
of the case to be presented in the form of hypothetical
questions, were reasonable and within the court's discretion.”
(People v. Price, supra, at p. 416.)
In Coleman, this Court agreed with the defendantthatthe trial court
erred in admitting the contents of inflammatory letters written by the
defendant’s wife for the purpose of impeaching the defendant’s credibility
and to explain and challenge opinions ofpsychiatric experts. (Peoplev.
Coleman, supra, 38 Cal.3d at p. 81.) Coleman heldthat the trial court
abused its discretion in admitting the letters because the risk that they
would be considered for improper, prejudicial purposes greatly outweighed
their probative value. (/bid.) In so ruling, this Court did not hold that
hearsay statements to an expert are never admissible. Rather, Coleman held
that “California laws gives the trial court discretion to weigh the probative
value of inadmissible evidence relied upon by an expert witnessas partial
253
basis for his opinion againstthe risk that the jury might improperly consider
it as independentproofofthe facts recited therein.” (/d., at p. 91.) In its
thorough analysis of prior case law, Coleman did quote discussion from a
court of appeal decision suggesting an automatic rule of exclusion,*” but
concluded:“Nevertheless, the trial court must exercise its discretion
pursuant to Evidence Code section 352 in order to limit the evidencetoits
properuses.” (/d., at p. 92.)
Subsequently, in People v. Mickey, this Court affirmed that Coleman
“does not stand for the proposition that on direct examination an expert
may nevertestify to extrajudicial statements when he gives “the reasons for
his opinion and the matter ... upon whichit is based.” (People v. Mickey
(1991) 54 Cal.3d 612, 689, emphasis in original.) And in People v. Montiel
(1993) 5 Cal.4" 877, this Court cited Colemanorcases citing Coleman, in
addition to the Evidence Code, for the following principles: (1) an expert
may explain the reasonsfor his opinions, including inadmissible hearsay;
(2) prejudice mayarise if an expert’s explanation introduces incompetent
hearsay evidence; (3) most often, hearsay problems will be cured by an
instruction that matters admitted through an expert go only to the basis of
his opinion and should not be considered for their truth; and (4) in cases
wherea limiting instruction may not be enough cure the problem, Evidence
Codesection 352 authorizes the court to exclude from an expert’s opinion
37 Coleman quoted the following statement from Grimshaw v. Ford
Motor Co. (1981) 119 Cal.App.3d 757, 788-89: “While an expert may state
on direct examination the matters on which herelied in forming his
opinion, he maynottestify as to the details of such mattersifthey are
otherwise inadmissible.” (Coleman, supra, 38 Cal.3d at p. 92.)
254
any hearsay matter whoseirrelevance, unreliability or potential for
prejudice outweighsits probative value. (/d., at 918-919.)
Accordingly, this Court’s jurisprudence has made it abundantly clear
that (1) hearsay statements can be admitted to support an expert’s opinion;
and (2) in order to exercise its discretion whether to admit or exclude
extrajudicial statements to an expert witness, the court must conduct a 352
analysis, considering their relevance,reliability, and potential for prejudice.
This Court has cautioned in Montiel and several other cases that “[b]ecause
an expert's need to consider extrajudicial matters, and a jury's need for
information sufficient to evaluate an expert opinion, may conflict with an
accused's interest in avoiding substantive use of unreliable hearsay, disputes
in this area must generally be left to the trial court's sound judgment.”
(People v. Montiel, supra, 5 Cal.Ath at p. 919; People v. Carpenter (1997)
15 Cal.4th 312, 410; People v. Valdez (1997) 58 Cal.App.4" 494, 510.)
Here, however,the trial court did not exercise its sound judgment to
determine whether appellant’s statements to Dr. Nicholas should be
admitted or excluded, becauseit mistakenly believed that case law required
their exclusion unless they could be admitted under a recognized hearsay
exception. (33RT 11844-11846.) Whena trial court is called upon to
conduct a 352 analysis, the court must weigh the probative value of the
proffered evidence against its potential for prejudice. Although“the trial
judge need not expressly weigh prejudice against probative value — or even
99 66expressly state that he has doneso,” “[t]he record must demonstrate
affirmatively that the court did in fact weight prejudice against probative
value.” (People v. Crittenden (1994) 9 Cal.4th 83, 135.) This showing may
be satisfied where arguments concerning the relevance and/or prejudicial
effect of the evidence suggestthat the trial court knew it was required to
255
engage in the weighing process or where comments bythe court, such as a
finding that the evidenceis not unduly prejudicial, illustrate that the court
did, in fact, engage in the required weighing process. (/d., at pp. 135-136.)
In this case, however, the record demonstrates the opposite.Initially,
when defense counsel presented his offer ofproof regarding appellant’s
statements to Dr. Nicholas, the court asked questions about their probative
value versus their potential to prejudice the People and based on counsel’s
arguments, appeared open to admitting the statements for the limited
purpose of supporting the doctor’s opinion. (33RT 11822-11832; see 33 RT
11831-11832 [“So for the record when I indicated some prospect of
allowing the evidence it would be for the limited purpose.”].) Following the
State’s arguments why the statements should be excluded, the court
indicated that it could cure any potential for prejudice by “admonish[ing]
the jury not to consider the defendant’s statements to the doctor for the
truth oftheir content.” (U/d., at p. 11831.) At the end ofthatinitial
discussion, the court stated its intent to do some research and review
appellant’s statements to Dr. Nicholas during the noonrecess. (/d., at p.
11840.) After the noon recess, however, the court stated that based onits
research, it was clear that an “expert cannot based an opinion upon
inadmissible evidence and cannot, throughtestifying as to his opinion, put
before the jury the inadmissible hearsay evidence.” (33RT 11845.) On the
basis ofthat research, the court excluded appellant’s statements to Dr.
Nicholas and ruled that Dr. Nicholas could testify only to nonhearsay
statements or hearsay statements that were admissible under an exception to
the hearsay rule. (/d, at pp. 11844-11846; 34RT 11988-11990.) The record
therefore establishes that the trial court never conducted a 352 analysis and
thus failed to exercise its discretion as required underthis Court’s
jurisprudence.
256
In his opening brief, appellant discussed a numberof cases** in
which this Court has approved the admission of hearsay statements to an
expert witness. (See AOB 480-484.) These cases involved statements by a
criminal defendant to a mental health expert to support the expert’s opinion
regarding the defendant’s mental state capacity (Ainsworth, supra, at pp.
1011-1013), statements by a defendant’s ex-wife to a prosecution mental
health expert regarding the defendant’s drug use (Mickey, supra, at pp. 686-
688), testimony by a jailhouse informantata priortrial and details of prior
unfavorable psychological reports (Montiel, supra, at pp. 918-925),
prosecution expert’s testimony regarding hearsay statements that the
defendant discussed committing perfect crimes and bragged about Mafia
connections (Carpenter, supra, at p. 410), victim’s statements to a doctor
(Brown, supra, at pp. 585-586), and gang expert’s opinion testimony
relating the contents of his interview of an individual involved in the crime
and hearsay concerning other attacks by the same gang (Gardeley, supra, at
pp. 611-613).
Respondentattempts to distinguish these cases on the basis of
factual differences. (RB 226-228.) But the point of appellant’s citation of
these casesis to (1) illustrate that automatic exclusion of hearsay statements
to an expert witness is not required, (2) demonstrate the variety of types of
extrajudicial statements that have been admitted in this State, and (3)
demonstrate that each case mustbe decided on the basis of its own facts
38 These cases included People v. Ainsworth, supra, 45 Cal.3dat pp.
1010-1013; People v. Mickey, supra, 54 Cal.3d at pp. 686-688; People v.
Montiel, supra, 5 Cal.4" at pp. 918-925; People v. Carpenter, supra, 15
Cal.4" at p 410; People v. Brown (1958) 49 Cal.2d 577, 584-587; People v.
Gardeley (1996) 14 Cal.4" 605, 617-620.
257
after a careful analysis of the probative value of the statements, the
potential for prejudice, and thereliability of the statements.
Here, hadthetrial court conducted a 352 analysis,it is quite likely
that it would have admitted the statements. As noted above,beforeit
concludedthat it had no discretion to admit the statements, the court
indicated that it was receptive to allowing Dr. Nicholasto testify to
appellant’s statements for the limited purpose of supporting his opinion.
(33RT 11831-11832.) The court indicated its intent to cure any possible
concern that the jury would consider the evidenceforits truth by
admonishing them to consider the statements only as a basis for the
doctor’s opinions. (/bid.) As argued in the openingbrief, there were sound
bases for the court to so rule: (1) it was reasonable for Dr. Nicholasto rely
on appellant’s statements in forming opinions about his mental condition
(People v. Stoll (1989) 49 Cal.3d 1136, 1155); (2) appellant’s account of
his actions and thought processes were not only relevant butcritical to the
doctor’s ability to formulate an opinion whether appellant was manipulated
by the Hodgesbrothers; (3) the doctor’s opinions concerning duress and
domination by the Hodgeses was one of the foundations of appellant’s case
in mitigation; (4) as found bythetrial court, any potential prejudice could
be cured by properinstruction;°’ and (5) substantial reasonsexisted to
59 Respondent disagrees that any prejudice could have been cured by
an instruction, arguing “[u]nder Price and Coleman,thetrial court had a
duty to exclude incompetent, unreliable hearsay (i.e., appellant’s
statements).” (RB 228.) However, as stated by this Court,“[m]ost often,
hearsay problemswill be cured by aninstruction that matters admitted
through an expert go only to the basis of his opinion and should not be
considered for their truth.” (People v. Montiel, supra, 5 Cal.4" at p. 919,
citing People v. Coleman, supra, 38 Cal.3d at p. 92.) Moreover, as
demonstrated here and in the opening brief, appellant’s statements were not
258
assumethereliability of appellant’s statements to the doctor. (See AOB
485, 487-488, 490-492.)
Respondent characterizes appellant’s statements to Dr. Nicholas as
self-serving and unreliable and arguesthat all of the cases cited in the
opening brief involved extrajudicial statements which were morereliable.
(RB 226-229.) Not so. As pointed out in that brief, the statements were
against his interest in that he admitted committing the capital crime,
committing the thefts charged in Counts 3, 4, and 5, and assaulting
Hernandez, one of the aggravating circumstances introduced by the
prosecution. (See AOB 490.) Respondent argues that appellant was merely
attempting to minimizehis culpability by claiming that the Hodges brothers
coerced him into shooting McDade. (RB 229.) However, appellant
admitted not only his culpability in the capital crime -- that he was the one
whoshotand killed McDade, but also admitted committing additional
crimesnot involving the Hodgeses. Moreover, the prosecutor obviously
thought appellant’s statements were reliable enough to want to introduce
them during the guilt phase against the Hodgesbrothers. As explained in
the opening brief, the prosecutor’s guilt phase opening statement account of
whathe anticipated appellant to testify during the People’s case-in-chief
mirrored appellant’s statements to Dr. Nicholas. (See AOB 491; 15RT
6344-6345.) The State cannot have its cake andeat it too. If the statements
were reliable enough for the State to use to convict the Hodges brothers of
capital murder, they should have been sufficiently reliable to support the
opinions of the defense mental health expert.
unreliable and neither Coleman nor Price mandated their exclusion simply
because they constituted hearsay.
259
ah
Moreover, appellant’s statements to Dr. Nicholas wereat least as
reliable as, if not more so, as the extrajudicial statements at issue in Mickey
and the other cases discussed in the openingbrief. In Mickey, this Court
approved the admission of hearsay statements by the defendant’s ex-wife to
a prosecution mental health expert, finding the statements sufficiently
reliable for the basis of a psychiatric opinion. (/d., at p. 688.) The State
attempts to distinguish Mickey on the basis that appellant’s statements were
unreliable, whereas “there was no evidencethat the ex-wife’s statements
were unreliable.” (RB 226.) Respondent is wrong. In Mickey, the defense
presented expert opinion testimony that the defendant’s mental state was
significantly impaired by psychopathology and long-term, heavy substance
abuse. (People v. Mickey,_supra, 54 Cal.3d at pp. 685-86.) The prosecution
presented rebuttal testimony by a prosecution expert who disputed the
defense experts’ opinions, based in large part on hearsay statements by
Mickey’s ex-wife minimizing his drug consumption.(/d., at p. 687.) Given
that the ex-wife, a Lieutenant in the U.S. Air Force, was married to, and
living with Mickey, as well as her two children, in military housing at the
Yokata Air Force base in Japan before and during the time of the capital
crime, she certainly had motive to discount Mickey’s substance abuse. (See
id., at pp. 637, 687.) Even the prosecution’s expert concededthat “perhaps
the drug history [she] got from [the ex-wife was] very incomplete.” (/d., at
p. 687.)
Ainsworth involved a co-defendant’s statements regarding his
involvement to his mental health expert to support his diagnosis of
diminished capacity. (People v. Ainsworth, supra, 45 Cal.3d at pp. 1010-
1011.) Respondent argues that because the co-defendanttestified at the
guilt phase, this was not a case of a defendant attempting to get his
statements before the jury. (RB 226.) However, the co-defendantcertainly
260
had motiveto color his statements to the doctor, as well as histrial
testimony during his capital prosecution. Therefore, it cannot be claimed
that his statements were any morereliable than appellant’s statements to
Dr. Nicholas.In fact, there is no logical way to distinguish the two cases
and if the co-defendant’s statements were admitted in Ainsworth,
appellant’s statements should have been admittedin this case.
Montiel involved a doctor’s testimony about details of prior
unfavorable psychological reports and testimony by a jailhouse informant
at a priortrial that Montiel described his commission of a premeditated
killing. (People v. Montiel, supra, 5 Cal.4" at pp. 920-922.) Respondent
argues that this evidence would have been morereliable than appellant’s
statements. (RB 227.) However, as recognized by the Legislature in
enacting Penal Code section 1127a [requiring that jury be instructed to
view testimony of in-custody informants with caution and scrutiny],
statements from jailhouse informants are of questionable reliability. And,
given the opinion’s lack of identifiable sources for the hearsay details in the
priorreports,the reliability of those details cannot be assumed.
Carpenter involved testimony from a prosecution expert about
hearsay statements that the defendant had referred to himself as “Devious
Dave,” bragged about his Mafia connections, and frequently discussed
committing perfect crimes. (People v. Carpenter, supra, 15 Cal.4" atp.
410.) Respondentargues that these statements, which were not exculpatory
and appear to be from other people who had heard Carpenter make such
statements, are not as unreliable as appellant’s statements to Dr. Nicholas.
(RB 227.) The question of reliability, however, concerns the person or
persons whoattributed these statements to Carpenter. Given that there is no
261
identification of this person or personsin the opinion,the reliability of the
statements cannot be assumed.
Respondentalso attempts to distinguish the cases discussed in
appellant’s opening brief on the basis that they did not involve a defendant
attempting to get his own statements before the jury withouttestifying. (RB
226-227.) However, one of these cases, Ainsworth, did involve testimony
by a defense mental health expert regarding a defendant’s extrajudicial
statements.©° (People v. Ainsworth, supra, 45 Cal.3d at pp. 1010-1012.)
Notably, like the codefendant Bayles in Ainsworth, appellant was not
attempting to get his own statements before the jury to be considered for
their truth; rather, the statements were to be introduced solely as support for
Dr. Nicholas’ opinions.
Respondentasserts that People v. Edwards (1991) 54 Cal.3d 787,
838-838, supports the trial court’s exclusion of Dr. Nicholas’ testimony, but
Edwards did not concern the admission of a defendant’s statements as the
basis for an expert’s opinion and thus has no applicability here. (RB 225.)
60 Respondent argues that Ainsworth is distinguishable because Bayles
testified about the crime and wasthus “available for cross-examination,
unlike appellant in the present case.” (RB 226.) However, this did not
appear to play any consideration in the Court’s conclusion that there was no
error in the admission of the expert’s testimony in Ainsworth. (Peoplev.
Ainsworth, supra, 45 Cal.3d at p. 1012.) Rather, the Court stated that “[a]n
expert should be allowedtotestify to all the facts upon which hebaseshis
opinion, including relevant declarations” and then simply determined that
the expert’s “testimony was relevant to Bayles’ defense of diminished
capacity and Bayles’ extrajudicial statement was clearly admissible as
relevant to the developmentof[the doctor’s] diagnosis of Bayles’ mental
state.” ([bid.) Ainsworth noted that Bayles’ hearsay statements were
admissible not as proofofthe facts stated but to enable his expert to
explain, and the jury to appraise, the basis of the expert’s opinion. (/bid.)
262
In Edwards, the defendant requested admission of his taped statements to
the police and a notebook compiled after the capital crime, in which he
recorded his thoughts, at both the guilt and penalty phases. (Edwards, 54
Cal.3d at pp. 819, 837.) The defense argued for admission under Evidence
Code sections 1250 or 1251 (statement of declarant’s then existing or
previously existing mental or physical state) and as constitutionally-
required mitigation under Green v. Georgia, supra, 442 U.S. 95 (discussed
below). (d., at pp. 819-821, 837.) This Court upheld the trial court’s
exclusion of the evidence because the defendant’s statements were
“inherently untrustworthy”and thus not sufficiently reliable to warrant
admission under those hearsay exceptions or Green v. Georgia. (Ibid.)
Here, however, as argued above, substantial reasons existed to assumethe
reliability of appellant’s statements to Dr. Nicholas and the statements were
properly admissible as a basis for his opinions.
Accordingly, contrary to respondent’s contentions,the trial court’s
interpretation of the law wasnotcorrectandthetrial court erred in
excluding Dr. Nicholas’s testimony regarding appellant’s statements about
the offense in order to support his opinion that appellant was coerced by the
Hodges brothers to commit the killing .
B. The Exclusion of Dr. Nicholas’s Testimony Violated the Due
Process Clause of the Fourteenth Amendment.
Appellant further established in his opening brief that the exclusion
of his statements to Dr. Nicholas constituted a violation of Due Process
under the Fourteenth Amendment pursuant to Green v. Georgia, supra, 442
U.S. 95, 97. (See AOB 488-492.) Respondent’s attemptto distinguish
Greenis unavailing. As pointed out in the opening brief, this caseis
indistinguishable from Greenin that like that case, appellant’s statements
263
were against interest and highly relevant to critical penalty issues;
moreover, the State considered the statements sufficiently reliable to want
to introduce them against the Hodges brothers during the guilt phase.
(Green v. Georgia, supra, at pp. 490-492; see AOB 489-4972.)
Respondent’s argumentthat appellant’s statements were not against his
interest (RB 229) has been rebutted supra. Respondentalso arguesthat the
State’s intent to use appellant’s statements against the Hodges brothers did
not mean that those statements were “100 percentreliable.” (RB 229.)
According to respondent, had appellant testified at the guilt phase, the State
could have cross-examined him regarding any weaknessesin his testimony.
(Ibid.) Characterizing appellant’s claim that the Hodges brothers coerced
him to do the killing as a “weakness”in his statements, respondent implies
that this claim was notreliable. (/bid.) However, what the State now
characterizes as a weaknessin the statements is exactly what the State
would have relied upon to convict the two brothers of the capital crime had
appellant testified. Here, again, the State wants to have its cake andeatit
too.
Moreover, Green doesn’t require such absolutes. (Green, supra, 442
USS.at p. 97 [“most important, the State considered the testimony
sufficiently reliable to useit against [the co-defendant”].) The pointis that
the State found appellant’s statements sufficiently reliable to want to
introduce them at the guilt phase and secure capital convictions of the
Hodges brothers on their basis. Accordingly, under Green, the exclusion of
Dr. Nicholas’s testimony regarding those statements as a basis for his
opinions constituted a violation ofthe Due Process Clause.
C. The Trial Court’s Erroneous Restriction of Dr. Nicholas’s
Testimony Was Prejudicial, Requiring Reversal of Appellant’s
Sentence.
264
Respondentargues that prejudice should be assessed underthe
Watson®! “reasonable probability” harmless error standard onthe basis of
this Court’s statement in Benavides that “generally, violations of state
evidentiary rules do notrise to the level federal constitutional error.’” (RB
230, quoting People v. Benavides (2005) 35 Cal.4" 69, 91.) This statement
in Benavides, which concerned the admission of irrelevant evidenceat the
guilt phase,is inapplicable here. (/d., at pp. 89-91.) The erroneous
exclusion of potentially mitigating evidence during the penalty phase of a
capital trial is subject to the Chapman”harmlesserror standard of review.
(People v. Frye (1998) 18 Cal.4th 894, 1017; People v. Whitt (1990) 51
Cal.3d 620, 647-648; People v. Lucero (1988) 44 Cal.3d 1006, 1031-1032.)
Under Chapman,the question is not whether the State’s evidence and
arguments supported a death sentence, but instead whetherthe State can
“prove beyond a reasonable doubtthat the [exclusion of mitigating
evidence] did not contribute to the [death] verdict obtained.” (Chapman,
supra, 386 U.S.at p. 24.) Reversal is required if there is a reasonable
possibility that the error complained of could have affected the jury’s
decision to impose the death penalty.(Ibid.; People v. Frye, supra, 18
Cal.4th at p. 1017.)
61 People v. Watson, supra, 46 Cal.2d 818.
62 Chapmanv. California, supra, 386 U.S. 18.
63 Notably, even underthe state-law standard used to assess other
penalty phaseerrors, reversal is required if there is a reasonable possibility
that the jury could have reached a different sentencing decision. In People
v. Brown (1988) 46 Cal.3d 432,this Court held that a death judgmentwill
be reversed for state law error in the penalty phase ofa capital trial where
there is a “reasonable possibility” that the jury would have rendered a
different verdict had the error(s) not occurred. (Jd. at p. 446-448.) This
265
’
?-
Respondent next contendsthat the restrictions on Dr. Nicholas’
testimony were harmless because there was overwhelming evidence of
appellant’s guilt, his claim of duress was undermined by other evidence,
and the testimonies by Leisey and Banksdid not support the conclusion that
the Hodgesbrothers coerced appellant into killing McDade. (RB 230.)
The State is wrong, both factually and legally. First, the factual
errors: Yes, there was strong evidence that appellant shot Keith McDade,
but the centerpiece of appellant’s mitigation case was his argumentthat the
Hodgeses used and compelled him to kill McDade. Contrary to
respondent’s contention, the testimonies from Leisey and Banksdid lend
support to this claim of coercion. (See 31CCT 9146, 9151, 9154; 25RT
9426 [Banks’ testimony that John Hodgestold him that the youngster was
easy to manipulate; he did not wantto kill, but John gave the order];
32CCT 9303-9306, 9311, 9315; 25RT 9494, 9498; 27RT 9869, 10032-
10034 [Leisey’s testimony that Terry Hodgestold him that he gave the boy
a pistol; he had to coach the boy like a child because he was a “wimp;”the
boy was taking too long, so Terry had to “jack him up”andtell him to get it
over with and just “whack the motherfucker”so there would be no
witnesses].)
standard is a more exacting standard than that used for assessing prejudice
for guilt phase error under Watson.(Id., at p. 447.) It is “the same in
substance and effect” as Chapman’s “beyond a reasonable doubt”standard.
(People v. Ashmus (1991) 54 Cal.3d 932, 990, abrogated on other grounds
as recognized in People v. Yeoman (2003) 31 Cal.4th 93, 117.)
266
Moreover, respondent’s contention that Littlejohn’s testimony
undermined appellant’s claim of duress is belied by the evidence. (RB 230.)
AlthoughLittlejohn stated that appellant took credit for the killing, she
believed that his confederates “probably ... forced him to do it” because
appellant is “weak. He’s a follower and not a leader .... He’s a weak
person.” (31CCT 9261, 9268, 9270; see also 31CCT 9288.) Littlejohn also
93 66thought appellant was “slow,” “stupid,” and “mental” because he acted like
he did not realize the gravity of what he had done. (31CCT 9263, 9265-
9266, 9269, 9291.)
Although the testimonies from Leisey, Banks, and Littlejohn did
lend support to appellant’s claim of coercion, as explained in the opening
brief, Dr. Nicholas’s excluded testimony wascritical to support his opinion
that the Hodges brothers manipulated and pressured appellantto kill
McDade. (AOB 491-492.) Given that this testimony would not only have
provided the support for the mainstay of the defense case in mitigation but
would also haveeffectively destroyed the State’s strongest argument why
this particular murder was so aggravating (see AOB 493-494), the State
cannot establish beyond a reasonable doubtthat its exclusion did not
contribute to the death verdict here.
Second, respondent’s harmless error argument is founded on an
erroneouslegal basis. As noted above, Chapman’s harmlesserror standard,
not the Watson standard, applies. Respondentarguesthatthis erroris
harmless because “there was overwhelming evidence of appellant’s guilt
(including his culpable mental state)” and admission of the excluded
evidence would not have altered the balance of aggravating and mitigating
evidence, because that evidence was counterbalanced by evidence of a
267
culpable mental state. (RB 230.) However, as explained by this Court in
People v. Hines:
“We cannot determine if other evidence before the jury would
neutralize the impact of an error and uphold a verdict. Such
factors as the grotesque nature ofthe crime,the certainty of
guilt, or the arrogant behavior of the defendant may
conceivably have assured the death penalty despite any error.
Yet who can say that these very factors might not have
demonstrated to a particular juror that a defendant, although
legally sane, acted under the demands of some inner
compulsion and should not die? We are unable to ascertain
whetheran error whichis not purely insubstantial would cause
a different result; we lack the criteria for objective judgment.”
(People v. Hines (1964) 61 Cal.2d 164, 169, disapproved of on other
grounds by People v. Murtishaw (1981) 29 Cal.3d 733.)
Respondent’s argumentincorrectly asks this Court to focus on the
strength of the evidence and make a comparison which,as a matter of
federal constitutional law, can be made only be a jury whichhearsall the
evidence, not by an appellate court. The decision whether to sentence a
defendant to death orto life without the possibility of parole is a normative
decision, which requires jurors to make individual determinations based on
their own understanding ofthe penalty factors. The jury’s sentencing
decision is a discretionary, fact-specific determination (see Tuilaepav.
California (1994) 512 U.S. 967, 974), which requires the personal moral
judgmentof each juror. (People v. (Albert) Brown (1985) 40 Cal.3d 512,
541, revd. on other grounds McKoy v. North Carlonia (1987) 494 U.S. 433,
442-443.) In a death penalty case, “individual jurors bring to their
deliberations ‘qualities ofhuman nature and varieties ofhuman experience,
the range of which is unknown and perhaps unknowable.’” (McCleskeyv.
Kemp (1987) 481 U.S. 279, 311, internal citation omitted.) Different jurors
268
will have different interpretations of and assign different weights to the
sameevidence. (United States v. Shapiro (9" Cir. 1982) 669 F.2d 593,
603.) And as recognized by this Court in People v. Hamilton (in discussing
the state-law “reasonable possibility” harmless error standard):
“{I]n determining the issue of penalty, the jury, in deciding
between life imprisonment or death, may be swayed one way
or the other by any piece of evidence. If any substantial piece
or part of that evidence was inadmissible, or if any misconduct
or other error occurred, particularly where, as here, the
inadmissible evidence, the misconductand othererrorsdirectly
related to the character of appellant, the appellate court by no
reasoning process can ascertain whetherthere is a ‘reasonable
probability’ that a different result would have been reached in
the absence oferror. If only one ofthe twelve jurors was
swayed by the inadmissible evidenceorerror, then, in the
absence of that evidenceorerror, the death penalty would not
have been imposed. What mayaffect one juror mightnot affect
another. The facts that the evidence of guilt is overwhelming,
as here, or that the crime involved was,as here, particularly
revolting, are not controlling. This being so it necessarily
follows that any substantial error occurring during the penalty
phase ofthetrial, that results in the death penalty,sinceit
reasonably may have swayed a juror, must be deemed to have
been prejudicial.”
(People v. Hamilton (1963) 60 Cal.2d 105, 136-37, overruled on other
grounds by People v. Morse (1964) 60 Cal.2d 631.)
Respondent’s invitation to the Court to find this error harmless by
simply assessing the strength of the evidence violates Chapman. Chapman
requires an inquiry into the impactthis error has had on the jury, regardless
ofthe weight of the evidence. As explained by the United States Supreme
Court in Sullivan v. Louisiana:
269
"(T]he question [Chapman] instructs the reviewing court to
consider is not what effect the constitutional error might
generally be expected to have upon a reasonablejury, but
rather what effect it had upon the guilty verdict in the case at
hand. [Citation.] Harmless-error review looks, we havesaid, to
the basis on which ‘the jury actually rested its verdict.'
[Citation.] The inquiry, in other words,is not whether, in trial
that occurred withoutthe error, a guilty verdict would surely
have been rendered, but whether the guilty verdict actually
renderedin this trial was surely unattributable to the error."
(Sullivan v. Louisiana (1993) 508 U.S. 275, 279, emphasis in original; see
also People v. Sims (1993) 5 Cal.4th 405, 476 (dis. opn. of Mosk,J.),
quoting Chapman v. California, supra, 386 U.S.at p. 23 [“By its very
terms, Chapman precludes a court from finding harmlessness based simply
‘upon [its own] view of “overwhelming evidence.” '”’].) “To say that an
error did not contribute to the verdictis ... to find that error unimportantin
relation to everything else the jury considered on the issue in question....”
(Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved of on other grounds
by Estelle v. McGuire (1991) 502 U.S. 62.)
In this case, the exclusion of mitigating evidencecritical to
supporting appellant’s claim that he was coerced to committhe killing
cannot be held harmless beyond a reasonable doubt. To be sure, the
prosecution introduced evidence to discount that claim. But that evidence
did not, and could not, render “unimportant” the excluded testimony by Dr.
Nicholasas to the basis for his opinion that appellant was coerced to shoot
McDade. Anyassertion to the contrary blinks reality. Absent this excluded
testimony, the jury was precluded from fully exercising its discretionin
determining appellant’s penalty. Notably, the United States Supreme Court
has foundlittle need to conduct detailed prejudice analysesin its cases
reversing death judgments dueto the erroneous exclusion of mitigating
270
evidence.In its leading case on the subject, the high court applied no
prejudice analysis whatsoever. (Lockett v. Ohio (1978) 438 U.S. 586, 608.)
Whenfaced with the issue now before this Court - the erroneous exclusion
of evidence that could have served as a basis for a sentenceless than death
and rebutted the prosecutor’s arguments for a death sentence - the Supreme
Court held that, “under any standard, the exclusion of the evidence was
sufficiently prejudicial to constitute reversible error.” (Skipper v. South
Carolina (1986) 476 U.S.1, 8.)
Appellant provided a detailed analysis in his openingbrief,
demonstrating whythere is a reasonablepossibility that the exclusion of Dr.
Nicholas’ proposed testimony contributed to the death verdict in this case.
(AOB 491-495.) The Attorney General’s meager response (RB 230) does
nothing to demonstrate otherwise. Because the penalty of death is
qualitatively different than any other sentence, the utmost scrutiny must be
employed when considering the effect the trial court’s error had on the
jury’s decision to impose death. (Woodson v. North Carolina (1976) 428
USS. at 280, 304-305.) Appellant’s death judgment cannot withstand that
scrutiny and should be reversed.
271
XXIV.
REVERSALIS REQUIRED DUE TO PROSECUTORIAL
MISCONDUCT DURING PENALTY PHASE CLOSING
ARGUMENT.
In the openingbrief, appellant demonstrated that the prosecutor
engaged in multiple flagrant and incurably prejudicial misconduct during
his penalty phase arguments. (AOB 496-575.) Respondentreplies that the
prosecutor did not commit misconduct and any error was forfeited and
harmless. (RB 230-264.)
Appellant addresses respondent’s contentions regarding error under
each individual subheading, but will address harmless error cumulatively at
the end of this argument.
A. Bengal Tiger Argument
In the openingbrief, appellant established that the prosecutor’s
argumentlikening appellant to a “Bengal tiger” constituted serious
misconduct, because it was (1) a thinly-veiled racist allusion, which
injected racial bias into the jury’s sentencing decision; (2) a dehumanizing
characterization of appellant designed to inflame the jury, desensitize them,
and lessen their sense of responsibility for imposing a sentence of death;
and (3) an improper argument regarding future dangerousness. (AOB 498-
516.)
Appellant acknowledged that in People v. Duncan (1991) 53 Cal.3d
955, 976-977, the Court rejected a claim that a similar “Bengal tiger”
argument wasracist, but asked the Court to reconsider the propriety ofthis
argumenton the basis of several reasonsarticulated in the openingbrief.
(See AOB 504-507.) The State responds that the Court affirmed its Duncan
272
ruling in People v. Brady (2010) 50 Cal.4" 547, and argues that “[tJhe
reasoning of Duncan and Brady is sound: comparing a vicious murderer to
a dangerous animalis permissible.” (RB 233.) As explained in the opening
brief, however, the particular animal metaphorat issue here, “Bengaltiger,”
when used to describe a Black defendant,is racist; it likely to be viewed by
many as a derogatory reference to African-Americans because it evokes
other derogatory racial slurs commonly used during this country’s history
by White people to refer to African-Americans. (See AOB 506.) In Brady,
where the defendant claimed that the prosecutor’s use of the “Bengaltiger”
metaphorwasa racist allusion to his Vietnameseheritage, this Court
responded:“As we noted in Duncan, likening a murderer to a wild animal
does not necessarily invoke racial overtones.” (People v. Brady, supra, at p.
585.) Brady is not applicable here where the epithet was applied to a Black
man.
Respondentalso argues that the Bengal tiger metaphor was“used for
a legitimate purpose: to explain that a defendant’s behavior on thestreets
may be different from the behavior he exhibits in the courtroom.” (RB 233-
234.) But the prosecutor could have madethis point without comparing
appellant to a vicious, jungle animal — an analogy which waslikely to
remind manyofthe racist stereotype of the Black manas a biologically
primitive and tough, meanstreet person.
In the opening brief, appellant argued that regardless of whether this
Court finds the Bengaltiger story to invoke racial overtones, it was a
dehumanizing characterization of appellant, designed to inflame the jury’s
fears and emotions, desensitize them and lesson their sense of responsibility
for imposing a sentence of death. (AOB 507-510.) Respondent counters
that the Court has declined to find misconduct in cases involving other
273
epithets, citing People v. Thomas (1992) 2 Cal.4" 489, 537 [perverted
murderous cancer and a walking depraved cancer], People v. Sully (1991)
53 Cal.3d 1195, 1249-1250 [human monster and mutation], and People v.
Farnam (2002) 28 Cal.4" 107, 167-168 [monstrous and a predator]. (RB
234.) In Farnam, this Court stated:
Additionally, there was nothing inappropriate about the
prosecutor's use of epithets in describing defendant's actions, or
her characterization of the evidence as “horrifying” and “more
horrifying than your worst nightmare.” Prosecutors “are
allowed a wide range of descriptive commentand the use of
epithets which are reasonably warranted by the evidence”
(Citation.), as long as the commentsare not inflammatory and
principally aimed at arousing the passion or prejudice of the
jury (Citation). Here, the prosecutor's statements were no more
than fair comment on whatshe anticipated the evidence would
show.In light of the record, the comments were neither
deceptive nor reprehensible. (Citation.) Nor were they so unfair
as to deny defendant dueprocess. (Citation.)
(People v. Farnam, supra, at pp. 168-69.)
Here, however, the epithets were not reasonably warranted by the
evidence and were,in fact, inflammatory and designed to arouse the
passion and prejudice of the jury. (See AOB 507-510.) The prosecutor
created a picture of appellant as a dangerous, cold-blooded beast: passive
and docile in front of the jury, yet —- underneath — an aggressive violent
animal with “the eyes of death” who would kill again. (35RT 12488-
12489.) And, unlike Sully, the prosecutor’s comments wereneitherbrief
nor isolated instances. (People v. Sully, supra, 53 Cal.3d at pp. 1249-1250
[there was no possible prejudice from the prosecutor’s remarks because the
expressions, albeit exaggerated, were brief and isolated instances].) Three
times, the prosecutor returned to this metaphor,using it to portray appellant
274
as dangerous animal with “the eyes of death,” to counter testimony by jail
officers that appellant could function well in an institutional setting, and to
argue that appellant lacked remorse. (35RT 12488-12489, 12492; 36RT
12608-12609.) These repeated and extended references to appellant as a
dangerous, cold-blooded jungle animal do not compare, in any manner, to
the derogatory name-calling exhibited in Farnam, Sully, or Thomas.
The opening brief further established the impropriety of the
prosecutor’s argumentthat once appellant adjusted to the institutional
setting, he would “becomethe Bengaltiger out in the street” and pose a
future dangerin prison. (AOB 511-514.) As arguedthere, this argument
was improper because there was no evidencein the record to support it.
(Ibid.) The State’s responseto this argument, at RB 234-235, has been
addressed by the argumentin the opening brief and does not require further
discussion here.
Accordingly, for the reasons expressed aboveand in the opening
brief, the prosecutor’s Bengal Tiger argument was highly improper and
should be condemned.
B. Urging Jury Not to Consider Sympathy or Mercy Because
None WasShowedto the Victim
In the openingbrief, appellant established that the prosecutor’s
argument urging the jury not to consider any sympathy or mercy to
appellant because none was shownto the victim (1) improperly appealed to
the passions and prejudice ofthe jury; and (2) asked them to ignore the
guided discretion of federal and California death penalty law and decide
appellant’s fate based on emotion and vengeancerather than as a reasoned
moral response to the evidence, thereby violating the principles of the
Fourteenth and Eighth Amendments. (AOB 516-522.) Appellant
275
acknowledged that the Court has rejected this argumentin prior cases, but
asked the Court to reconsider the propriety of this argumentin light of
substantial authorities from other jurisdictions condemning similar
arguments and the Court’s own precedents condemningreliance on extra-
judicial authority and appeals to passion and prejudice. bid.) Respondent
arguesthat the claim should be rejected on the basis ofthis Court’s
precedents. (RB 236-237.)
Respondentalso asserts that the prosecutor’s argument was a
comment on the callousness of the offense, thus constituting a permissible
argument regarding the circumstances ofthe offense. (RB 237.) Not so. The
prosecutor argued: “Is that sympathy deserved? What sympathy did he give
Keith McDade? [{] If you deliberate for more than five minutes, you'll
have deliberated longer about the fate of Carl Powell than Carl Powell ever
thought about the fate of Keith McDade.” (35RT 12487.) This was not a
mere comment regarding the circumstancesofthe offense, but rather an
appeal to vengeance. The prosecutor was imploring the jury to makeits
death penalty determination in the same manner which he argued was
shownby appellant to McDade,thus inciting the jury to make “an
unreasonable andretaliatory sentencing decision, rather than a decision
based on a reasoned moral response to the evidence.” (Lesko v. Lehman (3d
Cir. 1991) 925 F.2d 1527, 1540, 1545 [Condemningsimilar argument (“So
I'll say this: Show them sympathy.Ifyou feel that way, be sympathetic.
Exhibit the same sympathy that was exhibited by these men on January 3rd,
1980. No more. No more.”) as an improper appealto the jury to make a
retaliatory sentencing decision].)
Respondentfurther claims that the argumentdid not invoke Biblical
concepts ofvengeance, but was instead an “equal-mercy” argument
276
“premised upon a notion of proportionality which is a principle underlying
our system of criminal law.” (RB 237.) As stated by the United States
Supreme Court, however, “Proportionality is inherently a retributive
concept, and perfect proportionality is the talionic law.” (Harmelinv.
Michigan (1991) 501 U.S. 957, 989.) Certainly, respondent can’t be
suggesting that if appellant had maimedor disfigured McDadebefore
shooting him, a prosecutor could properly exhort that the same should be
doneto appellant.
For the reasons expressedin the openingbrief, this argument was
improper and appellant respectfully requests the Court to reconsiderits
propriety. Prosecutors should not be allowed to withdraw oneofthe most
critical mitigating factors for a defendant facing death on the basis of such
emotional appeals to vengeance. For, as explained by the Eleventh Circuit:
The ultimate powerofthe jury to impose life [imprisonment],
no matter how egregiousthe crime or dangerousthe defendant,
is a tribute to the system's recognition of mercy as an
acceptable sentencingrationale.... Thus, the suggestion that
mercy is inappropriate was not only a misrepresentation of the
law, but it withdrew from the jury one ofthe most central
sentencing considerations, the one most likely to tilt the
decision in favoroflife.
(Drake v. Kemp (11th Cir.1985), 762 F.2d 1449, 1460.)
C, Improper Appeal to See Crime Through Victim’s Eyes Via
Graphic, Invented Script
In the openingbrief, appellant established that the prosecutor
committed misconduct when he made an improperappealto the jurorsto
see the crime through the victim’s eyes via the vehicle of a graphic,
invented script. (AOB 522-528.) Appellant acknowledgedthat the Court
277
has approved “Golden Rule” arguments (argumentsinviting the jurorsto
view the crime through the eyes of the victims) in several cases, but
explained that the argument here was muchdifferent from those approved
in other cases. (AOB 525-528.) The prosecutor went beyond a mere
invitation to the jurors to place themselves in McDade’s shoes: (1) He
graphically detailed every inch of the crime through McDade’s eyes and
invented a script putting his own imaginary thoughts into McDade’s head;
and (2) He created a scenario offacts not in the record and asked the jurors
to rely on that hypothetical situation in determining whether appellant
should live or die. ([bid.; 35RT 12448-12451.) Moreover, the prosecutor’s
graphic script was inflammatory. bid.)
The State respondsthat the Court has approved of similar arguments,
citing People v. Dykes (2009) 46 Cal.4" 731, 793-794, and People v.
Bennett (2009) 45 Cal.4" 577, 617. (RB 238.) Neither case supports
approval of the argumentin this case. In Bennett, the Court approved an
argumentthat the victim likely sought mercy before being killed becauseit
was a reasonable inference based on the record. (Bennett, supra, at p. 617.)
In Dykes, the Court approved an argumentrequesting the jury to imagine
whatit must have felt like for the victim “to have a hot piece of lead tear
through his chest, go throughhis heart, his lungs, his liver and come outhis
back”on the basis that there was noallegation that the argument misstated
the evidence and the prosecutor is permitted to ask the jury to considerthe
pain suffered by the victim. (Dykes, supra, at pp. 793-794.)
In this case, however, the prosecutor’s argument did misstate the
record and did so in a significant manner. As explained in section(J), post,
the prosecutor misrepresented the record when he argued that appellant
acted alone in committing the crime. The prosecutor’s script, which placed
278
appellant alone at McDade’s car when he both robbed and shot McDade,
was contradicted by evidence that Terry Hodges waspresent, at a
minimum, when McDade wasrobbed. (32CCT 9307-9308.) This was a
critical misrepresentation that the prosecutor usedto strike at the heart of
appellant’s mitigation case — that the Hodges pressured him to rob andkill
McDade.
For these reasons and those expressed in the openingbrief, the
prosecutor’s improper appeal to the jurors to see the crime through
McDade’s eyes via a graphic, invented script, was improper and should be
condemned.
D. Urging Jurors to Speculate that Appellant Could Have Killed
Others
Respondent’s contentions (RB 239-240) have been fully met at AOB
528-530. Appellant submits this issue on the basis of that briefing in his
openingbrief.
E. Encouraging Jurors to Make Sentencing Decision on Basis
of Their Fears of Gang Violence
In the opening brief, appellant established that the prosecutor
committed misconduct by repeatedly emphasizing highly-charged gang-
affiliation evidence, thereby encouraging the jurors to make a sentencing
decision based on their fears of gangs and gang violence. (AOB 530-538.)
Respondent merely argues that the gang evidence was properly admitted,
the prosecutor wasentitled to refer to it, and the prosecutor did not
mischaracterize it. Thus, according to the State, the prosecutor’s argument
did not constitute misconduct. (RB 240-243.)
279
Appellant’s argument, however,is that the prosecutor used the gang
evidence during his penalty phase arguments in an inflammatory mannerto
arouse the jurors’ fears of gangs in order to secure a sentence of death. As
demonstrated in the openingbrief, the prosecutor repeatedly emphasized
appellant’s gang affiliation, as well as the gang affiliation of appellant’s
associate, William Akens, during his penalty phase arguments and did so
with inflammatory references -- “long-time gang banger,” “involved with
his Crip buddies,” “tough, sophisticated gang criminal,” “hard-core gang
members,” “vicious,” and “street punk.” (See AOB 531-535.) Moreover,
the prosecutor’s dramatic appeal, in which he displayed the photograph of
appellant and Akens making gang signs and pointing gunsat each other and
then compared appellant to a Bengal tiger, was calculated to elicit an
irrational, purely subjective response. (AOB 534-537; 36RT 12608-12609.)
By painting and constantly emphasizingthis picture of appellant as a
vicious gang-banger, the prosecutor improperly appealed to the passions,
prejudices and vulnerabilities of the jury, seeking to elicit a sentencing
determination based on fear and vengeance, rather than a reasoned moral
response to the evidence as required by the Eighth Amendment. TheState’s
response does not meet this argument and accordingly fails to refute it.
F. Improperly Arguing Lack of Remorse as a Factorin
Aggravation
In the opening brief, appellant established that the prosecutor
committed misconduct by arguing lack of remorseas a factorin
aggravation. (AOB 538-543.) In fact, as demonstrated by the number of
times in which the prosecutor discussed and emphasizedthis issue, it was
one ofthe central themes of his case in aggravation. This argument was
improper, for lack of remorseis not a statutory aggravating factor and thus
a prosecutor maynot argue that a defendant’s post-crime remorseless is an
280
aggravating factor. (People v. Jurado (2006) 38 Cal.4" 72, 141; Peoplev.
Boyd (1985) 38 Cal.3d 762, 773-775.)
Respondent contendsthat the prosecutor’s argument was proper,
because he was merely arguing that remorse should not be considered as a
factor in mitigation. (RB 243-244.)It is true that this Court has held that a
prosecutor is entitled to note the absence of the mitigating circumstance of
remorse. (People v. Burney (2009) 47 Cal.4" 203, 266; People v. Salcido
(2008) 44 Cal.4" 93, 160.) However,this is permitted only if the argument
“lack[s] any suggestion that the absence of remorse should be deemed a
factor in aggravation.” (Salcido, supra, at p. 160; accord, Jurado, supra, at
p. 141; People v. Mendoza (2000) 24 Cal.4" 130, 187; People v. Holt
(1997) 15 Cal.4" 619, 691.) That is not the case here.
Respondentargues “[lJooking at the prosecutor’s argument as a
whole, the main thrust of the comments on remorse wasthat it was not a
mitigating factor.” (RB 244.) Not so. As pointed out in the openingbrief,
the bulk of the prosecutor’s argument concerning remorse occurred during
his discussion of the aggravating factors. (AOB 543.) The prosecutor
divided his argumentinto sections, first discussing the aggravating
evidence and then discussing the mitigating factors. (5RT 12443.) The
prosecutor devoted a lengthy portion of his argument to dismissing
appellant’s offered factors in mitigation [see 35RT 12475-12493] and only
once did he mention appellant’s remorselessnessin that section.(/d., at
12484.) Instead, the prosecutor discussed appellants’ remorselessness
during the portion of his argument devoted to the discussion of aggravating
factors. (See 35RT 12443-12461.)
Respondent counters that even though the prosecutor was discussing
factors in aggravation, he was merely arguing that remorse was not a
281
mitigating factor becausehefirst told the jury it could consider remorse as
a factor in mitigation. (RB 244; 35RT 12451-12452.) Thus, respondent
argues, “[alll of the prosecutor’s subsequent comments on remorse must be
viewedin light of that preface.” (RB 244.)
The recordbelies this interpretation. It makes it very clear that the
prosecutor wasnot merely urging the jury to reject remorse as a mitigating
factor, but urging them to consider appellant’s remorselessness as
ageravating evidence of the circumstances of the crime. At the beginning of
his opening penalty phase argument, before he began his discussion of
remorse, the prosecutorsaid:
I submit to you that there is going to be twosets of
circumstances that are circumstances in aggravation. Thefirst
thing you can consideris the — are the circumstancesofthe
crime.
Now, where did you get that from? You get that from
the guilt phase of the trial. You’ve sat through the entire trial.
And you can considerall of the facts you heard in this case as
circumstance A ofthe case, the circumstances ofthe crime.
Now,in addition to that you can consider victim impact
evidence, in other words, what impact this crime had on the
victim Keith McDade. And ofcourse that’s very obvious. And
also you can consider what impactit had on the family of Keith
McDade.
So there are two — there are twofacets ofthe
circumstancesofthe crime, the actual circumstancesofthe
crime.
You can consider remorse — did the defendant show any
remorse — how cold-bloodedit was, these kinds ofthings.
All right. You can also consider other criminalactivity.
And I’m — I’m just prefacing now. Then I’m goingto go in
detail on all those issues.
282
(35RT 12433-12434, emphasis added.) Thereafter, during his discussion of
the aggravating evidence, the prosecutor did go into detail regarding
appellant’s lack of remorse, as quoted at AOB 538-540, and concludedhis
argument regarding the aggravating circumstances ofthe crime as follows:
“So they are the circumstancesof the crime. And I submit to
you that they were — they are so outrageous, so horrendous, so
cold-blooded, so heartless that you can considerthat
circumstance aloneas so far outweighing any mitigating
circumstance you mightfind in this case that you can impose
the death penalty based on the circumstancesof the crime
including the victim impact — including whathe did to the
McDadefamily.”
(35RT 12459.)
Thus, the prosecutor used his discussion of remorselessness to argue
that appellant’s behavior was so cold-blooded and heartless that he
deserved a sentence of death.** Onthebasis of this record, the State cannot
demonstrate that the prosecutor’s argument lacked any suggestion that the
- absence of remorse should be deemeda factor in aggravation of the offense.
6 Although the prosecutor referenced his lack-of-remorse argumentas
part of his discussion of the circumstances of crime, as demonstrated in the
openingbrief, he did not limit his argument to evidence which he
contended demonstrated remorselessnessat the time of the crime. Instead,
he argued onthe basis of testimony by the defense mental health expert and
the videotape of appellant’s arrest, that appellant was a sophisticated
criminal, a street punk, with no remorse. (AOB 541-543; 35RT 12454;
36RT 12609.) As argued in the openingbrief, this argumentviolated the
proscription of arguments that a defendant’s post-crime remorselessness
constitutes aggravation. (AOB 541-543.) Respondent offers no response
and accordingly, appellant’s argumenton this point stands unrefuted.
283
Respondentarguesthat this case is similar to Jurado, where the
prosecutor noted that the defendant played darts and enjoyed pizza and beer
after the murder. (RB 244, citing People v. Jurado, supra, 38 Cal.4™ atp.
141.) However, in Jurado, this Court found that the prosecutor merely
argued lack ofremorse wasrelevant to the evaluation of mitigating factors
because:
The prosecutor here never suggested that lack ofremorse was
an aggravating factor, and he did notrefer to lack of remorse
during the portion of his argument devoted to the discussion of
aggravating factors. Instead, the challenged argument occurred
during the course of the prosecutor’s review ofthe defense
case in mitigation and the potential mitigating factors. A
reasonable juror would have understood the prosecutor’s
argument to be that defendant’s failure to demonstrate any
concern for the woman hehad killed meant that ‘remorse was
not available as a mitigating factor and also that defendant was
not entitled to the jury’s sympathy.’”
(Jurado, supra, at p. 141.) Jurado provides no support for the State’s
argument.
Accordingly, for the reasons expressed above andin the opening
brief, the prosecutor’s argument that appellant’s remorselessness should be
considered by the jury as aggravating evidence was improper and should be
condemned.
G. Boyd Error — Improper Conversion of Mitigating Evidence
into Aggravation
In the openingbrief, appellant established that the prosecutor
committed misconduct when he urged the jurors to considerthe details of
appellant’s impoverished childhood, his growing up withouta father in a
dangerous, gang-infested area of Los Angeles, and his family’s love of, and
284
support for, him as aggravating evidence by arguing (1) there are “far, far
worse situations in life than he had, and yet people don’t wind up executing
somebody”; (2) appellant’s brothers both had good jobs and were
responsible, contributing citizens; and (3) it was appellant’s fault for not
graduating from high schooland failing to afford himself of all the
opportunities his brothers would have provided to him. (AOB 543-545;
35RT 12438.) As argued there, evidence offered by the defense in support
of factor (k) can only be used in mitigation andit is improper for the
prosecutor to urge that such evidence should be considered in aggravation.
(People v. Boyd (1985) 38 Cal.3d 762, 775-776.)
Respondent maintains that the prosecutor was merely arguing that
the mitigating evidence regarding appellant’s childhood should be given
little weight. (RB 245.) The prosecutor’s argument, however, went beyond
suggesting the absence of a mitigating factor. The prosecutor did not
merely argue that appellant’s childhood wasnot mitigating. He compared
appellant to his brothers and argued that they, unlike appellant, were
responsible, contributing citizens. The prosecutor also turned the love of
appellant’s family against him, essentially arguing that he was so loved, he
should have turned out better — like his brothers. The implication ofthis
argument wasclear: appellant’s failure to turn out like his brothers and to
take advantage of the opportunities they could have provided to him, should
be considered as aggravating evidence.
For the reasons expressed above andin the openingbrief, this
argument was improper and should be condemned.
H. Misrepresentations Designed to DistortAppellant’s Relationship
with the McDades
285
In the opening brief, appellant established that the prosecutor
deliberately distorted facts and madeassertions not supported by the record
regarding appellant’s relationship with the McDadesin order to aggravate
the circumstancesof the crime, outrage the jurors and prevent them from
considering sympathy as a mitigating factor. (AOB 546-548.) The State
contends otherwise by twisting the prosecutor’s words and arguing that the
prosecutor’s literal words were not really what he was arguing. (RB 246-
248.) The prosecutor’s arguments speak for themselves. Appellant stands
by his argumentin the opening brief at AOB 546-548, which fully meets
respondent’s contentions. Appellant submits this issue on the basis ofthat
briefing in his openingbrief.
I. Misstatements Concerning Defense Mental Health Expert’s
Testimony.
In the opening brief, appellant established that the prosecutor
improperly denigrated the defense case in mitigation by misstating the
defense mental health expert’s testimony to persuade the jury to reject his
opinions. (AOB 548-551.) Respondent’s contentions (RB 248-250) have
been fully met at AOB 548-551. Appellant submits this issue on the basis
of that briefing in his openingbrief.
J. Improper Argument that Appellant Acted Alone Based on
Misrepresentations of the Record.
In the openingbrief, appellant established that the prosecutor
committed misconduct when he misrepresented the record in arguing that
appellant acted alone in committing the crime: the Hodges’s brothers were
back in the car when appellant robbed and shot McDade. (AOB 551-556.)
Specifically, the prosecutor misstated the record when he arguedthat the
Hodges brothers “were backin the car. Theyall say that. . . . [i]f you look
286
at what Terry Hodges says to Daryl Leisey, what John Hodgessaysto Eric
Banks, they are back in the car. Carl Powell was alone at the time.” (35RT
12447.) Furthermore, the prosecutor later repeated the misrepresentation
by appearing to quote Leisey’s account ofwhat Terry Hodges had told him
about the crime but, in doing so, taking Leisey’s statements out of context
in order to make it appear that appellant wasall alone when he both robbed
and shot McDade. (See AOB 553-556; 32CCT 9306-9308; 35RT 12486.)
In fact, the omitted statements makeit clear that Terry told Leisey that he
and the boy robbed the guy and Terry turned aroundandtold the boy to
whack him. (32CCT 9308.)
Respondent’s position is that the prosecutor properly argued that
appellant acted alone, because the record supports the argumentthat
appellant was alone when he shot McDade. (RB 250-251.) Specifically,
respondent contendsthat appellant’s police interview and Leisey’s pretrial
statement supported the prosecutor’s argument. (/bid.) Respondent
acknowledgesthat “Leisey’s trial testimony was more ambiguous,” but
argues that “‘a close reading indicates that Terry had returned to the car
when the shooting occurred.” (RB 252.) Respondent ignores, however,
Leisey’s testimony that Terry Hodges made statements to him which
indicated that Terry was present when McDadewasshot, including the
following: Terry said he had to “coach him on,” Terry “didn’t want no
witnessesatall,” Terry “wasn’t going to leave no witnesses,”® and Terry
told “Mr. Powell to get it over with so we can get the hell out of here.”
65 As explained in Argument VI, ante, Terry Hodges would not have
been so concerned about McDadeidentifying him unless he had been
present with appellant during the crime.
287
(27RT 10031.) Leisey testified that based on those statements, he felt that
Terry Hodges waspresent with appellant when McDadewasshot. (bid.)
More importantly, however, the State’s response ignores a
significant part of the prosecutor’s misrepresentation. Respondent expends
significant effort in attempting to show that the record supported the
prosecutor’s argumentthat appellant acted alone in shooting McDade.Its
entire response is devoted to arguing that the record wassufficient to show
that the Hodges were back at the car when the actual shot wasfired. (See
RB 250-252.) But the prosecutor’s misrepresentation was not limited to his
argumentthat appellant acted alone in shooting McDade. The prosecutor
also argued that appellant acted alone in robbing McDade. (35RT 12446
[“Now,let’s talk about the crimeitself. First of all Powell acted alone. The
Hodges brothers were there. But they were back in the car. They all say
that.”’]; see also id., at pp. 12448-12451 [in describing crime, prosecutor
tells the jurors that Powell alone confronted McDadeat his car].) As
demonstrated in the openingbrief, the prosecutor took Leisey’s statements
out of context in order to makeit appear that appellant was all alone when
he robbed McDade andthat the Hodges were back at the car when the
robbery occurred. (See AOB 553-555; 32CCT 9306-9308; 35RT 12486.)
This waspatently false, for Leisey stated:
“Yeah. Terry and the other guy got out. Okay? The whole
deal was Terry and the boy robbed the guy, were standing there
robbing the guy, and Terry turned around and told him, ‘Hey,
just what the — the motherfucker,’. .. .”
(32CCT 9307.) The prosecutor, however, in quoting Leisey’s statements,
omitted the language ““The whole deal was Terry and the boy robbed the
guy, were standing there robbing the guy, and... .” What the prosecutor
quoted, during his argument, was:
288
“And then Terry says, ‘I was hanging out, waiting for
the boy to get back.’
So Terry confirms what Carl Powell says: Terry was not
there because he wasbackin the car.
Daryl Leisey: ‘John ~ John wasthe driver. John was
sitting behind, wasin the car waiting for Terry.’
So John’s back in the car, according to this version of
the events too.
Andthen Mr. Leisey says, ‘Okay,’ and Terry said,
*“Just whack the motherfucker and be donewithit.”””
(35RT 12486.) This wassignificant, because the prosecutorusedthis latter
misrepresentation to strike at the heart of appellant’s mitigating argument
that the Hodges pressured him to rob and kill McDade. As argued by the
prosecutor: “““How can hebethe least culpable ofthe three? The other two
are back in the car. They sayit and he saysit.” (36RT 12611.)
Accordingly, the record does not support the prosecutor’s argument
that appellant acted alone in both robbing and shooting McDade and
respondent has not demonstrated otherwise.
K. Argument Beyond the Evidence Vouchingfor Truthfulness of
Testimony that Appellant Fired Gun During Kennedy High
School Shooting
In the opening brief, appellant argued that the prosecutor went
beyond the evidence to support his argumentthat it was appellant, not
William Akens, who wasthe shooter during the drive-by shooting at
Kennedy High School whenhetold the jurors that they should believe
Akens’ testimony that appellant fired a gun during that drive-by shooting,
because “he’s on the stand under penalty of perjury” and ‘[h]e’s on
probation, so he’s worried aboutthat type of thing. He’s got to tell the
289
truth, even though hereally doesn’t want to. Kind of matter of fact about
the thing, but he says that Carl shot at that group, at the bus stop.”5RT
12464; see AOB 556-559.) As established in the openingbrief, this
argument was improperbecause there was no evidence that Akens was on
probation and, in fact, the prosecutor knew that Akens had been paroled.
(See AOB 558; 33 RT 11733.)
Respondent does not contend that the argument was proper but
merely responds that any error was harmless. (RB 253-254.) Respondent’s
contentions have been fully met at AOB 556-559 and 573-575.)
L. Attacks on Integrity of Defense Counsel
In the opening brief, appellant established that the prosecutor
committed misconduct when he maderepeatedattacks on the integrity of
defense counsel by (1) insinuating that defense counsel were attempting to
mislead the jury with dishonest defense tactics; and (2) arguing that one of
the main tenets of appellant’s mitigation case (lingering doubt based on the
actions of the Hodges’s brothers in manipulating appellant to commit the
robbery and shoot McDade) wasnothing but a red herring -- a fabrication
based on standard defense tactics. (AOB 560-564.)
The State makes the same responsethat it provided to Argument
XX(B), arguing that the “prosecutor’s remarks were merely comments on
defense tactics or the defense view of the evidence.” (RB 254.) Based on
the same authorities cited in Argument XX(B), People v. Seaton (2001) 26
Cal.4" 598, 663, People v. Medina, supra, 11 Cal.4" 694, 759, and People
v. Gionis, supra, 9 Cal.4" 1196, 1215-1217, respondentclaims that the
prosecutor’s argument wasproper. (RB 254-256.)
290
For the reasons expressed in Argument XX(B), ante, respondentis
wrong. The argumentin this case, where the prosecutor accused defense
counsel of fabricating appellant’s mitigation case based on dishonest
defensetactics, is far different from that in Medina, where the prosecutor
argued that defense counsel would “twist”or “poke”at the prosecution’s
case. (Medina, supra, at p. 759.) As explained in Argument XX(B),
resorting to deception or fabrication is reprehensible conduct, whereas
challenging the State’s case is not. In the same vein, the argumenthereis
different from that approved in Gionis, which this Court characterized as
simply establishing that lawyers are “schooled in the art of persuasion,” but
very similar to the argument condemnedinthatcase (““““You’re an
attorney. It’s your duty to lie, conceal and distort everything and slander
everybody.”’”). (Gionis, supra, at p. 1216.) In Seaton, this Court, after
reviewing the prosecutor’s remarks “in their proper context,” found no
impropriety because “[t]he remarks were comments on the evidence
presented by the defense and did not impugn counsel’s integrity.” (Seaton,
supra, at p. 663.) Here, however, there was no evidence to support the
insinuation that counsel was making up the defense mitigation case.
For the reasons expressed above, in Argument XX(B), ante, and in
the opening brief, the prosecutor’s argument, attacking defense counsel’s
integrity and accusing them ofusing dishonesttactics to fabricate a defense,
was improperand should be condemned.
M. Improper Attack on Defense Mental Health Expert
In the openingbrief, appellant established that the prosecutor
committed misconduct when he improperly attacked the testimony ofthe
defense expert, based on psychological andintelligence testing, that
291
appellant suffered extreme intellectual deficits® which, in combination with
other personality characteristics, rendered him susceptible to manipulation
by older individuals such as the Hodges’s brothers. (AOB 564-569.)
Appellant argued that the prosecutor committed misconduct when he
denigrated the doctor’s testimony by misstatingtrial testimony, asserting
false facts, and belittling his test results and opinions without evidentiary
support. (/bid.)
The State responds that the prosecutor could properly argue that Dr.
Nicholas had a financial interest in testifying favorably for the defense,
citing People v. Clark (2011) 52 Cal.4"* 856, 962, which in turn cited
People v. Arias (1996) 13 Cal.4" 92, 162 and People v. Cook (2006) 39
Cal.4™ 566, 613. (RB 257-258.) These cases merely holdthat prosecutors
are allowed to remind jurors that a paid witness maybe biased andare also
allowed to argue, from the evidence, that a witness’s testimony is
unbelievable or unsound.(Arias, supra, at p. 162; Cook, supra, at p. 614;
and Clark, supra, at p. 962.) The key, however,is that argument attacking
an expert witness’s testimony must be based on evidence. This Court has
never approved attacks on expert witnesses based on misstatements of the
record or outright assaults on the witness’s character because the prosecutor
does notlike his opinion. What appellant has demonstrated, in his opening
brief, is that the prosecutor did not merely suggest Dr. Nicholas was biased
because he wasa paid witness, but attacked his opinions by misstatingtrial
testimony, asserting false facts and belittling his test results without
66 Dr. Nicholastestified that appellant had a full-scale I.Q. of 75,
placing him in the mild mentally retarded range. (34RT 12002, 12006,
12032.)
292
evidentiary support. (AOB 564-567.) The argument was improperhere,
becauseit was not based onortied to the evidence.
Respondent next arguesthat the “prosecutor wasalso entitled to
argue that Nicholas’s [Q tests did not reflect appellant’s ability to function
in the real world.” (RB 258.) Of course, the prosecutor wasentitled to make
that argumentifit was based on the evidence, but the case law is clear that
he could not mount such an attack on the basis of false representations of
the evidence. The State concedesthat the prosecutor’s attack on Dr.
Nicholas’s I.Q. testing was based on a misstatement but attempts to
downplay the improper argument by characterizingit as a “minor
overstatement.” (RB 258.) The record belies this characterization. The
prosecution falsely asserted that the results of the testing were not
“confirmed”in the community because “everybody says that Carl Powell is
of normalintelligence, except for Dr. Nicholas” (35RT 12490) and further
falsely argued “[t]here’s no evidence in the real world of him being dumb.”
(Id., at p. 12470.) Regardless of the State’s attempted spin, those
arguments were absolutely false. Appellant’s intellectual deficits were
confirmed in the community by both Littlejohn’s testimony describing
appellant as stupid, “mental,” and “kind of like a special kid” (by which she
meant mentally slow) (31CCT 9263, 9269; 28RT 10412, 10431) and the
evidence of appellant’s dismal school performance.®’ Even appellant’ s
67 Appellant had to repeat both the second and the eighth grades and
his grades at high school were very poor — mostly “D’s” and “F’s” except
for a “B” in P.E. (34RT 12135-12136; 45CCT 13410-13413 [Def. Penalty
Phase Ex. P-A (Kennedy High Schooltranscripts)].)
293
mother, whotried to deny appellant’s intellectual deficits, admitted that he
was a “little slow.” (35RT 12272.)
Respondent arguesthis “was such a minor overstatement that it was
harmless” (RB 258), but as demonstrated above, it was not a minor
overstatement. Furthermore, it was the prosecutor’s main arsenal (other
than attributing financial bias) for attacking Dr. Nicholas’ opinion.
Moreover, this attack went to the heart of appellant’s mitigation case — that
his intellectual deficits, in combination with other personality features,
rendered him vulnerable to the manipulation and coercion applied by the
Hodges’s brothers to commit the capital crime.
Respondent also downplays the prosecutor’s falsehood regarding
Winston Churchill,®* arguing that “there is no reasonable likelihood that the
jury’s penalty phase decision turned onthis issue.” (RB 259.) This
argument misses the mark. The point is that the prosecutor attacked Dr.
Nicholas’s testing and opinionson the basis of falsehoods, rather than
evidence presentedat trial. Given that the doctor’s testimony regarding
appellant’s intellectual deficits was such an essential part of the defense
case in mitigation, the improper attack was not harmless. The attack based
on the Churchill falsehood and misstatement of the evidence wereglib and
68 To denigrate Dr. Nicholas’s explanation that as I.Q, descends, the
ability to lead becomesless andless, the prosecutor argued:
Well, one of the greatest leaders in the world was Winston
Churchill, and it was well known that he wasa terrible, terrible
student. And he probably wouldn’t have done wellin that I.Q.
test because it measures those kindsofthings.”
(35RT 12491.)
294
could very well have persuadedat least one juror to reject Dr. Nicholas’s
testimony.
As established in the opening brief, rather than attacking Dr.
Nicholas’ testimony on the basis ofproperly introduced evidence, the
prosecutor (1) belittled his psychological testimony and results without
evidentiary support, (2) aired unsubstantiated opinions, and (3) attacked the
doctor’s opinions on the basis of false assertion oftrial testimony and facts.
(AOB 564-569.) Appellant relied on a decision by the Sixth Circuit in Gall
v. Parker (6" Cir. 2000) 231 F.3d 265, 314-316 (superseded on other
grounds), where the Court strongly condemnedthe use of such improper
tactics to attack a defense expert witness. Respondent argues that Gallis
factually distinguishable and the misconduct there was more extreme. (RB
259.) Appellant disagrees. Gall found improperthe very sametactics used
by the prosecutor here. Ga/] condemnedthebelittling of medical and
psychological tools used to support the defendant’s insanity defense (Gall,
supra, at p. 315); here, the prosecutor belittled and mockedthe I.Q.testing
when heargued that Dr. Nicholas made noeffort to find outif his “studies
in the laboratory, so to speak” would be confirmed in the community and
argued that Winston Churchill “probably wouldn’t have donewell in that
1.Q. test because it measures those kinds of things.” (35RT 12490-12491.)
Gall condemnedthe expression of personalbelief as to the weakness and
partiality of expert testimony (Gall, supra, at p. 315); here, the prosecutor
expressed his personal belief that because Dr. Nicholas “was bought and
paid for in this case,” he had to reach conclusionsthat the defense wanted
and intimated that wasthe basis for the doctor’s disagreement with the
prosecutor’s opinion regarding future dangerousness. (35RT 12490,
12492.) Gall condemnedthe prosecutor’s mischaracterization of crucial
aspects of the witness’s testimony (Gall, supra, at p. 315); here, as
295
(s
discussed above, the prosecutor misstated the trial evidence in orderto
attack Dr. Nicholas’s opinion.
Respondent argues that the misconduct in Ga// was more egregious
because there, the prosecutor attacked the use of the insanity defense. (RB
259.) However, here, the prosecutor attacked the use ofpsychological
testing to establish appellant’s intellectual deficits — which formed the
central tenet of appellant’s case in mitigation. Respondentalso argues that
the comments in Gall were not isolated and the evidence rebutting the
insanity defense was weak, whereasin this case, the comments were
isolated and the People’s penalty phase evidence wasstrong. (RB 259.) The
record, as quoted in the openingbrief, belies the contention that the
comments were isolated. (See AOB 565-567.) This wasa full-on attack on
Dr. Nicholas’s testimony and to suggest it was minororisolated is
specious. Moreover, similar to Gall, the prosecution introduced no evidence
rebutting Dr. Nicholas’s test results. And, for the reasons expressed in
Arguments XXII, XXV, and XVIII, respondent’s argument regarding the
strength of the aggravating evidence misses the mark.
Accordingly, respondenthas failed to persuadethat the prosecutor’s
attacks on Dr. Nicholas’s testimony constituted proper arguments.
N. Improper Invocation of Biblical Authority
In the openingbrief, appellant argued that the prosecutor committed
misconduct by invoking Biblical authority to justify and support imposition
of the death penalty in this case when hetold the jurors: “If you make
certain choices in your life theology-wise you goto hell. If you make other
certain choices in yourlife, you go to heaven. That’s the wayit is. That’s
the way — that is how life is made up.” (35RT 12438; see AOB 570-571.)
296
Respondent acknowledgesthat the vice in invokingreligious authority is
that it undercuts the jury’s own sense of responsibility for its sentencing
decision. (RB 260.) As explained by the Ninth Circuit, religious
arguments in capital sentencingtrials have been condemnedbyvirtually
every federal and state court because they undermine the jury’s role in the
sentencing process andits own sense of responsibility, thus violating the
Eighth Amendment. (Sandoval v. Calderon (9" Cir. 2000) 241 F.3d 765,
775-780.)
Respondent contends, however, that the argument here was not an
improperinvocation ofreligion; the prosecutor was merely stating that
people who make certain choices go to heaven and those who makeother
choices go to hell. (RB 260.) Accordingto the State, the prosecutor’s
comments did not diminish the jury’s sense of responsibility for its verdict,
nor did they suggest that the jury should apply a higher law. (/bid.) They
were just part of a non-religious philosophical argument focusing on free
will.bid.)
Respondent is wrong. This was not a mere philosophical argument
focusing on free will. Everyone on the jury would understand the
prosecutor’s reference to theology to invokethe principles of religion and
particularly, Judeo-Christian values, for that is exactly what theology
means.®? Moreover, the prosecutor was essentially quoting the Bible, which
6° Wikipedia defines theologyas:
Theology (from Greek Oedc meaning "god" and Aoyia, -logy,
meaning "study of") is the systematic and rational study of
concepts of deity and of the nature of religious truths, or the
learned profession acquired by completing specialized training
297
(&
fi
&
a
(e
provides that God will punish murderers by sending them to Hell, the
everlasting lake of fire. (See Revelation 21:8 [“But the fearful, and
unbelieving, and the abominable, and murderers, and whoremongers, and
sorcerers, and idolaters, andall liars, shall have their part in the lake which
burneth with fire and brimstone: which is the second death.” (King James
Bible "Authorized Version", Cambridge Edition;
http://www.kingjamesbibleonline.org/Revelation-21-8.) The lay juror
would readily understand the prosecutor’s wordsas referring to scripture.
The message was clear: God mandated death and hell for a murderer, such
in religious studies, usually at a university or schoolof divinity
or seminary. (http://en.wikipedia.org/wiki/Theology.)
Asdefined by the Merriam-Webster dictionary, theologyis:
1: the study of religious faith, practice, and experience; especially:
the study of God and of God's relation to the world
2a: atheological theory or system
b: adistinctive body of theological opinion
3: ausually 4-year course of specialized religious training in a
Roman Catholic major seminary. ("Theology." Merriam-
Webster.com. http://www.merriam-webster.com/dictionary/theology;
see also http://dictionary.reference.com/browse/theology [theology:
“the field of study and analysis that treats of God and of God's
attributes and relations to the universe; study of divine things or
religious truth; divinity.”’].)
298
as appellant. The prosecutor’s argument was, indeed, invoking the higher
law of God andtelling the jurors that death was the proper penalty.
Respondentfurther arguesthat this case is distinguishable from
those cited in the opening brief where the Bible was used as support for, or
approvalof, the death penalty, because the prosecutor was not invoking
Biblical authority. (RB 260-261.) For the reasons expressed above,
respondent is wrong. In Fields vy. Brown, the Ninth Circuit admonished that
it is improper and prejudicial for the prosecution to invoke Godorto
paraphrase a Biblical passage in closing argument in the penalty phase of a
capital case. (Fields v. Brown (9" Cir. 2007) 503 F.3d 755, 780.) Thatis
exactly what the prosecutor did here. For the reasons expressed here and in
the opening brief, this argument was improper and deprived appellant of his
Eighth Amendmentright to a reliable penalty determination.
O. These Claims Have Not Been Waived Because the Record is
Clear that Any Further Objections Would Have Been Futile.
Appellant demonstrated in his openingbrief that his claims of
prosecutorial misconduct were preserved for review even though defense
counselfailed to object. (AOB 571-573.) Thetrial court’s conduct during
guilt phase argument made clear that any objections during argument would
be futile and the only recourse to remedy improper argument was to
respondto it during defense argument. (AOB 572.) Moreover, no
admonition could have cured the harm of the prosecutor’s repeated,
intemperate behavior. (/d., at pp. 572-573.) Accordingly, counsel’s failure
to object must be excusedasfutile.
Respondent contends that appellant’s claims have not been
preserved. (RB 230-232.) Appellant’s opening brief thoroughly addresses
299
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forfeiture. Hence, appellant respectfully directs this Court’s attention to his
opening brief. (AOB 571-573.)
P. The Misconduct Violated Appellant’s Rights Under The Federal
Constitution and Was Prejudicial,RequiringReversal.
In the openingbrief, appellant established that the prosecutor’s
misconductviolated his rights under the federal constitution and thus
require reversal unless the State can demonstrate that the error was
harmless beyond a reasonable doubt. (AOB 573-574.) The State provides
no response to appellant’s argumentthat the misconduct deprived him of
due process under the Fourteenth Amendmentandhisright to a reliable,
individualized penalty determination under the Eight Amendment. (RB
261-264.) It argues, without explanation, that this error should be assessed
underthe state “reasonable possibility” standard for assessing prejudice
from penalty phase errors. (RB 261-262.) Nonetheless, this Court has held
that “[oJur state reasonable possibility standard is the same, in substance
and effect, as the harmless beyond a reasonable doubt standard of
. Chapmanv. California (1967) 386 U.S. 18, 24.” (People v. Nelson (2011)
51 Cal.4th 198, 219, fn. 15.)
Respondent has not even attempted to meet this burden.Its response
is merely a contention that any possible error was “neutralized” by the
standard penalty instructions provided in this case, which informedthe
jurors to determine the facts from the evidence,to accept the law as stated
by the court, to reach a verdict based on the evidence and the law,to
exercise its discretion conscientiously, that statements made by attorneys
are not evidence, and notto be influenced by bias, prejudice, public
opinion, or public feelings. (RB 262-263.) According to respondent, these
instructions, in conjunction with the standard penalty instruction which told
300
the jurors which factors could be considered, were sufficient to dispel any
and all possible prejudice. (RB 262-264.) However, “[t]he naive
assumption that prejudicial effects can be overcomebyinstructions to the
jury [citation] all practicing lawyers know to be unmitigated fiction.”
(Krulewitch v. U.S. (1949) 336 U.S. 440, 453 (conc. opn. of Jackson, J.).)
This Court, too, has cautioned that even limiting instructions appearto call
for ‘discrimination so subtle [as to be] a feat beyond the compass of
ordinary minds.” (People v. Antick (1975) 15 Cal.3d 79, 98; see also
People v. Laursen (1968) 264 Cal.App.2d 932, 939, disapproved on another
ground by Mozzetti v. Superior Court (1971) 4 Cal.3d 699, 703 [limiting
instruction insufficient to cure prejudice from prosecutorial misconduct in
closing argument].) Respondent's reliance on the court's instructions to cure
any error is misplaced.
For the detailed reasons expressed in the opening brief, which
respondent does notrefute, the prosecutor’s misconduct, which was
pervasive and egregious, wasalso prejudicial. (AOB 573-575.) Reversal of
the judgment of death is required.
301
XXV.
THE TRIAL COURT ERREDIN FAILING TO
EXCLUDE A PHOTOGRAPH OF APPELLANT AND
WILLIAM AKENS HOLDING GUNS AND EXHIBITING
GANG SIGNS AND TESTIMONYBY DETECTIVE
AURICH THAT APPELLANT WASA “MAIN PLAYER”
IN THE CRIP GANG.
Over defense objection, the trial court permitted the prosecution to
introduce prejudicial gang evidence: (1) a previously excluded photograph
(People’s Exhibit P-3) of appellant and William Akens laughing and
throwing gang signs while pointing guns at each other 35RT 12299-
12302); and (2) a gang detective’s testimony that he had received
information that appellant was a “main player” in the Crip gang, which he
described as a sophisticated criminal and hardcore gang leader who
promotes his gang andis involved in gang-related crimes. (33RT 11809-
11810.) In the openingbrief, appellant argued that the photo did not
constitute proper rebuttal evidence, was based on impermissible propensity
reasoning and should have been excluded under Evidence Codesection
352. (AOB 584-590.) He argued that the detective’s opinion testimony
should have been excluded under 352 dueto the lack of a reliable
foundation. (AOB 590-593.)
Respondent contendsthat this evidence was properly admitted “‘to
rebut defense evidence that appellant was naive and criminally
unsophisticated and any error was harmless.” (RB 264-265.) Respondent
also contends that appellant has not properly preserved his 352 argument
regarding the erroneous admission ofthe officer’s gang opinion testimony
and that the detective’s testimony was admissible as reputation evidence.
(RB 273-275.) Appellant disagrees with all of respondent’s contentions.
302
A. The Photo Was Inadmissible Because It Did Not fall Within Any
Statutory Aggravating Factor, Was Not Relevant to Any
Disputed Issue and Did Not Constitute Proper Rebuttal
Evidence, Any Relevance Was Outweighed ByIts Potential For
Prejudice, and Its Admission Violated Appellant’s Right to Due
Process.
The prosecution was very eager to introduceat the penalty phase the
photograph of appellant and Williams, but the court rejected the State’s
attempt to admit that photograph during the prosecution’s case-in-chief.
The prosecution itself agreed that this evidence, which it attempted to
introduce as a “gang involvement” aggravator, was not admissible as a
circumstance in aggravation under Penal Codesection 190.2 (13RT 4521-
4522), and the Court denied the prosecution’s request to admit the
photograph undersection 190.3(b) as evidence of a threat of violence. (/d.,
at pp. 4520-4521.) The court found that the photograph depicted gang
membership but did not portray any specific threat or force or any other
specific criminal purpose. (/d., at p. 4532.) Consequently, the photograph
wasadmissible,if at all, only in rebuttal.
During the defense case, the defense mental health expert, Dr.
Nicholas, presented extensive testimony recounting appellant’s gang
membership, which began at age 10 or 12. (34RT 12088-12089, 12099,
12099-12100, 12110.) The prosecution, however, upon cross-examination
of appellant’s mother and twobrothers, during the defense case in
mitigation, elicited their denials that appellant was a gang member. (34RT
11957, 11963-11965, 12247, 12249-12250; 35RT 12292.) Thereafter, the
prosecution sought admission of the photo to rebut this testimony. (35RT
12299-12300.) The court overruled defense relevancy and 352 objections
and admitted the photograph for two purposes: (1) to establish and clarify
appellant’s gang status (35RT 12302); and (2) to rebut the defense
303
argument that the Hodges’s brothers manipulated and coerced appellant to
kill McDade.(/d., at p. 12302.)
In the opening brief, appellant argued that the court erred in
admitting the photograph as rebuttal evidence because (1) the photograph
wasnot necessary to establish or clarify appellant’s gang status and should
have been excluded as both cumulative and prejudicial; (2) the photograph
had no relevance underthe court’s second theory of relevancy to rebut the
defense argumentthat appellant was manipulated and coerced by the
Hodges; (3) this second theory of relevancy was based on impermissible
propensity reasoning; and (4) the evidence should have been excluded
under Evidence Codesection 352. (See AOB 584-590.)
Respondent contends that the photograph had significant probative
value and was admissible because (1) It was relevant to establish and
clarify appellant’s gang membership and show the extent of his
involvementin the Crip gang in Sacramento; (2) It was relevant to prove
appellant’s desire to prove himself as a criminal and had sometendencyto
suggest that appellant wasa violent, callous person; and (3) It was admitted
in rebuttal after appellant had introduced evidence minimizing his gang
involvement. (RB 268-269.)
Respondentis wrong on all counts. These issues which respondent
claims had been putin issue by the defense case wereeither (1) not
disputed;(2) not, in fact, issues at all; or (3) raised by the prosecution’s
questioning of defense witnesses. Accordingly, the photograph did not
constitute proper rebuttal evidence. Moreover, it was not relevant under any
of the theories put forth by the court or the State on appeal and constituted
impermissible propensity evidence. Therefore, the court had no discretion
to admit it and its admission violated appellant’s due process rights under
304
the California and United States Constitutions. And even if the photograph
had any relevance, its probative value wassoslight and its potential for
prejudice so great, that the court abusedits 352 discretion by admitting the
photograph.
1. The Photograph Should Have Been Excluded BecauseIt
WasNot Relevant to Any Disputed Issues, Did Not
Constitute Proper Rebuttal, and Constituted
Impermissible Propensity Evidence.
The supposed purpose for which the photograph was being offered,
to prove that appellant was a gang member, wasnot disputed. As argued in
the openingbrief, after presentation of both the prosecution’s and the
defense cases at penalty phase, there was no dispute as to appellant’s gang
status and no needforclarification. (See AOB 584-585.) Notably, the
defense mental health expert testified, on the basis of conversations with
appellant, that appellant had been a gang membersince the age of 10 or 12;
when in Los Angeles, appellant was 100% committed to the Crips; upon
moving to Sacramento, he continuedhisaffiliation with the Crip gang and
chose to exaggerate his Los Angeles Crip notoriety while participating in
gang activities in Sacramento; and appellant wasstreet-wise. (34RT 12088-
12089, 12099-12110.) Moreover, during the prosecution’s penalty case,
William Akens admitted that he was a Freeport Crip and appellant washis
running buddy. (33RT 11747-11749.) Akensalsotestified, as
acknowledged in respondent’s argument, “that appellant had been a Los
Angeles Crip and testified about appellant’s involvementin the gang crimes
targeting Moten [a rival gang member].” (RB 265.)
Respondent contends, however, that testimony by appellant’s mother
and two brothers denying that appellant had been in a gang “gave the photo
relevance and probative value as rebuttal evidence.” (RB 269.) Respondent
305
is mistaken for two reasons: (1) despite their testimony, the issue was not
genuinely disputed; and (2) it was the prosecution, not the defense, who
elicited their denials.
This Court has held that once the defendant has presented evidence
of circumstances in mitigation, the prosecution may present rebuttal
evidence “tending to ‘disprove any disputed fact that is of consequence to
the determination of the action.” (People v. Boyd (1985) 38 Cal.3d 762,
776; quoting Evid. Code, § 210.) But “[i]f.a fact is not genuinely disputed,
evidence offered to prove that fact is irrelevant and inadmissible under
Evidence Code sections 210 and 350 respectively.” (People v. Hall (1980)
28 Cal.3d 143, 152, overruled on another ground by People v. Newman
(1999) 21 Cal.4" 413, 419-420;see also Jefferson, Cal. Evidence
Benchbook(2"4 ed. 1982) § 21.2, p. 493.) Any ultimate fact the prosecution
seeks to establish with bad-character evidence, such as gang-related
cee 939evidence, must be both “material” and “‘actually in dispute.’” (People v.
Thompson (1980) 27 Cal.3d 303, 315; People v. Williams (1988) 44 Cal.3d
883, 905.)
Appellant did not dispute his gang membership. His own expert
testified, on the basis of his conversations with appellant and review ofhis
records, that appellant had been a committed gang membersince a very
young age. Moreover, appellant offered to stipulate that he was a gang
memberand that he and Akens recognized each other as gang members.
(35RT 12301.) Accepting this proposed stipulation would have cost the
prosecutor nothing legitimate. It would only have cost him the improper
windfall benefit of introducing extremely prejudicial and, at most,
minimally probative evidence.
306
Underthese circumstances, the prosecution was obliged to accept
the stipulation and abandonits efforts to introduce the gang photograph.
“(I]f a defendant offers to admit the existence of an element of a charged
offense, the prosecutor must acceptthat offer, and refrain from introducing
evidence of other crimes to prove that element.” (People v. Hall, supra, 28
Cal.3d at p. 152; accord, People v. Bonin (1989) 47 Cal.3d 808, 848-849
[Court erred by admitting parents’ testimony to establish the identity of the
victims and as foundation for their photographs; because the defense
offered to stipulate to the identifications and admissibility of photographs,
“the court should have compelled the prosecution to accept the defense’s
offer and barredit from eliciting testimony on the facts covered by the
proposedstipulation”]; People v. Gonzales (1968) 262 Cal.App.2d 286,
288-291 [In a prosecution for possession of marijuana,the trial court erred
in admitting evidence of defendant's commission of narcotics offenses not
charged in the information for the avowed purpose of proving his
knowledge of the narcotic nature of marijuana, where defendantoffered to
stipulate to such knowledge, and where in view of such offer and the
deputy district attorney's refusal thereof, it appeared that the purpose of the
evidence wassolely to inflame and prejudice the jury].) Accordingly, it was
unnecessary and error to admit the photographto establish appellant’s gang
membership.
It is also well established that the prosecutor cannot manufacture a
basis for admitting rebuttal evidence byfirst eliciting testimony on cross-
examination of a defense witness, and then seeking to admit contrary
evidencein rebuttal. (People v. Lavergne (1971) 4 Cal.3d 735, 744 [“A
party may not cross-examine a witness upon collateral matters for the
purposeofeliciting something to be contradicted.”].) In People v. Daniels,
this Court explained that “proper rebuttal evidence[] is restricted to
307
evidence made necessary by the defendant’s case in the sensethat [the
defendant] has introduced new evidence or madeassertions that were not
implicit in his denial of guilt.” (People v. Daniels (1991) 52 Cal.3d 815,
859, italics added). Testimony elicited by the prosecutor on cross-
examination of a defense witness is not evidence “introduced”by the
defense, and rebuttal evidence cannot be made “necessary” when the
prosecutorelicited the new evidenceor assertions himself. (6 Wigmore,
Evidence (Chadbourne ed. 1976), § 1873; People v. Thompson, supra, 27
Cal.3d at p. 330; People v. Mendibles (1988) 199 Cal.App.3d 1277, 1302.)
Respondentargues that admission of the photograph was made
necessary by the introduction of evidence by appellant minimizing his gang
involvement (RB 268), but it was the prosecutor, not appellant, whoelicited
the testimony by appellant’s family members denying appellant’s gang
membership.” Here, after the defense expert established conclusively that
0 On cross of appellant’s mother, the prosecutor asked if she knew
whether appellant was in a gang in Los Angeles, and she replied that he
was not. (35RT 12292.) Brother Lawrence, when asked by the prosecutor
whether appellant was ever involved in the Crip gang in Los Angeles,
replied “never.” (34RT 12247.) The prosecutor then asked if appellant was
involved with the Crips in Sacramento and Lawrence answered “[n]ot that
{he] knew of.” (/bid.) Lawrence agreed with the prosecutor that appellant
wasfairly street-wise and that his family “had to get him out of L.A.to get
him away from gang involvement”(id., at p. 12249), but he did not feel that
appellant was in gangs in Los Angeles. (/d., at p. 12250.) Brother Calvin,
on direct, stated of appellant: “This guy calling him a gang member.
Nobody downthere in L.A. know him for his gang membership. Nobody
downthere — he’s not a well-known guy.” (34RT 11957.) Thereafter,
whenthe prosecutor asked Calvin on cross if he knew whetheror not
appellant was in a gang, Calvin answeredthat to his knowledge, appellant
had never been in a gang.(/d., at p. 11963.) In response to further questions
from the prosecutor whether Calvin saw anysignsthat appellant might be
308
appellant had been a committed gang memberfor many years, the
prosecutor sought to admit the photograph for the ostensible purpose of
rebutting testimony that he himself elicited while cross-examining
appellant’s mother and two brothers. That rebuttal testimony was thus
improper because it was not “made necessary” by appellant’s case.
In sum, given the testimony by the defense mental health expert
based on appellant’s admissions to him, the prosecution’s penalty phase
evidence by William Akens, and the defense offer to stipulate to appellant’s
gang membership,it is clear that admission of the inflammatory photograph
of appellant and Akens cannot be predicated on the court’s ruling that it
was necessary to establish and clarify appellant’s gang membership.
Nonetheless, the State argues that “the photo was relevant to show the
extent of appellant’s involvementin the Crip gang in Sacramento”and
“appellant’s desire to prove himself as a criminal.” (RB 268.) As stated by
the court in ruling the photograph admissible:
It’s relevant to the whole issue that now has been developedin
the penalty phase as to what level the defendant was involved
in gangs or wanted to be a gang member, wantedto prove
himself or already was before he came to Sacramento or only
after he came to Sacramento. There have been manydifferent
scenarios in which gang membership hasrelevance, andthis is
relevant to that.”
(35RT 12302.)
in a gang, Calvin acknowledged that appellant wore the blue clothing
associated with the Crip gang, but said that they all wore blue clothing and
appellant did not come home “with the gang activity” — the slang, the
posture. (/d., at pp. 11963-11965.)
309
Neither the State nor the court has explained, however, why the
extent of appellant’s involvementin the Crip gangor his desire to prove
himself as a criminal was relevantat the penalty phase. It was not. Evidence
regarding the extent of appellant’s gang involvementor his desire to prove
himself as a criminal did not constitute permissible aggravating
circumstances under Penal Code section 190.3 and did not rebut any
mitigation offered by the defense.
First, evidence regarding the extent of appellant’s gang involvement
and his desire to prove himself as a criminal did not come within any of the
statutory aggravating factors under 190.3 and therefore the photograph was
not admissible underthis theory as proper aggravating evidence. (People v.
Boyd, supra, 38 Cal.3d at pp. 775-776.) The capital crime was not gang-
related. (SRT 2117.) Indeed, during the guilt phase, the trial court broadly
ruled that all gang evidence wasirrelevant and inadmissible because there
was no gang angle to the case. (SRT 2116-2118; 16RT 6791-6792.) The
court admitted gang evidenceat the penalty phase only because twoofthe
three instances of prior criminal activity admitted under 190.3(b) were
gang-motivated. (13RT 4523; 32RT 11437-11440.) The court ruled that
evidence of appellant’s gangaffiliation could be admitted to show the
motivation for these two aggravators. (32RT 11437-11439.)
In the Rigsby incident, Harold Rigsby, who identified himself as a
memberofthe Broderick Boysstreet gang, testified that he was assaulted
by six juveniles, including appellant, who identified themselves as Crips
and asked him what he was doingin their hood. (33RT 11689, 11691,
11709-11711, 11714, 11728.) In the Moten incident, William Akens
testified that he and appellant were running buddiesin the “Freeport Crips”
and they threatened and shot at Zeke Moten because he wasa “gang banger
310
—an individual wholeft the Crips to join another gang, the Bloods. (33RT
11748-11755, 11758, 11788)
Once appellant’s gang membership was established and the gang-
motivation for the two aggravators was established by Rigsby’s and
Akens’s testimonies, the extent of appellant’s involvementin the Crip gang
and his desire to prove himself as a criminal wereirrelevant. His gang
involvement and criminal desires were not at issue and demonstration of
either was not necessary to prove the gang motivation for the Rigsby and
Moten aggravators.
Thetrial court’s ruling that the photograph was “relevantto the
whole issue that now has been developed in the penalty phase as to what
level the defendant was involved in gangs or wanted to be a gang member,
wanted to prove himself or already was before he came to Sacramento or
only after he came to Sacramento” (35RT 12302) ignores the fact that
appellant’s gang’s status was admissible only to prove the motivating basis
for the two prior acts introduced under 190.3(b). It also ignores the fact
that, as discussed above and below,appellant, himself, did not dispute his
gang membership and readily acknowledgedhis desire to prove himself as
gang member.It was the prosecution whoelicited testimony from
appellant’s family members denying appellant’s gang membership. As
demonstrated above, however, the State cannot manufacturea basis for
admitting rebuttal evidence by this means.
Second, the photograph was not relevant underthis theory to rebut
any mitigation offered by the defense. To be admissible, rebuttal evidence
must be specific and responsive to evidence presented by the defense. (3
Witkin, Cal. Crim. Law (4ed. 2012) Punishment, § 551, p. 891.) In
particular, “the scope of [penalty phase] rebuttal must be specific, and
311
evidence presented or argued as rebuttal must relate directly to a particular
incident or character trait defendant offers in his own behalf.” (Peoplev.
Rodriguez (1986) 42 Cal.3d 730, 792, fn. 24; accord, People v. Jones
(1998) 17 Cal.4" 279, 307.) A defendant whoplaces his character in issue
by presenting mitigating evidence opensthe dooronly to “prosecution
evidence tending to rebut that ‘specific asserted aspect’ of [his] character.”
(People v. Mitcham (1992) 1 Cal.4"" 1027, 1072; see also In re Jackson
(1992) 3 Cal.4" 578, 613, disapproved on anotherpointby Jn re
Sassounian (1995) 9 Cal.4" 535, 545, fn. 6 [penalty phase rebuttal cannot
“go beyond the aspects of the defendant’s background on which the
defendant has introduced evidence”]; United States v. Winston (D.C. 1971)
447 F.2d 1236, 1240 [the “opening the door” doctrine “is designed to
prevent prejudice andis not to be subverted into a rule for injection of
prejudice”].)
Here, appellant made noeffort to show that the Rigsby and Moten
aggravating circumstances were not gang-related or motivated. In fact,
during defense counsel’s cross-examination of Akens, he asked several
questions regarding Akens’s dress and mannerof walkingto establish that
Akens was a gang member, asked whether Moten’s problem wasthat he
was a gang buster — a traitor who busts out of one gang and joins another--,
and elicited details demonstrating the gang motivation for the assault on
Moten.”! (33RT 11755-11758, 11787-11788.) Appellant offered no
2 Defense counsel questioned Akens aboutsticking his feet out the car
window to show Motenthe blue color (the color worn by Crips) ofhis
tennis shoes to inform Moten that they were coming back to get him and
yelling “What’s up cuz?” because “cuz”refers to a Crip gang member.
(33RT 11787-11788.) Appellant’s counsel then asked: “So you guys were
yelling out gang stuff here in front of the bus stop, broad daylight, and
312
evidence at the penalty phase to rebut these two incidents.’* Nor did he
present any evidence to deny or minimize his involvementin the Crip gang.
To the contrary — as noted above, his own defense expert testified that
appellant was 100% committed to the gang, he wastrying to prove himself
as a gang memberto older gang members,and heparticipated in gang
activities in Los Angeles and Sacramento. (33RT 12040, 12086, 12088-
12089, 12096, 12099-12100, 12106, 12110, 12115, 12129.) During his
cross-examination of Akens, defense counsel attempted to establish that a
youngster (John Hodges’s nickname for appellant) is a “wannabe” whois
trying to make a namefor himself, to prove himself, and get into the gang
ranks. (33RT 11762.)
you’ re trying to let Zeek know,hey, you don’t appreciate this guy cutting
around and going out with Bloods, right?” .. . “And you were going to take
him out.” (/d., at p. 11788.)
2 Defense counsel asked no questions of Harold Rigsby (33RT
11704) and merely questioned an officer regarding the accuracy of
Rigsby’s identification of appellant’s photograph and the extent of Rigsby’s
injuries. (/d., at pp. 11715-11727.) Counsel’s cross-examination of Akens
established that Akens was a memberof the Crip gang and the threat to and
attack on Moten was gang-related; Akens did not actually see appellant
shoot at Moten but merely assumedhe did so; and Akens committed other
assaults. (/d., at pp. 11755-11761, 11789-11791.) Counsel also attempted
to establish through his questioning of Akens that the Hodges brothers were
older, established members of the Bloods (another gang); it would not be
unusual for established members of one gang to use a younger member of
another gang, such as appellant, to commit a crime; a younger gang
memberattempting to rise in the ranks of the gang would commit a crime
for more sophisticated members of another gang to gain morestatus; and an
older, more established gang member could control whether a younger
gang membertestified in court. (/d., at pp. 11761-11778.)
313
Because the evidence concerning the extent of appellant’s
involvement in the Crip gang and his desire to prove himself as a criminal
did not constitute permissible aggravating circumstances under section
190.3, was not relevant to prove the motivation for the aggravating
aggravators --the only purpose for which gang evidence was admitted--,
and did not rebut any mitigation, the admission of the photograph cannot be
justified underthis theory.
Notably, the State makes no attempt to justify admission of the
photograph onthe basis ofthetrial court’s second reasonforits ruling —
that the photograph wasrelevantto rebutting the defense argumentthat
appellant was manipulated and coerced by the Hodges to shoot McDade.”
Respondent does not even address appellant’s argumentthat the photograph
of appellant and Akens joking around and pointing gunsat each other had
no relevanceto establishing that appellant had previously considered
robbing andkilling McDade or was receptive to doing so. (See AOB 586-
587.) The lack of any response to this argumenteffectively concedes the
issue. (See People v. Bouzas (1991) 53 Cal.3d 467, 480 [respondent's
failure to engage arguments operates as concession]; California School
Employees Assn. v. Santee School Dist. (1982) 129 Cal.App.3d 785, 787
2 Asstated by the court:
This photograph lendsitself to the argument that [appellant]
wasreceptive to do such things on other occasions. Whether
he’s joking or what the whole purposeofthe photographisit
shows him holding a gun to somebody’s head and laughing.
Andit can lend itself to the argument that the defendant had
considered doing such a thing previously.
(35RT 12305.)
314
["[T]he district apparently concedesbyits failure to address this issuein its
appellate brief. . ."].)
Respondent does argue that the photograph was admissible to prove
appellant was violent and callous. (RB 268.) According to respondent, the
photograph “has some tendency to suggest that appellant was a violent and
callous person” becauseit “showed appellant putting a gun to someone’s
head.” (/d., at p. 271) However, this argumentfails for the same reason that
doomedthe court’s theory. The photograph of appellant and Akens
laughing and holding gunsto each other’s heads simply has no relevance to
establishing that appellant was violent and callous. The relevancytest for
determining whetherthe proffered evidence has “any tendency in reason”
to prove or disprove a disputed factis “one of logic, reason, experience,
reasonable inference, and commonsense.” (Jefferson, Cal. Evidence
Benchbook, supra, § 21.3, p. 501.) “If the inference of the existence or
nonexistence of a disputed fact which is to be drawn from proffered
evidenceis based on speculation, conjecture, or surmise, the proffered
evidence cannot be considered relevant evidence.” (/d., at p. 502, emphasis
in original.) It is speculative and conjectural to draw an inference, from this
facetious, adolescent, non-threatening display, that appellant was violent or
callous. The trial court rejected the prosecution’s argumentthatthis
photograph displayed a threat of violence, because appellant and Akens
were laughing and goofing around in the photograph. (13RT 4520-4521.)
As explained in People v. Henderson (1976) 58 Cal.App.3d 349, 360, an
individual’s possession of loaded guns does not support a reasonable
inference of intent to commit assault with a deadly weapon.
Respondent disputes the application of Henderson here, contending
that the photo “depicted much morethan possession ofa gun. . . “[It]
315
showed the extent of appellant’s involvementin the Crips, was relevant to
his desire to prove himself as a criminal, and had some tendency to suggest
that he was a violent and callous person.” (RB 270-271.) Appellant has
already explained that the extent of appellant’s involvementin the gang or
his desire to prove himself as a criminal wasnotrelevant, since neither
constituted permissible aggravating circumstances, nor rebutted any
mitigation offered by the defense. Henderson refutes respondent’s third
reason — that the photo had sometendencyto suggest that appellant was
violent and callous. The point ofHendersonis that intent cannotbe inferred
merely from an individual’s possession of loaded guns. (Peoplev.
Henderson, supra, 58 Cal.App.3d at p. 360 [“Neither logic, experience,
precedent nor commonsense supports the proposition that, from the
possession in one's homeoftwo loaded guns, a reasonable inference may
be drawnthat the possessor has an intent to commit the crimeof an assault
with a deadly weapon.’] As stated by Henderson, any inference of intent to
use the guns to assault anotheris “purely one of sheer speculation - the
antithesis of relevancy.” (/bid., emphasis in original.) Because the
photograph wasirrelevant to establish that appellant was violent and
callous, the trial court had no discretion to admitit. (Jefferson, Cal.
Evidence Benchbook,supra, § 21.4, at p. 548 [Any evidence which leads
to speculative and conjectural inferencesin irrelevant and inadmissible.”’];
People v. Turner (1984) 37 Cal.3d 302, 321,overruled on another ground
by People v. Anderson (1987) 43 Cal.3d 1104, 1115 [there is no discretion
vested in a court to admit irrelevant evidence.”].)
Accordingly, none of the theories advancedby either the court or the
State support the court’s admission of the photograph. Moreover, as argued
in the opening brief, the court’s second theory of relevance is unacceptable
because it requires resort to impressible propensity reasoning. (See AOB
316
588; McKinney v. Rees (9Cir. 1993) 993 F.2d 1378, 1380-1381; People v.
Riser (1956) 47 Cal.2d 566, 577, disapproved on another ground by People
v. Morse (1964) 60 Cal.2d 631, 648-49.) The State responds that the
photograph was evidence of more than just propensity: “it was admissible
as penalty phase evidence tending to show appellant’s involvementin the
Crips, his desire to prove himself as a criminal, and had sometendencyto
suggest that appellant was a violent, callous person.” (RB 271-272.) But as
demonstrated above, the extent of appellant’s involvementin the Crips was
not at issue and was not a statutory aggravator nor proper rebuttal to any
mitigation presented at the penalty phase, and the second tworeasonsare
nothing more than propensity inferences based on appellant’s and Akens’s
mocking display of weapons.
Respondent next argues that the general rule against propensity
evidence does not apply here becauseit was designed to protect defendants
against unfair determinations of guilt and this propensity evidence was
introduced during the penalty phase. (RB 271.) Respondentprovides no
analysis or supporting authority for this contention; it only observes that the
two propensity cases discussed in appellant’s opening brief (McKinney v.
Rees, supra, and People v. Riser, supra) concerned guilt-phase issues.
([bid.) Respondent’s failure to provide any analysis or supporting authority
waives this argument on appeal. (People v. Barnett (1998) 17 Cal.4th 1044,
1107, fn. 37 [“As this contention is perfunctorily asserted without any
analysis or argument in support, wereject it as not properly raised”);
accord, People v. Bonin, supra, 47 Cal.3d at p. 857, fn. 6; see also
Associated Builders & Contractors, Inc. v. San Francisco Airports
Comm'n. (1999) 21 Cal.4th 352, 366, fin. 2 [“[Appellant] fails to provide
any analysis or argumentin support of the assertion, which, forthis
additional reason, is not properly raised.”]; 9 Witkin, Cal. Proc. 5th (2008)
317
Appeal, § 701, p. 769 [‘[E]very brief should contain a legal argument with
citation of authorities on the points made. If noneis furnished on a
particular point, the court maytreat it as waived, and pass it without
consideration.”|.)
In any event, respondent overlooks that although the photograph was
admitted during penalty phase, its admission wastied to guilt-phase issues.
The theory for the photograph’s admission wasthat it proved statutory
ageravating factors under 190.3(a) and (b), not that it rebutted good
character evidence. The photograph was offered and admitted to prove the
gang motivation for the Rigsby and Motenassaults introduced as uncharged
prior acts of violence under 190.3(b) and to rebut appellant’s defense to the
capital murder that he was coerced to commit it by the Hodges’s brothers.
The issue upon which this evidence was admitted was appellant’s guilt of
these two unchargedprior acts and the capital crime, not appellant’s good
or bad character. Thus, even if respondent s unsupported assertion that the
rule against propensity evidence applies only to guilt-innocence evidenceis
correct, it does not negate appellant’s argument that admissionofthis
erroneouspropensity evidence violated the Due Process Clause.
Here, as in the cases cited in appellant’s opening brief, McKinney
and Riser, in order to prove that appellant committed the assaults on Rigsby
and Moten and committed the capital offense on his own accord, the State
used the photograph as character evidence to show behaviorin
conformance therewith, or propensity. Respondent attempts to distinguish
McKinney and Riser on the basis that the evidenceat issue in those two
cases was merely bad-character or propensity evidence, whereas the
demonstration of “appellant’s involvement in the Crips, his desire to prove
318
himself as a criminal,” and his “violent, callous” nature, was more than just
propensity evidence. (RB 271-272.) Respondent is wrong.
In McKinney, where the victim’s injuries were inflicted with a knife,
the trial court admitted evidence of the defendant’s possession of a knife
which could not have been usedin the crime, that he was proud ofhis knife
collection and on occasion strapped a knife to his body, and that he used a
knife to scratch the words “Death is His” on his door. (McKinney, v. Rees,
supra, 993 F.2d at pp. 1381-1382.) On review,the Ninth Circuit reasoned
that the only inference that could be drawn from the defendant’s possession
and wearing of a knife was that because the defendant previously owned
and wore a knife, he was the type of person who would own a knife, and
hence he owneda knife at the time of the commission of the offense. (/d., at
pp. 1382-1383) The Court also reasoned that the only inference to be drawn
from the defendant’s message on his door wasthat he had a fascination
with death and knives and therefore was more likely to have committed a
murder with a knife. (/d., at p. 1383.) The Court thus concluded that this
evidence of “other acts” was not relevant to a fact of consequenceto an
element of the crime, such as opportunity, and was probative only of
character. (/d., at pp. 1382-1384.)The Court condemned this use of
character evidence to show behavior in conformancetherewith, findingit
violative of the Due Process Clause. (/d., at p. 1385.)
Similarly, in Riser, this Court held that admission of a defendant’s
possession of weaponsthat could not be the instrumentality of the crimeis
inadmissible, because “such evidence tends to show,not that he committed
the crime, but that he is the sort of person whocarries deadly weapons.”
(People v. Riser, supra, 47 Cal.2d at p. 577.)
319
The rationale of these two cases condemning the admission of bad
character evidence, which is relevant only to show a defendant’s propensity
to commit the crime,is applicable here. The trial court admitted the
photograph as relevant to prove appellant’s commission of two uncharged
prior criminal acts and his sole culpability for the capital murder. However,
as demonstrated above, the photograph was not admissible to establish any
genuinely disputed fact of consequenceto either the two alleged assaults or
the capital crime; its only relevance was to show that appellant was a bad
person who belonged to a gang and possessed guns. Indeed,the State’s
alleged theories for the photo’s relevance — to show howinvolved appellant
wasin the gang,his desire to prove himself as a criminal, and his callous
and violent nature — are clearly theories based on the use of character
evidence to show propensity to commit criminal acts. The only inference to
be drawn from the photograph,as clearly acknowledged bythe State, was
that because appellant is a callous, violent gangster, who wanted to be a
criminal, he was the type of person who would commit the Rigsby and
Moten assaults and the capital murder. Hence, the propensity reasoning at
issue in McKinney and Riseris directly applicable here and respondent’s
feeble attempt to distinguish McKinney and Riser mustbe rejected.
In conclusion, contrary to respondent’s contentions, the trial court
had no discretion to admit the photograph becauseit had no relevanceto
any disputed fact of consequence, did not constitute proper rebuttal, and
constituted impermissible propensity evidence.
2. Even If The Photograph Had Any Probative Value,Its
Probative Value WasSo Slight And [ts Potential For
Prejudice So Great, That The Court Abused Its 352
Discretion By Admitting The Photograph.
320
Moreover, even if the photograph had some probative valueto
establish appellant’s gang status, it should have been excluded under
Evidence Code section 352, since its relevancy was outweighedbyits
prejudicial effect. The photo was both inflammatory and cumulative of the
substantial testimony establishing appellant’s gang involvement. In the
opening brief, appellant cited several cases for the well-settled rule that
admission of cumulative evidence of gang-affiliation constitutes an abuse
of discretion. (People v. Cardenas, supra, 31 Cal.3d at pp. 904-905; People
v. Bojorquez, supra, 104 Cal.App.4" at p. 342; People v. Albarran, supra,
149 Cal.App.4" at pp. 225-232; see AOB 585-586.) Respondent attempts to
factually distinguish these cases (RB 269-270); however, the principles
they stand for are goodlaw.
Moreover, respondent’s attempted factual distinctions are without
merit. Respondent argues that Cardenasis distinguishable becausethere,
the facts for which the gang evidence was admitted had already been
established by other testimony, whereas here “the photo hadsignificant
probative value to rebut evidence presented in the mitigation case that
downplays appellant’s gang involvement.” (RB 269.) Not so. Appellant’s
mitigation case readily acknowledged his gang involvement; it was the
prosecution whoelicited the understandable denials by appellant’s family
members and, as established above, the prosecution cannotelicit such
evidence andthen useit as a basis to introduce prejudicial evidence to
prove an issue which the defense does not dispute.
Respondentattempts to distinguish A/barran on the samebasis,
arguing that unlike there, where the prosecution introduced inflammatory
gang evidence “which hadlittle or no bearing on any issuerelating to
Albarran’s guilt on the charged crimes and approached overkill,” the photo
321
in this case “was relevant and probative.” (RB 269-270.) But, as established
in the opening brief and above,the photo wasnotrelevant or probative,
especially at the penalty phase ofthetrial.
Respondentalso arguesthat this case is distinguishable from
Albarran and Bojorquez, because in those cases, the issue wasguilt,
whereasin this case, the issue was penalty — appellant’s guilt had already
been established. (RB 270.) Again, respondent is wrong. The issue here
was guilt — appellant’s guilt or innocence ofthe prior criminal activity
admitted under 190.3(b) and his sole culpability for the capital offense.
Respondentfinally attempts to distinguish A/barran and Borjorquez
on the basis that “the lone photo of appellant and Akens was not equivalent
in type or quantity to the inflammatory evidence proffered in those cases.
(RB 269-270.) Albarran involved the admission of evidence identifying
the defendant as a gang member, descriptions of his gang involvement,
moniker, and tattoos, including a reference to the Mexican Mafia, as well as
descriptions of the criminal activities of other gang members and a
reference to the gang’s graffiti which included a threatto kill police
officers. (Albarran, supra, 149 Cal.App.4"at pp. 220-221.) Borjorquez
involved the admission of gang expert testimony identifying the defendant
as a gang memberand generally describing the gang’s criminalactivities.
(Bojorquez, supra, 104 Cal.App.4"at pp. p. 342-344.)
Respondentarguesthat the photo in this case did not describe the
gang’sactivities or ascribe that conduct to appellant. (RB 270.) The State
ignores, however, the age-old adagethat “one picture is worth a thousand
words,” as well as the image depicted in that “lone photo” of appellant and
gang-banger Akens smirking, while holding guns to each other’s heads and
making gangsigns. This image waslikely burned into the memories of
322
each of the jurors during penalty deliberations. Moreover, unlike the
testimony oflive witnesses, this physical evidence was transportable into
the jury room during deliberations, where the jurors could examineit at
length.”* This photograph wasevery bit as inflammatory, if not more so,
than the gang evidence admitted in Albarran and Bojorquez, much of which
concerned other gang members, not Albarran or Bojorquez. As argued in
the openingbrief, this visceral image no doubttriggered the jurors’ fears,
many ofwhom had expressed concern during voir dire about gangs and
weapon use and expressed views of varying degreesthat racial minorities,
such as appellant and Akens, were more violent than people of the majority
race. (See AOB 589.)
Respondent’s only responseis that the jurors had just convicted
appellant of special circumstances murder and wereinstructed, pursuant to
the standard instruction given at every penalty phase (CALJIC 8.84.1), that
they must not be influenced by bias or prejudice against appellant, nor
swayed by public opinion or public feelings. (RB 272, citing 3CT 695 and
36RT 12625.) Such contentions are absurd, for they amount to a contention
that the erroneous admission of inflammatory evidence at penalty phase
could never be harmful in a capital case. The Court, however, has
recognized just the contrary — that the admission of inadmissible evidence,
especially that which relates directly to the character of the defendant,is
rarely harmless. (People v. Hamilton (1963) 60 Cal.2d 105, 137,
disapproved on another ground by People v. Daniels, supra, 52 Cal.3d 815
[Penalty phase errors whichrelate directly to the character and background
of the defendant reasonably have a tendency to mislead the jury and thusit
74 The photograph, along with the other penalty phase exhibits, was
delivered to the jury during its penalty deliberations. (36RT 12647.)
323
is reasonably probably that had they not occurred, a different sentencing
decision may have been reached.].) In Hamilton, where inadmissible
evidence was admitted and the prosecutor committed misconduct but there
was also ample evidenceto justify the jury in imposing the death penalty
(the evidence of guilt was overwhelming and the defendant had a bad
character and long line of previous convictions), this Court stated:
Where, as here, the evidence of guilt is overwhelming, even
serious error cannotbesaid to be such as would, in reasonable
probability, have altered the balance between conviction and
acquittal. But in determining the issue of penalty, the jury, in
deciding between life imprisonment or death, may be swayed
one wayorthe other by any piece of evidence. If any
substantial piece or part of that evidence was inadmissible,or if
any misconductor other error occurred, particularly where, as
here, the inadmissible evidence, the misconduct and other
errors directly related to the character of appellant, the
appellate court by no reasoning process can ascertain whether
there is a “reasonable probability” that a different result would
have been reachedin the absenceoferror. If only one ofthe
twelve jurors was swayed bythe inadmissible evidence or
error, then, in the absence of that evidenceorerror, the death
penalty would not have been imposed. What mayaffect one
juror might not affect another. The facts that the evidence of
guilt is overwhelming,as here, or that the crime involved was,
as here, particularly revolting, are not controlling. This being
so it necessarily follows that any substantial error occurring
during the penalty phaseofthetrial, that results in the death
penalty, since it reasonably may have swayed a juror, must be
deemed to have been prejudicial.
(People v. Hamilton, supra, 60 Cal.2d at pp. 136-37.)
Asaptly stated by one California court, “Surely there is a line
between admitting a photograph whichis of somehelp to the jury in
solving the facts of the case and one whichis of no value other than to
324
inflame the minds of the jurors." (People v. Redston (1956) 139 Cal.App.2d
485, 491.) That line was crossed here. The photograph wasnot relevant to
any disputed issues, was cumulative of other evidence, and did not
constitute proper rebuttal. Given the prosecutor’s repeated attempts to
introduce the photo (see AOB 595), his refusal to accept a defense
stipulation regarding appellant’s gang involvement,his circulation of the
photo amongthe jurors as soon as it was admitted (35RT 12327, 12329-
12330), and his use of the photograph during penalty argument to compare
appellant to an animal (36RT 12609), it is apparent that the purposeofthis
evidence wasto inflame and prejudice the jury.
B. Detective Aurich’s Main Player Testimony
In the openingbrief, appellant argued that the court erred in
admitting Detective Aurich’s opinion testimony that appellant was a
sophisticated criminal and a gang leader who promoted his gang and was
involved in gang crimes, because of lack of foundation. (AOB 590-593.)
Asdiscussed below, because Detective Aurich provided no information
regarding the source of his information, his testimony wasnot admissible as
opinion testimony and instead constituted inadmissible hearsay. And as also
argued in the opening brief, his opinion testimony, given without adequate
explanation or identification of its sources, hadlittle, if any, evidentiary
value andthe trial court should have excluded it under Evidence Code
section 352. (AOB 592-593.)
The State offers two responses: (1) appellant has forfeited this claim
because he did not object on 352 groundsat trial; and (2) Detective
Aurich’s testimony was admissible as reputation evidence. Appellant
disagrees.
325
1. Forfeiture
Although appellant objected to the admission of Detective Aurich’s
testimony that appellant was a main player, respondent arguesthat this
claim is forfeited, becausetrial counsel did not make the sameexact points
as appellant makes on appeal. (RB 273-274.) Respondentarguesthattrial
counsel did not specifically invoke Evidence Code section 352, nor object
on grounds of hearsay or Detective Aurich’s lack of personal knowledge.
(Ibid.) As acknowledged by respondent, appellant objected as follows:
Q. As —as a detective in gangs, did you — did you
recognize the name Carl Powell when this — whenthis shooting
came up?
A. Yes, I did.
Q. Andhowisit that you recognized Carl Powell’s
name?
A. Whenthat area —
MR. HOLMES:Objection. [4] Relevance. [{] And
your one of yourprior rulings as well.
THE COURT: I will overrule the objection. I'll sustain
it as to the form of the question. [§]] Do you wantto put a
question to the witness concerning reputation? [{] You may
do so.
MR. MAGUIRE: Okay, Your Honor.
THE COURT:But I — otherwise I overrule the objection
to that extent.
(33RT 11809.)
Respondent acknowledges that defense counsel wasreferring to the
court’s prior ruling on the admissibility of gang evidence but contendsthat
this reference wasnot a sufficient invocation of Evidence Codesection 352.
326
(RB 273) Respondent argues that defense counsel did not recall the court’s
ruling correctly, the court did not cite Evidence Code section 352, and thus
counsel’s referenceto the prior ruling was not a sufficient invocation of
352. Respondent’s argumentis based on a myopic examination ofthe
record. An examination of appellant’s objections to admission of gang
evidence, and the court’s prior rulings, demonstrates that respondentis
wrong.
During in limine motions, appellant moved to preclude admission of
any gang evidence regarding him or the Hodgesbrothers. (SRT 2116.) The
court denied the prosecution’s request to impeach appellant with evidence
of his gang involvement and excluded gang evidence during the guilt phase,
because the capital crime was not gang-related. Ud., at pp. 2116-2118.)
Also prior to the guilt phase, the parties litigated appellant’s motion
to strike two gang activity aggravators noticed by the prosecution. (2CT
401, 407-409; 13RT 4517-4523.) Appellant asked the court to deny the
prosecution’s request to introduce, as aggravating circumstances, evidence
of appellant’s “background andhistory of gang activities” and the
photograph of appellant and Akens. (/bid.) The prosecutor agreed that the
“backgroundandhistory of gang activity” aggravator was not admissible as
a circumstance in aggravation and thus agreedto strike it. (13RT 4521-
4522.) The State argued, however, for admission of the photograph under
190.3(b) as evidence of a threat of violence. (/d., at pp. 4520-4521.) The
trial court rejected that argument and preliminarily granted the defense
motion to strike the photograph,stating:
It apparently depicts membership, arguably, membership in a
gang and arming by the gang in that membership. It doesn’t
otherwise focus on any specific incident of a threat or force or any
specific victim or any other specific criminal purpose.
327
(13RT 4521.) In responseto appellant’s renewed objection to the admission of
any gang referencesattrial, including the penalty phase, the court ruled thatif
any ofthe three instances ofprior criminal activity was gang-related, gang-
involved, and/or gang-motivated, evidence of such would be admissible. (/d., at
p. 4523.)
Subsequently, during the guilt phase, thetrial court reiterated its
ruling excluding gang evidenceat that phase. (16RT 6791-6794, 6798;
17RT 6822-6823.) It agreed with counsel that there be “no mention of
gangs” (16RT 6791-6792) and “no reference to gang[s]” (17RT 6822-6823)
unless the matter wasfirst litigated outside the jury’s presence and the court
found that the probative value of the evidence outweighedits potential for
prejudice. (16RT 6799-6800; 17RT 6801, 6803, 6822-6823).
Before the start of the penalty phase, the parties again discussed the
issue of the introduction of evidence concerning appellant’s gangaffiliation
in regards to the Moten incident. (32RT 11436-11437.) Defense counsel
asked the court to follow its previous ruling precluding admission of any
gang-related evidence(id., at p. 11437) and to exclude admission of the
Moten incident, because admission of evidence concerning that incident
might very well result in the endless admission of gang-related activity.
(bid.) The Court responded that it rememberedruling that gangaffiliation
was not “per se included with the factors in aggravation,” but then ruled
that “if a defendantin a capital case is, arguably, gang-affiliated, and that
gangaffiliation results in a threat of violence and an act of violence, and the
People are allowed to present that evidence properly undera factor in
aggravation, ..., the fact that it happened to be have been motivated by
some gangaffiliation is necessarily relevant and admissible, and... the
328
arguedprejudice is outweighed by the probative value.” (32RT 11438-39,
emphasis added.)
Thereafter, during redirect of Robert Visnick, the high school
teacher whotestified regarding the threat to Zeek Moten, appellant objected
on hearsay grounds when Mr.Visnick blurted out that he learned that the
incident was gang-related. (33RT 11665.) The court sustained the hearsay
objection and admonishedthe jury to disregard the answer. (/bid.) When
the prosecutor asked for an opportunity to establish Visnick’s response on a -
nonhearsaybasis, a discussion washeld outside the jury’s presence.(/d., at
pp. 11665-11666.) Defense counselstated:
Your Honor, as the Court well knows,since this trial has
started, I have made every effort to try to keep out any
reference to gang-related incidents or gangaffiliations or
anything like that, and counsel has pretty well complied with
that throughthefirst part of the trial. And everything has
happenedsince westarted the second phase; he’s been trying
to open this up. And other than object -- And I don’t wantto
make any speaking objections infront ofthe jury, so Ijust want
the Court to know that I’m making an adamantobjection to
any attempt on counsel’s part to get into the gang-related
incidents.
(33RT 11666, emphasis added.) The court responded that it had previously
ruled that if a circumstance in aggravation happenedto be gang-related,
evidence establishing such would be admissible. (U/d., at pp. 11666-11667.)
Asstated by the Court: “If the foundation can be laid and this witness can
testify, other than through hearsay,that this incident was gang-related,that
would be relevant to the threat and admissible.”(/d., at p. 11667.)
After questioning Mr. Visnick outside the presence of the jury, the
Court sustained the defense objection, because it was clearthat his belief
329
that the incident was gang-related wasbased solely on hearsay. (33RT
11669.) The Court told the prosecutor that if he had other witnesses who
could testify to that, other than through hearsay, he would agreethat it was
“admissible, relevant and admissible.” (Jbid.) The prosecutor then inquired
whetherit could inquire through Visnick if he knew whether Zeek Moten
wasinvolved in gang activity based on reputation evidence. (33RT 11671.)
Defense counsel responded:“Soundslike you’re trying to getinto it
through reputation as a gang memberor something. I would thoroughly
object to that.” (/bid.) The court told the prosecutor that if Visnick could
establish that Moten, Akens, or appellant had some gangaffiliation on the
basis oftestimony that qualified as an exception to the hearsay rule, such as
a declaration against interest, he could present such evidence, but testimony
that Moten told Visnick that Akens and Powell were members of some
other gang was just “rank hearsay.” (33RT 11671-11672.)
As this record demonstrates, appellant madeit quite clear that he
adamantly objected to admission of any evidence of his gang membership,
involvement, or activities during both phasesofthe trial. He objected on
relevance and foundational (including hearsay) grounds. The record also
demonstrates the trial court’s understanding that appellant was objecting on
352 grounds to the introduction of any gang evidence, as evidenced by the
Court’s ruling that no mention of gang evidence would be permitted unless
the matter wasfirst litigated outside the jury’s presence and the court found
that the probative value of the evidence outweighedits potential for
prejudice. This understanding wasalsoillustrated by the Court’s ruling
permitting admission of evidence of the gang-motivation for the Rigsby and
Moten aggravating circumstances, because “the argued prejudice [was]
outweighed by the probative value.” (32RT 11438-39.)
330
As noted in previous arguments, to preserve for review a claim that
evidence was erroneously admitted, a party must makea timely and
specific objection. (Evid. Code, § 353(a).) “While no particular form of
objection is required [citation], the objection must be made in such a way as
to alert the trial court to the nature of the anticipated evidence and the basis
on which exclusion is sought, and to afford the People an opportunity to
establish its admissibility. [Citations.] [§] .... The circumstances in which an
objection is made should be considered in determiningits sufficiency.
[Citations.]” (People v. Williams (1988) 44 Cal.3d 883, 906-907 [where
prosecutor’s opening statement had already madeclear the nature of the
“other crimes” evidence, defense counsel’s “relevance” objection was
deemedsufficient to put court on notice to determine admissibility under
Evid. Code § 1101 standards for other offenses].)
“An objection is sufficient ifit fairly apprisesthetrial court of the
issue it is being called upon to decide. [Citations.] In a criminal case, the
objection will be deemed preserved if, despite inadequate phrasing, the
record showsthat the court understood the issue presented, [Citations.|”
(People v. Scott (1978) 21 Cal.3d 284, 290.) Moreover, even if a defendant
does not mention a ground for objecting to evidence (here, hearsay), but the
court rules the statements are not hearsay, the defendant has not forfeited
the hearsay objection: “[t]he issue of whether the caller's statements were
hearsay wasraised and ruled uponbythetrial court; a more specific
objection would have been superfluous.” (People v. Morgan (2005) 125
Cal.App.4" 935, 940; People v. Dang (2001) 93 Cal.App.4th 1293, 1299
[Counsel made no 352 objection whenthe testimony waspresented, but
court later stated that it understood that a 352 objection had been raised and
that the objection had been overruled; in light of court’s treatment of the
issue, reviewing court deemed 352 issue preserved for appeal].)
33]
Here, defense counsel’s referenceto thetrial court’s previous gang
rulings was a sufficient invocation of 352. Just as the defendant’s relevance
objection in Williams was deemedsufficient to put the court on notice to
determine admissibility under 1101 where prior statements by the
prosecutor had madeclear that the evidence in question was “other crimes”
evidence, appellant’s reference to the court’s prior gang rulings was
sufficient to put the court on notice to determine admissibility under
Evidence Code section 352 where the court’s prior rulings indicated that
such an analysis was necessary before it could admit any gang evidence.
(People v. Williams, supra, 44 Cal.3d at pp. 906-907.) It is also clear, from
the court’s prior rulings on gang evidence,that it understood appellant’s
objection to the admission of any gang evidence to encompassa 352
objection.
Respondent arguesthat this reference to the court’s prior ruling was
not a sufficient invocation of 352, because defense counsel did notrecall
the ruling correctly. (RB 273.) Respondent points out that the court did not
exclude gang evidenceat the penalty phase. (/bid.) This argumentis
nothing more than a red herring. The court made several rulings regarding
the admission of gang evidence: (1) it ruled it inadmissible during the guilt
phase becausethe capital crime wasnot gang-related; (2) it ruledit
inadmissible as a circumstance in aggravation; (3) it ruled that the gang
motivation for the Rigsby and Moten aggravating circumstances could be
introduced. Regardless of whether the court admitted or excluded the
evidence, the commonbasis for all of these rulings was the court’s
determination that the probative value of the specific gang evidenceat issue
outweighedits potential for prejudice. As noted above, when appellant
objected to the admission of any gang evidence duringthetrial, thetrial
court madeit clear that it would not admit such evidence unlessit first
332
determined that the probative value of the evidence outweighedits
relevance.
Respondentalso argues that appellant’s reference to the court’s prior
ruling was not a sufficient invocation of Evidence Code section 352,
because the court did not cite 352. (RB 273-274.) But this Court has never
required an express recitation of 352 in order to satisfy the requirement that
the record must affirmatively show thatthe trial court exercisedits
discretion under 352 by weighingthe prejudicial effect of challenged
evidenceagainst its probative value. On numerousoccasions,this Court has
stated that the necessary showing can be inferred from the record despite
the absence of an express statement bythetrial court. (People v. Prince
(2007) 40 Cal.4th 1179, 1237; People v. Padilla (1995) 11 Cal.4th 891,
924, overruled on another ground by People v. Hill (1998) 17 Cal.4th 800;
People v. Montiel (1985) 39 Cal.3d 910, 924.) Here, the court expressly
stated that it would admit gang evidence only if the probative value of the
evidence outweighed its potential for prejudice. Respondent’s contention
that this was not sufficient because the Court did not state “352” is specious
and should be rejected.
Accordingly, defense counsel’s objection referencing the court’s
prior ruling on the admissibility of gang evidence was sufficient to preserve
a claim that the trial court abused its discretion in failing to exclude
Detective Aurich’s testimony under 352. Moreover, this Court has held
that whena trial court exercises its discretion to admit bad character
evidence, such as other crimes evidence, to prove somerelevant fact such
as motive, opportunity, intent, preparation, plan, knowledge,or identity
under Evidence Codesection 1101(b), due to the substantial prejudicial
effect inherent in such evidence, “that discretion must in all cases be
333
exercised within the context of the fundamental rule that relevant evidence
whoseprobative value is outweighed byits prejudicial effect should not be
admitted.” (People v. Haston (1968) 69 Cal.2d 233, 246; see also
Jefferson, Cal. Evidence Benchbook,supra, § 33.6, p. 1203.) In People v.
Harrison, this Court stated:
Evidence Codesection 1101, subdivision (a), generally
prohibits the admission of a criminal act against a criminal
defendant “when offered to prove his or her conduct on a
specified occasion.” Subdivision (b), however, provides that
such evidence is admissible “when relevant to prove somefact
(such as motive, opportunity, intent, preparation, plan,
knowledge,identity...).” To be admissible, such evidence
“must not contraveneother policies limiting admission, such
as those contained in Evidence Code section 352.’ [Citation.]”
(People v. Ewoldt (1994) 7 Cal.4th 380, 404.) Under Evidence
Code section 352, the probative value of the proffered evidence
must not be substantially outweighed by the probability that its
admission would create substantial danger of undue prejudice,
of confusing the issues, or of misleading the jury.”
(People v. Harrison (2005) 35 Cal.4th 208, 229.)
Here, in admitting the bad character evidence of appellant’s gang
affiliations and activities as relevant to the motivation for the Rigbsy and
Motenassaults, the trial court was obviously awareof its responsibility to
perform a section 352 balancing of probative value against the danger of
undue prejudice. Appellant’s 352 claim has thus been preserved.
Respondentalso argues that appellant’s objection was insufficient to
preserve claims of lack of foundation or hearsay. (RB 274.) Notably,
shortly before the presentation of Detective Aurich’s testimony, when
defense counsel objected on hearsay grounds to Visnick’s testimony that he
learned the incident was gang-related, counsel made clear that since the
334
beginning of the trial, he had made every effort to exclude any reference to
gang evidence but did not want to “make any speaking objectionsin front
of the jury” other than to voice an objection. (33RT 11666.) The court
respondedthat evidenceestablishing that one of the aggravating
circumstances was gang-related would be admissible if a sufficient
foundation could be laid and the witness’s testimony was not based on
inadmissible hearsay. (/d., at p. 11666-11667, 11671-11672.) Accordingly,
here, too, defense counsel’s reference to the court’s prior rulings on the
admissibility of gang evidence wassufficient to alert the court to its
responsibility to determine there wasa sufficient foundation for Detective
Aurich’s testimony before admittingit. It was also clear, in light of the
court’s previous rulings, that it would not admit such gang evidence
without first determining this foundational issue. Moreover, the court’s
response to counsel’s objection, stating that it would sustain the objection
to the form of the question, but overrule the objection if the prosecutor
wanted to frame the question to elicit reputation evidence, evidences the
court’s understanding that counsel’s objection included foundational and
hearsay issues. (Jn re Wing Y. (1977) 67 Cal.App.3d 69, 78 [Reputation
evidence is made admissible by the Evidence Code as an exception to the
hearsay rule to prove limited issues, including evidence of bad character to
prove motive under section 1101]; accord, Jefferson, Cal. Evidence
Benchbook, supra, § 18.5, p. 433; see also Evid. Code, § 1100.)
Finally, even if this Court has some question whether counsel’s
objection wassufficiently specific to preserve the groundsraised here,’> it
15 Should this Court determine that counsel’s objection wasnot
adequate to preserve appellant’s claims on appeal, appellant contends, in
his petition for writ of habeas corpus, that counsel rendered ineffective
335
should assume that the issue is preserved and addressit on its
merits.(People v. Champion (1995) 9 Cal.4" 879, 908, fn. 6, overruled on
another point in People v. Combs (2004) 34 Cal.4th 821, 860 [When “‘the
question whether defendants have preservedtheir right to raise this issue on
appealis close and difficult, [the reviewing court] assume[s] that
defendants have preservedtheir right, and proceed to the merits.”]; accord,
People v. Bruner (1995) 9 Cal.4th 1178, 1183, fn. 5; People v. Wattier
(1996) 51 Cal.App.4" 948, 953.)
2. Detective Aurich’s Testimony That Appellant Was A
Main Player, a Gang Leader Who Promoted and Was
Involved in Gang Crimes, Did Not Constitute, and Was
Not Admissible as, Reputation Evidence; It was
Inadmissible Hearsay Evidence Based on Information
Solicited From Unidentified Sources.
In the openingbrief, appellant established that Detective Aurich’s
opinion that appellant was a sophisticated criminal and a gang leader who
promoted his gang and was involved in gang crimes wasinadmissible,
because of a lack of foundation. (AOB 590-593.) The case law discussed in
the opening brief holds that when an opinion, such as Detective Aurich’s,is
not based on matter personally knownto the expert, but depends on
information furnished by others, such opinion has no value unless the
source of the informationts reliable. (See People v. Gardeley, supra, 14
Cal.4" at pp. 618 [Of course, any material that formsthe basis of an
expert’s opinion testimony mustbereliable.””]; accord, | Witkin, Cal.
assistance. (PetHC, Claim VII(K), 426 [“[t]o the extent trial counsel were
required to object under Evidence Code section 352 as well, they rendered
ineffective assistance of counsel by failing to do so.”].)
336
Evidence (4th ed. 2000) Opinion Evidence, § 31, p. 561.) Because
Detective Aurich provided no information regarding the source of his
information, his testimony was not admissible as opinion testimony and
instead constituted inadmissible hearsay.”° (Evid. Code, § 801, subd. (b)
[Expert testimony is admissible only if based on matter of a type that
reasonably mayberelied upon by an expert in forminghis or her opinion];
Kelley v. Trunk (1998) 66 Cal.App.4" 519, 524 [Expert opinion, which
failed to disclose matter relied on in forming the opinion, was inadmissible;
“The required foundational showingthat the opinion rests on matters of a
type experts reasonably rely on is not made where,as here, the expert does
not disclose whathe relied on in forming his opinion.”]; Witkin, Cal.
Evidence, supra, § 36, p. 567 [Where the basis of the opinion is unreliable
hearsay, the courts will reject it.”]; People v. Pollock (2004) 32 Cal.4th
1153, 1172 [Trial court properly excluded expert opinion testimony which
would have been based on unreliable hearsay statements].)
The State does not attempt to defend the admission of Detective’s
Aurich’s testimony on the basisthat it constituted admissible opinion
evidence, thereby failing to overcome appellant’s showingthat the
testimony could not be admitted on that basis. (RB 274-276; see AOB 590-
593.) Respondent merely argues that Detective Aurich did nottestify as a
gang expert. (RB 274) According to respondent, Detective Aurich was not
expressing his own expert opinion that appellant was a “main player”;
"6 In the opening brief, appellant argued that this testimony should
have been excluded under Evidence Codesection 352, since the extremely
prejudicial opinion testimony, given without explanation or supporting
evidence, hadlittle, if any, probative value. (AOB 592-593.)
337
instead, he simply testified to appellant’s reputation in the community.
(Ibid.)
Reputation testimony, however, must be provided by witnesses who
know the individual’s reputation, not by outsiders conducting an inquiry. In
Orloffv. Los Angeles TurfClub (1951) 36 Cal.2d 734, 736-739, police
officers testified that they investigated the plaintiffs reputation and their
investigation disclosed that he was reputed to be a bookmaker and doing a
bookmaking business, that he was knownas a gamblerat the present time,
and his place of business was knownasa congregating place for
professional gamblers and bookmakers. This Court, in finding that alleged
reputation testimony was incompetent as hearsay and should have been
excluded, said:
“The testimony was not given by persons who knew the
defendant's reputation, but by witnesses whoinquired of others
as to the defendant's reputation. The rule is that evidence of
reputation when relevant may not be shown by witnesses
conducting an inquiry, but must be given by persons having
knowledgethereof.”
(Orloff, supra, at p. 739.) In Tingley v. Times Mirror Co. (1907) 151 Cal. J,
27, this Court explained the rationale for the rule that reputation testimony
must be provided by those with knowledge, rather than by outsiders
conducting an inquiry:
‘As general reputation consists of the estimation in which one
is held in the community in which heresides, it can only
properly and safely be testified to by a memberofthe
community;it is the opinion of a member of a community as to
the estimation in which another, who movesinit, is held
generally by that community. Such memberhas the means of
knowing what that general reputation is, and can properly
speak of it. It would be extremely dangerousto enlarge the
338
rule, so as to permit a stranger to a community, entering into it
with special bias against another (as this Boston witness
showedhe wasagainst plaintiff), to testify as to his opinion of
the reputation of that other, based upon an interview with a
limited numberof persons in the community, possibly equally
as prejudiced with himself. Under such circumstancesit could
not be said that he wastestifying from his knowledge of the
general reputation of the party, or that he was expressing his
own opinion on the subject. He would be butstating his
conclusion from the statements of others, derived from specific
inquiry—a conclusion which would amountto but hearsay
evidence at most.”
(Tingley, supra, at p. 27 [Holding that testimony of a community outsider
whotestified to the plaintiffs reputation after making inquiries of 20
persons constituted inadmissible hearsay].)
Here, Detective’s Aurich’s testimony that appellant was a main
player was not based on his own knowledge of appellant’s reputation in the
community, but based on his investigations as a gang detective. Detective
Aurich testified that he had been a gang detective for ten years and in that
position, his job was to investigate and identify gang members, gang
associates, people involved in gangactivity, and gangsets. (33RT 11803-
11804.) The detective further testified that he did not personally know
appellant but when he began investigating the Zeek Moten incident, he
learned that appellant was a Freeport Crip and was a main player. (/d., at
pp. 11809-11810, 11814-11815 [“The information I was receiving wasthat
[appellant] was a Freeport Crip and was a main player.”].) Detective
Aurich, who wasnot, himself, a member of the gang community, obviously
learned this information by questioning other individuals. As an outsider,
the detective was not competent to offer reputation evidence andhis
testimony did not constitute admissible evidence. Instead, it was nothing
339
more than hearsay based on solicited information from unidentifiable
sources.
Moreover, despite the court’s directive that Detective’s Aurich’s
testimony regarding appellant’s gang involvementbe limited to reputation
evidence and the prosecutor’s questioning on that basis (“what was Carl
Powell’s reputation in the community for gang activity as of 1991 — late
1991?”) (33RT 11809), Detective Aurich did not limit his answer to
reputation evidence and instead, on the basis of his expertise as a gang
expert, explained what it meant for appellant to be a “main player”:
Q. Based on yourten years of work as a detective in
gangs were you able to — were you able to determine what Carl
Powell’s reputation was in the community for gang activity?
A. Yes, I was.
Q. And what was Carl Powell’s reputation in the
community for gang activity as of 1991 — late 1991?
A. The information I was receiving was that he was
a Freeport Crip and was a mainplayer.
Q. What do you mean by a main player?
A. Main player — usually categorize gang members
into three different levels. Your wannabesare very — on the
peripheral endofthepie.
You’re (sic) more associates — they would hang around
gang — known gang members, might be involved in minimal,
related hardcore gang activity.
And then your main playersare little more hardcore,
gang members who promotetheir gang, be involved in gang
activity, be involved in gang related type crimes, be little
more blatant about whothey are and what they do.
340
Q. And would this be more sophisticated criminals?
A. Yes.
Q. And would they be the kind of people that would
be leaders rather than followers?
A. Yes.
(33RT 11809- 11810.)
Notably, when Detective Aurich wasfirst called to the stand, the
prosecution established his credentials as a gang detective. (33RT 11803.)
In establishing his credentials, the detective testified regarding his duties in
monitoring and investigating gang members and gangactivity. (/d., at pp.
11803-11803.) Detective Aurich was not asked as a citizen in the
community to testify regarding appellant’s reputation in the gang
community. Rather, he was asked to provide that information on the basis
of his “ten years of work as a detective in gangs.” (/d., at p. 11809.) In
other words, he was asked to provide this information on the basis ofhis
specialized knowledge andthat is exactly what he did. In so doing, he
testified to his opinions, based on conversations with unidentified sources,
that appellant was a main player, meaning that he wasa sophisticated
criminal and a gang leader who promoted his gang and committed gang
activities, as well as gang-related crimes. (See Evidence Code section
720(a) [“A person is qualified to testify as an expert if he has special
knowledge, skill, experience, training, or education sufficient to quality
himself as an expert on the subject to which his testimonyrelates.”].)
Respondent argues that the detective was not expressing his own
expert opinion that appellant was a main player, but was merely “reporting
on appellant’s reputation in the community.” (RB 274.) But, in explaining
to the jurors what or who a main player was, Detective Aurich was
341
certainly expressing his opinion based onhis specialized knowledge,
training, and experience as a gang expert. [See, e.g. People v. Champion,
supra, 9 Cal.4"at p. 924 [police officers are commonly used as an expert
witness to explain gang terminology]; accord, People v. Fudge (1994) 7
Cal.4th 1075, 1111; People v. Velasquez (1976) 54 Cal.App.3d 695, 699.)
Regardless of whether “main player” wasa label attached to appellant by
Detective Aurich on the basis of information he had received from
unidentified sources or was, instead, a label used by such sources, it was
Detective Aurich who, in his capacity as a gang expert, explained whatit
meantfor appellant to be labeled as such. And that was expert opinion
testimony, not reputation evidence. (See, e.g. People v. Cole (1956) 47
Cal.2d 99, 103 [decisive consideration in determining the admissibility of
expert opinion evidence is whether the subject of inquiry is one of such
common knowledge that men of ordinary education could reach a
conclusion as intelligently as the witness or whether, on the other hand, the
matter is sufficiently beyond common experience that the opinion of an
expert wouldassist the trier of fact].)
Moreover, the prosecution treated Detective Aurich’s testimonyas
expert testimony, rather than reputation evidence. As arguedin the opening
brief, the prosecution relied on Detective Aurich’s credentials to afford this
evidence of appellant’s alleged gang involvement, criminal sophistication,
and commission of unidentified gang activities and crimes, a sense of
credibility it did not deserve. (See AOB 593; see 35RT 12474 [During
closing argument, before quoting Detective Aurich’s testimony that
appellant was a main player, a hard-core gang member, a leader, and more
sophisticated criminal, the prosecutor reminded the jurors that Detective
Aurich was a gang detective from 1984 to 1994 “and part of his business
was to know what was happening in the gang community,intelligence”].)
342
After reaping the benefit of the detective’s expertise, the State should not be
heard now to contend that he was merely testifying to appellant’s
reputation.
Accordingly, respondent’s assertion that Detective Aurich’s
testimony was admissible as reputation evidence offered for impeachment
purposes’’ mustbe rejected. His testimony was not limited to reputation
evidence and did not qualify as competent reputation evidence. Instead,his
testimony was nothing more thanthe recitation of hearsay from
unidentified sources and as such, it should have been excluded.
C. Prejudice
1. Standard to Be Applied
In the opening brief, appellant argued that the erroneous admission
of the photo and Detective Aurich’s gang testimony violated appellant’s
Fourteenth Amendmentright to due process. (AOB 594, citing McKinney v.
Rees, supra, 993 F.2d at pp. 1381, 1384-1385.) Appellant further argued
that this error violated the Eighth Amendment. (AOB 594.) The admission
of this emotionally charged evidence, which encouragedthe jurors to
impose a sentence of death on the basis of a visceral reaction to the photo’s
charged content, violated the Eighth Amendment's requirement of reasoned
decision-making. (See, e.g. Gardner v, Florida (1977) 430 U.S. 349, 358
” Respondenthas devoted significant argument to explaining why
Detective Aurich’s testimony was admissible for impeachmentpurposes.
(RB 274-276.) Given that Detective Aurich’s testimony was not limited to
reputation evidence, did not qualify as competent reputation evidence, and
wasnot admissible as opinion testimony, respondent’s argument
concerning its relevance is immaterial.
343
[““It is of vital importance to the defendant and to the community that any
decision to impose the death penalty be, and appearto be, based on reason
rather than caprice or emotion.”|; see also Booth v. Maryland (1987) 482
U.S. 496, 508-509, overruled by Payne v. Tennessee (1991) 501 U.S. 808
[“{E]motionally charged" evidence is "inconsistent with the reasoned
decisionmaking we require in capital cases."].) Because the admission of
this evidence violated both the Eighth and Fourteenth Amendments,
appellant argued, prejudice must be assessed under Chapman’s’®
“reasonable doubt” standard. (AOB 594.)
The State responds that McKinney v. Rees is inapplicable and hence
the Chapman standard does not govern assessment.of prejudice here. (RB
276.) Rather, respondent argues, prejudice must be analyzed underthe state
“reasonable possibility” standard elucidated in People v. Brown, supra, 46
Cal.3d 432,for review of penalty phase errors. (/bid.) Appellant has already
demonstrated above that McKinneyis applicable. Furthermore, because the
error also violated the Eighth Amendment, Chapman must govern this
analysis regardless of the applicability of McKinney.
However, this point of contention matterslittle, since this Court has
“explained that ‘Brown's “reasonable possibility” standard and Chapman's
999“reasonable doubt”test ... are the same in substance and effect.’” (People v.
Gonzalez (2006) 38 Cal.4th 932, 961, quoting from People v. Ashmus,
supra, 54 Cal.3d at pp. 932, 990.) Because a death verdict must be
unanimous,reversal is required underthe state penalty phase prejudice
standard if there is a reasonable possibility that even a single juror might
have reached a different decision absentthe error. (People v. Ashmus,
%® Chapman y. California, supra, 386 U.S. at p. 24.
344
supra, 54 Cal.3d at pp. 984 [““we must ascertain how a hypothetical
‘reasonable juror’ would have,or at least could have, been affected”].)
Accordingly, under either the Chapman standard or the Brown standard, the
State must demonstrate beyond a reasonable doubtthat the erroneous
admission of the evidence could not have affected at least one juror’s
penalty decision.
2. The State Has Not Demonstrated that This Error Was
Harmless.
Asargued in the openingbrief, the State cannot prove that the
admission of this inflammatory evidence did not contribute to the jury’s
decision to imposethe penalty of death. (AOB 594-598.) Respondent’s
argument to the contrary is based on two contentions: (1) the standard
penalty phase instructions were sufficient to dispel any possible prejudice;
and (2) any error is harmless because the aggravating evidence wasstrong.
(RB 277-278.) Neither contention satisfies the prosecution’s burden.
Appellant has already addressed, in the opening brief and above, the
damage done by the admission of the provocative image of appellant and
Akens smirking, making gang signs, and pointing guns at each other and
the prosecutor’s use of the photograph during argument to evoke fear and
anger. (See AOB 589-590, 595, 597.) It defies common sense to even
suggest that this photo did not affect the jurors’ determination of penalty in
this case, especially given the prosecutor’s incendiary use ofit. Respondent
merely responds that the jurors were instructed, pursuant to the standard
penalty phase instructions, not to be influenced bybias or prejudice against
the defendant. (RB 277.) Appellant has also addressed this contention,
ante, and directs the Court to that portion ofthis brief. (Arg. XXV, §A(2),
ante.)
345
Moreover, respondent readily acknowledges that the prosecutor used
Detective Aurich’s erroneously admitted hearsay testimony to rebut one of
the mainstays of appellant’s case in mitigation — that appellant was
manipulated and coerced by the Hodges to shoot McDade. (RB 277.)
Defense expert Dr. Nicholastestified, on the basis of testing, an interview
of appellant, and review of police reports and various records, that due to
appellant’s minimalintellectual abilities and high need for approval, he
would gravitate to a follower position, rather than leader, and would be
susceptible to manipulation by older individuals (such as the Hodges’s
brothers) whose approval he sought. (34RT 12033, 12083, 12114.) Dr.
Nicholas opined that the influence of older, more sophisticated gang
members, such as John and Terry Hodges, could propel appellant to
commit a very serious criminalact, one that he was not prepared to do and
would not do on his own. (34RT 12041, 12046.) But, during his penalty
argument, the prosecutor heavily relied on Detective Aurich’s credentials
and hearsay testimony to rebut Dr. Nicholas’s testimony,arguing:
... Detective Aurich testified that he was a gang detective for
ten years, from 1984 to 1994.
And, remember, he said there were three categories of
gang members. And ~— And Detective Aurichalsotestified that
part of his business was to know what was happeningin the
gang community in Sacramento. And he knew about Carl
Powell.
And what did he say about Carl Powell? He was a main
player.
(35RT 12473.)
Then J asked Detective Aurich about Carl Powell’s
reputation in the gang community.
346
Hesays, “the information that I was receiving was that
he was a Freeport Crip and was a main player.”
I said, “What do you mean by a main player?”
Hesays, “Main player — Usually categorized gang
membersinto three different levels: Wannabes, associates and
main players.
And then your main players, he said, are a little more
hard-core gang members who promote their gangs, being
involved in gang activity and gang-type crimes, and bea little
more blatant about what they are and what they do.
I said, ““Would this be a more sophisticated criminal?”
Hesaid, “Yes.”
And said, ““Would these be the kind of people who
would be leaders rather than followers?”
And hesays “yes”’.
But the defense will want to paint Carl Powell as an
easily manipulated follower. But that’s not what the evidence
is in this case.
(Id., at pp. 12474-12475.)
The prosecutor thus wasable to effectively rebut mitigation evidence
elicited from a respected mental health expert that appellant was quite
vulnerable to manipulation and coercion by the Hodges’s brothers on the
basis of rank, unreliable hearsay which should never have been admitted.
Respondent next contendsthat “even if the photo and ‘main player’
testimony had been excluded, the Peoplestill had a strong penalty phase
case,” citing the circumstancesof the crime and the Zeek Moten
aggravating circumstance. (RB 277-278.) Accordingly, respondentargues,
any error in admitting the photo or Detective Aurich’s testimony was
harmless. (/d., at p. 278.) As explained, however, in Argument XXIII,
347
section C, ante, respondent’s argumentincorrectly asks this Court to focus
on the strength of the evidence and make a comparison which, as a matter
of federal constitutional law, can be made only by a jury which hearsall the
evidence, not by an appellate court. The decision whether to sentence a
defendant to death orto life without the possibility of parole is a normative
decision, which requires jurors to make individual determinations based on
their own understanding of the penalty factors and their own moral
assessmentof the evidence. This Court cannot presumethat the jury would
have voted to impose the death sentence in this case even in the absence of
this improperly-admitted evidence. (XXIH, § C, ante.) Moreover, as noted
above, this Court has recognized that admission at the penalty phase of
inadmissible evidence whichrelates directly to the defendant’s character, as
did the photo and Detective Aurich’s gang testimony,is rarely harmless.
(People v. Hamilton, supra, 60 Cal.2d at p. 137; see also Brown v. Sanders
(2006) 546 U.S. 212, 220-221 [recognizing unfair prejudice resulting from
admission of evidence that jury would not otherwise have heardin the
penalty weighing process].)
Additionally, respondent’s contention ignores far too much.In
insisting that the erroneous admission of this evidence was harmless given
the circumstancesof the crimes and the Moten aggravating circumstance,
respondent does not address the mitigating evidencein this case.’? As
discussed in the openingbrief, the defense presented the following
mitigation: (1) appellant suffers significant intellectual deficiencies and due
79 Respondent’s only acknowledgmentof the defense case in
mitigation is its assertion that the prosecutor properly used the photo and
Detective Aurich’s testimony to attack appellant’s mitigating evidence. (RB
277.)
348
to such deficiencies and personality traits was susceptible to manipulation
at the time of the crime; (2) appellant suffered a deprived childhood,
growing up in a dangerous, gang-infested area; (3) appellant has a family
who loves and supports him;(4) appellant has the ability to function well in
a structured environment; (5) appellant had no prior felony convictions;(6)
appellant confessed to the crime; and (7) appellant did not act alone but was
accompanied, influenced, and coerced to commit the crime by two much
older and sophisticated accomplices. (See AOB 597-598.) And, perhaps,
most importantly, the jurors were considering here the fate of a young man
merely eighteen years old at the time of the crime. (3 CT 856; 1CCT 47-48;
see People v. Sturm (2006) 37 Cal.4th 1218, 1244 [Although capital crime
involving three murders was quite egregious, a death sentence was not
inevitable, given that the defendant was quite young and had no criminal
history]; Mayfield v. Woodford (9" Cir. 2001) 270 F.3d 915, 933 (conc.
opn. of Gould, J.) [Despite strong aggravating evidence(killing of two
persons, plus two prior incidents of violent behavior), there is a reasonable
probability that the result would have been different, given that the
defendant was a young man who did not have an extensive record].)
Respondent’s contention of harmlesserror, whichrelies solely onits
conclusory statements regarding the circumstancesofthe capital offense
and the 190.3(b) offenses, are of little, if any assistance to the Court in
assessing the impact ofthe error here. As the United States Supreme Court
has recently recognizedin this regard, “by evaluating the strength of only
one party’s evidence, no logical conclusion can be reached regarding the
strength of contrary evidence offered by the other side... .” (Holmesv.
South Carolina (2006) 547 U.S. 319, 331.)
349
Respondentnot only ignores the mitigation presented during the
penalty phase; it also fails to acknowledge the effect of this error on the
defense case in mitigation, as discussed above. This error is not simply one
of admission of prejudicial evidence, but also the use of that improperly
admitted evidenceto distort the jury’s consideration of one of the most
important pieces of the defense case in mitigation. This error thus skewed
the jury’s penalty evaluation in two respects: (1) it introduced inflammatory
aggravating evidence; and (2) it fatally distorted the jury’s consideration of
significant mitigation. Under these circumstances, it cannot be possible to
concludethat the error could not have affected the jury’s decision to impose
death.
Respondent’s assertion that the circumstances of the crimes — the
capital crime and the Moten threat and assault — were alone so aggravating
that they made the death verdict a foregone conclusion and rendered
harmless any error in admitting additional aggravating evidence,is a gross
overstatement of the evidence, an equally gross oversimplification of the
penalty decision the jurors were called upon to make, and unsupported by
the case law of either this Court or the federal courts. (See People v. Gay
(2008) 42 Cal.4th 1195, 1227 [Death verdict not foregone conclusion
despite aggravating evidence regarding defendant’s series of prior robberies
and arson, which were “unusually — and unnecessarily — brutal and cruel,”
“scant evidence” in mitigation, and defendant’s capital conviction of
murdering a peace officer in the performanceofhis duties]; People v.
Sturm, supra, 37 Cal.4" at pp. 1218, 1224, 1244, 1247 [Penalty phase
errors required reversal despite fact that defendant murderedthree friends,
shooting them execution-style from close range after binding them and
even as they “cried or begged for mercy,” in order to rob store in which
they worked; “although the crime committed was undeniably heinous, a
350
death sentence in this case was by no means a foregone conclusion.”’];
People v. Gonzalez, supra, 38 Cal.4th at p. 962 [Penalty phase error
required reversal; despite “egregious” nature of capital double murder and
admission of “serious” aggravating other crimes evidence (possession of an
assault weapon, two assaults on inmates, and possession of a shank in jail),
“a death verdict was not a foregone conclusion”’]; Bean v. Calderon (9th
Cir. 1998) 163 F.3d 1073, 1081 [Aggravating evidence was “scant” where
based on circumstances of underlying crimes — twofirst degree murders
and assault with deadly weapon on third person in two separate incidents —
along with prior felony burglary conviction andprior violent assault in
which defendantfired gun]; People v. Hernandez (2003) 30 Cal.4th 835,
851-853, 877, disapproved of on another ground by People v. Riccardi
(2012) 54 Cal.4th 758 [Penalty phase errors going to “most important
aggravating evidence” under factor (b) required reversal where aggravation
was based on circumstances of underlying murder for financial gain, along
with prior conviction for robbery in which defendant used andfired a
weaponat one of the victims and another prior burglary conviction, and
mitigation included evidenceofpositive childhood and drug addiction].)
Respondentargues that the following aggravation -- that the jury
found appellant guilty of shooting his former employer at close range
during the commission of a robbery and appellant was a shooter during a
gang-related assault — wasso strong that any error here was harmless. (RB
277-278.) But far more egregious aggravation has been found insufficient to
render penalty phase errors harmless, as evidenced by the case law cited
above, and even underthe Strickland standard for prejudice, a more
351
stringent standard than either the Brown or Chapman standards.*(See, e.g.,
Williams v. Taylor (2000) 529 U.S. 362, 418 (dis. opn. of Rehnquist, J.)
[Emphasizing that majority reversed for penalty phase errors under
Strickland standard despite aggravating evidence that appellant had
“savagely beat[en] an elderly woman,stole[n] two cars, set fire to a home,
stabbed a man during a robbery, and confessed to having strong urges to
choke other inmates and break a prisoner’s jaw”]; In re Lucas (2004) 33
Cal.4th 682, 732, 735 [Penalty phase error required reversal under
Strickland standard despite “the aggravated nature of the crimes,” a “brutal
and calculating attack,” in which the defendant killed “twofrail, helpless
elderly neighbors,” and additional aggravating evidence based on a prior
violent assault]; Mayfield v. Woodford (9Cir. 2001) 270 F.3d 915, 918,
920, 929-932 [Same — reversal required despite “strong” aggravating
evidence based on capital crimes in which the defendant, through careful
planning and execution, killed one individual to exact revenge and killed a
second individual to eliminate the only eyewitness to the murder, and on
80 Underthe Strickland standard, trial counsel’s penalty phase error
that falls below an objective standard of reasonableness requires reversal if
it undermines confidence in the outcomeofthe case. (Stricklandv.
Washington (1984) 466 U.S. 668, 694.) This standard has been equated
with the Watson standard of prejudice. (See, e.g., People v. Bell (1989) 49
Cal.3d 502, 558-559 (dis. opn. of Mosk, J.); see also People v. Espinoza
(1992) 3 Cal.4th 806, 821; People v. Rich (1988) 45 Cal.3d 1036, 1096.)
The Brown prejudice standard for assessment ofpenalty phase violations of
state law is “more exacting” than the Watson standard and, hence,“more
exacting” than the Watson or Strickland standard. (People v. Brown, supra,
46 Cal.3d at p. 447.) Therefore, decisions assessing the closeness of a
penalty phase case for prejudice purposes under the Strickland standard are
instructive in assessing the closeness of a penalty phase case for prejudice
purposes under the more exacting Brownstandard.
352
defendant’s violent behavior in two prior incidents, including one in which
the defendantfired a gun into an inhabited residence]; Mak v.Blodgett (9th
Cir. 1992) 970 F.2d 614, 616, 619-622 [Same — despite defendant having
been convicted of the massacre of thirteen people, an incident in which the
defendant and two others, with defendant as the leader, hog-tied and shot
fourteen people].)
Notably, the State’s attempt to minimize the importance ofthis
erroneously admitted evidenceis a stark about-face from its position at
trial, where the importance of the photograph and the gang evidence was
evidenced by the prosecutor’s repeated attempts to introduce the evidence
and by his provocative use of the evidence onceit was admitted. (See AOB
595-596.) The prosecutor’s “actions demonstrate just how critical the State
believed the erroneously admitted evidence to be.” (Ghent v. Woodford (9th
Cir. 2002) 279 F.3d 1121, 1131; accord, Johnson v. Mississippi (1988) 486
U.S. 578, 586 [Prosecutor’s reliance in summation on erroneously admitted
aggravating evidence wascritical factor in finding error prejudicial]; People
v. Hernandez, supra, 30 Cal.4th at p. 877 [Same]; People v. Quartermain
(1997) 16 Cal.4th 600, 622 [Error in admitting evidence was prejudicial
due in large part to prosecutor’s reliance upon it in summation]; People v.
Woodard (1979) 23 Cal.3d 329, 341 [Same]; People v. Powell (1967) 67
Cal.2d 32, 56-57 [Same: “[W]e have seen how important these statements
were to the People's case, and ‘There is no reason why weshouldtreat this
evidence as any less “crucial” than the prosecutor - and so presumably the
jury - treated it.’”]; see also Kyles v. Whitley (1995) 514 U.S. 419, 444
(“The likely damageis best understood by taking the word of the
prosecutor... during closing arguments . .”].)
353
In sum, respondenthas failed to demonstrate that this evidence and
the prosecutor’s use of it to appeal to the juror’s fears of and biases against
minorities, gangs, and weapons, could not have affected at least one juror’s
decision to sentence appellant to death. Because admission ofthis
improper, inflammatory evidenceat the penalty phase was not harmless
either under the Chapman “reasonable doubt”standard orthe state
“reasonable possibility” standard, reversal of the death judgmentis
required.
354
XXVI.
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR BY ADMITTING HIGHLY PREJUDICIAL
VICTIM IMPACT EVIDENCE.
In the openingbrief, appellant established that Pama’s testimony
regarding the effect of McDade’s death on his mother and brother, as well
as on Colleen McDade and her children, wasnot admissible as lay opinion
evidence, because it was based on Pama’s own emotional reactions and
conjecture, rather than observations of their behavior. (AOB 599-609.)
Appellant argued that this was irrelevant, emotional evidence which invited
an irrational, subjective response anddiverted the jury from its properrole.
(AOB 609-610.)
Respondent arguesthat the bulk of Pama’s testimony was proper and
any improper testimony was non-prejudicial. (RB 279.) Respondentalso
contendsthat a portion of this claim has been forfeited. (RB 280.)
Appellant disagrees.
A. No Portion of This Claim Has Been Forfeited.
Respondent claims that appellant has forfeited the portion of his
argument concerning Pama’s testimony aboutthe effects of McDade’s
death on his wife and daughterby failing to object at trial. (RB 280.)
Respondent argues that he only objected to the testimony pertaining to
McDade’s mother and brother. (/bid.) Respondent’s reading of the recordis
incorrect.
Whenthe prosecutor began his examination of Ms. Pama, he asked
questions regardingher relationship with Colleen McDade, Keith McDade
and the McDade children. (32RT 11612-11613.) He also asked her to
355
describe the problemsthat she had seen Colleen and her children endure
since McDade’s death and the events on the night of McDade’s death when
Ms. Pama drove Colleen McDadeto the KFC store. (/d., at pp. 11613-
11617.) Defense counsel did not object to those questions and Ms. Pama’s
answers to those questions are notat issue here.
However, counsel did object when the prosecutor asked Pama to
describe the effect of McDade’s murder on his mother. (/d., at p. 11618.)
Counselstated: “if counsel wants to ask one witness about the effects on
another, J suggest he bring the other witness in.” (/bid.) The court overruled
that objection “to the extent that the witness may describe things she has
perceived as opposed to opinions she has otherwise.” (/bid.) However, as
evident from the portions of her answers quoted in the opening brief (see
AOB603-604, 607-608), Ms. Pamadid notrestrict her answers to her
observations but testified instead to opinions based on conjecture. Defense
counsel objected to her answers, but the court overruled the objections:
Q: Allright. And how has the murderof Keith
McDadeaffects (sic) Keith’s mother, Roberta?
A: Very, very hard.
I’ve been down with Colleen to take the kids to Bobby
to take care of. And she — she never — atfirst it seemedlike she
didn’t want to talk about Keith.
To meit waslike, you know, you don’t wantif — if I
don’t say anything aboutit, it will go away. It really wasn’t
there.
MR. HOLMES: Your Honor,this is the type ofthing I
was objecting to.
I ask that portion be struck.
356
I ask that counsel keepstrictly to questions that she can
say I observed or I heard —
THE COURT: Overruled.
MR. HOLMES:-- forming her own opinions
THE COURT:I overrule the objection asto that line of
testimony as to what she actually perceived and what she
believed concerning those perceptions.
As a lay opinion she maydoso.
Q: Okay. Go ahead.
(32RT 11619.) Ms. Pamathen continued with her answer, opining that
McDade’s death was so difficult for McDade’s family because his son
Buddy wasthe spitting image of his father and Pama imagined that must be
difficult for them to see “day in and day out.” (/d., at p. 11620.)
Whenthe prosecutor next asked Ms. Pama abouttheeffect of
McDade’s death on his brothers, defense counsel objected again:
Q: Do you know how the murder of Keith has affected
the brothers?
Let’s start off with John McDade.
MR. HOLMES: Your Honor, I would make the same
objection here.
In fact, [’1] makeit a continuing objection.
THE COURT:[ll sustain the objection to the form of
the question.
You mayrestate the question so that she is testifying
other than what she may know from any other hearsay source.
357
(32RT 11621.) Despite the prosecutor’s rephrased question (“have you
personally observed how the murder of Keith has affected John McDade,
his brother?”[id., at p. 11621]), Ms. Pama continued to answer based on
conjecture, rather than personal observations:
“Tt’s — it’s difficult for him. [§]] He accepts this I think. And he
knowsthat this has happened.[{]] And like I said I thinkit’s
really hard for him just to see Buddy too. It’s still the same
thing. He’s seeing his younger brother.”
(Ibid.) After the overruling of his continuing objection, defense counsel
made no further objections and Pama continuedto offer her opinions based
on assumptions regarding the effect of McDade’s death on his brother John,
Colleen, and McDade’s daughter Monique. (32RT 11621-11624.)
Asthis record evidences, respondent is wrong. Appellant’s counsel
did not limit his objectionto the elicitation of testimony regarding the
effects of McDade’s death on family members to just McDade’s mother
and brother. His objection was broadly stated: he objected to questions
“ask{ing| one witness about the effects on another.” (32RT 11618.) He
broadly requested that “counsel keep strictly to questions that she can say I
observedor I heard.” (/d., at p. 11619.) Moreover, after objecting three
times during Ms. Pama’s testimony, counsel madeclear that his was a
continuing objection to questions and answers based on Ms. Pama’s
opinions and speculations, rather than her observations. (32RT 11621.)
Counsel’s objections were timely and specific, and the trial court’s
rulings made it unnecessary for counsel to continue making the same
objection over and over — three times is more than enough. Once the
defendant objects to a line of questions, he is not required to renewit at
each recurrence. (People v. Antick (1975) 15 Cal.3d 79, 95 [“It has long
358
been the rule that ‘[w]here a party has once formally taken exception to a
certain line or character of evidence,he is not required to renew the
objection at each recurrencethereafter of the objectionable matter arising at
each examination of other witnesses; and his silence will not debar him
999from having the exception reviewed.’”]; accord, People v. Zemavasky
(1942) 20 Cal.2d 56, 62 [“In view ofthe earlier rebuff, it was not thereafter
incumbent upon appellant to object repeatedly to such evidence whenlater
sought to be elicited by the prosecution.... [it] would have been useless and
would have served only to emphasize the matter to the jurors.”]; see also
People v. Diaz (1951) 105 Cal.App.2d 690, 696 [“Where a court has made
its ruling, counsel must not only submit thereto butit is his duty to accept
it, and he is not required to pursue the issue.”] People v. Calio (1986) 42
Cal.3d 639, 643 [‘‘An attorney who submits to the authority of an
erroneous, adverse ruling after making appropriate objections or motions,
does not waive the error in the ruling by proceeding in accordance
therewith and endeavoring to make the best of a bad situation for which he
was not responsible.’ (Citation)”].) Any further objection, under the
circumstances, would have been futile and would only have emphasized
Pama’s testimony and risked antagonizing the jurors. (People v. Hill (1998)
17 Cal.4th 800, 821 [claim is not waived for failure to object where an
objection would befutile].)
Accordingly, respondent’s forfeiture argumentis specious and
should berejected.
B. Pama’s Testimony Regarding the Impact of McDade’s Death on
Others Was Not Admissible as Lay Opinion Testimony and
Constituted Irrelevant, Emotional Evidence Which Invited An
Irrational, Arbitrary Response.
359
Both parties agree that lay opinion testimony mustbe rationally
based on the perceptions or observations of the lay person. (RB 281; AOB
606-607.) Respondent correctly notes that this Court has held “““there is no
requirement that family members confine their testimony about the impact
of the victim’s death to themselves, omitting mention of other family
members.” (Citation.)” (RB 280-281.) Respondent does not address,
however, appellant’s argumentthat “[g]enerally a lay witness may not give
an opinion about another’s state of mind.” (People v. Chatman (2006) 38
Cal.4" 344, 397; see AOB 608.) As pointed outin the openingbrief, that is
what Pama was doing during her testimony; she was merely offering
conclusions and assumptionsregarding other family members’states of
mind,rather than testifying to objective behavior. (See AOB 607-609.)
Respondent acknowledgesthat not all of Pama’s testimony fell
within the bounds ofpermissible lay opinion, but argues that “most of [her]
testimony fell within [such] bounds. ...” (RB 281.) Respondent points to
several places in Pama’s testimony whereshe didtestify on the basis of her
observations. (RB 281-282 [Pama’s testimony that Colleen screamed and
yelled and stated she was overwhelmed; Pama’s testimony that Monique
argued with her mother and got very angry].) However, as demonstrated in
the opening brief, other parts of Pama’s testimony, where she projected her
ownfeelings about Buddy onto McDade’s mother and brother and
speculated about the impact of McDade’s death on his family, were not
based on her observations. (See AOB 607-609.) For the reasons expressed
in the opening brief, appellant disagrees with respondent’s argumentthat
this testimony fell within the bounds of permissible lay opinion. As
demonstrated therein, this testimony did not constitute proper lay opinion
testimony, because it was based on Pama’s own emotionalreactions and
conjecture, rather than her observations. (AOB 607-609.)
360
Respondentalso asks this Court to reject appellant’s contention that
Pama’s testimony was irrelevant, emotional evidence that invited an
irrational response on the basis that the testimony wasrationally based on
Pama’s perceptions and wasnotsurprising. (RB 282.) As established in the
opening brief, however, her testimony wasnot based on her perceptions.
(See AOB 607-610.) Moreover, whether the testimony was surprising or
not, it was, indeed, heartbreaking testimony which waslikely to provoke an
irrational, purely subjective response. As argued in the openingbrief, this
testimony increased the emotional punchofthe prosecution’s victim impact
evidence. (See AOB 610.)
C. Prejudice.
The State contends that there is no reasonable possibility that this
error affected the penalty verdict, because appellant’s claim involved a
small portion of the admissible victim-impact evidence and there was
strong aggravating evidence-- the capital crime and the Zeek Motenthreat
and assault. (RB 282.) As explained ante, in Argument XXV, respondent’s
prejudice analysis, which relies on its conclusory statement regarding the
strength of the aggravating evidence,fails to acknowledge the mitigating
evidence and asks this Court to make a comparison which, as a matter of
federal constitutional law, can be made only bya jury.
Moreover, this Court cannot dismiss the prejudice flowing from a
piece of aggravating evidence simply because the prosecution presented
other aggravating evidence. Given the kind of normative decision which
each juror must make for him or herself at the penalty phase, who can say
that Pama’s testimony regarding Buddy’s likenessto his father, and her
conjecture as to its effect on other family members, wasnot the piece of
evidence that persuaded onejuror to vote for death? For the reasonsset
361
forth above in Argument XXVandin the opening brief (AOB 609-610),
the State has not demonstrated that the admission of this emotionally-laden
evidence could not have affected at least one juror’s decision to impose a
sentence of death.
362
+
XXVII.
THE TRIAL COURT ERRED IN REFUSING TO GIVE
APPELLANT’S PROPOSED INSTRUCTION ON
VICTIM IMPACT EVIDENCEANDIN FAILING TO
OTHERWISE PROPERLY INSTRUCT THE JURY ON
THE USE OF VICTIM IMPACT EVIDENCE.
In the openingbrief, appellant argued that the court erred in refusing
appellant’s proposed instruction cautioning the jury regarding the use of
emotional victim impact evidence. (AOB 611-614.) Appellant further
argued that even if there was a valid basis for refusing the proposed
instruction, the penalty phase instructions were deficient in failing to direct
the jury as to the properuse of victim impact evidence. (AOB 615-618.)
The State responds that the Court rejected this claim, based on an
identical instruction, in People v. Russell (2010) 50 Cal.41228, 1265-
1266. (RB 283-286.) Appellant submits the issue on the argument presented
in his opening brief, which adequately presents the issue and fully joins
respondent’s position.
363
XXVIIL.
THE TRIAL COURT IMPROPERLY REJECTED
SEVERAL REQUESTED PENALTY PHASE
INSTRUCTIONS NECESSARY TO GUIDE THE JURY’S
CONSIDERATION OF MITIGATION EVIDENCEIN
VIOLATION OF APPELLANT’S FUNDAMENTAL
CONSTITUTIONAL RIGHTS.
In the openingbrief, appellant argued that the court erred in refusing
to give several requested penalty phase instructions that were necessary to
guide the jury’s consideration of mitigation evidence and to permitfull
consideration of the defense case in mitigation. (AOB 619-632.) As argued
there, the trial court’s failure to give these instructions denied appellant’s
rights to due process, a properly instructed jury, and a reliable penalty
verdict under the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the
federal Constitution. (AOB 621-622, 631-632.)
A. The Trial Court Erroneously Rejected Appellant’s Requested
Instruction That Sympathy or Compassion Alone Could Justify
a Life Sentence.
Respondent argues that appellant has forfeited his claim that the trial
court erred in refusing his requested instruction that the jurors could reject
death as a penalty based on sympathy or compassion alone. (RB 287.)
Respondent also argues that the claim is meritless because the Court has
rejected it in previous cases and the proposed instruction was duplicative of
other instructions provided to the jurors. (RB 287-288.) Appellant
disagrees.
1. This Claim Has Not Been Forfeited.
Although appellant requested the trial court to give his requested
~ instruction that sympathy or compassion alonecould justify a life sentence,
364
respondent arguesthat this claim is forfeited because of statements made by
defense counselafter the court stated how it would instruct on this issue.
(RB 287.) Respondent’s contention that defense counsel’s statements
constituted a forfeiture is incorrect and based on a misreadingofthe record.
Appellant requested a group of six special penalty phase
instructions, entitled (1) “Lingering Doubtas to Guilt,” (2) “Scope and
Proof of Mitigation: Sympathy Alone Is Sufficient to Reject Death,” (3)
“Scope and Proof of Mitigation: General,” (4) “Age Includes Psychological
Immaturity,” (5) “Mental Impairment Not Limited to Excuse or Negation
of an Element,” and (6) “Cautionary & Limiting: Victim Impact.” (3CT
779-781.) As is evident, two of these instructions concerned the scope and
proof of mitigation: one was a general instruction on that subject and the
other included the principle that sympathy alone could justify a sentence of
life without possibility of parole.*! The court refused the generalinstruction
regarding the scope and proofof mitigation. (3CT 780; 35RT 12395-12396,
12426.) It is the second requested instruction, the “Scope-and-Proof-
Sympathy”instruction, which is at issue in this claim. That instruction °
stated:
If the mitigating evidence gives rise to compassion or
sympathy for the defendant, the jury may, based upon such
sympathy or compassionalone,reject death as a penalty. A
mitigating factor does not have to be proved beyond a
reasonable doubt. A juror mayfind that a mitigating
81 For ease of discussion, appellant refers to the instruction entitled
“Scope and Proof of Mitigation: Sympathy AloneIs Sufficient to Reject
Death”as the “Scope-and-Proof-Sympathy”instruction and the “Scope and
Proof of Mitigation: General” instruction as “Scope-and-Proof-Sympathy-
General” instruction.
365
circumstance exists if there is any evidence to support it no
matter how weakthe evidenceis.
(3CT 780.) Although the court gave a modified instruction regarding the
second and third sentences in this proposed instruction, it refused to instruct
that the jury could, based on sympathy or compassionalone, reject death as
a penalty. (35RT 12424-12426.)
On September 19 and September 27, 1994, the court and parties held
their first discussions regarding these defense-requested instructions. (32RT
11500-11505; 35RT 12388-12399.) On September 27, the court told
counsel that it was refusing to instruct that the jury could reject the penalty
of death on the basis of sympathy or compassion alone. (35RT 12390.) As
stated by the Court:
All right. The next one, are you with me now on the
scope and proofof mitigation?
re
I’m not goingto give the first sentence. WhatI will give
is as follows:
“A mitigating factor does not have to be proved beyond
a reasonable doubt. A juror mayfind that a mitigating
circumstance exists if there is any” - - And I’m inserting the
word “credible evidence”- - “to support it.”
And then after that, insert, “regardless of its strength or
weakness.”
(35RT 12390.)
Thereafter, on September 28, 1994, the court and counsel reviewed
the final penalty phase instructions which the court had prepared. (35RT
12403, 12407-12427.) This final set of instructions included those
portions of the defense-requested instructions that the Court had previously
366
decided to give and excludedthose portions which the court had refused.
(bid.) During this review, the following colloquy regarding the “Scope-
and-Proof-Sympathy”instruction occurred:
MR. HOLMES*: Wesubmitted one of these
instructions here entitled scope of proof of mitigation simply
along with sympathy sufficient to reject death.
Did that get incorporated in any place as a factor —
sympathy as a factor?
THE COURT:It’s in one of your six in your long - -
MR. HOLMES:Right.
MR. CASTRO: Hm-hmm(affirmative).
MR. HOLMES:It’s one of six we submitted.
THE COURT: What — whattitle?
MR. HOLMES: Scopeofproof of mitigation.
Sympathyaloneis sufficient to reject death.
THE COURT: Ihave included part, but not all of that.
MR. HOLMES: Okay.
THE COURT: Since sympathy — they are being told in
K essentially the same thing I am notrestating that.
Let me see again what K says.
MR. HOLMES: Anyother circumstance.
That one.
MR. CASTRO: Hm-hmm (affirmative).
82 Appellant was represented by both Mr. Holmes and Mr. Castro.
Holmes was absent during the instruction conference on September 27,
whenthe court stated it was refusing to instruct that sympathy alone could
support a sentence oflife without possibility of parole. 35RT 12377,
12390.)
367
THE COURT: Yes.
MR. HOLMES: Okay.
(35RT 12424-12425.)
Atthat point, the court and parties turned to discussing three ofthe
other defense-requested instructions in that group ofsix -- instructions
regarding lingering doubt, age includes psychological immaturity, and
mental impairment not limited to excuse or negation of an element. (/d., at
p. 12425-12426.) Then Mr. Holmes again mentioned the “Scope-and-
Proof-Sympathy”instruction and the following discussion ensued:
MR. HOLMES:Then I will— we have one, scope and
proof of mitigation. And that’s one you incorporated into —
mitigating circumstances do not need to be proved beyond a
reasonable doubt whereother crimes and — crimes involving
force, violence do.
THE COURT: Right. Okay.
MR. HOLMES: You're going to give the language in
the K subsection where it says and any sympathetic or other
aspect of defendant’s character or record.
THE COURT:Yes.
And that’s — I’m not giving your other instruction - -
MR. HOLMES: Right.
THE COURT:- - that dealt with that issue.
MR. HOLMES: You’reright.
That totally includes that. Okay.
MR. CASTRO:That’s adequate.
Right.
(35RT 12426.)
368
Respondent contends that Holmes’s statements, “You’re right. That
totally includes that. Okay,” and Castro’s statements, “That’s adequate.
Right,” constituted a forfeiture, citing “People v. Valdez (2004) 32 Cal.4®
73, 113 [defendant did not request clarifying language; may not complain
that an instruction correct in law and responsiveto the evidence was too
general or incomplete].” (RB 287.) Respondent’s forfeiture argumentis
seriously off its mark for several reasons.
First, it is based on a misreading of the record. As is evident from a
careful reading of the record, these remarks, which the State contends
constitute forfeiture, were in reference to the “Scope and Proofof
Mitigation: General”instruction, not the instruction at issue here. At the
beginning ofthis discussion, Holmesis referring to the “Scope-and-Proof-
Sympathy”instruction, becausethis is the instruction where the court
refused to give the first sentence (the jury may, based on upon sympathyor
compassion alone, reject death as a penalty), but stated it would incorporate
the second two sentences (mitigating factor does not have to be proved
beyond a reasonable doubtetc.) into a modified instruction. (3CT 780;
35RT 12390.) When the court responded that it was not giving the other
instruction which dealt with that issue -- the scope and proof of mitigation,
it was obviously referring to the “Scope and Proof of Mitigation: General”
instruction, which the court had refused on the basis that it was duplicative
of CALJIC No. 8.85’s factor (k). CT 780; 35RT 12396.) Accordingly,
Holmes and Castro werereferring to that instruction, not the instruction at
issue here.
Second, even had Castro and Holmesbeenreferring to the “Scope-
and-Proof-Sympathy”instruction, the court had already refused the portion
of that instruction at issue in this claim. Respondent overlooksthe court’s
369
ruling during the prior instruction conference. “‘An attorney who submits
to the authority of an erroneous, adverse ruling after making appropriate
objections or motions, does not waivethe errorin the ruling by proceeding
in accordance therewith and endeavoring to makethe best of a bad situation
for which he wasnot responsible.’ (Citation)” (People v. Calio (1986) 42
Cal.3d 639, 643; see also People v. Diaz (1951) 105 Cal.App.2d 690, 696
(“Where a court has madeits ruling, counsel must not only submit thereto
but it is his duty to accept it, and he is not required to pursue the issue.”’);
Pastene v. Pardini (1902) 135 Cal. 431, 433 [“He may not only submit to
the ruling of the court without future offer of evidence upon the excluded
defense, but it is his duty to accept such ruling.”’].)
Third, respondent’s cited authority does not support a finding of
forfeiture where, as here, counsel has requested an instruction, and the court
has refused to give a vital portion of the requested instruction. Valdez, and
the other cases upon whichit relies, involved situations where the
defendant either failed to object to an instruction or contended an
instruction correct in law was too general or incomplete butfailed to
request clarifying language. (Valdez, supra, 32 Cal.4"at pp. 112-114
[failure to object to truncated version of CALJIC 8.81.17 and failure to
request clarifying language]; People v. Lang (1989) 49 Cal.3d 991, 1024-
1025 [contention on appeal that instruction, correct in law, was erroneous
but defendant failed to request appropriate clarifying or amplifying
language]; People v. Hart (1999) 20 Cal.4" 546, 621-23 [contention on
appealthat instructions were ambiguous and court failed its sua sponte duty
to offer clarifying instructions, but defendantfailed to request such
clarifying instructionat trial]; People v. Andrews (1989) 49 Cal.3d 200,
217-218 [contention on appeal that court should have modified CALJIC
370
3.18, but defendant did not request such a modification attrial].**) In these
situations, these courts held that a party may not complain on appeal that an
instruction correct in law and responsive to the evidence was too general or
incomplete unless the party has requested appropriate clarifying or
amplifying language. (/bid.) None ofthese cases suggested the possibility
of forfeiture where a defendant has requested an instruction and simply
acquiesced to the court’s ruling.
Forall of these reasons, respondent’s forfeiture argumentis specious
and should berejected.
2. The Requested Instruction Was a Correct Statement of Law
and Its Important Principle that Sympathy Alone Could
Justify a Sentence of Life Was Not Duplicated in Any Other
Instruction Given to the Jurors.
In the openingbrief, appellant argued that the court erred in refusing
his requested instruction becauseit was a correct statement of law and
necessary to inform the jurors that they could, on the basis of sympathy or
compassion alone, reject a sentence of death. (AOB 622-625.) Respondent
does not quarrel with the fact that the instruction was a correct statement of
law. Its responseis that the Court has rejected this argument in several prior
cases and the instructions provided to the jurors sufficiently covered the
role of sympathy in determining penalty. (RB 287-288.)
83 Notably,all of these cases, despite finding that the defendants
forfeited their claims, decided the claims on their merits. (Valdez, supra, 32
Cal.4" at p. 113; People v. Lang, supra, 49 Cal.3d at pp. 1024-1025; People
v. Hart, supra, 20 Cal.4" at pp. 622-23, People v. Andrews, supra, 49
Cal.3d at p. 218.)
371
In the opening brief, appellant acknowledged that the Court has
rejected this argument in People v. Davis (Richard Allen) (2009) 46 Cal.4"
539, 397-398, and People v. Loker (2008) 44 Cal.4" 691, 744-45. (AOB
624.) Respondent notes that the argument wasalso rejected in People v.
Hinton (2006) 37 Cal.4" 839, 911-912. (RB 287.) However, for the reasons
submitted in the opening brief, the requested instruction that sympathy
alone could merit a sentenceoflife without possibility of parole was not
duplicative of CALJIC Nos. 8.85 or 8.88, as respondent argues. (AOB 623-
624; RB 287-288.)
Respondentargues that these CALJIC instructionssufficiently
covered the principle of the proposedinstruction by informing the jurors
that (1) they could consider any circumstance which extenuatesthe gravity
of the crime and any sympathetic or other aspect of the defendant’s
character or record; (2) they could assign whatever moral or sympathetic
value they deemed appropriate to each of the factors; and (3) the weighing
of aggravating and mitigating factors was not a mechanical counting of
factors. (RB 287-288; see 3CT 742, 772-773.) That may betrue, but the
instructions did nottell the jurors that they could reject death on the basis of
the sympathy alone. Rather, the jurors were told to considerthe totality of
the aggravating circumstances with the totality of mitigating circumstances
and after weighing both, determine the appropriate penalty. (3CT 772-773.)
They werealso told, in determining which penalty to impose, to consider
all of the evidence receiving during any part ofthe trial and to consider,
take into account and be guidedbyall the factors listed in CALJIC 8.85,
including the circumstancesofthe crime and any prior criminal activity
which involved force or violence. (3CT 742.) These instructions therefore
not only failed to inform the jurors that one factor alone could support
rejection of death but instead told them that they had to consider and weigh
372
all of the factors. A reasonable juror would not interpret these instructions
to allow them to reject a sentence of death on the basis of one factor alone,
especially the factor of sympathy or compassion.
Accordingly, for the reasons expressed here andin the openingbrief,
the trial court erred in refusing appellant’s requested instruction that
sympathy alone could justify a sentence of life without possibility of parole.
B. The Trial Court Erroneously Rejected Appellant’s Requested
Instruction That Mitigating Evidence of Mental ImpairmentIs
Not Limited to Excuse or Negation of an Element.
Respondent’s responseis twofold: (1) appellant has forfeited his
claim that the trial court erred in refusing his requested instruction that
mitigating evidence of mental impairmentis not limited to excuse or
negation of an element (RB 289); and (2) the refusal was proper because
other instructions, as well as counsel’s arguments, adequately addressed the
jury’s consideration of evidence of mental impairment. (RB 289-290.)
Respondentis wrong on both counts.
1. This Claim Has Not Been Forfeited.
Here again, respondent argues that the claim has been forfeited
becausetrial counsel acquiesced to the court’s ruling. (RB 288-289.)
Respondentpoints out that after the trial court stated it would not give the
requested instruction concerning mental impairment (“Mental Impairment
Not Limited To Excuse or Negation of An Element” [3CT 781]), but would
give another defense instruction (“Age Includes Psychological Maturity”
[3CT 781]) by modifying CALJIC No.8.85 to inform the jury that it could
consider appellant’s chronological and psychological age at the time of the
373
crime, defense counsel responded that was appropriate. (RB 289; 35RT
12396-112397.)
For the reasons expressed abovein section (A)(1), this claim of
forfeiture is specious. The Court refused the instruction, then stated it
would instead modify 8.85 to include the factor of chronological and
psychological age, and counsel acquiesced to the court’s ruling. That is not
forfeiture; that is accepting the court’s ruling and makingthe best of a bad
situation. As made clear by the authorities cited above, counsel’s
acquiescenceto the court’s ruling does not support a finding of forfeiture.
Moreover, as before, respondent’s cited authority, People v. Valdez, supra,
32 Cal.4"at p. 113, does not support a finding of forfeiture where, as here,
counsel requested an instruction, the court refused to give it, and counsel
acquiesced to the court’s ruling. (See section (A)(1), ante.)
2. The Requested Instruction Was a Correct Statement of Law,
Was Not Repetitive of Other Instructions, and Was Crucial
to Ensure the Jury’s Consideration of Appellant’s Mitigating
Evidence.
In the openingbrief, appellant argued that the court erred in refusing
his requested instruction that mental impairmentis not limited to evidence
which excuses the crime or reduces the defendant’s culpability, but
includes any degree of mental defect, disease or intoxication and the fact
that the jury has rej ected a defense of insanity, diminished capacity or
diminished actuality at the guilt phase does not prohibit its consideration of
evidence showing some impairmentas a reason not to impose death. (AOB
625-628.) As demonstrated there, the requested instruction was a correct
statement of law, it was not covered by otherinstructions, and it was crucial
to ensure that the jurors considered a central feature of appellant’s case in
mitigation — that his mental impairment, although insufficient to negate any
374
element of the offense, was a valid mitigating factor which could justify
sparing his life. (AOB 626-628.)
Respondent does not argue that this was an incorrect statement of
law. Rather,its opposition is based on two contentions:(1) other
instructions sufficiently informed the jury that it could consider appellant’s
mental impairment evidence; and (2) counsel’s arguments addressed the
evidence of appellant’s mental impairment. (RB 289-290.)
Respondent argues that the court’s modification to CALJIC 8.85,
whichtold the jury that it could consider the defendant’s chronological and
psychological age at the time of the crime, covered the information
presented in the requested instruction. (RB 289.) According to respondent,
“Itlelling the jury that it could consider appellant’s psychological age told
the jury that it could consider the mental impairment evidence.” (RB 289.)
Not so. The mental impairment evidencein this case consisted of
substantial testimony regarding (1) appellant’s very low I.Q., which placed
him in the borderline mentally retarded range; and (2) his limited
intellectual functioning characterized by his inability to think abstractly or
engage in advanced planning, which rendered him vulnerable to
manipulation by others. 34RT 12022, 12006-12007, 12032, 12083,
12114.) As explained in the openingbrief, psychological ageis not the
same as mental impairment and would not be reasonably interpreted to
include the mental impairment evidencein this case, which concerned
limited intellectual functioning, rather than mentalillness. A reasonable
juror would interpret “chronological or psychological age”to include a
defendant’s actual age as well as his maturity. A reasonable juror would not
interpret such languageto also include mental retardation or similarly
reducedintellectual functioning. Accordingly, the modification of 8.85 to
375
include a factor of “chronological or psychological age” wasnot sufficient
to ensure the jury’s consideration of the evidence of appellant’s intellectual
disabilities.
Respondent arguesthat the jurors would interpret “psychological
age” to include evidence concerning maturity. (RB 289.) But that
interpretation would not allow for the jury’s consideration of the bulk of
appellant’s mental impairment evidence. Although there was some
testimony concerning appellant’s immaturity, nearly all of the mental
impairment evidence here concernedhis intellectual disability, which is not
the same as maturity. Moreover, as pointed out in the openingbrief, the
modified CALJIC No. 8.85 instruction did not inform the jurors that they
could consider evidence of appellant’s mental impairment even if they
believed it insufficient to excuse the crime or reduce his culpability.
Respondent does not addressthis point, apparently concedingits validity.
Respondentalso argues that other given instructions told the jury
that it could consider appellant’s mental impairment evidence, pointing to
(1) CALJIC No.8.85, factor (h), which told the jury to consider whether
appellant’s capacity to appreciate the criminality of his conduct or to
conform his conduct to the requirements of the law was impairedas a result
of mental disease or defect; (2) CALJIC No.8.85, factor (k), which told the
jury to consider any sympathetic or other aspect of appellant’s character
that he offered as a basis for a life sentence; and (3) CALJIC No. 8.88,
which defined a mitigating circumstance as any fact or condition which
might be considered an extenuating circumstance in determining the
appropriateness of the death penalty. (RB 290.) Noneofthese instructions,
however,told the jurors that they could consider the evidence of appellant’s
mental impairment evenif they believed it insufficient to excuse the crime
376
or reduce appellant’s culpability. In fact, factor (h) suggested just the
contrary — that this kind of evidence waspertinent only if it impaired
appellant’s capacity to understand the criminality of his conductorto
conform his conductto the requirements of the law. Notably, the
prosecutor’s closing argument emphasized that evidence of mental
impairment could not be considered underthis factor unless it impaired
appellant’s capacity to appreciate the criminal of his conduct or to conform
his conductto the requirements ofthe law:
‘Next is mitigation factor H, whether as a result of mental
disease or defect or intoxication Carl Powell did not have the
capacity to appreciate the criminality of his conductor to
conform his conductto the requirements of the law. [{] There
is none ofthat in this case. There’s just no evidence ofthat.”
(35RT 12442.)
Respondent’s final argumentis that counsel’s arguments addressed
the evidence of appellants’ impairment. (RB 290.) As pointed out
elsewherein this brief, however, the arguments ofthe parties are no
substitute for legal instructions from the Court.“[I]nstruction by the court
would weigh more than a thousand words from the most eloquent defense
counsel.” (People v. Matthews, supra, 25 Cal.App.4® at p. 99.) Jurors
cannot be expected to divine legal principles on which they are not
instructed. (People v. Eid (2010) 187 Cal.App.4" at p. 88.)
Accordingly, for the reasons expressed here and in the openingbrief,
the trial court erred in refusing appellant’s requested instruction that
mitigating evidence of mental impairmentis not limited to excuse or
negation of an element.
377
Cc. The Trial Court Erroneously Rejected Appellant’s Requested
Instruction on the Scope, Consideration of, and Weighingof
Mitigating Evidence.
In the openingbrief, appellant argued that the trial court erred in
giving his requested instruction on the scope, consideration of, and
weighing of mitigating evidence, because it contained an important and
correct statement of law which wasnecessary to guide the jury’s sentencing
decision: that one mitigating factor, alone, was sufficient to outweighall
aggravating factors and support a sentence oflife without possibility of
parole. (AOB 628-630.) Respondent contends that the court properly
refused the requested instruction “because CALJIC No.8.85, factor (k) and
CALJIC No. 888 sufficiently instructed the jury on the weighing of
mitigation evidence.” (RB 292.) Respondent also argues on the basis of
People v. Valencia (2008) 43 Cal.4™ 268, that this Court has heldthat
CALJIC Nos. 8.85 and 8.88 adequately instruct the jury on its sentencing
discretion; no pinpointinstructions are required. (RB 291-292.)
Valencia did not consider the issue before the Court here — that the
court erred in refusing to instruct that any mitigating circumstance, standing
alone, may besufficient to support a decision that death is not the
appropriate sentence. Valencia merely stated:
Similarly, defendant contends the court erred in refusing to modify
CALJIC No. 8.85 in various respects. We haverejected similar
arguments. CALJIC No.8.85 is both correct and adequate.
(Citations.) The court need not give pinpoint instructions regarding
what mitigating evidence the jury may consider, or special
instructions regarding mercy and compassion.(Citations.) Contrary
to defendant's argument, CALJIC No. 8.88 properly instructs the
jury on its sentencing discretion and the nature ofits deliberative
process. (Citation.)
(People v. Valencia, supra, 43 Cal.4th at pp. 309-310.)
378
Furthermore, respondent’s contention that CALJIC Nos. 8.85, factor
(k), and 888 sufficiently covered the principles in the requested instruction
is incorrect. These instructions, as respondentstates, told the jury (1) to
consider the totality of aggravating and mitigating circumstances, including
any sympathetic or other aspect of the defendant’s character or record that
the defendant offers as a basis for a sentence less than death, (2) that the
weighing of aggravating and mitigating circumstances was not a
mechanical counting of factors, nor the arbitrary assignment of weights to
them, and (3) it could assign whatever moral or sympathetic valueit
deemedappropriate to each ofthe factors. (RB 292; 3 CT 742-743, 772-
773.) They did not inform the jurors that the presence ofjust one mitigating
circumstance would be sufficient to reject a sentence of death. Given the
instructional commandto considerthe totality of aggravating and
mitigating circumstances and to determine the appropriate penalty by
weighing the aggravating and mitigating circumstances (3CT 772-773),it
was imperative that the jurors be informed that one mitigating factor, alone,
wassufficient to outweigh all aggravating factors and support a sentence of
life without possibility of parole.
Accordingly, for the reasons expressed here and in the openingbrief,
the trial court erred in refusing appellant’s requested instruction that one
mitigating factor, alone, was sufficient to outweighall aggravating factors
and support a sentence oflife without possibility of parole.
D. Reversal is Required.
The requested instructions were correct statements of law that
related to extremely important legal issues: the consideration of mitigating
evidence and the role that sympathy could play in the ultimate penalty
decision. The United States Supreme Court has consistently held that, under
379
the Fifth and the Eighth Amendments,“‘the sentencer[in a capital case]
may not refuse to consider or be precluded from considering “any relevant
mitigating evidence....’” (citations.)” (Mills v. Maryland (1988) 486 U.S.
367, 374-375, emphasis in original.) That constitutional requirementis not
satisfied by merely allowing the defendant to introduce mitigating
evidence; the jury's proper consideration of that evidence mustalso be
ensured by the giving of properinstructions. “In the absenceofjury
instructions... that would clearly direct the jury to considerfully [the
defendant's] mitigating evidence as it bears on his personal culpability, we
cannotbe sure that the jury was able to give effect to the mitigating
evidence....” (Penry v. Lynaugh (1989) 492 U.S. 302, 323, overruled on
another ground by Atkins v. Virginia (2002) 536. U.S. 304.)
In a case, where the heart of the defense mitigation case concerned
appellant’s intellectual deficits and the role they played in rendering him
vulnerable to manipulation by others to commit the capital crime, it was
essential that the jury be informed that they could consider his mental
impairments evenif they did not provide a legal defense to the crime.
Similarly, in a case where the facts of the offense might have
weighed heavily against appellant - where the prosecutor told the jury that
the crime was so horrendousthat it, alone, outweighed any mitigating
circumstance andjustified a sentence of death (35RT 12459)- the jury's
awarenessof the role that sympathy, mercy, or compassion could play was
vital. The jury should have beentold that it was not simply that these
qualities should be weighed against the facts of the crime, but that they
could be exercised independently and that in these qualities alone provided
a basis for a life verdict in their determination of the proper penalty. This
was exceptionally important, given that the jurors had to determine the
380
appropriate penalty for a young man barely out of his teens who was used
and manipulated by older and more sophisticated criminals to commit the
capital crime.
In light of the broad discretion exercised by the jury at the penalty
phase of a capital case, this Court cannot determinethe specific point at
whichthe jury decided that death was the appropriate penalty. (Peoplev.
Robertson (1982) 33 Cal.3d 21, 54.) However,the instructions at issue
wentto the heart of appellant's case. Had the jury been instructed in how to
consider the mitigating evidence before it and been provided with
instructions which would have ensuredits consideration of appellant’s
mitigating evidence, there is certainly a reasonable possibility of a different
verdict. The prosecution cannot demonstrate that this error was harmless
beyond a reasonable doubt.
For these reasons and for the reasons expressedin the openingbrief,
this instructional error was prejudicial and requires reversal of the death
judgment. (AOB 631-32.) As explained there, becausethis error violated
the federal constitution, reversalis required unless the prosecution can
show that it was harmless beyond a reasonable doubt. (/bid.) Respondent
arguesthat this error should be assessed underthe state “reasonable
possibility” standard for assessing prejudice from penalty phaseerrors. (RB
292-293.) However, as stated in the authority cited by respondent, “[o]ur
state reasonable possibility standard is the same, in substanceand effect, as
the harmless beyond a reasonable doubt standard of Chapman v. California
(1967) 386 U.S. 18, 24.” (People v. Nelson (2011) 51 Cal.4th 198, 219, fn.
15.) Respondent has not even attempted to meet that burden. Its responseis
merely a conclusory argumentthat “any error was harmless under any
standard.” (RB 293.) Reversal of the sentenceis required.
381
XXIX.
THE REPETITION OF SEVERAL ERRONEOUS GUILT
PHASE INSTRUCTIONS AT PENALTY PHASE
DEPRIVED APPELLANT OF A FAIR AND RELIABLE
DETERMINATION OF PENALTY.
Appellant submits this issue on the basis ofhis briefing in
Arguments VI, XV, and XVI, ante, and the briefing in the opening
brief. (AOB 633-636.)
382
XXX.
THE TRIAL COURT IMPROPERLY DENIED
APPELLANT’S APPLICATION FOR MODIFICATION
OF THE DEATH SENTENCE UNDER PENAL CODE
SECTION 190.4(e), DEPRIVING APPELLANT OF A
FAIR AND RELIABLE PENALTY DETERMINATION
IN VIOLATION OF THE EIGHTH AND FOURTEENTH
AMENDMENTS.
In the opening brief, appellant established that the court erred in
denying his motion to modify the verdict of death by attaching aggravating
weight to factors this Court has held may only be mitigating and byfailing
to consider mitigating evidence. (AOB 637-651.) Respondent claimsthat
(1) appellant has forfeited this claim by failing to object to the trial court’s
reasons for denying the motion; and (2) the court properly fulfilled its
obligations under Penal Code section 190.4, subdivision (e), and the federal
Constitution. (RB 298-308.) Appellant disagrees with both points.
A. The Court Should Review this Claim on its Merits.
Respondent argues that appellant has forfeited this claim by failing
to object to the trial court’s statement of reasons for denying the motion.
(RB 300.) In support, respondent cites People v. Jackson (2009) 45 Cal.4
662, 697. ([bid.) In Jackson, the Court considered, and rejected onits
merits, the defendant’s argument that the trial court failed to properly
exercise its responsibilities under section 190.4, subdivision (e), in denying
his automatic application to modify the verdict of death because the court
treated the motion as a “mere formality” and had,in fact, prejudged the
issue. (Jackson, supra, at pp. 695-696.) Jackson refused, however, to
consider the defendant’s additional argumentthat the trial court erred in
failing to state sufficient reasons for denying the motion. (/d., at p. 697.)
383
Jackson held that claim was forfeited because the defendant did not object
in the trial court. (/bid.)
Appellant’s claim is not that the trial court erred in failing to state
sufficient reasons butthat,like the court in Jackson, it failed to properly
exercise its responsibilities under section 190.4, subdivision (e), by
attaching aggravating weight to factors which may only be mitigating and
by failing to consider mitigating evidence. Thus, under Jackson,this claim
should be reviewed.
Moreover, the notion that appellate review of errors in the ruling on
an automatic motion to modify may be waived or forfeited by failure to
object appears to derive from an unexplained reference in People v. Hill,
where the defendant argued that the trial court erred whenit stated at the
beginning of the hearing on the automatic application undersection 190.4,
subdivision (e), that it had read and considered the probation officer’s
report. (See People v. Riel (2000) 22 Cal.41153, 1220; People v. Hill
(1992) 3 Cal.4th 959, 1013, 1012, overruled on another point by Price v.
Superior Court (2001) 25 Cal.41046.) This Court rejected Hill’s claim on
the merits but also stated: “As respondent points out, however, defendant's
assertion oferror fails at the threshold because he failed to object at the
hearing except to challenge one specific portion of the report.” (Hill, supra,
at p. 1013.)
The Court appears never to have confronted the inconsistency
between the automatic nature of the motion to modify and the application
of waiveror forfeiture rules. Inconsistently with Hil/, the Court held in
People v. Ochoa (1998) 19 Cal.4th 353, 469-470,that it is improper for
defense counsel to submit the automatic motion to modify without actively
litigating it. Ochoa indicates that, upon a showingofprejudice, it would be
384
ineffective assistance of counsel to waive orforfeit arguments in support of
the automatic motion to modify penalty.*4 (Jbid.)
Failure to address the merits of this claim is also inconsistent with
anotherline of authority from this Court. In People v. Stanworth (1969) 71
Cal.2d 820, 833, this Court said that in every capital case “subdivision (b)
of section 1239 imposes a duty upon this court ‘to make an examination of
the complete record of the proceedingshad inthetrial court, to the end that
it be ascertained whether defendant was given fair trial.’” Carrying out
that duty, the Court in People v. Easley reversed a judgment of death upon
groundsraised for thefirst time in an amicus curiae brief in support of a
petition for rehearing following thefiling of an opinion by this Court.®
(People v. Easley (1983) 34 Cal.3d 858, 863-864 [“Recognizing that in
death penalty cases the provisions of section 1239, subdivision (b) impose
‘a duty upon this court’ to make an examination of the complete record of
the proceedings... to the end that it be ascertained whether defendant was
given fairtrial”’].)
4 Should this Court determine that counsel’s acquiescence has resulted
in forfeiture of this claim, appellant contends,in his petition for writ of
habeas corpus, that counsel rendered ineffective assistance of counsel.
(PetHC, Claim VII(O), at p. 462 [“[t]o the extent trial counsel were
required to object to the court’s statement of reasons in order to preserve
the claim for appeal, they failed to render effective assistance of counsel by
failing to do so.”’].)
§5 In Easley, the Court also considered the merits of other claims not
objected to attrial. (People v. Easley, supra, 34 Cal.3d at pp. 869-872.)
385
Similar reasoning indicates that errors in the consideration of the
automatic motion to modify cannot be forfeited by failure to object in the
trial court. The judge has an obligation to rule, and rule correctly, on the
automatic motion to modify regardless of what arguments, if any, the
defendant’s counsel makes in connection with the motion. Stanworthis
plainly based on the same concern about the public interest in the reliability
ofjudgments of death which motivates the U.S. Supreme Court’s Eighth
Amendmentjurisprudence.
In conclusion, this court has inherent authority to review this claim
in order to prevent the injustice of a sentence imposed through an
unconstitutional review. (People v. Williams (1998) 17 Cal.4th 148, 161, fn.
6.) It should reject respondent’s invitation to refuse consideration and
instead review whether the death penalty was properly evaluatedat trial to
preventthe ultimate injustice of a flawed capital sentence.
B. The Judge Erred By Giving Aggravating Weight to Factors
Which As a Matter of Law May Only Be Mitigating and In
Failing to Consider Mitigating Evidence.
In his opening brief, appellant argued that the trial court committed
Davenport®error in its consideration of 190.3’s factors(e), (f), and (k).
(See AOB 643.) Respondent concedesthat the court erred in considering
the absence offactors (e) and (f) as aggravation. (RB 301.) As explained in
the opening brief, the court treated the absence of mitigating evidence that
the victim wasa participant in, or consented to, the homicidal act as
aggravating under factor (e). (36RT 12689.) Similarly, the court treated
86 People v. Davenport (1985) 41 Cal.3d 247.
386
factor (f) as aggravating due to the lack of evidence that the offense was
committed under circumstances which appellant reasonably believed to be a
moraljustification or extenuation for his conduct. ([bid.)
Respondent argues, however, that the errors were harmless, because
there is no reasonable possibility that they affected the court’s decision to
deny the motion to modify the death verdict. (RB 302-303.) According to
respondent, “[t]he court clearly believed that the factors in aggravation
outweighed the factors in mitigation.” (RB 303.) Thisis true, but the
problem with respondent’s analysis is that the trial court not only erred in
giving aggravating weight to factors which may only be mitigating, but also
failed to consider considerable mitigating evidence. (See AOB 643-647.) In
fact, it committed Boyd*’errorin treating significant mitigating evidence as
aggravating. (See AOB 643-644.) Thus, the court’s improper consideration
of mitigating evidence as aggravation andfailure to consider the mitigating
evidence presented by the defense tainted its conclusion that the
aggravating factors outweighed the mitigation.
Respondent disagrees with appellant’s argumentthat the trial court
treated the evidence concerning his family background and support as
aggravation. (RB 304.) Respondent argues that the court considered the
evidence and did not suggest that it was aggravating evidence, but was
merelystating that it was unpersuasive mitigating evidence. ([bid.)
Respondentis wrong. After noting that appellant came from a loving,
caring and nurturing family andthat his situation was opposite to an
abusive, deprived background,the trial court stated that “[appellant] should
have been the product of a loving and caring family.” (36RT 12687-12688.)
" People v. Boyd (1985) 38 Cal.3d 762.
387
Clearly, the judge was holding appellant’s background against him in
opining that due to his loving family, he should have turned outbetter.
Respondentalso disagreesthat the trial court, in its consideration of
factor (k), ignored and failed to consider evidence of appellant’s deprived
childhood and his manypositive personality traits. (RB 304-305.)
Respondent arguesthere is nothing in the court’s commentsto indicate that
it ignored the testimony regarding appellant’s deprived childhood and his
positive behavior and whenthe court said that appellant did not come from
a deprived family, it clarified that it meant deprived of love and caring.
(RB 304-305.) However, at the beginningofits recitation of the mitigating
evidenceit had considered, the court stated: “And, yes, I have considered
the factors under factor (k) that can be argued as mitigating factors about
the defendant’s family atmosphere and support.” (36RT 12687.) The court
then recited the mitigating evidence it considered to be mitigating —
evidence of appellant’s intellectual deficits, an absence ofprior felony
convictions — as well as the possible mitigating factors or evidence which
the court did not find to mitigate -- appellant’s loving and caring family, the
offense was not committed while appellant was underthe influence of
extreme mental or emotional disturbance, the victim was not a participant,
defendant did not believe his behavior wasjustified, appellant did not act
under extreme duress or under the domination of others, appellant was not
impaired at the time of the offense, appellant’s offense participation was
not minor, and his age did not mitigate his behavior. (/d., at pp. 12687-
12690.) Nowheredid the court mention the extensive evidence of
appellant’s deprived childhood andhis positive traits. Given the court’s
prefacing remarksandhis inclusive list of what he considered,it appears
that the court did ignore evidence of the deprivations appellant suffered as a
child and his positive behaviors.
388
Respondentfurther disagrees that (1) the trial court erred in refusing
to consider appellant’s youth (18 years old at the time of the offense) as a
mitigating circumstance; and (2) the trial court’s improper consideration of
mitigating evidence as aggravation and failure to consider the mitigating
evidence violated the Eighth and Fourteenth Amendments. (RB 305-308.)
Respondentalso asserts that any error was harmless. (RB 308.) Appellant’s
opening brief addresses these remaining contentions. He thus submits this
claim on the points made aboveandin his opening brief. (See AOB 637-
651.)
389
XXXI.
CALIFORNIA’S DEATH PENALTY STATUTE, AS
INTERPRETED BY THIS COURT AND APPLIED AT
APPELLANT’S TRIAL, VIOLATES THE UNITED
STATES CONSTITUTION.
These issues were fully briefed in appellant’s opening brief, and
appellant stands on the showing he made therein. (AOB 652-687.)
390
XXXII.
REVERSAL OF THE GUILT AND PENALTY
VERDICTS IS NECESSARY DUE TO CUMULATIVE
ERROR.
Appellant fully briefed the issue of cumulative error in his opening
brief and stands on the showing he madetherein. (AOB 688-690.)
39]
CONCLUSION
For the foregoing reasons, respondent has failed to overcome
appellant’s showing that heis entitled to the relief requested.
DATED: November8, 2013 Respectfully submitted,
NEOMA KENWOOD
KAT KOZIK
LleaLian.
BY: NEOMA D. KENWOOD
Attorneys for Appellant
CARL DEVON POWELL
392
CERTIFICATION OF WORD COUNT
PURSUANT TO RULE8.630(b)(2)
I hereby certify that the foregoing brief contains 107,824 words, based
on the computer word count, and uses a 13-point Times New Romanfont. An
application for leave to file an over-length brief is being filed simultaneously
with this brief pursuant to California Rules of Court, rule 8.630(b)(5). (The
record in this case wasfiled before January 1, 2008.)
DATED: November7, 2013
Respectfully submitted,
NEOMA KENWOOD
KAT KOZIK
ow bab-[Cowlk—
KAT KOZIK
Attorneys for Appellant
CARL DEVON POWELL
PEOPLE V. CARL DEVON POWELL, California Supreme Ct. No. S043520
PROOF OF SERVICE
I, Neoma Kenwood, am overthe age of eighteen years and not a party to
the within above entitled action. My business address is P.M.B. #414, 1563
Solano Avenue, Berkeley, California 94707.
On November8, 2013, I served the attached APPELLANT POWELL’S
REPLY BRIEFontheinterested parties in said action by placing a true and
correct copy enclosed in a sealed envelope, with first-class postage fully prepaid,
in a United States Post Office Box, addressed as follows:
CARL DEVON POWELL LINDA ROBERTSON
# J-43000 / 2EB 101 Staff Attorney
CSP-SQ California Appellate Project
San Quentin, CA 94974 101 Second Street, Suite 600
[Appellant] San Francisco, CA 94105
GARY B. WELLS D.A.G. PAUL E, O’CONNOR
Attorney at Law California Attorney General’s Office
P.M.B. #203 1300 I Street, Suite 125
6083 Figarden Drive Post Office Box 944255
Fresno, CA 93722-3226 Sacramento, CA 94244-2550
[Habeas counsel] [Respondent]
RONALD CASTRO W. BRADLEY HOLMES
Attorney at Law Attorney at Law
1120 D. Street #200 1007 7" Street #205
Sacramento, CA 95814-0858 Sacramento, CA 95814
[Trial counsel] [Trial counsel]
HONORABLE JAMESI. MORRIS KAT KOZIK
Sacramento County Superior Court Attorney at Law
720 Ninth Street, Room 101 Post Office Box 2633
Sacramento, CA 95814-1398 Berkeley, CA 94702
[Co-Appellate Counsel]
I declare under penalty of perjury under the laws of the State of California
that the foregoingis true and correct and that this declaration was executed_on
November8, 2013, at Berkeley, California.
LL,eth
NEOMAKENWOOD
