PEOPLE v. SÁNCHEZ (EDGARDO)

Appellant’s Reply Brief

Cal.October 16, 2014

vo.soses SUPREME COURT COPY IN THE SUPREME COURT OF THESTATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. EDGARDO SANCHEZ-FUENTES Defendant and Appellant. N m N e N e e e N e e e n e e e e e e e ” APPELLANT’S REPLY BRIEF Appeal from the Judgmentofthe Superior Court of the State of California for the County of Los Angeles HONORABLE JACQUELINE A. CONNOR, JUDGE MICHAELJ. HERSEK State Public Defender SARA THEISS State Bar No. 159587 Deputy State Public Defender 1111 Broadway, 10th Floor Oakland, California 94607 Telephone: (510) 267-3300 Fax; (510) 452-8712 Email: theiss@ospd.ca.gov Attorneys for Appellant DEATH PENALTY (Los Angeles County Sup. Ct. No. LA0Q11426) SUPREME COURT FILED OCT 16 2014 Frank A. McGuire Clerk Deputy TABLE OF CONTENTS Page APPELLANT’S REPLY BRIEF ....... 00.0000 cece eee teens 1 INTRODUCTION 2... 0... ccceee tee nent ene 1 ARGUMENT......0. 0.0 cece eee ete eee n enn e nes 3 I. THE TRIAL COURT’S DENIAL OF APPELLANT’S WHEELER-BATSONMOTION VIOLATED STATE LAW AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND DEMANDS REVERSAL ....... cece cece eee n ene 3 D. The Trial Court Erroneously Failed To Find a Prima Facie Case Of Discrimination Based On The Pattern Of Strikes .... 0.0.0. 3 1. The Issue Is Relevancy Rather Than Sample Size...keeeeee 5 a. The inference of improper motive remains even ifjuror R.R. is removed from the statistical analysis. ......... 02... c eee eee 9 b. “Chance”is an erroneousalternate _explanation at step one, an invalid one in appellant’s case, and the Court’s reliance on it would increase unconstitutionally appellant’s burden beyond what Batson requires. 1.0.2.6... cece eee eee 10 2. The Existence Of Race-Neutral Factors Does Not Defeat Appellant’s Statistical Showing at Step One. ..... 06. eee eee eee 14 Il. IV. J. TABLE OF CONTENTS 3. The Statistical Analyses In This Court’s Prior Cases Do Not Defeat Appellant’s Statistical Showing ........ 0.0.00 e eee eee ees 15 The Trial Court Erroneously Failed To Find a Prima Facie Case Of Discrimination Based On Other Factors ....... 0... cece cee eens 18 The Court Should Not Rely On The Prosecutor’s Stated Reasons ForStriking the Prospective Hispanic Jurors To Resolve The Question Of Whether Appellant Has Made a Prima Facie Case ....... 26 Under The “Totality Of Relevant Facts” Standard OfBatson, This Court Should Engage In Comparative Analysis ..... 0... e ceceeeennes 28 The Judgment Must Be Reversed ............00-- 00 28 COUNT21 MUST BE REVERSED BECAUSE THERE WASINSUFFICIENT EVIDENCE TO CONVICT APPELLANT OF THE ROBBERY OF ARTURO FLORES 2.0.0... ccccee nen eee e ene nees 30 C. Because There WasInsufficient Evidence To Support Count 21, Appellant’s Rights Under Federal and State Law Were Violated, and Appellant’s Conviction For The Robbery Of Arturo Flores Must Be Reversed ............. 000 e eee 32 THE TRIAL JUDGE ERRED IN DENYING APPELLANT’S MOTION TO DISMISS AND STRIKE EVIDENCE OF COUNT 5, THE ATTEMPTED MURDER CHARGE ...... cccecttte nena 34 il TABLE OF CONTENTS The Court’s Refusal To Strike Medina’s Testimony Regarding Appellant’s Gesture Was an Abuse. Of Discretion ......... 00.0 cece cc eee eee eens There WasInsufficient Evidence That Appellant Had The Specific Intent To Kill Medina ........... Medina’s Belated Testimony That Appellant Made a Gesture As If To Remove TheClip WasInsufficient To Support Either Element Of The Attempted Murder Charge ............... Because The Evidence WasInsufficient, Appellant’s Rights Under Federal and State Law Were Violated, and The Conviction For Attempted Murder Must Be Reversed ........ 0... cee eect eect eee eeeene THE TRIAL COURT PREJUDICIALLY ERRED BY ADMITTING ROSA SANTANA’S PRELIMINARY HEARING TESTIMONYIN LIEU OF LIVE TESTIMONY A. The Prosecution Failed To Establish Santana’s Unavailability Under California Statute and The Sixth and Fourteenth Amendments and The Trial Court Erred In Finding That The Prosecution Exercised Good-Faith, Reasonable Diligence and In Admitting Santana’s Preliminary Hearing Testimony .......... 0c cece eee eee Appellant Was Prejudiced By The Trial Court’s Erroneous Admission Of Santana’s Preliminary Hearing Testimony .......... 0: cece ee ences ili ...34 12.35 wee 37 11.2 39 1... 4) 12. 4l we. Ol VI. VII. VIII. TABLE OF CONTENTS Page EVEN IF ROSA SANTANA WASA CONSTITUTIONALLY AVAILABLE WITNESS, THE TRIAL COURT ERRED BY ADMITTING HEARSAY STATEMENTS THROUGH HER IN VIOLATION OF THE ARANDA/BRUTONRULE AND RESTRICTING APPELLANT’S CROSS-EXAMINATION OF HER IN VIOLATION OF THE SIXTH AMENDMENT........... 0-0: eee eee ee eee eee 52 THE COURT PREJUDICIALLY ERRED BY ADMITTING EVIDENCE OF THE ROD’S COFFEE SHOP INCIDENT UNDER EVIDENCE CODESECTION 1101, SUBDIVISION B ....... eeeeeeens 58 F, The Admission Of The Rod’s Incident Evidence Was Prejudicial Error .............0 00 sees 62 H. The Admission Of The Evidence Violated Appellant’s Constitutional Rights and Reversal Is Required 2.0.0... 0c cccee eee eens 67 THE INSTRUCTIONS PREJUDICIALLY FAILED TO PROPERLY LIMIT THE JURY’S CONSIDERATION OF THE ROD’S COFFEE SHOP INCIDENT EVIDENCE..... 69 E. The Failure Of The Instructions To Properly Limit The Jury’s Consideration Of The Other Crimes Evidence Violated Appellant’s Rights Under The Fifth, Sixth, Eighth and Fourteenth Amendments and AnalogousProvisions Of The California Constitution, Prejudiced Appellant and Requires Reversal Of His Conviction .. 0.0.0.0... 0c cee eee eee 72 iv XII. TABLE OF CONTENTS THE TRIAL COURT ERRONEOUSLYINSTRUCTED THE JURY, PURSUANTTO CALJIC NO. 2.92, THAT A WITNESS’S CONFIDENCE IN HER IDENTIFICATION IS A RELEVANT FACTOR FOR THE JURY TO CONSIDER IN ASSESSING THE ACCURACY OF THAT IDENTIFICATION 2.0... ccceee eens 74 A. CALCIC No.2.92 Incorrectly Expresses The “Certainty” Factor Derived From Neil v. Biggers 0.1... ccceeetenes 75 B. TheInstructional Error, Which Violated Appellant’s State and Federal Constitutional Rights, Was Prejudicial and Reversal On The Outrigger and El Siete Mares Counts, As Well As Casa Gamino Counts 28, 30, 31 and 33,Is Required ..... 0... 0c cc78 APPELLANT’S DEATH SENTENCE MUST BE REVERSED BECAUSEIT IS BASED UPON THE IMPROPER AND PREJUDICIAL ADMISSION OF EDUARDO RIVERA’S PRELIMINARY HEARING TESTIMONYIN LIEU OF LIVE TESTIMONY....... 0.00 e ceteris 85 A. — Respondent’s Argument That the Prosecution Satisfied Its Good Faith Obligation to Attempt to Locate Rivers Is Legally and Factually Unsupported ........... 85 B.. Appellant Did Not Forfeit This Argument ............. 91 C. The Admission of Rivera’s Preliminary Hearing Testimony Prejudiced Appellant, Requiring Reversal Of His Death Sentence ...........-. 02-0005 93 XII. XIV. XV. XVI. XVII. TABLE OF CONTENTS THE TRIAL COURT DEPRIVED APPELLANT OF A FAIR AND RELIABLE SENTENCING DETERMINATION BY REFUSING TO GRANT A SEVERANCE, SEPARATEJURIES OR SEQUENTIAL PENALTY PHASE TRIALS 2... 0... e cece ees 94 THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REMOVINGAN INTERPRETER BECAUSE SHE COMMUNICATED EMOTION WHILE INTERPRETING FOR APPELLANT AS HE TESTIFIED DURING THE PENALTY PHASE ............- 98 THE TRIAL COURT PREJUDICIALLY ERRED BY ADMITTING AT THE PENALTY PHASE AN ALLEGED OUT-OF-COURT STATEMENT BY APPELLANT THAT HE HAD KILLED EIGHT OR NINE OTHER PEOPLE ....... 0.0 ccc eects 102 THE TRIAL COURT ERRONEOUSLY ADMITTED EVIDENCE OF THE ROD’S COFFEE SHOP INCIDENT UNDER SECTION 190.3, FACTOR(b) .......... 00 eee eee 107 THE TRIAL COURT PREJUDICIALLY ERRED BY ALLOWING THE PROSECUTOR TO IMPEACH APPELLANT ABOUTDETAILS OF THE CRIMES IN RESPONSETO HIS PENALTY PHASE TESTIMONYOF RELIGIOUS REFORMATION.........-2+000065occe eee 111 C. The Impeachment Of Appellant With Questions About The Crimes Was Improper Rebuttal .. 0.0.0.0... ee ccc eee eee eee 111 E. The Error WasPrejudicial and Reversal Is Required ....... 117 vi TABLE OF CONTENTS é& a} XVII. THE PROSECUTOR’S IMPROPER CROSS-EXAMINATION OF DEFENSE MITIGATION WITNESSES AND OTHER MISCONDUCT VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTSTO A FAIR TRIAL AND RELIABLE PENALTY VERDICT ........... 0.0 e eee eens 121 B. The Prosecutor Improperly Insinuated That Appellant Had Committed Prior Murders ............ 121 C. The Prosecutor Repeatedly Violated The Court’s Ruling Limiting Cross-Examination To Appellant’s Own Actions and Role In The Instant Crimes... 0.6... cc cece eee eee 128 D. During a Break In Appellant’s Cross-Examination the ProsecutorInitiated an Improper Ex-Parte Contact With The Court, Which Resulted In a Change OfInterpreter Over Appellant’s Objection ..... 131 E. Other Misconduct ........ 0... cece eee eee tere ences 133 F, The Prosecutor’s Actions Were Prejudicial Misconduct and Reversal Of The Death Judgments Is Required 6.2... 1c cece eee eee eens 134 XIX. THE TRIAL COURT PREJUDICIALLY ERRED IN ALLOWING THE PROSECUTOR TO COMMIT MISCONDUCT BY REPEATEDLY QUESTIONING APPELLANT ABOUT WHETHER HE HAD BEEN INVOLVEDIN A SHOOTOUT IN HONDURAS........... 136 C. The Court Erred In Allowing Repeated Questions Suggesting Appellant Was Involved In a Shootout In Honduras In February 1992 .............. 137 D. — The Prosecution’s Repeated Improper Questions And Insinuations Constituted Misconduct............. 139 vil TABLE OF CONTENTS Page G. The Errors Were Prejudicial and Reversal Is Required 6.2...eeerete 143 XX. THE TRIAL COURT ERRONEOUSLY PERMITTED IMPROPER IMPEACHMENT OF APPELLANT’S RELIGIOUS MITIGATION WITNESS .........-200 00 eee 145 E. The Errors WerePrejudicial and Reversal . Is Required 0... 0... cccccteens 151 XXI. THE PROSECUTOR’S IMPROPER ARGUMENT VIOLATED APPELLANT’S RIGHTS TO A FAIR TRIAL AND A RELIABLE PENALTY VERDICT ..........- 154 B. Misstatements And Misrepresentations Of The Law .... 154 C. Improper Tactics Designed To Mislead The Jury ....... 161 D. Improper Vengeance Argument ............-. ee eee 162 E. Improper Argument Under Caldwell v. Mississippi ..... 167 F, Other Flagrant Misconduct .......... 06. eee eee ees 168 G. The Prosecutor’s Argument Was Cumulatively Prejudicial 2.0... . eectteens .. 174 XXIII. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR MODIFICATION OF THE DEATH VERDICT ...... 0.006 eect cee ee eee eee 177 CONCLUSION ...... 0.0eeetee etn n eae 183 CERTIFICATE OF COUNSEL ..... 0... cece eee eee eee. ... 184 vill TABLE OF AUTHORITIES Page(s) FEDERAL CASES Antwine v. Delo (8th Cir. 1995) 54 F.3d 1357 1... cece eee 170, 172, 173 Barber v. Page (1968) 390 US. 719 2.eeenett e ete 92 Batson v. Kentucky (1986) 476 US. 79 ookeeeeeens passim Beck v. Alabama (1980) 447 US. 625 2...cceters 32, 40, 68, 73 Berger v. United States (1935) 295 US. 78...eeeenee 134, 175 Boyde v. California (1990) 494 U.S. 370 2... ee cee teens 81, 164, 167, 182 Brewer v. Quaterman (2007) 550 U.S. 286 2...cee eee eee e eee 181 Briggs v. Grounds (9th Cir. 2012) 682 F.3d 1165.0... ceceeee 21, 22, 28 Brinson v. Vaughn (3d Cir. 2005) 398 F.3d 225 21...eee teenies 8, 24 Brown v. Payton (2005) 544 U.S. 133 2.eetenes 115, 151 Bruton v. United States (1968) 391 U.S. 123 0...eee 52, 54, 56 Byrd v. Lewis (2009) 566 F.3d 855 2...eeree ete ees 70 ix TABLE OF AUTHORITIES Page(s) Caldwell v. Mississippi (1985) 472 U.S. 3202.eens 167, 168 Carter v. Kentucky (1981) 450 U.S. 288 2...eeeteen nes 81 Castaneda v. Partita (1977) 430 U.S. 482 2...eeeee een nee 6 Chambers v. Mississippi (1973) 410 U.S. 28420teen e nee 56 Chapman vy. California (1967) 386 U.S. 18 2...eeetenes passim Cochran v. Herring (11th Cir. 1995) 43 F.3d 1404 20...eeeees 26 Cosby v. Jones (11th Cir. 1982) 682 F.2d 1373 2...eeeeens 39 Coulter v. Gilmore (7th Cir. 1998) 155 F.3d912 .. oe eeens 7 Crawford v. Washington (2004) 541 US. 36. 01eenete 51 Darden v. Wainwright | (1986) 477 US. 168 2...teenees 168 Doe v. Busby (9th Cir. 2011) 661 F.2d 100] 20... 6. eee eee eee ees 70 Donnelly v. De Christoforo (1974) 416 U.S. 637 occeee es bene eens 175 TABLE OF AUTHORITIES Page(s) Douglas v. Woodford (9th Cir. 2003) 316 F.3d 1079 0.0... eeeee ee eens 104 Eagle v. Linahan (11th Cir. 2001) 279 F.3d 926 2.0... . cece eee eee eee ees 19, 25, 28 Eddings v. Oklahoma (1982) 455 U.S. 104 2...eeeeee ees 164, 167, 182 Estelle v. McGuire (1991) 502 U.S. 62 2...eeetenes 72 Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295 2.0... cece ee eee eee eee eens 109 Fierro v. Gomez (N.D. Cal.1994) 865 F.Supp. 1387 ....... 00. cee cece ee 170 Fierro v. Terhune (9th Cir. 1998) 147 F.3d 1158. 0...ee ee eee ees 171 Gardnerv. Florida (1977) 430 U.S. 349 oo.eeeeeens 68 Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812 2.0... cece eee ee eee eens 70, 71 Hedgepeth v. Pulido (2008) 555 U.S. 57 Loeeeeeneens 70 Hendricks v. Calderon (9th Cir. 1995) 70 F.3d 1032 2.0... cee cece eeeeens 104 Hernandez v. New York (1991) 500 U.S. 352... icc cccneeete 18 X1 TABLE OF AUTHORITIES Page(s) Hernandez v. Texas (1954) 347 U.S.475 2.eeeeee eee 34 Hirabayashi v. United States (1943) 320 US. 81 occeee een ene eens 34 Holloway v. Horn (3d Cir. 2004) 355 F.3d 707 2... eee cee eee ees passim Hooper v. Ryan (7th Cir. 2013) 729 F.3d 782 2... ceceeee 18 Idaho v. Wright (1990) 7 US. 805 2.eeeteen eens 54 Inre Winship (1970) 397 U.S. 358 oceeenee teens 35, 79 Irvin v. Dowd (1961) 366 U.S. 717 2.eeeeens 135 Jackson v. Denno (1964) 378 U.S. 368 01.ceeneces 57 Jackson v. Virginia (1979) 443 U.S. 307oeeee eee 32, 39, 79, 109 Johnson v. California (2005) 545 U.S. 162 2.nettpassim Johnsonv. Mississippi (1988) 486 U.S. 578...eeeeeeeee 1104, 109 Jones v. State of Wisconsin (7th Cir. 1977) 562 F.2d 440 o.oo.eeeee eee eee 80 xii TABLE OF AUTHORITIES Page(s) Jones v. West (2d Cir. 2009) 555 F.3d 90...eectee eens 5 Kaiser v. New York (1969) 394 U.S. 280 2.eeeeens 159 Kitchell v. United States (Ist Cir. 1966) 354 F.2d 715 20...ceeens 162 Le v. Mullin (10th Cir. 2002) 311 F.3d 1002 0... 6. cece eee eee eee 167 Lockett v. Ohio (1978) 438 U.S. 586oeteens 167 Manson v. Brathwaite (1977) 432 U.S.98 0. ceceeeteee nes 76 Maryland v. Craig (1990) 497 U.S. 836 2...eeeteen ees 54, 56 McCleskey v. Kemp (1987) 481 U.S.2792ceeee eee eens 18 Michigan v. Bryant (2011) 131 S.Ct 1143 Lo.eeeeen nee eee 56 Miller El v. Cockrell (2003) 537 U.S. 322 .. cece eee tenets 13, 14, 20, 27 Miller El v. Dretke (2005) 545 U.S. 231 octets 8, 20, 26 Morales vy. Tilton (N.D. Cal. 2006) 465 F.Supp.2d 972 2.0... cece eee eee eens 172 xiii TABLE OF AUTHORITIES Page(s) Nash v. United States (2d Cir. 1932) 54 F.2d 1006 «0... eeeee eee eens 96 Neil v. Biggers (1972) 409 U.S. 188 06.teeens 15, 76, 77 Ohio v. Roberts (1980) 448 U.S. 561ceee ees 51,55 Payne v. Tennessee (1991) 501 U.S. 808 0.eeeee eens 181, 182 Payton v. Woodford (9th Cir. 2002) 299 F.3d 815 10... cece eee eee eee ee ee eee 140 Perry v. New Hampshire (2012) U.S. [132 S.Ct. 716, 739] 2.6... eee eee eee 76, 78 Porter v. McCollum (2009) 558 U.S. 30 0... ceceeeene eens 104 Pulley v. Harris (1984) 465 U.S.37Woeeee eee een eens 178, 180 Purkett v. Elem (1995) SIZ US. 765 oooeenents 27 Reynosov. Hall (9th Cir. 2010) 395 Fed.Appx. 344 2.0... . cece eee eee ees 23 Robinsonv. Schriro (9th Cir. 2010) 595 F.3d 1086 «6.0.0... ee eee eee eee ees 109 Romano v. Oklahoma (1994) 512 U.S. 1ceeee 168 XiV TABLE OF AUTHORITIES Page(s) Skipper v. South Carolina (1986) 476 U.S.Lctneen es 115 Smith v. Stewart (9th Cir. 1999) 189 F.3d 10094 2.0... eee eee teens 104 Smith v. Texas (2004) 543 U.S.37 0... cccnee ete nena 181 Snyder v. Louisiana (2008 ) 552 U.S.472 1... ceceeeee nes passim Sullivan v. Louisiana (1993) 508 U.S. 275 2.cete ee ne ene es 72 Taylor v. Kentucky (1978) 436 U.S. 478 00.eens 81 Tennard v. Dretke (2004) 542 U.S.274 0... cece ceceeee ens 181, 182 Thomas v. Hubbard (9th Cir. 2001) 273 F.3d 1164 2.2... eee eee eee een es 140 Tolbert v. Page (9th Cir. 1999) 182 F.3d 677 0.0... ee eee eee nen eens 26 Tuilaepa v. California (1994) 512 U.S. 967 oo. cccceeee 104 Turner v. Marshall (9th Cir. 1995) 63 F.3d 807 2... cee eee ee eee ee ene eens 26 United States v. Brownlee (3d Cir. 2006) 454 F.3d 131 0.0... ieee cee eee tenets 80 XV TABLE OF AUTHORITIES Page(s) United States v. Clemons (1988) 843 F.2d 741 oo. iccceeee ete teens 5,9 United States v. Collins (9th Cir. 2009) 551 F.3d 914 0.0... cece eeeee es 4 United States v. Coveney (Sth Cir. 1993) 995 F.2d 578 2.0... cee eee eee eee 126, 135 United States v. D’Amato (2d Cir. 1994) 39 F.3d 1249 20... cece eee eee eee eee eens 39 United States v. Flores-Rivera (Ist Cir. 1995) 56 F.3d 319 0... ceeee39-40 United States v. Grayson (2d Cir. 1948) 166 F.2d 863 2... cece eee eee tees 135 United States v. Green (D. Mass. 2004) 324 F.Supp.2d 311... 0.6... eee eee ee eee ees 97 United States v. Greene (4th Cir. 2013) 704 F.3d 298 1.0... cece cece eee eee eens 716 United States v. Harris (7th Cir. 1991) 942 F.2d 1125 2... ec eeeeeeee eee 39 United States v. Kattar (1st Cir. 1988) 840 F.2d 118.0... cece eee ee ee eres 158 United States v. Kerr (9th Cir. 1992) 981 F.2d 1050 2.1... eee eee eee es 169 United States v. Lecco (S.D. W. Va. 2009) 2009 U.S. Dist. LEXIS T9799 Loc eee 97 Xvi TABLE OF AUTHORITIES Page(s) United States v. Lewis (9th Cir. 1987) 833 F.2d 1380 1... .. eee eee eee enn eee 59 United States v. Lighty (4th Cir. 2010) 616 F.3d 321 1... ceceeee eens 166 United States v. Luna (9th Cir.1994) 21 F.3d 874 20... ceeeee eens 61 United States v. Mercedes (D. Puerto Rico 2001) 164 F.Supp.2d 248. 2.0... . cece eee eee eee 48 United States v. Omoruyi (9th Cir. 1993) 7 F.3d 880 6.0... cee eee tenes 26 United States v. Perez (D. Conn. 2004) 299 F.Supp.2d 38 2.2... eee eee eee eee 97 United States v. Perlaza (9th Cir. 2006) 439 F.3d 1149 2.0... eee eee eee ees 169, 176 United States v. Sanchez (9th Cir. 2011) 659 F.3d 1252 10... eee eee eee eee 156, 167 United States v. Santillana (Sth Cir. 2010) 604 F.3d 192 2.0... . cece eee eee ene nes 40 United States v. Stinson (9th Cir. 2011) 647 F.3d 1196 0.0... eee eee ee eee eee eee ees 14 United States v. Stephens (2005) 421 U.S. 503... ccceneeee tenets 13 United States v. Stephens (7th Cir. 2005) 421 F.3d 503 1.0... eee eeeeens passim XVii TABLE OF AUTHORITIES Page(s) United States v. Taylor (N.D.Ind. 2003) 293 F.Supp.2d 884 1.0... . eee eee eee eee 97 United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142 22... eee eee eee 169, 176 Viereck v. Unites States (1943) 318 U.S. 236 oiettnteens 134 Wiggins v. Smith (2003) 539 U.S. 510 2.eeeeee eens 152 Williams v. Runnels (2006) 432 F.3d 1102 0...eeeeee eee 25 Woodson v. North Carolina (1976) 428 U.S. 280 20.enetenes 149 Yick Wo v. Hopkins (1886) 118 U.S. 356 2.eeeee nee es 34 Young v. Conway (2d Cir. 2012) 698 F.3d 69 2.0... cece ee eee nes 80 Zant v. Stephens (1983) 462 U.S. 862 2...ceeeeetn 104 STATE CASES Brodes v. State (2005) 279 Ga. 435 2...eeeeeees 78 Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780 0.0... cece eeetenets 165 Commonwealth v. Santoli (1997) 424 Mass. 837 [680 N.E.2d 1116] «1.62... 0c eee eee ees 78 XVili TABLE OF AUTHORITIES Page(s) Hale v. Morgan (1978) 22 Cal.3d 388 2... cece ccc teen teen ees 180 Hatch v. Superior Court (2000) 80 Cal.App.4th 170 0... ceeeee eens 36 In re Choung D (2006) 135 Cal.App.4th 1301 2.0... 6. cece eee eee ee eee ees 42, 43 Inre Francisco M. (2001) 86 Cal.App.4th 1061 02... .. eee ee eee 47, 48, 49 In re Sakarias (2005) 35 Cal.4th 140 0... ceeeee eee ens 158 Kunec v. Brea Redevelopment Agency (1997) 55 Cal.App.4th S11...eee eee eens 158 People v. Allen (1986) 42 Cal.3d 1222 1... ceceeeeeens 106 People v. Antista (1954) 129 Cal.App.2d 47 2... ccc ccc eeeens 60, 108 People v. Aranda (1965) 63 Cal.2d 518 0.0... ccc ce eee eee 52, 56, 57 People v. Avena (1996) 13 Cal.4th 39400.118 People v. Bacon (2010) 50 Cal.4th 1082 0...eneee tenes 137 People v. Bell (2007) 40 Cal.4th 582 0...eeeeens 4,9, 17 People v. Bemore (2000) 22 Cal.4th 809 0... ccc eee ee eee eee tenet eens 133 X1X TABLE OF AUTHORITIES Page(s) People v. Bennett (2009) 45 Cal.4th 577 0.ceeene eet teenies 149 People v. Bledsoe (1946) 75 CalApp.2d 862 ..... 0.6. cece eee eee eens 60, 108 People v. Boddie (1969) 274 Cal.App.2d 408 2.1... eee eee eee eee eee tenes 60, 108 People v. Bolden (2002) 29 Cal.4th 515 2... cece eeeeee es 136, 182 People v. Bolton (1979) 23 Cal.3d 208 20... ccc eee eee eee eee eee ees 127, 128, 162 People v. Bonilla (2007) 41 Cal.4th 313 0.0... cece eeeeee nes 4, 10, 16 People v. Box (2000) 23 Cal.4th 1153.0... cece eee ee eee ete ete 102, 103 People v. Boyd | (1985) 38 Cal.3d 762 02... ccc eee eee ee teens 109, 118, 119 People v. Boyde (1988) 46 Cal.3d 212 0.6... ceceeeees 164 People v. Brown (1988) 46 Cal.3d 432 2... cece cece eee eee tenes 106, 149 People v. Bunyard (2009) 45 Cal.4th 836 ...... eee e eee eee eeepee es 44, 45, 46, 49 People v. Burgener (2003) 29 Cal.4th 833 00... 0 cece eee eee eee teens 182 XX TABLE OF AUTHORITIES Page(s) People v. Calderon (1994) 9 Cal.4th 69 0.0... ccceee eee eens 99, 100 People v. Carasi (2008) 44 Cal.4th 1263 20.0... ceceeeeeens passim People v. Carpenter (1997) 15 Cal.4th 312... ceceeeee eee eens 149 People v. Castricone (N.Y. App. Div. 1993) 604 N.Y.S.2d 365 [198 A.D.2d 765, 766] 0.6... cece eeeeeetenes 162 People v. Chism (2014) 58 Cal.4th 1266 0.0.6... eeeeens 163 People v. Clair (1992) 2 Cal.4th 629 0.6...eeeee teens 161 People v. Clark (2011) 52 Cal.4th 856. 0... cece eee eens 4,17, 19 People v. Cline (1998) 60 Cal.App.4th 1327 0.0... 6c eee eee tenes 99, 100 People v. Cole (2004) 33 Cal.4th 1158.0... 6. ccc tee ee eee eens 68 People v. Collie (1981) 30 Cal.3d 43 0... cece eee eee een ees 69 People v. Collins (2010) 49 Cal.4th 175 0... cece eee eens 169, 172 People v. Cornwell (2005) 37 Cal.4th 50.0... ceceeee nett nen 19 TABLE OF AUTHORITIES Page(s) People v. Cromer (2001) 24 Cal.4th 889 0... eee ee eee eee teen een eee 93 People v. Cruz (1964) 61 Cal.2d 861 2...cecteee eens 151 People v. Cunningham (2001) 25 Cal.4th 926 00... cee cece eee ee eee teen ee eens 76 People v. Davenport . (1995) 11 Cal.4th FILoeeeteens 103 People v. Davis (1984) 160 Cal.App.3d 970 2.0... ccc cece eee eee eee eens 134 People v. Davis (2013) 57 Cal.4th 353 00...eeeeee nee eens 30 People v. Denson (1986) 178 Cal.App.3d 788 1.0.2... eee eee eee eee eens 92 People v. Easley (1983) 34 Cal.3d 858 2... cece cece eee eee tee teen ene 179 People v. Eilers (1991) 231 Cal.App.3d 288 2.0.0... eee reece eee eens 38 People v. Elliott (2012) 53 Cal.4th 535 0.0...eeeete 107 People v. Ervin (2000) 22 Cal.4th 48 0.0...ceceeee eee ees 95,178 People v. Estrada (1998) 63 Cal.App.4th 1090.00... eeeeee 124, 143 XXil TABLE OF AUTHORITIES Page(s) People v. Eubanks (1996) 14 Cal.4th 580 0...cctent nenees 165 People v. Eubanks (2011) 53 Cal.4th 110... 0.ecce eee eens 11] People v. Ewoldt (1994) 7 Cal.4th 380 0...ceeene nee 60 People ex rel. Dept. ofPublic Works v. Graziadio (1964) 231 Cal.App.2d 525 2.0... ceceeee eee 165 People v. Farnam (2002) 28 Cal.4th 107 2...ceeeee eee 115, 116, 118 People v. Ford (1948) 89 Cal.App.2d 467 2... ccceee eens 126 People v. Foster (2010) 50 Cal.4th 130...0ceee teens 69, 103 People v. Friend (2009) 47 Cal-4th 1...ceeeee eens 139, 149 People v. Garcia (2011) 52 Cal.4th 706... 0...eccent es passim People v. Gay (2008) 42 Cal.4th 1195 2...ceeeens 105 People v. Gibson (1976) 56 Cal.App.3d 119 2... ccceeeene 127 People v. Glass (1975) 44 Cal.App.3d 772 0... ccc cece cece eens 134, 140 XXill TABLE OF AUTHORITIES Page(s) People v. Gonzalez (2005) 34 Cal.4th L111ceeee nets 105 People v. Gonzalez (2006) 38 Cal.4th 932.0... ceceeeeeens 105, 152 People v. Gordon (1990) 50 Cal.3d 1223 .. 0. cccceeee eens 76 People v. Gory (1946) 28 Cal.2d 450...0.eeeteens 60, 108 People v. Grant (1988) 45 Cal.3d 829 2.0... ccc eee erent teen ees 173 People v. Grimes (1959) 173 Cal.App.2d 248 0.0.0... cece eee eens 126, 142 People v. Guerra (2006) 37 Cal.4th 1067.0... cee eee eee ees 33, 40, 133 People v. Hajek (2014) 58 Cal.4th 1144 0...eeeeee eens 141 People v. Hall (2000) 82 Cal.App.4th 813 00... cece eee eens | 143, 175 People v. Hamilton (1963) 60 Cal.2d 105 10...ceceeee eee ene 150 People v. Hamilton (1989) 48 Cal.3d 1142 00...ee ee eee eens 131 People v. Harris (1981) 28 Cal.3d 935 20... ceceee eee eens 137, 169 XXIV TABLE OF AUTHORITIES Page(s) People v. Harris (2013) 57 Cal.4th 804 2... ccceteee eee passim People v. Harris (2005) 37 Cal.4th 310 2... ceceeee eee 168, 169 People v. Herrera (2010) 49 Cal.4th 613.0... eee eee ees 41, 89-90, 91, 92 People v. Hill (1992) 3 Cal.4th 959...ceeee eee 1, 124, 177 People v. Hill (1998) 17 Cal.4th 800 0...eeees passim People v. Hines (1997) 15 Cal.4th 997ocete eens 180 People v. Holt (1984) 37 Cal.3d 436 0... ccc cece eee eens 127 People v. Hovey (1988) 44 Cal.3d 543 ooeeeeeees 46, 47 People v. Hughes (2002) 27 Cal.4th 287 0...eeeeee ees 139 People v. Jackson (2014) 58 Cal.4th 724 0... ccceetenes 182 People v. Johnson (1980) 26 Cal.3d 557 oo. cece ee teen eens 109 People v. Johnson | (1992) 3 Cal.4th 1183 0...tenes 75,77 XXV TABLE OF AUTHORITIES Page(s) People v. Johnson (2003) 30 Cal.4th 1302 2.0...ceeeee ees 11, 13 People v. Johnson (1981) 121 Cal.App.3d 94 wo...cc cee eee tenes 126 People v. Kelly (2007) 42 Cal.4th 763 0... ccceeeeee e nes 25 People v. Key (1984) 153 Cal.App. 888 2.0.0...eetnee 69 People v. Kimble (1988) 44 Cal.3d 480 0.eeeeee 163 People v. Kirkes (1952) 39 Cal.2d 719 0... eee eee eeedtc e eee eee neae 131 People v. Lashley (1991) 1 Cal.App.4th 938. 0... ccc ceeeee 35, 36 People v. Lenix (2008) 44 Cal.4th 602...ceceeens passim People v. Letner and Tobin (2010) 50 Cal.4th 99 0...eeeens 95, 96 People v. Lewis (2004) 33 Cal.4th 214...0ceect eens 178 People v. Lewis (2006) 39 Cal.4th 970 0...eeeeens 33, 40 People v. Lindberg (2008) 45 Cal.4th 1...eeeee eens 69, 72 XXVI1 TABLE OF AUTHORITIES Page(s) People v. Loker (2008) 44 Cal.4th 691 2...ecee ees 113,114 People v. Lomax (2010) 49 Cal.4th 530 0...cccece teens passim People v. Love (1961) 56 Cal.2d 720 20...cccteen eens 169 People v. Lucas (1995) 12 Cal.4th 415 2.0ete eee teens 141 People v. Lynch (1943) 60 Cal.App.2d 133 12...eccee eee eens 126 People v. Martinez (2007) 154 Cal.App.4th 314 0.0...ccc ce eens 88, 89, 91 People v. McPeters (1992) 2 Cal.4th 11480.ceeee eens 139 People v. Melton (1988) 44 Cal.3d 713 oo.eeeee e nee 148, 149 People v. Mendoza (1974) 37 Cal.App.3d 717 00... ccc ce tee tne 152 People v. Michaels (2002) 28 Cal.4th 486 2.0...ceeeee 102, 103 People v. Mickle (1991) 54 Cal.3d 140 .2ceee teens 139, 149 People v. Montiel (1993) 5 Cal.4th 877 2.0.eeeene tees 112 XXVli TABLE OF AUTHORITIES Page(s) People v. Morris (1991) 53 Cal.3d 152 0.eeeeee ee ene 173 People v. Morse (1964) 60 Cal.2d 631 2...ceeeee e ene 150 People v. Motton (1985) 39 Cal.3d 596 2. ceceett eens 20, 21 People v. Mullings (1890) 83 Cal. 138.0... ceeceeeee ene 142 People v. Noble (1981) 126 Cal.App.3d 1011 . 1...cece ene ee 105 People v. Ochoa (1998) 19 Cal.4th 353 2...cenceeens 178 People v. Ochoa (2001) 26 Cal.4th 398...eeeeee 103, 154, 155 People v. Partida (2005) 37 Cal.4th 428 0...eeeeee eee ees 68, 137 People v. Payton (1992) 3 Cal.4th 1050 0...eceeeete 111 People v. Pearson (2013) 56 Cal.4th 393 00... ceceeects 26, 136, 139 People v. Pham (2011) 192 Cal.App.4th 552. 0...eee eee r 36, 37 People v. Pic’l (1981) 114 Cal.App.3d 824 2.0... ceeee eee 163 XXVill TABLE OF AUTHORITIES Page(s) People v. Pigage (2003) 112 Cal.App.4th 1359 ...........05.Lake e ence eens 131, 134 People v. Pitts (1990) 223 Cal.App.3d 606 ......... cece eee eee ees 124, 127, 165 People v. Pride (1992) 3 Cal.4th 195 0... eee ete treet ees 173 People v. Prieto (2003) 30 Cal.4th 226 0.0... ccc ce eee ee tee ene 74, 154 People v. Ramos (1997) 15 Cal.4th 1133 20...cee eee eens 103 People v. Redrick (1961) 55 Cal.2d 282 2.0...ecteee 60, 108 People v. Richardson (2007) 151 Cal.App.4th 790 2.0... cece ee ee eee ees 37 People v. Riel (2000) 22 Cal.4th 1153 0.0... cece eee eee eens 177, 178 People v. Robertson (1982) 33 Cal.3d 21...i.eeee 109 People v. Rodriguez (1986) 42 Cal.3d 1005 21... 6 cece cece eee eee 100, 112, 180 People v. Rogers (2006) 39 Cal.4th 826 00.0... cececcceee 81 People v. Rogers (2013) 57 Cal.4th 296 2.0... ccccee renee es 58, 70 XX1X TABLE OF AUTHORITIES Page(s) People v. Roldan (2012) 205 Cal.App.4th 969 0.0...ieeeeee 47, 48, 91 People v. Rowland (1992) 4 Cal.4th 238 2...eeeeee eee 79 People v. Rudolph (1961) 197 Cal.App.2d 739 0.0... ceceeeeeee 31, 32 People v. Salcido (2008) 44 Cal.4th 932.ceeeee ete ees 21 People v. Sandoval (2001) 87 Cal.App.4th 1425 2...ceeee eee es passim People v. Sattiewhite (2014) 59 Cal.4th 446 0...cette teenies 28 People v. Scheid (1997) 16 Cal.4th 1...erence eens 58 People v. Scott (1978) 21 Cal.3d 284 0...ccc ce eee tne 39 People v. Sengpadychith (2001) 26 Cal4th 316... 0...cee eee eee ees 72, 78, 155 People v. Sifuentes (2011) 195 CalApp.4th 1410 20... ceceee ee eee 60, 108 People v. Smith (2003) 30 Cal.4th 581.0...eeeeens 87 People v. Smith (2008) 168 Cal.App.4th 7.0...eeteen e nee 30 XXX TABLE OF AUTHORITIES Page(s) People v. Snow (1987) 44 Cal.3d 216 2... ccc cccete tee tenes passim People v. Stanworth (1969) 71 Cal.2d 820 20... ceceeeete 179 People v. Sturm (2006) 37 Cal.4th 1218 2... cece eee eet et teens 105 People v. Tate (2010) 49 Cal.4th 635 2.0...eee eee tenet teens 133 People v. Taylor (2001) 26 Cal.4th 115520... 95 People v. Thomas (2011) 52 Cal.4th 336 0.0...eeeeens 107, 108 People v. Thompson (1988) 45 Cal.3d 86 2... 6. ccc ec eee eens 169, 172, 173 People v. Turner (1990) 50 Cal.3d 708 00... cece ccc ee teeter eee 39 People v. Van Buskirk (1952) 113 Cal.App.2d 789 0... . ccc eee eee eee tee eee eens 35 People v. Venegas (1998) 18 Cal.4th 47 0...eee eee 39, 114, 116, 117 People v. Vines (2011) 51 Cal.4th 830 00... eeeeee eee etnies 67 People v. Ware (1978) 78 Cal.App.3d 822 20... cece eee eee ee tenet eee nees 92 XXX1 TABLE OF AUTHORITIES Page(s) People v. Watkins (2012) 55 Cal.4th 999 00.eeeene 37, 38 People v. Watson (1956) 46 Cal.2d 818 2...eeeeee 68, 151 People v. Watson (1980) 213 CalApp.3d 446 2.0...ceeeee 49, 50, 151 People v. Wells (1893) 100 Cal.459eeepassim People v. Wheeler (1978) 22 Cal.3d 258 2...eeeett enna passim People v. Whitt (1990) 51 Cal.3d 620 22...eccent ene 169 People v. Williams (1998) 17 Cal.4th 148 0.eeeee 124, 179 People v. Williams (2006) 40 Cal.4th 287 0...cceee renee »» 158 People v. Williams (2013) 56 Cal.4th 630 0...ceeee eee eens 21 People v. Winson (1981) 29 Cal.3d TLL occeee eens 57 People v. Wright (1988) 45 Cal.3d 1126 2...eeeeens 76, 77 People v. Young (2005) 34 Cal.4th 1149 0...eeeee 33, 40 XXXii TABLE OF AUTHORITIES Page(s) People v. Zambrano (2004) 124 Cal.App.4th 228 2.0...eeeeens 121 People v. Zambrano (2007) 41 Cal.4th 1082 2...cetteee 165 Price v. Superior Court (2001) 25 Cal.4th 1046 2...cette eee 177 Sims v. Dep’t ofCorr. & Rehab. (2013) 216 Cal. App. 4th 1059 00... eee eee ee tenes 172 State v. Akins (2014) 298 Kan. 592 [315 P.3d 868] «00.6... cece eee ee eee 156 State v. Cabagbag (2012) 127 Hawai’i 302, 311 [277 P.3d 1027] .......---. eee eee 77, 81 State v. Chen (2011) 208 N.J.307 2.cettetenets 80 State v. Guilbert (2012) 306 Conn. 218 2...eeeteens passim State v. Henderson (2011) 208 N.J.208 22...ccctee ete teens 80 State v. Hinds (App.Div.1994) 278 N.J.Super. 1 [650 A.2d 350] .......-....0055. 144 State v. Lawson (2012) 352 Or. 724 [291 P.3d 673] «0... cece ee eee eee 76, 79, 80 State v. Mitchell (2012) 294 Kan. 469 [275 P.3d 905] 1.0... eeeeee 77 XXXill TABLE OF AUTHORITIES Page(s) State v. Outing (2010) 298 Conn. 34 [3 A.3d 1]...eeeeee eee 80 CONSTITUTIONS U.S. Const. Amends. DS cece cence een eee eee passim O cece cee eee een eee eens passim Beete eee eee passim 14 occcette ee passim Cal. Const., art. I, §§ Lccece eee eee eens 109 Tice eee ete e eee n ees passim |passim 16. ccc cece eee eens passim passim STATE STATUTES Cal. Evid. Code §§ 240, subd. (a) (5)... 2. eee eee 92 352 cece eee eee eens 58 600 2. ccceee eae 30 7180 oo ccc ccc tee eee eee tenes 149 1101, subd. (a) 2... eeee 72 1101, subd. (b) . 1... eee ee eee 58 Cal. Pen. Code §§ 190.2, subd. (a) (17) .... 2... eee eee 155 190.3, factor (b) ............0-- 107, 136 190.3, factor (kK) .........0..0006. 180-181 190.4, subd. (€) .....-. eee ee eee 178 LITUBL Loee ee eee 107 1259cccete 107 1469 oo.eeteens 69 1332 . occ ccc eee 45, 46, 47, 49 3604... cece ee eee ees 171 XXXIV TABLE OF AUTHORITIES Page(s) COURT RULES Cal. Rules of Court Rule 8.630 0.0... . ccc eee eee eee 184 JURY INSTRUCTIONS CALJIC in|70, 72 2.50.01... ccc eee ee ees 70, 71 Q50.1 ccc eee ete eens 71 QSL ceceeeens 70 VA) 74, 75, 78 TEXT AND OTHER AUTHORITIES Adams, Death by Discretion: Who Decides Who Lives and Dies in the United States ofAmerica? (2005) 32 Am. J. Crim. L. 381 0...eeeeee 18 Altizio, Robbery ofConvenience Stores (April 2007) Problem-Oriented Guidesfor Police, Problem-Specific Guides Series, No. 49, p. 4 [as of September 17, 2014] 0... 6... eee eee eee ees 61 Balduset al, Statistical ProofofRacial Discrimination in the Use ofPeremptory Challenges: the Impact and Promiseofthe Miller-el Line ofCases as Reflected in the Experience ofOne Philadelphia Capital Case (2012) 97 Iowa L. Rev. 1425 2... ceceees 12 Blumeet al., Competent Capital Representation: The Necessity ofKnowing and Heeding What Jurors Tell Us About Mitigation (2008) 36 Hofstra L. Rev. 1035 20... eee eee eee eee 160 XXXV TABLE OF AUTHORITIES Page(s) Corrigan, On Prosecutorial Ethics (1986) 13 Hastings Const. L.Q. 537 1... .. cece eee eee 165 Douglass & Steblay, Memory Distortion in Eyewitnesses: A Meta-Analysis ofthe Post-Identification Feedback Effect (2006) 20 Appl. Cognit. Psychol. 859 «1... .. 6. cee eee eee eee 81 Eisenberget. al., But Was He Sorry? The Role ofRemorse in Capital Sentencing (1998) 83 Cornell L. Rev. 1599 2... cece eee eee 119 Gas Chamber Barred, Los Angeles Times (October 13, 1994), Part B, Letters........ 17] Gladstone, Gas Chamber Issue Enters Campaign, Los Angeles Times (Oct. 6, 1994) Part A, p.3..........-..05- 171 Morain, Judge Bars Use ofGas Chamberin Executions, Los Angeles Times (Oct. 5, 1994), Part A,p.1 .........-.45- 171 Murphy, Remorse, Apology, and Mercy (2007) 4 Ohio St. J. Crim. L. 423 oo... eee ee eee 114 Oxford English Dictionary [as of July 7, 2014] ocecte eee 161 Oxford English Dictionary [as of June 27, 2014] 2...eee te tee 147 Radelet, The Changing Nature ofDeath Penalty Debates (2000) 26 Annu. Rev. Social. 43 «1... 6. cee eee eee ee eee 173 Randall, The Psychology of Feeling Sorry: The Weight of the Soul (2013) p. 127 2...cccteens 114 XXXVI TABLE OF AUTHORITIES Page(s) Sundby, The Capital Jury and Absolution: the Intersection ofTrial Strategy, Remorse, and the Death Penalty (1998) 83 Cornell L. Rev 1557 0.0... tees 119 Tanford, Thinking About Elephants: Admonitions, Empirical Research and Legal Policy (1992) 60 U.M.K.C. L.Rev. 645 0... cece eee eee eee ees 96 Ward, Sentencing Without Remorse (2006) 38 Loy. U. Chic. LJ. 131 0... eee ee eee eee 115, 116 White, Curbing Prosecutorial Misconduct in Capital Cases: Imposing Prohibitions on Improper Penalty Trial Arguments (2002) 39 Am. Crim. L. Rev. 1147 ........-.- 0s eee ees 175, 176 Why Fightfor a Cruel Method? California Shouldn't Appeal Court Ruling that Shut the Gas Chamber Door, Los Angeles Times (Oct. 6, 1994), PartB, p.6...........5.. 171 XXXVI IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, No. $045423 Respondent, ) ) ) ) (Los Angeles County ) Sup. Ct. No. ) LAO011426) ) EDGARDO SANCHEZ-FUENTES, ) ) ) ) Appellant. APPELLANT’S REPLY BRIEF INTRODUCTION In this reply to respondent’s brief on direct appeal, appellant replies to contentions by respondentthat necessitate an answer in order to present the issues fully to this Court. Appellant does not reply to arguments that are adequately addressed in his openingbrief. In particular, appellant does not present a reply to Arguments II, IX, XI, XXII, XXIV and XXV. The absenceof a reply to anyparticular argument, sub-argumentor allegation made by respondent,or of a reassertion of any particular point madein the opening brief, does not constitute a concession, abandonmentor waiver of the point by appellant (see People v. Hill (1992) 3 Cal.4th 959, 995, fh. 3), but reflects his view that the issue has been adequately presented and the positions of the parties fully joined. The arguments andsubsections in this reply are numbered to correspond to the argument numbers in Appellant’s Opening Brief, except for Argument I.D., where additional subsection headings have been added.’ I Hf ' All statutory references are to the Penal Codeunlessstated otherwise. The following abbreviations are used herein: “AOB”refers to appellant’s opening brief; “RB”refers to respondent’s brief. As in the openingbrief, citations to the record are abbreviatedas follows: “CT”is used to refer to the clerk's transcript on appeal, “SCT”is used to refer to the augmented clerk's transcript and “RT”is used to refer to the reporter's transcript. “Ex.” is used to refer to exhibits introducedattrial. For each citation, the volume numberprecedes, and the page numberfollows,the transcript designation, e.g. LCT: 1-3, is the first volumeto the clerk's transcript at pages 1-3. ARGUMENT I. THE TRIAL COURT’S DENIAL OF APPELLANT’S WHEELER-BATSON* MOTION VIOLATED STATE LAW AND THE SIXTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION AND DEMANDS REVERSAL Based uponthe prosecution’s disproportionate striking of panel members whoshared appellant’s Hispanic ethnicity and its preference for Caucasian jurors; the interracial/ethnic nature of the homicides; the fact that peremptory challenges constitute a jury selection process highly subject to manipulation for discriminatory purposes; and the totality of the relevant circumstances, appellant argued that the trial court erred by denying his . Wheeler/Batson motion. Respondent contends that the Court should affirm the rulings below because: appellant’s sample size is too small for meaningful analysis and this Court has rejected similar showingsin prior cases; race neutral reasons explain the strikes; the ethnicity of all the victims was too varied to suggest a discriminatory motive; the prosecution repeatedly accepted the jury with Hispanics onit; and the fact that one Hispanicservedin the final jury. Respondentis incorrect onall points. D. The Trial Court Erroneously Failed To Find a Prima Facie Case Of Discrimination Based On The Pattern Of Strikes Without addressing the controlling authority or any of the other reasoned federal cases cited by appellant in his opening brief, or parsing the > People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), Batsonv. Kentucky (1986) 476 U.S. 79 (Batson). 3 numbersand patterns identified by appellant, respondent contendsthat the samplesize is too smail for meaningfulanalysis. Specifically, respondent arguesthat the “statistics here are merely suggestive of an imbalance implicated by a small samplesize rather than being definitive of a prima facie case... .” (RB 135-136,italics added.) Respondents misunderstanding of the applicable law is demonstrated by this statement. As appellant argued in the opening brief (AOB 44), a defendant’s burden at Batson’s step oneis light; a defendant mustonly raise “suspicions and inferences that discrimination may haveinfected the jury selection process.” (Johnson v. California (2005) 545 U.S. 162, 172 (Johnson); see also United States y. Collins (9th Cir.2009) 551 F.3d 914, 920 [burdenis “small”); United States v. Stephens (7th Cir. 2005) 421 F.3d 503, 512 [prima facie case established by circumstances raising a suspicion that discrimination occurred].) Contrary to respondent’s assertion, appellant’s burden of production is not to demonstrate a “definitive” primafacie case. In fact, the numerical “imbalance” appellant showedin the opening briefis a sufficient and relevant circumstance, when addedto the other twoset forth in Batson,to satisfy the standard for producing a primafacie case. (See Batson, supra, 476 U.S.at p. 96.) Respondentcites several of this Court’s cases to urge it to conclude that the numbers involved herein render any attemptat statistical analysis meaningless. (RB 132-136, citing People v. Garcia (2011) 52 Cal.4th 706, 744, 747 (Garcia); People v. Bonilla (2007) 41 Cal.4th 313, 342-343 (Bonilla); People v. Bell (2007) 40 Cal.4th 582, 597-598 (Bell); People v. Clark (2011) 52 Cal.4th 856.) Specifically, respondent argues that: (1) appellant’s sample size is too small; (2) race neutral factors justify the prosecutor’s strikes; and (3) appellant’s statistical showingfails in light of this Court’s case law. However, noneof these reasons withstandscrutiny. 1. TheIssue Is Relevancy Rather Than Sample Size Theissue is not samplesize, bur rather relevancy,i.e., whether a circumstance has the capacity to enhance or diminish an inference that race/ethnicity was a motivating factor in one or more prosecutorial strikes against the cognizable group venire members. (Batson, supra, 476 U.S.at p. 96.) Various factors will affect whether the numbers being considered in a case are moreorless legally relevant. Whenthe exclusionrate’ is high, even a small numberofstrikes can satisfy the prima facie burden,at least where the defendantand the jurors are of the same race. (See Johnson, supra, 545 U.S. at pp. 164, 172 {finding prima facie case where prosecutor usedthree of his 12 peremptory challenges to removethe three black prospective jurors among the 43 eligible jurors]; Jones v. West (2d Cir. 2009) 555 F.3d 90,98 [collecting cases showingthat high exclusion rates alone maybe sufficient to establish a prima facie case].) This meansthat where the numberof cognizable group memberson the panelis low,it is easier to establish a primafacie case on the basis of one or twostrikes alone. (People v. Harris (2013) 57 Cal.4th 804, 882-883 (conc. opn. of Liu, J.) [collecting cases]; United States v. Clemons(1988) 843 F.2d 741, 748.) 3 The exclusion rate is determined by comparing the proportion of a party’s peremptory challenges used against a cognizable groupto that group’s proportion in the larger panel of jurors subject to challenge. (AOB 48-49.) Appellant’s numbersare a case in point as to why numbersthatthis Court may consider too small should not defeat a prima facie case.’ Appellant bases his analyses on the jurors in the box at the time of each Wheeler/Batson motion, whichis the most relevant time to freeze-frame the numbers. (See People v. Lenix (2008) 44 Cal.4th 602, 624 [trial court’s finding is reviewed onrecordas it stands at time of Wheeler/Batson ruling].) Appellant offered three methodsofanalysis, each of whichis a relevant circumstance to show a primafacie case. (See AOB 47-56 and cases cited therein.) First, the prosecutor struck four of six (67 percent) Hispanics by the time of the second Wheeler/Batson motion.’ (AOB 48.) * There are differences between the numerical descriptions in respondent’s and appellant’s briefs. Appellant’s analysis excludes jurors excused for cause or by stipulation. (AOB 51-52.) As explained,post, these are irrelevant for the purposes of a Wheeler/Batson analysis. Respondent, on the other hand, counts T.J. as one of the Hispanic jurors when determining the percentage of Hispanic jurors the prosecution had struck at various points. (RB 107, 109, 111.) However, the parties stipulated to excuse T.J. before anyone could question her (7RT: 840-841), so she is not included in appellant’s analysis. In addition, respondent comparedthe prosecutor’s strikes against Hispanics with the total number of prospective jurors at the end of each round (RB 106, 107, 109, 111), rather then total number subject to peremptory challengeat the point of appellant’s two motions, as appellant did. (AOB 39-41.) > Respondentdoes not concede that R.F. or T.M. is Hispanic. (RB 104, fn. 54 & 55; 109, fn. 60.) As indicated in the opening brief, though, Spanish surnamesidentify Hispanics, a cognizable class. (AOB 40, fn. 19; see also see also Castaneda v. Partita (1977) 430 U.S. 482, 486-487 [““Spanish-surnamed” and “Mexican-American” used as synonymsfor census category “persons of Spanish language or Spanish surname”in case alleging discrimination against Mexican-Americansin selection of grand jury terms].) Second, the prosecutor’s exclusion rate for Hispanics was disproportionate to their presence in the panel of jurors available to strike, i.e., though Hispanics made uponly 19 percent of the 32 jurors available to strike, the prosecutorstruck four of six (67 percent). (AOB 50.) The disproportionate striking of minority jurors such as this is “plainly relevant [where] there are confluentrace related patterns in both the absolute numberofstrikes used,”and the percentageof strikes against a cognizable group as comparedto their representation overall. (Coulter v. Gilmore (7th Cir. 1998) 155 F.3d 912, 919.) Third, appellant’s proportionality analysis comparingall cognizable groups further supports the inference thatthe disproportionate striking of Hispanics was not random. Hispanics werestruck at a disproportionately high rate and Caucasiansat a disproportionately low rate.° (AOB 51-54.) Each ofthese three levels of analyses increasingly enhances an inference that the prosecutor’s strikes against Hispanics were not random, but stemmed from an impermissible motivation and therefore is sufficient to show a prima facie case. (See AOB 47-54 and casescited therein.) In addition, the ethnic/racial composition of the entire panel of 141 people wasproportionally similar to the panel members in the boxatthe time the jury was sworn.’ (AOB 53-55.) Evaluating the panel as a whole ° At pages 51 and 52 ofthe openingbrief, appellant mistakenly indicated that 11 Caucasians were subjectto strike by the time of appellant’s second Wheeler/Batson motion. The correct numberis 10, as indicated by the 10 nameslisted in footnote 24 on page 51. By the time of the final jury was selected, 11 Caucasians were subject to strike. 7 Respondentindicates that there are 130 filled out juror questionnaires, not 141 as appellant stated. (RB 105 & fn. 56.) (continued...) here measures the overall impactof stipulations, cause challenges andall parties’ use of peremptory challengesonthe jury finally seated, while a Batson analysis focuses on one party’s use of strikes. Thus, where the defense brings the motion, defensestrikes are not relevant to a Batson analysis.* (Miller El v. Dretke (2005) 545 U.S. 231, 255, fn. 14 (Miller-El IT) [a defendant’s methodsin jury selection are “flatly irrelevant” to the question whetherthe prosecutor’s practices revealed a desire to discriminate]; People v. Snow (1987) 44 Cal.3d 216, 225 [propriety of prosecutor’s peremptory challenges must be determined without regard to validity of defendant’s challenges}; Wheeler, supra, 22 Cal.3d at 283, fn. 30 [party does notsustain his burden ofjustification by attempting to cast different burden on opponent]; Brinson v. Vaughn (3d Cir. 2005) 398 F.3d 225, 234 [legitimate or illegitimate defense strike does not open doorto illegitimate prosecution strike]; Holloway vy. Horn (3d Cir. 2004) 355 F.3d 707, 729 (“while Batson permits a trial judge to focus at the prima facie stage upon ‘all relevant circumstances,’ the nature of a defendant’s strikes fails the test for relevancy,” original italics].) Nevertheless, taking defense strikes into accounthere indicates that they did not effectively alter the original composition of the venire. 7(...continued) Respondent’s copy of the record contains duplicate questionnaires in CT volumes 13 and 14. (Ibid.) Appellant informed respondentthat these volumesin fact contain different questionnaires. * There were two panel members with the initials M.M. Appellant struck Mary M., who wasHispanic, during round 3. (Vol. 5, 2SCT: 1368; 7RT 1029.) Codefendant Navarro struck Michael M, who was Caucasian, during round two. (Vol. 4, 2SCT: 1052; 7RT: 946.) 8 Despite the force of appellant’s statistical showing, respondent reflexively echoes this Court’s statement in Garcia, supra, 52 Cal.4that p. 747, that it is “impossible, as a practical matter, to draw the requisite inference where only a few membersof a cognizable group have been excused, andno indelible pattern of discrimination appears.” (RB 133;see also Bell, supra, 40 Cal.4th at p. 598, fn. 3 [noting that in an “ordinary case”it is very difficult to make a primafacie case after the excusalof only one or two membersof a group].) This blanket statementappearsdifficult to reconcile with the high court’s holding in Johnson, supra, 545 U.S.at pp. 164, 172, where three out of 12 peremptories exercised against African- Americans was held to satisfy the primafacie case as a matter of law where the three constituted only seven percent(three of 43) of eligible jurors. If applied to cases where jury panels have few Hispanics, this Court’s rule in Bell will have the “particularly pernicious” effect of stripping Hispanic defendantsoftheir rights under Batson merely becauseof “the statistical likelihoodthat their jury venires will [] overwhelmingly” be non-Hispanic. (United States v. Clemons, supra, 843 F.2d at p. 748,fn. 6.) a. Theinference of improper motive remains even if juror R.R.is removed from thestatistical analysis. Respondent contends that the prosecutor’s strike of Hispanic juror R.F. was properin part because the defense unsuccessfully tried to excuse him forcause, and the court stated it hoped someone should excuse him. (RB 123, 126-127.) As argued above, defensestrikes are irrelevant in a Wheeler/Batson analysis. And because the court never explained whyitfelt R.F. should be excused, it is impossible to know whether and howits remark would undermine an inference of improper motive asto the striking of R.F. Yet even if R.F. is removed from thestatistical analysis, a similar pattern of discriminatory strikes remain. The prosecutor would have eliminated three of six (50 percent) of the Hispanic jurorsat the timeof the second peremptory challenge, which is sufficient to infer a prima facie case. (AOB 48,citing cases.) The prosecutor would have used a disproportionate numberofhistotal strikes, three of ten (30 percent), against Hispanics, who were 19% of the potential jurors available to strike. (AOB 50-51.) And the prosecutor’s preference for Caucasian jurors would have remained unchanged,i.e., the prosecutor only struck one of the 10 available Caucasian jurors by the time of the second Wheeler/Batson,1.e., 10 percent. (See fn. 6, ante.) b. “Chance”is an erroneousalternate explanation at step one, an invalid one in appellant’s case, and the Court’s reliance on it would increase unconstitutionally appellant’s burden beyond what Batson requires. Whena partystrikes mostor all members of a small cognizable group, this Court has posited that the law of probabilities, as an alternate, nonracial explanation for the strikes, weakensthe force of any _ corresponding inference of discrimination. (See, e.g., Bonilla, supra, 41 Cal.4th at p. 344 [where small subcategories and numbersinvolved,it iS morelikely that majority or all group members were struck dueto law of probabilities rather than discrimination].) Appellant respectfully suggests that this approach doesnotaccord with Batson jurisprudence and even if it were not improper,it is an inappropriate generalization in light of the variance in data and circumstancesfrom caseto case. The high court has never required a defendantto disproverival hypotheses, such as chance orthe impactofracially neutral factors, at step 10 one. It acknowledgesthe “inherent uncertainty present in inquiries of discriminatory purpose” but resolves the problem by moving onto steps two and three. (Johnson, supra, 545 U.S.at pp. 171-172; see also Batson, supra, 476 U.S.at p. 95 [noting that “the Court has declinedto attribute to chance the absence of black citizens on a particular jury array where the selection mechanism is subject to abuse”’].) A case in point is Johnson, wherethe high court rejected this Court’s “stronglikelihood” standard for step one. (Johnson, supra, 545 U.S.at p. 173.) The court disapproved, as inconsistent with Batson, California’s rule that a step one showing establishes a legally mandatory, rebuttable presumption. (Jd. at pp. 166- 168.) Rather, the court found thatthe trial court’s comment that “we are very close,” and this Court’s acknowledgmentthat“it certainly looks suspiciousthatall three African-American prospective jurors were removed from the jury,” were both sufficient inferences that discrimination may have occurred to establish a prima facie case. (Johnson, supra, 545 U.S.at p. 173.) This constituted a rejection of this Court’s rationale that three of prosecutor’s 12 peremptorystrikes used against African—Americans were “perhaps more explainable by happenstance.” (People v. Johnson (2003) 30 Cal.4th 1302, 1327-1328, revd. sub nom. Johnson, supra, 545 U.S. 162.) For these reasons, rejecting appellant’s statistical proffer on the groundsthat the sample size is too small would unconstitutionally increase appellant’s first step burden beyond whatthe high court requires. (See Johnson, supra, 545 U.S. at p. 170 [Wedid notintendthe first step to be so onerousthat a defendant would have to persuade the judge-onthe basis of all the facts, some of which are impossible for the defendant to know with certainty-that the challenge was morelikely than not the product of purposeful discrimination’’].) {1 The United States Supreme Court does not even require proof of a 666pattern or practice because “‘‘{a] single invidiously discriminatory governmental act’ is not ‘immunized by the absence of such discrimination in the making of other comparable decisions.’ [Citation].” (Batson, supra, 476 U.S. at p. 95.) Whenthe high court has lookedat patterns, it has relied on numericalor statistical analyses without requiring them to meet a certain threshold. (See, e.g., Johnson, supra, 545 U.S. at pp. 164, 172.) In Johnson, for example, the court observed only that the prosecutor used three of his 12 peremptory challenges to removethe only three black prospective jurors in the 43-person panel. (Jd. at p. 164.) It did not go on to discuss the relevant proportionality data, described ante. In the third step case of Snydery. Louisiana (2008 ) 552 U.S. 472, the court similarly recited the raw numbers without further elaboration, and then went on to analyze only one of the two strikes that the petitioner had alleged were discriminatory. (Id. at pp. 474, 475, 477-478.) Appellant’s case shows whyusing chance asanalternate explanation at step one is numerically, as well as legally, flawed. As stated above, by the time of appellant’s second Wheeler/Batson motion, 67 percent of Hispanics were challenged, four of six Hispanics, while just 10 percent of Caucasians were challenged, one of 10. Therefore, the strike rate was over six and one-half times higher for Hispanics (.67 divided by .10 ) than for Caucasians. (See Baldusetal, Statistical ProofofRacial Discrimination in the Use ofPeremptory Challenges: the Impact and Promise of the Miller-el Line of Cases as Reflected in the Experience of One Philadelphia Capital Case (2012) 97 IowaL. Rev. 1425, 1442-1443 (hereafter Baldus).) These same challengeorstrike rates show that the average Hispanic eligible to be struck had a 57 percent higher chanceof being struck than the average 12 Caucasian (.67 minus .10).”’ (/bid.) Forthis reason, these numbers are not “merely a Statistical aberration” of the type inevitable with small samples. (People v. Johnson, supra, 30 Cal.4th at pp. 1326-1327.) Finally, as argued in the opening brief (AOB 5 1-53), the fact that the prosecution struck such a disproportionately low number of Caucasian jurors is anotherrelevant circumstance supporting a primafacie case. (United States vy. Stephens (2005) 421 U.S. 503, 513-514.) It is difficu lt to see how such numbers can be dismissed onthe theory that they are likely a product of chance.!? (See Miller El v. Cockrell (2003) 537 USS. 322, 342 (Miller-El 1) [“[h]appenstanceis unlikely to producethis disparity’”].) I / ° Bven if Hispanic juror R.F. is removed from these calculations, similar patterns remain. If 50% of the Hispanic jurors were challenged (three rather than four), the strike rate against Hispanics would be five times higher (.50 divided by .10) than that of Caucasians. Hispanicsstill would have a 40% higher chanceof being struck than Caucasians (.50 minus .10). \0 Of course, a defendantis not required to make a recordidentifying the race ofall the eligible jurors struck by the prosecution and defense or the racial composition of the final jury. (Hollowayv. Horn, supra, 355 F.3d at pp. 726-28 [requiring such a showingin order to move beyondthe first step places an undue burden on defendant].) Requirements suchas these are inconsistent with the three-prong Batson standard for assessing a prima facie case,i.e., that a defendant must show that the prosecutor struck potential jurors in the same cognizableclass as the defendant; that the defensecanrely on the fact that the perempty challenge jury selection process is subject to manipulation for improper motives; and that these and any other relevant circumstancesgive rise to an inference that the prosecutor hasstruck jurors on account of their race. (Id. at pp. 727-28, citing Batson, supra, 476 U.S. pp. 96-97.) 13 2. The Existence Of Race-Neutral Factors Does Not Defeat Appellant’s Statistical Showing at Step One. The fact that race-neutral factors exist that may or may not explain a prosecutor’s decisionto strike certain jurors also is of no import at Batson’s first step. Batson andits progeny do not require that statistical evidence offered by a defendantin supportof a prima facie case mustbe adjusted for race-neutral factors. (See Holloway v. Horn, supra, 355 F.3d atp. 728; Harris, 57 Cal.4th at p. 872 (Liu, J., concurring) [becauseit is “all too easy to combthe record and find somelegitimate reason the prosecution could have had forstriking a minority juror,” negating a prima facie case requires more thanthis].) This is the purpose ofthe third step, where the prosecutor’ s reasons are evaluated. (See, e.g., Miller El I, supra, 537 U.S. at p. 343 [three ofstate’s proffered race-neutral rationales for striking African-American jurors pertained equally to some white jurors not challenged whoserved in jury].) There are some cases where federal courts have found that the record so clearly points to a reason for a peremptory challenge that a primafacie case of discrimination cannot be established. (See United States v. Stinson (9th Cir. 2011) 647 F.3d 1196, 1207 [struck juror twice stated that she did not want to serve]; United States v. Stephens, supra, 421 F.3d at p. 516 [citing cases].) Circuit courts have emphasizedthat “[a]fter Johnson and Miller-El I, however,it is clear that this is a very narrow review.” (United States v. Stephens, supra, 421 F.3d at p. 516.) The strikes must be “readily discernible” and “so clearly attributable” to the apparent, nondiscriminatory reason that“there is no longer any suspicion,or inference, of discrimination in those strikes.” (/d.) 14 Codefendant Navarro’s unsuccessful Wheeler motionas to Caucasianjuror R.R., the “only admittedly gay prospective juror” on t he panel, is a case in point. (8RT: 1035.) R.R. was under psychiatric care a nd was concerned about missing appointments; was symptomatic despite taking medication; had concerns about being drowsy during trial because his medications made him sleepy; and probably had anoutstanding wa rrant in anotherstate. (6RT: 681, 684-687].) Grouped together, these are the type of very obvious disqualifying factors that can underminean inferen ce of discrimination at step one. Ordinarily, however, and in the circumstances of appellant’s Wheeler/Batson claim, the prosecution’s sta ted reasons, or reasonsa trial or reviewing court might speculate about, must wait for step three, where the credibility of the prosecutor is measured (Snyder v. Louisiana, supra, 552 U.S.at p. 477), in the context of comparative juror analysis. Respondentarguesthat the juror questionnaires andoral voir dire of the four Hispanic jurors in question demonstrate non-discriminatory reaso ns for “any prosecutor” to peremptorily discharge them. (RB 118-130.) B ut as just explained, although respondent’s detailed recitation of multiple factors and explanation of how those mightbe weighed for each juror may be appropriate for the later steps of a Batson analysis, this Court should not enmeshitself in examining them at step one. (United States v. Stephens, supra, 421 F.3d at pp. 517-518.) 3. TheStatistical Analyses In This Court’s Prior Cases Do Not Defeat Appellant’s Statistical Showing. Respondentcontendsthatevenifstatistics demonstrate some support in general for an inference of discriminatory motive, that argumentis no t reasonable here. First, respondent compares appellant’s numbers with tho se 15 ceirm ate in Bonilla, supra, 41 Cal.4th 313, 342-343, to no avail. (RB 134.) The Bonilla prosecution used 10 percentofits strikes to strike a proportionate numberof Hispanics, who made up 10 percentof the pool. (/d. at p. 344.) Not surprisingly, the Court found that this exclusion rate provided no basis to infer discrimination. (Ibid.) While acknowledging that the strike rate of 40 percent in appellant’s case was “a pointof distinction” from the numbers in Bonilla, respondent nevertheless arguesthat “the Bonilla prosecutors used three times as many peremptory challenges,” without explaining how this is relevant. (RB 134.) | In Garcia, supra, 52 Cal.4th at pp. 744-748, the defendant argued that the striking of three womenearly on constituted a primafacie case. (Id. at p. 745.) The Court rejected this claim on the groundthat the absolute size of the sample undergoing scrutiny was too small, i.e., it refused to draw the requisite inference because only a few membersof the cognizable class were excused and “no indelible pattern of discrimination appear[ed].” (ld. at p. 747.) Respondentarguesthat the sameprinciple should apply here. (RB 133.) However, appellant neverrelied on one raw number, but started his analysis with the high elimination rate — the majority, or 67 percent, of prospective Hispanic panel members werestruck by the time of appellant’s second Wheeler/Batson motion. (AOB 47-48.) Moreover, the Court’s “broaderstatistical view” in Garcia, as opposed to respondent’s selective recitation of the facts (RB 133), supports appellant’s statistical approach and conclusions. (Garcia, supra, 52 Cal.4th at p. 747.) In Garcia, there were more women than menin the jury pool and the box, yet the prosecutor used only 50 percentofhis challenges against women. (/d. at p. 748.) In contrast, as noted above and in the opening brief, the percentage of prosecutorial strikes against prospective 16 Hispanic jurors below exceeded the percentage of Hispanicseligible to be struck and constituted a disproportionate numberof the total number of challenges the prosecutor used. (AOB 52.) People v. Bell, supra, 40 Cal.4th at pp. 594-599,is also distinguishable. Unlike appellant, the Bell defendant did notproffer any pattern evidenceother than the fact that the prosecutor challenged two of three African-American women. Finding that the absolute sample size was too small, and becauseof the dearth of other facts that might give rise to an inference of discrimination, the Court affirmed the trial court’s ruling that there was no primafacie case. (/d. at pp. 598-599.) Finally, respondent cites People v. Clark, supra, 52 Cal.4th at pp. 905-906, where this Court rejected a prima facie case after the prosecutor used 20 percentof his total peremptory challenges (four of 20) to excuse 80 percent of African-Americans(fourof five), even though African- Americans comprised only 5 percent of the jury panelists not excused for cause. (RB 135.) For the reasons argued above andin his opening brief (AOB48-50), appellant questions the Court’s conclusion that standing alone,thesestatistics did not raise an inference of discrimination. The Court also foundit notable that African-Americans constituted 5 percent of the eligible jurors but were almost 10 percent of the selected jury. (People v. Clark, supra, 52 Cal.4th at p. 905.) In contrast, appellant’s comparable numbers favor an inference of a discriminatory purpose: Hispanics were 19 percentof jurors eligible to be struck but only 8 percentofthe finaljury. (AOB 52, 55.) Because the prosecutor’s strikes against prospective Hispanic jurors at appellant’s trial constituted an “indelible pattern of discrimination,” the 17 trial court erred in finding no primafacie case. (See People v. Garcia, supra, 52 Cal.4th 706, 747.) E. The Trial Court Erroneously Failed To Find a Prima Facie Case Of Discrimination Based On Other Factors Respondentarguesthat the varied ethnicity of the noncapital victims, the numberof times the prosecutor accepted the jury with Hispanicsonit, and the fact that one Hispanic served on the jury all undermine an inference of discriminatory purpose here. (RB 131-132.) Respondent is wrong. Race of Defendant, Victims and Jurors Respondent arguesthat “even if one assumes” that Hoglund was Caucasian and Kim wasAsian,'! no meaningful motive of discrimination - can be inferred from the race of the victims because of the varied ethnicity of all the victims. (RB 132.) Respondent ignoresthe fact that the relevant racial dynamic is between the defendant and the murder victim. (See McCleskey v. Kemp (1987) 481 U.S. 279, 291-292; Adams, Death by Discretion: Who Decides Who Lives and Dies in the United States of America? (2005) 32 Am.J. Crim. L. 381, 388-389 & fn. 43 [citing studies].) Moreover, evenif the ethnicity of the robbery victims was relevant (see Hernandez v. New York (1991) 500 U.S. 352, 369-370), reliance on the shared race of the victim, witnesses and defendantis “a serious legal blunder”in that it does not take into account that Batson “is designed to protectthe interests of potential jurors and of the public at large, not just the litigants.” (Hooper v. Ryan (7th Cir. 2013) 729 F.3d 782, 786; see also '| Despite respondent’s comment, the evidence demonstratedthat Hoglund was Caucasian and Kim was Asian. (AOB 56; Ex. 12, p. 2.) 18 Harris, supra, 57 Cal.4th at p. 865, citing Batson, supra, 476 U.S.at p. 99, and collecting cases (conc. opn. of Liu, J.) [recognizing that purposes of Batson and its progeny include protecting venire members belonging to cognizable groups from discrimination and inspiring confidencein the justice system andrule of law]; Eagle v. Linahan (11th Cir. 2001) 279 F.3d 926, 942 [equal protection challenges allow court to vindicate rights of excluded jurors].) As appellant argued, the race of the jurors and defendantare also relevant in the context of the strikes as a whole. (AOB 56-57.) The penalty phase dependedin large part upon appellant’s credibility before a jury stripped of all but one memberofhis ethnicity. (See Arguments XVII, XIX, XXI.) This factor also supports an inference of discrimination. (United States v. Stephens, supra, 42\ F.3d at p. 515; Holloway v. Horn, supra, 355 F.3d at p. 723.) Backstrikes Respondentargues that the prosecutor’s acceptance of a panel with Hispanics on it multiple times is evidence that the prosecutor’s subsequent exercise of peremptory strikes against Hispanic jurors was not based upon improper considerations. (RB 131, citing People v. Clark, supra, 52 Cal.4th at p. 906 and People v. Cornwell (2005) 37 Cal.4th 50, 69-70; see also People v. Carasi (2008) 44 Cal.4th 1263, 1294-1295 [finding multiple acceptances of panel with women whowerelater struck “patently inconsistent” with an inference of discrimination].) This reasoning ignores the reality of how and whyattorneys use peremptorystrikes, the record below, and the fact that backstrikes can be used to obscure discriminatory intent and that appellant can rely on the fact that backstrikes, as part of the 19 jury selection process, permit “those to discriminate who are of a mind to discriminate.” (Batson, supra, 476 U.S.at p. 96.) Oneof the lessons of the Miller-El decisions is that an authorized procedure,such as the jury shuffle in Miller-El’s case, which both sides used, can be used by a prosecutorfor discriminatory purposes. (Miller-El II, supra, 545 U.S. at pp. 253-255, 265; Miller-El I, 537 U.S.at p. 346.) Even explanations that are objectively reasonable can be “severely undercut” by surrounding circumstances. (Miller-El II, supra, 545 U.S. at pp. 248, 250 [recognizing that prosecutors may accept a black juror to “obscure the otherwise consistent pattern of opposition to seating one”’].) Ultimately, the high court in Miller-El Irejected the state’s contention that accepting an African- American juror was anything but a tactical ploy. (/d. at p. 250.) In People v. Motton (1985) 39 Cal.3d 596, 602-603 (Motton), the defense made Wheeler objections to the prosecutor’s peremptory challenges against African-American women. Onappeal, the Attorney Generalargued that a primafacie case of discriminatory intent had not been established because the prosecutor had accepted the juror panel with African-Americans a numberof times, and one African-American juror ultimately served. (/d. at p. 607.) This Court rejected that argument, quoting at length from the dissent in the decision below: [T]he offending counsel whois familiar with basic selection and challenge techniques could easily accept a jury panel knowingthat his or her opponentwill exercise a challenge against a highly undesirable juror. If, for instance,three people on the panelexhibit a proprosecutionbias,then the prosecutor could pass the jury with at least three membersof the group which he ultimately wishes to excludestill remaining on the jury — knowing that he will havea later 20 opportunity to strike them. By insisting that the presence of one or two black jurors on the panelis proof of an absence of intent to systematically exclude the several blacks that were excluded, the People exalt form over substance. (Id. at pp. 607-608.) Twoyearslater, in People v. Snow, supra, 44 Cal.3d 216, 225, the Court cited Motton with approval and found Wheelererror. At the same time, the Court addedthat although notconclusive, the passing of certain jurors mayindicate the prosecutor’s good faith in exercising peremptory challenges and maybea factor for a trial judge to consider, for purposes of ruling on whethera prima facie case has been shown. (Jd.at p. 225) In spite of the nominalaffirmation of Motton in Snow,though, this Court repeatedly hasrelied on the prosecution’s passing while jurorsit later strikes remain on the panel, as part ofits reasonsfor rejecting a first step Batson claim. (See, e.g., People v. Williams (2013) 56 Cal.4th 630, 659; People v. Carasi, supra, 44 Cal.4th at pp. 1294-1295.) Backstrikes, however, are part of an attorney’s toolbox during voir dire, and like peremptory challengesin general, they are tools that “permits those to discriminate who are of a mind to discriminate.” (See Batson, supra, 476 U.S. at p. 96.) This Court, on the other hand, presumes prosecutors use their peremptory challenges in a constitutional manner. (People v. Salcido (2008) 44 Cal.4th 93, 136-137.) Appellant respectfully argues that this presumption is contrary to Batson jurisprudence. The reality is that “there is a very real temptation”for attorneysto exercise peremptory challenges on the basis of race/ethnicity. (Briggsv. Grounds (9th Cir. 2012) 682 F.3d 1165, 1189 (dis. opn of Berzon, J.).) This is not because an attorney is racist. Rather, it is because prosecutors, may believe—trightly or wrongly—thatrace is as good (or bad) a predictor of a juror’s likely vote as other demographic factors such as age or educationor any ofthe other arbitrary bases upon which prosecutors decide whether to excuse a juror. Still, our law proscribes the use of race, but not the use of these other factors, as a basis for prosecutorial hunches. ([bid.) The Batsonline of cases allowsfor this human tendency to embrace stereotypical thinking with a three-step test that at step one errs on the side of protecting the equal protection rights of the defendant and venire members. Built into this very test is appellant’s entitlementto rely on the fact that the peremptory challenge system is subject to manipulation for improper reasons. (Batson, supra, 476 U.S.at p. 96.) For this reason, appellant respectfully argues that this Court’s treatment of the backstrike phenomenais contrary to this basic premise of the Batson three-part requirementfor a primafacie case. (lbid.) Evenif the prosecutor’s acceptance of a panel with Hispanics was relevant, it would not be relevant here. It was only after appellant’ s first Wheeler/ Batson motion, which put the prosecutor on notice aboutthe issue, that the prosecutor passed, which wasafter he had struck two of the three Hispanic jurors then available to strike. (7RT: 944-946.) Also, the small numberof Hispanicsin the venire below distinguishes this case from People v. Carasi, supra, 44 Cal.4th at pp. 1294-1295. There, this Court found no obviouspattern of discriminatory strikes where the prosecution accepted the jury several times with more womenthan men,or an equal number, and excused men when womenwerein the majority on the panel. ([bid.) In contrast, the number and proportion of Hispanics on appellant’s panels were small and remained so throughoutjury selection. 22 Furthermore, passing on a panel andthenlater striking cognizable group membersin that panel is especially subject to manipulationin a multidefendant murdercase like the instant case, where most defense attorneys will exercise a numberof challenges. (Reynoso v. Hall (9th Cir. 2010) 395 Fed.Appx. 344, 350.) It is then easy for a prosecutorto pass on a minority juror many timesandtry to insulate later challenges by arguing she passed on the juror severaltimes. ([bid.; see also People v. Carasi, supra, 44 Cal.4th at pp. 1320-1321 (conc. opn. of Kennard,J.) [“in light of tactical realities of jury selection in a multidefendant case” where prosecution struck 20 of 23 women,prosecutor’s pattern of excusals and acceptances of panels could support a primafacie case].) Here, for instance, the prosecution had 36 peremptory challenges (3RT: 358-359), and was never in any dangerof running outofstrikesto use. The prosecution could afford to accept the jury whenit contained non- Hispanic prospective jurors that it knew the defense would wantto strike, because, for example, the defense unsuccessfully had challenged them for cause. C.M. was such a person. She was Caucasian and indicated in her questionnaire that she belonged to a church thatbelieved in the death penalty; was strongly pro-death penalty becauseof the biblical “eye-for-an-eye” rule; and would always vote for the death penalty for an intentional murder with a special. (Vol. 6, 2SCT: 1472-1491; 7RT: 947 [to box]; 7ZRT: 1016-1019 [appellant’s cause challenge denied; 1028 {prosecution accepts panel, appellant strikes C.M.].) Similarly, the prosecutor accepted the jury twice while D.C., an African-American, wasstill on it. D.C. indicated in her questionnaire that those who continuedto kill, for whatever reason, should havetheir lives taken; someone whokilled several people should not be fed in prison; and 23 that if you take someone’s life, your life should be taken also. (Vol.6, 2SCT: 1628-1647 [questionnaire ]; 7RT: 947 [to box]; 1019-1021 [appellant’s cause challenge denied]; 1028-1029 [prosecution accepts panel twice; appellantstrikes D.C.].) The prosecution also accepted a panel with L.S., a Filipina juror who, on her questionnaire, was very strongly pro-death penalty and would always vote for death for a robbery participant where an officer, owner, or multiple victimsare killed. (Vol. 6, 2SCT: 1680-1699 [questionnaire]; TRT: 948 [to box]; 1021-1022 [appellant’s cause challenge denied]; 7RT: 1028, 1029, 1030-1031 [prosecution accepts panel three times; appellant strikes L.S.].) Based on facts like these, the prosecution’s acceptance of panels below with Hispanicsthat it later struck does not negate the suspicion that discrimination may haveintected the jury process. (See Johnson, supra, 545 U.S.at p. 172.) Finally, a juror who ultimately sits for the trial and one whoisstruck represent fundamentally different circumstances, andit does not make sense to use onesituation to prove the other. Oneis either deprived of the rightto equalprotection ofthe law or is not. The fact that a juror wasclose to sitting on the jury does not make a discriminatory peremptorystrike against her any less of a constitutional deprivation. (Brinson v. Vaughn, supra, 398 F.3d at p. 233.) As just explained, the mere timing of a peremptory strike does not negate a discriminatory inference. For all these reasons, appellant respectfully requests that this Court reexamineits prior reasoning that a prosecutor’s acceptanceofa panel, followed by a backstrike, is evidenceof a lack of discriminatory intent. (See e.g., People v. Lomax (2010) 49 Cal.4th 530, 576 [prosecutor’s acceptanceof the panel containing a protected class member “strongly 24 suggests that race was not a motive”in the challenge at issue], italics added); see also People v. Carasi, supra, 44 Cal.4th at pp. 1294-1295; People v. Lenix, supra, 44 Cal.4th at p. 629; People v. Kelly (2007) 42 Cal.4th 763, 780.) Rather, the Court should review the backstrikes bel ow with a critical eye to ensure that appellant’s right to equal protectionis protected andhold thatat least in appellant’s case, the prosecution’s passing on panels with Hispanics, some of whom it later struck, does not refute the inference that the challenges wereracially motivated. (Williamsv. Runnels (2006) 432 F.3d 1102, 1109.) OneHispanic Juror Sat on the Final Jury Respondent next arguesthat the fact that the jury included one Hispanic indicates the prosecutor’s good faith and is an appropriate factor to consider in determining whether appellant showed a primafacie case. (RB 131, citing People v. Garcia, supra, 52 Cal.4th atpp. 747-748.) Appellantdisagrees that this is a relevant circumstanceat step one for the reasons explained in subsection D, ante: the final composition of the jury will reflect defense strikes and often other events irrelevantto the existence of a prima facie case. Thus, evenif it is “true that the prosecution’s use of peremptory strikes did notresult ina racially unbalancedpetit jury, that is not the test for deciding whetherthere has been an equal protection violation.” (Eagle v. Linahan, supra, 279 F.3d at p. 942.) Moreover,if the question is whether the proponentstruck any juror whois a member of a cognizable group based on a discriminatory motive, the seating of other membersof the group onthe jury also is irrelevant. [A] prosecutor’s purposeful discrimination in excluding even a single juror on accountof race cannotbe tolerated as consistent with the guarantee of equal protection under the law. [Citations omitted.] ‘[W]e emphasize that under Batson, 25 the striking ofa single black juror for racial reasonsviolates the equal protection clause, even though other black jurors are seated, and even whenthere are valid reasons forthe striking of some black jurors.’ [Citation omitted.] Moreover, a prosecutor whointentionally discriminates againsta prospective juror on the basis of race can find no refuge in having acceptedothers venire personsof that race forthe jury. (Holloway v. Horn, supra, 355 F.3d at p. 720; see also Miller-El II, supra, 545 USS.at p. 250 [late-stage decision to accept a black panel member willing to impose a death sentencedid not neutralize early-stage decision to challenge a comparable juror]; Turner v. Marshall (9th Cir. 1995) 63 F.3d 807, 814, overruled on other groundsin Tolbert v. Page (9th Cir. 1999) 182 F.3d 677, 685; Cochranv. Herring (11th Cir. 1995) 43 F.3d 1404, 1412; United States v. Omoruyi (9th Cir. 1993) 7 F.3d 880, 882.) G. |The Court Should Not Rely On The Prosecutor’s Stated Reasons For Striking The Prospective Hispanic Jurors To Resolve The Question Of Whether Appellant Has Made a Prima Facie Case Respondent contends that a prima facie case is defeated by locating reasonsin the voir dire record that suggest “grounds upon which the prosecutor might reasonably have challenged the jurors in question.” (RB 116, quoting People v. Pearson (2013) 56 Cal 4th 393, 421.) As arguedin the opening brief, this is contrary to the dictates of Batson, Johnson and other United States Supreme Court precedent. (AOB 59-62.) This approachfails to take into accountthatits application erroneously results in conflating all three steps of Batson into one-inclusive step and unjustitiably increases the defendant’s burden at step one. The prosecutor’s reasons and the validity of those reasonsare notat issue until a primafacie caseis established. “It is not until the third step that the persuasivenessof the justification becomesrelevant — the step in which thetrial court determines 26 whetherthe opponentofthe strike has carried his burdenof proving purposeful discrimination.” (Purkett v. Elem (1995) 514 U.S. 765, 768 (per curiam)originalitalics.) Under Batson, the prosecutoris required to state a race-neutral reason for the peremptory challengeat step two. (Batson, 476 U.S.at p. 97; Miller-El I, supra, 537 U.S.at p. 328.) Positing that the prosecutor’s reason is a relevant circumstanceat step one renders the secondstep irrelevant by merging it into the first step in contravention ofthe Batson framework itself. (Purkett v. Elem, supra, 514 U.S.at p. 768 [court errs by combining Batsonsteps]; People v. Harris, supra, 57 Cal.4th 804, 874 (conc. opn of Liu, J.) [warningofrisks of “collapsing all three of Batson’s steps into the primafacie inquiry”}.) Ultimately, respondent expends a great deal of effort pointing to possible reasonsreflected in questionnaires or voir dire, as well as those cited by the prosecutor, that would justify striking P.G., E.A., T.M.and R.F. (RB 117-132.) Respondent then concludesthat the record contains “legitimate non-racial reasons unrelated to race that P.G., E.A., T.M.and R.F. were not suitable jurors from the prosecutors’ perspective.” (RB 130.) However, the consideration of these multiple factors as valid reasonsto exercise a peremptorychallenge “is not the type of apparent explanation that alters the inference of discrimination”at step one. (UnitedStatesv. Stephens, supra, 421 F.3d at p. 517, italics added.) In addition, this argumentis flawed becauseit depends onthis Court determining that the prosecutor wascredible. This is not the proper function of a reviewing court at Batson’s first step. (Snyder v. Louisiana, supra, 552 U.S.at p. 485; Batson, supra, 476 U.S. at p. 98.) 27 H. ‘Under The “Totality Of Relevant Facts” Standard Of Batson, This Court Should Engage {n Comparative Analysis In the opening brief, appellant set forth reasons why the Court should engage in comparative analysis in appellant’s case. (AOB 62- 64;see also People y. Sattiewhite (2014) 59 Cal.4th 446, 491 (conc. opn of Liu,J.) [prosecutor’s statement of reasons for striking a juror moves Ba tson inquiry to third step, requiring evaluation of whether reasons were gen uine or pretextual].) Respondentpoints out that this Court has repeate dly held that appellate courts need not employ comparative analysis on appea l in step one cases. (RB 136.) Appellant submits that should this Court sear ch for, and rely upon, characteristics of the Hispanic jurors the prosecutorst ruck to justify any of the strikes appellant challenges, the Court must perform a comparative analysis and consider whether the characteristics apply to jurors not struck by the prosecutor. Otherwise, by looking only at the struck jurors, the court has not taken into account all relevant circumsta nces. (See Harris, supra, 57 Cal.4th at p. 872 (conc. opn of Liu, J.).) J. The Judgment Must Be Reversed Appellant recognizes that “(dliscarding . . . convictions because jurors were ousted for racial reason is tough medicine.” (Brigg s v. Grounds, supra, 682 F.3d 1165, 1189 (dis. opn of Berzo n, J.).) However, reversal is necessaryif the justice system is to be “free of the t aint of racial discrimination.” (/bid.) Stated another way, “(t]he reme dy for [] an equal protection violation is reversal of the conviction without regard to whether we perceive the defendantto be actually innocentor guilty.” ( Eagle v. Linaham, supra, 279 F.3d at p. 943.) Soo eassetleniceteianalSRR For this and all the reasons argued above andin the openingbrief, appellant’s case must be reversed. (See Snyderv. Louisiana, supra, 552 U.S. at p. 486 [reversing where there was no “realistic possibility” that question ofcausation in third step case could be profitably explored further on remand more than a decadeafter the defendant’s trial].) I Hf 29 Il. COUNT21 MUST BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO CONVICT APPELLANT OF THE ROBBERY OF ARTURO FLORES Appellant was convicted of Count 21, the robbery of Arturo Flores (LLCT: 3296; 23RT: 4103), an employee at the Mercado Buenos Aires. (12RT: 1799.) Respondentdoesnot dispute the lack of direct evidence that property wastaken from Flores, arguing instead that the testimony of Manuel Rodriguez inferentially provided substantial circumstantial evidencethat personal property was taken from Flores. (RB 144-146.) Rodriguez’s testimony onthe point, however, was purespeculation: he only thoughtthat “others” had been robbed. (12RT: 181 1.) Because there wasneither direct nor circumstantial evidence that property was taken from Flores, Count 21 must be reversed. (AOB 99-101.) Circumstantial evidenceis “‘that whichis applied to the principal fact, indirectly, or through the medium ofother facts, from which the principalfactis inferred.’ [Citation.]” (People v. Smith (2008) 168 Cal.App.4th 7, 14.) “An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.” (Evid.Code, § 600, subd. (b).) However, “{a] reasonable inference... ‘may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.[{] ... A finding of fact must be an inference drawn from evidence rather than ... a mere speculation as to probabilities without evidence.’ [Citations.]” [Citation.] Here, the evidence to support the critical inference was lacking. (People v. Davis (2013) 57 Cal.4th 353, 360.) Respondent’s argumentfails; as in Davis, there was no evidence supporting thecritical inference. 30 Theprosecutorfirst questioned Manuel Rodriguez on direct examination about his movements during the robbery. Rodriguez wasat the meat table whenhefirst saw the robbers. (12RT: 1797.) He was moved to the kitchen along with “everyone”else, including Flores (12RT: 1799, 1802), then the office area (12:RT 1804), andfinally the bathroom. (12RT: 1809.) The prosecutor next asked about whether the robbers took property from Rodriguez’s person (12RT: 1810), and then continued: Q. Did you see any property being taken from any of your employees or customers? A. Wallets and watches. © Did you actually see that, or did you just hear aboutit? A: I saw them take out a wallet from one of my employees [Dario De Luro] in the bathroom andalso his watch, butfor the others, I think they did it before. (12RT: 1811.) Respondentthus appears to argue that because Rodrigueztestified that at one point both he and Flores werein the kitchen (12RT: 1802), and he later saw property taken from De Luro in the bathroom (12RT: 1811), the jury could properly infer that property was taken from Flores on the basis of Rodriguez’s “think[ing]”that “others” had been robbedearlier. (12 RT: 1811; see RB 146.) Rodriguez did not say whothe “others” were and his thoughts on the matter were pure speculation. In People v. Rudolph (1961) 197 Cal.App.2d 739, two restaurant employeestestified that an armed man entered the restaurant and forced them at gun pointto lie on the floor while he rammagedaround the room. (Id. at pp. 740-741.) Both heard a soundlike keysrattling, but neither saw the armed man take any keys, nor was there evidence that the keys were missing after the robbery. (/d. at pp. 743-744.) The court overturned the 31 eine antot defendant’s robbery conviction for taking the keys. (People v. Rudolph, supra, 197 Cal.App.2d at p. 744.) The witnesses’ assumption that the defendant took the keys was “merely a conclusion from thefact that they ~ heard what they believedto betherattling of keys.” ([bid.) The evidence was insufficient because “[h]owever strong the suspicion that the defendant carried away keys . . . the facts in evidence fall far short of proof that [the defendant] was guilt of robbery.” (/bid.) The instant case lacks even the weak circumstantial evidence present in People v. Rudolph, supra, 197 Cal.App.2d 739, 744. Rodriguez's thinking that “others” were robbed earlier was at most a suspicion rather than the basis for a reasonable inference. Because the “facts in evidence fall far short of proof” (ibid.), that appellant was guilty of robbing Flores, appellant’s conviction on Count 21 must be reversed. _C. Because There WasInsufficient Evidence To Support Count 21, Appellant’s Rights Under Federal and State Law Were Violated, and Appellant’s Conviction For The Robbery Of Arturo Flores Must Be Reversed Appellant’s conviction violated his state and federal rights to due processof law,a fair trial and reliable guilt and penalty determinations. (U.S. Const., 5th, 6th, 8th and 14th Amends.; Cal. Const., art.I, §§ 7, 15, 16, 17; Beck v. Alabama (1980) 447 U.S. 625, 637-638 & fn. 13.) Under the federal test for sufficiency of evidence, Count 21 must be reversed, (Jackson v. Virginia (1979) 443 U.S. 307, 319 {whether, after viewing the evidencein the light most favorable to the prosecution, any rationaltrier of fact could have foundthe essential elements of the crime beyond a reasonable doubt].) Similarly, under California law, Count 21 must be reversed because a rational trier of fact could not have found guilt based on 32 the evidence and inferences drawntherefrom. (People v. Lewis (2006) 39 Cal.4th 970, 1044; see also People v. Guerra (2006) 37 Cal.4th 1067, 1131 [upholding sufficiency of rape special circumstances where jury could reasonably infer defendant’s intent to rape, notwithstanding the absence of physical evidence]; People v. Young (2005) 34 Cal.4th 1149, 1180 [holding evidence sufficient because jury finding was reasonable].) HI i 33 IV. THE TRIAL JUDGE ERRED IN DENYING APPELLANT’S MOTION TO DISMISS AND STRIKE EVIDENCE OF COUNT 5, THE ATTEMPTED MURDER CHARGE Appellant argued thatthe trial court erred both whenit denied his motionto strike key but speculative testimony relating to Count 5, the attempted murder charge, and whenit denied his motion to dismiss Count 5 pursuantto section 1118.1. (AOB 102-113.) Respondent’s arguments to the contrary are incorrect. C. The Court’s Refusal To Strike Medina’s Testimony Regarding Appellant’s Gesture Was an Abuseof Discretion Respondentargues thatthetrial court did not abuseits discretion in denying appellant’s motionsto strike portions of Medina’s testimony as speculative. (RB 151-153.) The disputed testimony wasthat appellanttried to changethe clip on his gun because “it seemslogical if . . . there is [sic] no bullets inside the gun,” and appellant “madea gesture as if to remove the clip.” (11RT: 1614-1615.) Respondent does not address appellant’s argument (AOB 106, 112), that the court erred by refusingto strike speculative testimony under the premise that testimony througha translator is not “as precise as we could everget it with English.” (L1RT: 1621.) The application ofa less stringent standard to testimony given through a Spanish interpreter violated appellant’s right to equal protection of the laws under the Fourteenth Amendment and California’s Constitution. (U.S. Const., 14th Amend.; Cal. Const. art. I, § 7; Hernandez v. Texas (1954) 347 U.S. 475, 482 [barring discrimination based upon national origin or descent); Hirabayashi v. United States (1943) 320 U.S. 81, 100 [same based upon ancestry and race]; Yick Wo v. Hopkins (1886) 118 U.S. 356, 369 [same 34 based uponrace,color, or nationality].) The court’s ruling also lightened the prosecution’s burden to prove appellant’s guilt beyond a reasonable doubt, violating appellantsrights under the Due Process Clause of the Fourteenth Amendment. (/n re Winship (1970) 397 U.S. 358, 359, 364.) D. There Was Insufficient Evidence That Appellant Had The Specific Intent To Kill Medina Respondent doesnotreference or distinguish the cases appellant cited demonstrating that despite Medina’s testimonythat appellant kept trying to pull the trigger when he pointed the gun at Medina,the evidence wasinsufficient to show appellant had the specific intent to kill Medina. (AOB 103, 108-109.) Respondentinstead cites cases where, with far more evidenceofintent, including verbal threats and/or admissions, the court found the evidence sufficient to sustain an attempted murder conviction. (RB 150, citing People v. Van Buskirk (1952) 113 Cal.App.2d 789, and People v. Lashley (1991) 1 Cal.App.4th 938.) In People v. Van Buskirk, supra, 113 Cal.App.2d 789, the defendant waited until his three intended victims arrived, threatenedto kill all of them, fired a shot over the witness/victim’s head, again threatened to kill them all, and then attempted to shoot but the gun failed to fire. (/d. at p. 791.) The defendant ran some distance away, reloaded andleveled the gun at the victim, who by then washiding behind the car door. (/d.) After his arrest, the police found a note on the defendant he had written explaining why he had to kill the three people and himself. (/d. at p. 792.) Not surprisingly, the court found sufficient evidence of intent to kill. (/d. at pp. 792-793.) In People v. Lashley (1991)1 Cal.App.4th 938, the court similarly found sufficient evidence of intent to kill where, during a series of interactions with the victim as described by several witnesses, the defendant threatened 35 to do bodily harm to the victim, took aim before firing a .22 caliberrifle and shooting the victim, who suffered serious injuries. (/d. at pp. 944-946.) The facts of these two cases, including various movements, actions and direct threats by the defendants over a period of time, in no way resemble the very brief encounter between appellant and Medina as described by the latter’s speculative testimony. Respondent mischaracterizes appellant’s argumentas based on the impermissible theory of factual impossibility. (RB 150-152.) Appellant agrees that factual impossibility is not a defense; his argumentrelies on the lack of substantive evidence of specific intent necessary to sustain the attempted murder charge. (See AOB 109-110.) Moreover, respondent’s cases on this point again are not helpfulto its overall argument, as there is ample evidenceofthe requisite intent in both cases it cites. (See RB 150- 151, citing Hatch v. Superior Court (2000) 80 Cal.App.4th 170, and People y. Pham (2011). 192 Cal.App.4th 552.) In Hatch vy. Superior Court (2000) 80 Cal.App.4th 170, the defendant arguedthat because the prosecution could not prove that his intended victims were under the age of 14, the evidence could not show, inter alia, that he had the specific intent to molest a child underthat age. (Id. at pp. 185-186.) The court rejected this factual impossibility defense: the defendantwastold that the intended victims were underage 14, expressed fear of the outcomeif he wasdetected, but he nevertheless tried to convince the victims to engage in sexual conduct with him. (/d. at p. 187.) In People v. Pham (2011) 192 Cal.App.4th 552, the defendant expressly admitted that he shot into a group intending to kill two particular people, who,it turned out, were not present. (/d. at p. 555.) The defendant unsuccessfully argued that under the transferred intent doctrine, he lacked 36 the specific intent to kill. (/d. at pp. 554-555.) The court i nstead characterized the defense as one of factual impossibility. ( Ibid.) Underthat theory, the defendant’s mistaken belief was irrelevant; the two crimes of attempted murder were committed when hefired shots into the group thinking his intended victims were there.!* (/d. at pp. 560-561.) Thus, in both casescited by respondent, there was ample evidence — in cluding through the defendants’ own words — of the intent necessary f or the crimes at issue. This is in stark contrast to the instant case with testimo ny about a gesture and an empty gun. E. Medina’s Belated Testimony That Appellant Made a Gesture As If To Remove The Clip Was Insufficient To Support Either Element Of The Attempted Murder Charge Citing People v. Watkins (2012) 55 Cal.4th 999, 1023-1024 , respondentstates that “inferences offered against claims of insufficient evidence may not be based upon speculation.” (RB 151.) In that case, the defendanttestified that he had not plannedto robthe particul ar victim and the gun had goneoff accidentally. He then argued that the evidence was insufficient to convict him of attempted robbery, becauseit would have been based on speculative inferences. (/bid.) This Court rul ed otherwise: the evidence showed that the defendant had committed thre e armed robberies within a few hours of the charged attempted robbe ry using a similar method of parking a trucksoasto attract potential vi ctims, raising the hood to provide concealment, and displaying a gun. (/b id.) The jury therefore could reasonably concludethat the defendant, using the same \2 The third case respondentcited regarding factual impossibility has been depublished. (See RB 151, citing People v. Richardson ( 2007) 151 Cal.App.4th 790; 60 Cal.Rptr. 458.) 37 imme modus operandi, intentionally shot the victim who had walked away from the truck. (/bid.) Based on the evidence, which included eyewitness and forensic testimony regarding the gun’s very heavytrigger pull, the court did not err in denying Watkin’s motion for acquittal undersection 1118.1. (/d. at p. 1025.) This evidenceis in stark contrast to Medina’s belated and vague testimony about gestures. Respondentargues that appellant conceded during the guilt phase closing argumentthat the jury could reasonably concludethat appellant believed the gun had atleast onebullet in it and tried to shoot and kill Medina. (RB 151.) However, that concession was madeas part of a circumstantial evidence argument. Appellant told the jury that if appellant and his codefendantss were the experienced, military-precision gunmenthat the prosecution described, they would know that whentheslide is open it does no goodto pull the trigger. (22RT: 3847.) Appellant then argued that there were two reasonable interpretations of the evidence: the perpetrator had the intent to kill both when heshotthe officer and then swung the gun over to Medina,or that he pointed the gun at Medinato get him to “backoff _.. [if] he doesn’t get involved, [he] doesn’t get shot.” (22RT: 3848.) Underthe circumstantial evidenceinstruction, the jury had to choose the reasonable conclusion about intent that favored appellant. (22RT: 3848- 3849.) This argument, made after the court ruled against appellant on the motionto strike portions of Medina’s testimony and motionto dismiss Count 5, do not underminehis claims on appeal. Under the “defensive acts doctrine . . . a defendant should notlose his right to contest an erroneous ruling by the trial court merely because the defendant thereafter acts prudently to mitigate the adverse effects of that ruling.” (People v. Eilers 38 (1991) 231 Cal.App.3d 288, 297.) Appellant’s attempts to mak e the best of a bad situation cannot be used against him now. (See People v. Scott (1978) 91 Cal.3d 284, 291 [where prosecution chose to presenttest results that were negative, Court was “unableto find a waiver in defendan t’s spirited attempts to persuade the jury in closing argumentthat the test results tended to establish his innocence”]; see also People v. Venegas (1998) 18 Cal.4th 47, 94 [attemptto attack the merits of damaging testimony f ollowing unsuccessful objection is not a waiver but a necessary and p ropertrial tactic]; People v. Turner (1990) 50 Cal.3d 708, 744 and fn. 18 {no forfeiture where counselelicited witness’s prior convictions a fter unsuccessful motion to exclude them].) F. Because The Evidence WasInsufficient, Appellan t’s Rights Under Federal and State Law WereViolated, and The Conviction For Attempted Murder Must Be Reversed Underthe federaltest for sufficiency of evidence, Count 21 mu st be reversed. (Jacksonv. Virginia (1979) 443 U.S. 307, 319 [whether, after viewing the evidence in the light most favorable to the prosec ution, any rationaltrier of fact could have foundthe essential elements of the crime beyond a reasonable doubt].) This is especially so in light of the circumstantial evidence andappellant’s argument.If “the ev idence viewed in the light mostfavorable to the prosecution gives equalor nearly equal circumstantial support to a theory of guilt and a theory of inno cenceof the crime charged, then a reasonable jury must necessarily ent ertain a reasonable doubt.” (Cosby v. Jones (11th Cir. 1982) 682 F.2d 1373, 1383; accord, United States v. Harris (7th Cir. 1991) 942 F.2d 1125, 1129-1130; United States v. D’Amato (2d Cir. 1994) 39 F.3d 1249, 1256; United States 39 S O R T e e v. Flores-Rivera (ist Cir. 1995) 56 F.3d 319, 323; United States v. Santillana (5th Cir. 2010) 604 F.3d 192, 195.) Under California law, Count 21 must be reversed becausea rational trier of fact could not have found guilt based on the evidence and inferences drawn therefrom. (People v. Lewis (2006) 39 Cal.4th 970, 1044; see also People v. Guerra (2006) 37 Cal.4th 1067, 1131 [upholding sufficiency of rape special circumstances where jury could reasonably infer defendant’s intent to rape, notwithstanding the absence of physical evidence]; Peoplev. Young (2005) 34 Cal.4th 1149, 1180 [holding evidence sufficient because jury finding was reasonable].) Appellant’s conviction on Count5 violated his state and federal rights to due processoflaw,a fair trial and reliable guilt and penalty determinations. (U.S. Const., 5th, 6th, 8th and 14th Amends.; Cal. Const., art. {, §§ 7, 15, 16, 17; Beck v. Alabama (1980) 447 U.S. 625, 637-638 & fn. 13.) For the reasons above andthose set out in appellant’s opening brief, appellant’s conviction for attempted murder mustbe reversed. Ht I 40 V. THE TRIAL COURT PREJUDICIALLY ERRED BY ADMITTING ROSA SANTANA’S PRELIMINARY HEARINGTESTIMONYIN LIEU OF LIVE TESTIMONY Respondentclaimsthatthe trial court properly found Rosa Santana to be an unavailable witness and admitted her preliminary hearing attrial. (RB 154-171.) Respondentis incorrect. The prosecution did not meetits burden of showing that the facts demonstrated prosecutorial goodfaith and due diligence in attempting to secure Santana’s testimonyattrial (Peoplev. Herrera (2010) 49 Cal.4th 613, 623), and the trial court’s finding to the contrary was erroneous. Thetrial court’s reasonsforits due diligence finding were “what the People did and the way it endedup,resulting in the contact made in August, the fact she showed up on the warrantto attend the lineup, and her cooperativeness other than the apparent problemsshe had” with her parents. (19RT: 3170.) Both these reasons andthose argued by respondent do notstand up when viewed in the contextofthe relevant portions of the record. A. The Prosecution Failed To Establish Santana’s Unavailability Under California Statute and the Sixth and Fourteenth Amendments and The Trial Court Erred In Finding That The Prosecution Exercised Good-Faith, Reasonable Diligence and In Admitting Santana’s Preliminary Hearing Testimony First, the trial court’s reliance on “the way it ended up,resulting in the contact made in August” (L9RT: 3170), cannot be credited because the only “contact” with Santana in August 1994 consisted of her surrendering in her ownburglary case in Pomona;the prosecution in appellant’s case had no contacts with Santana in August and did not renew their search for heruntil Al August 31.'° (L9RT: 3153, 3159-3160.) Moreover, there is no evidencethat Santana’s decision to turn herself in for her own case in Pomonahad any relation to the prosecution’s efforts to find her. While the prosecution had urged Santanato turn herself in (19RT: 3158), there is no evidence in the record as to why Santanafinally surrendered herself in August 1994 but not earlier. For example, she had promised the prosecutor in May and July of 1994 that she would do so, but did not. (L9RT: 3157-3159.) Respondent also has not countered appellant’s argument that Santana’s appearances for other casesare irrelevant to a showing of due diligence in securing her presenceat appellant’s trial. (AOB 122,citing In re Choung D (2006) 135 Cal.App.4th 1301, 1313.) Thusthere is no evidence that Santana’s Pomona appearance in August in her own case wasrelated in any way to the prosecution’s diligence below. Second,the trial court’s reliance on “the fact she showedup on the warrant to attend the lineup [in May 1994],” again in a separate case (ORT: 3170, 3158), was legally irrelevant, as just stated, and also unreasonably ignores surrounding events. Santana was completely unstable, with at least three different addresses between MayandJuly of 1994. (LORT: 3157-3159, '3 Although, as respondentnotes, one of the prosecutors, when introducing the due diligence issue, stated that Santana had been served with a subpoena in August 1994 (RB 155, citing 19RT: 3141),it appears the prosecutor misspoke. As the record indicates and respondentstates, the evidenceat the due diligence hearing established that on May 4, 1994, the prosecution served Santana with two subpoenas: one to appearat a lineup on a related case on May 16, 1994, and another to appear on September7, 1994, at appellant’s trial, then scheduled to start in August. (RB 156-158, 166; LORT: 3151-3152, 3157-3159.) When Santana appearedat the lineup in the other case in May,the prosecution served her with a second subpoena to appear at appellant’s trial on September 7. (19RT: 3159.) 42 3146-3147 [East Olive St., Pomona [5/4/94]; Bandera St., Montclair [7/94]; 1328 S. San Antonio Ave., Pomona[had notlived there for 2 mos. as of 9/7/94].) There is no evidence that she ever voluntarily contacted the prosecutionto report these address changesorstay in touch;rather, the prosecution hadto relocate Santana each time they had contact with her other than at the May 1994 lineup. (/bid.) Also Santana, who was 16 years old atthe timeoftrial, had been a consistent runawayfor the prior two years. (LORT: 3156.) Nothing, including having a baby in January 1994, happenedto changethat, despite the prosecutor’s wishful thinking to the contrary. (See 19RT: 3143 [prosecutor had believed Santana would be morestable given that she had a baby].) Given Santana’s constant movementbefore and after the May 1994 lineup and failure to surrender for months in her own case,thetrial court unreasonably concluded that her May 1994 lineup appearance demonstrated the prosecution’s diligence. Third, the court’s conclusion that Santana was cooperative other than her problems with her parents (19RT: 3170) also is belied by the record. At the material witness hearing on March 24, 1993, during appellant’s preliminary hearing, the court recognizedthat Santana had been evading and avoiding service. (3/24/93 RT: 18.) Twodayslater, the prosecution sought to deny Santanabail entirely, arguing, among otherthings, that Santana had indicated that she wantedto stay onthe streets rather than appear in appellant’s case. (Misc. Muni. RT: 252-253.) The prosecution’s characterization of her as a hostile witness during the preliminary hearing was unrelated to parental problems. (2CT: 402.) Ironically, the only one of Santana’s movesin 1994 that appears directly related to problems with her parents took place after the prosecution approvedherrelease from custodyin 43 August 1994, when she was released to her parents and promptly ran away. (LORT: 3142-3143.) At the due diligence hearing, appellant informed the court of the prosecution’s representationsat the undertaking during the prelim inary hearing (19RT: 3162-3166), and then argued that the prosecution’s c omplete switch in positions did not show good faith. (LORT: 3166-3169.) Th e court rejected this argument as well as appellant’s argumentthat rather than agree to her release!* on August 19, 1994, the prosecutor should have as ked the juvenile court to continue to keep Santana in custody to appear at a ppellant’s trial then set for September 7, 1994. (ORT: 3158-3159, 3167; 9CT : 2632 (9/7/94 trial date set], LOCT: 2753 [on 8/24/94,trial date reset for 9/14/94], 2986 [trial starts on 9/14/94].) Given the record and the law,the trial court incorrectly found that the prosecution’s decision to let her go was n ot unreasonable. (19RT: 3170.) “[A] prosecutor’s support for a decision to release a witness who poses a substantial flight risk is a significant factor to be considered in evaluating whether the prosecutor has exercised due diligence.” (Peo ple v. Bunyard (2009) 45 Cal.4th 836, 854,italics added.) In additio n to that generalprinciple, the prosecution unreasonably assumedthat Santan a, although a juvenile with a baby, would not be released to her parents. (IORT: 3142, 3152.) Based upon this unreasonable assumption,the i+ Tn the opening brief, appellant at one point mistakenly indicated that the prosecution had agreedthat the Pomona authorities could r elease Santanato her parents while she awaited disposition of her burglary case. (AOB 120.) However, the prosecution agreedto her release with elec tronic monitoring only on the assumption that she would not be released to her parents. (AOB 125; 19RT: 3142.) 44 prosecution agreed thatjust three weeks prior to Santana’s September7, 1994, subpoenadate to appear at appellant’s trial, the Pomonadistrict attorney could release Santanaas long as there waselectric monitoring. (LORT:3142, 3158-3159; 20RT: 3543; 9CT: 2632; 10CT: 2753.) Had the prosecutiondiligently questioned its counterpart in Pomona,it would have learned that Santana would be released on the condition that she went to her parents. (20RT: 3543.) People v. Bunyard, supra, 45 Cal.4th 836 (Bunyard), supports appellant’s position. The issue there was whetherthe prosecution had exercised due diligence after it had initiated a 1332 proceeding prior to a retrial when the witness failed to appear, but later supported the court’s decision to release the witness. (/d. at pp. 846-847.) Followingrelease, the witness appeared twice as ordered,but then disappeared. (/d. at pp. 847- 848.) This Court’s discussionofthe factors relevant to whether the prosecution exercised reasonablediligence when it agreed with trial court’s erroneousdecision to release a material witness from custody(id. at p. 849 & fn. 5), is germane. Thesefactors include whether the witness had pending charges or was awaiting sentencing in a felony case, was an imminentflight risk, had previously appeared as promised in the samecase, or made credible, in-court promises to appear. (/d. at pp. 853-854.) In Bunyard, this Court reviewed these factors and held that the trial court’s decisionto release the witness was reasonable inlight of the fact that the witness had no pending charges, had promised orally and in writing to report regularly and had done so for two months, and had no incentive to flee. (/d. at pp. 851- 855.) Moreover, in Bunyard the Court gave deferencetothe trial court’s assessment of the witness’s credibility (id. at p. 851), a factor not present here. 45 Here, all these factors work against a finding of reasonable diligence. Bythe timeoftrial, Santana was awaiting disposition on a felony (19RT: 3151); had not previously appeared in appellant’s case other than under compulsionat the preliminary hearing; had not madecredible in-court promises to appear at appellant’s trial; and certainly wasa flight risk (19RT: 3169 [prosecutor acknowledges she knew of Santana’s propensity to disappear].) Additionally, Santana’s two sporadic appearances May and August in other cases (19RT: 3157-3160), interspersed with herlack offixed addresses as described above,are also distinguishable from the initial complianceof the witness in Bunyard. (See id. at pp. 851, 853-854.) Thus, the prosecution’s agreement to release Santana,a vital witness, shortly before trial despite the substantial risk she would disappear, rather than take adequate preventive measures, demonstrates the prosecution’s lack of good faith and diligence. As respondent acknowledges, whether the prosecution soughtto detain a witnesspriorto trial under section 1332 is relevant to a due diligence determination. (RB 165, citing People v. Hovey (1988) 44 Cal.3d 543, 564.) The prosecution’s failure to do so here, especially in contrast to its position at the secret 1332 proceedingsatthe time of the preliminary hearing (3/24/93 RT: 3-4, 16-19; 2CT: 349-351, 368, 373), showed a distinct lack of good faith. In finding reasonable the prosecutor’s decision to allow Santana’s August 1994 release after her Pomonapetition wassustained, the court remarked,“I don’t know what they could have done other than [defense counsel] saying she should have been kept in custody from August.” (L9RT: 3170.) The court’s out-of-handrejection of this point suggests it thought the very idea of detaining Santana wasnot reasonable. However, that 46 determination should have been madeat a 1332 hearing, where the judge considers the tension betweenthe state’s right to compel a material witness to appear and testify, and a witness’s right not to be unreasonably detained. (In re Francisco M. (2001) 86 Cal.App.4th 1061, 1070 (Francisco M.) Thus, the court never adequately considered appellant’s argumentthatto demonstrate good faith and diligence, the prosecutor should have requested a hearing undersection 1332 in orderto secure,or at least attemptto secure, Santana’s testimony at appellant’s trial. (People v. Hovey, supra, 44 Cal.3d 543, 564; People v. Roldan (2012) 205 Cal.App.4th 969, 981.) Additionally, whether or not Santana was taking care of her baby was not discussed below nor wasit a factor in the court’s decision. Whetherit would havebeena factor in the court’s determination at a 1332 hearing is unknown,and respondent, who hasthe burden of proof, cannot now benefit from suppositions in this regard. Significantly, the authorities in Pomona had no compunctions about keeping Santana in custody for a week in August 1994 after she finally turned herself in in her own felony case. (20RT 3543.) And if Santana made arrangements for childcare during her Pomona incarceration, she could have done so again. In Francisco M., supra, 86 Cal.App.4th 1061, two juveniles, aged 17 and 15, had been detainedtotestify as material witnesses in a murder case for about ten and eight weeks, respectively, at the time the court of appeal considered their habeaspetitions contesting their continued detentions. (/d. at p. 1065.) Their commitment orders had been reviewedperiodically. (/d. at pp. 1067-1070.) Ultimately the court denied the juveniles’ request for immediate release, despite the fact that the trial had been postponed. (/d.at p. 1079.) Francisco M. showsthat a detention period sufficient for Santana to testify at appellant’s trial might well have been reasonable. 47 In People v. Roldan, supra, 205 Cal.App.4th 969, the key witness identifying the defendant in an attempted murder charge was in federal custody on an immigration hold pending deportation, but was held for nine monthsin orderto testify at the preliminary hearing, and then promptly deported. (/d. at pp. 975, 976.) The prosecutor had consulted with United States Immigration and Customs Enforcementofficials in an unsuccessful attempt to have the witness held soas to testify at trial, but the witness was deported promptly. (/d. at pp. 976-978.) The preliminary hearing testimony wasthen admitted at trial over the defendant’s objection. (/bid.) | The Roldan court recognized that the prosecution’s failure to pursue any judicial remediesis a factor in determining whetheror notit has exercised due diligence in attempting to secure the witness’s presence at trial. (People v. Roldan, supra, 205 Cal.App.4th at p. 981.) Although due process considerations prevent the years-long detention of an unimportant witness, courts have sanctioned the months-long detention of a material witness. (/bid., citing Francisco M., supra, 86 Cal.App.4th at p. 1061 and United States v. Mercedes (D. Puerto Rico 2001) 164 F.Supp.2d 248.) The court found that the prosecution’s failure even to seek such an order under section 1332 or to formally evoke federal statutory procedures to bring the witness to state courtto testify, demonstrated a lack of diligence. (People v. Roldan, supra, 205 Cal.App.4th at pp. 982-985.) Finally, “[a]t an absolute minimum,”the prosecutor in Roldan should have notified defense counsel of the witness’s impending deportation so he could take action to make the witness availableat trial. (/d. at p. 985.) Similarly, the prosecution here should have attempted to utilize judicial processes or notified defense counsel thatit planned to allow Santanato be released three weeks before her scheduled appearance, so 48 defense counsel could take action to secure her testimony. Given that when released in August 1994, Santana was awaiting sentencingin her underlying burglary case (ORT: 3159-3160), her detention for a few weeks may have been appropriate. (See, e.g., People v. Bunyard, supra, 45 Cal.4th at p. 854 & fn. 6, discussing Francisco M, supra, 86 Cal.App.4th 1061.) The prosecution’s failure to attemptto utilize judicial processes, or to notify defense counsel so he could do so, is a major factor showing the prosecutor’s lack of good faith effort below. Respondentrecites record facts and general legal principles (RB 154-165), but the sum total of respondent’s actual argumentis in Respondent’s Brief at page 166. However, contrary to respondent’s assertion that Santanatestified cooperatively at appellant’s preliminary hearing (RB 166), Santanatestified there only after the prosecution requested that she be held as a material witness under section 1332 due toits unsuccessful ten-month search for her and other factors. (3/24/93 RT:3-4, 13-14; Misc. Muni RT: 252.) The court ordered sureties of $20,000 in addition to the $20,000 bail in Santana’s Pomonacase, andhadto order her to testify under a partial grant of immunity. (3/24/93 RT: 3-5, 13, 18-21; 2RT: 368-369.) Even then, the prosecution askedthat she be deemed a hostile witness at the preliminary hearing. (2CT: 402.) In addition, as shown above, respondent’s reliance on the fact that the Santana honored the subpoenato attend the codefendant’s lineup in May 1994 was not reasonable. To support its argument, respondentcites only People v. Watson (1980) 213 Cal.App.3d 446 (Watson), butits reliance on this case again (19RT: 3152; RB 166)is in vain. There, the witness, a United States legal resident,testified at the preliminary hearing and waslater served with 49 subpoenafortrial. (People v. Watson, supra, 213 Cal.App.3d at pp. 450- 451.) He informed the authorities that he was going hometo Argentina for Christmas, but would appearattrial, and gave his contact information in Argentina. (/bid.) Authorities reached him in Argentina after Christmas, two weeks beforetrial and again during the trial. After expressing increasing doubt abouttestifying, the witness refused to return to do so. ([bid.) The prosecutor’s office spoke with the United States Department of Justice and learned that there was no treaty with Argentina providing for extradition or compulsion of witnesses. (/d. at p. 451.) The Watson court rejected the defendant’s argumentthatthe - prosecution should have obtained a federal subpoena,finding that the sanction of arrest upon return to the United States for failure to respond to the state subpoena wasatleast as strong an incentive as the threat of a large fine from a federal subpoena, and both could result in the loss of resident status. (Watson, supra, 213 Cal.App.3d at pp. 453-454.) The serving of the state subpoenaandthe “additional efforts” were sufficient to meet the reasonable diligence standard. (/d. at pp. 454-455.) The additional efforts werethe periodic telephone calls to a witness with a stable work history for mostof his 14 years in the United States and stable contact information in Argentina, and contacting the federal authorities to explore additional options. (/d. at pp. 450-451, 454-455.) Unlike Watson, Santana continued to be unstable and the prosecution was only intermittently able to contact her, and even then it was only after extensive searches. Santana’s youth, constantinstability, lack of work history and the prosecution’s difficulty in contacting her are quite different from that of the witness in Watson. 50 Finally, the trial court also relied in general on “what the people did” as a basis for finding due diligence (19RT: 3170) and respondentcites to “the People’s numerousefforts to locate Santana.” (RB 166.) These conclusory statements do not support a finding that the prosecution made a good faith effort to find Santana priorto trial. The U.S. Supreme Court has noted that “‘if there is a possibility, albeit remote, that affirmative measures might producethe declarant, the obligation of good faith may demandtheir effectuation.” (Ohio v. Roberts (1980) 448 U.S. 56, 74-75, italics omitted, abrogated by Crawford v. Washington (2004) 541 U.S. 36.) The standard of “reasonableness”is a stringent one, as demonstrated by the example of when no effort would be required,i.e., in the case of the witness’s intervening death. (Ohio v. Roberts, supra, 448 U.S. at p. 74.) For all the reasons argued above andin the openingbrief, the prosecutor’s showing below did not meet that heavy burden andthe court’s conclusionto the contrary was erroneous. B. Appellant Was Prejudiced By The Trial Court’s Erroneous Admission Of Santana’s Preliminary Hearing Testimony Rather than respond to appellant’s specific prejudice argument regarding the peace officer special circumstance, the guilt phase counts that he did not concedeattrial, and the impact of Santana’s testimonyat the penalty phase (AOB 128-131), respondent mechanically summarizesall the guilt phasetrial testimony. (RB 167-170.) Appellant incorporates by reference the prejudice arguments in Arguments VI, XV, XIX, and XXI here and in the opening brief, and otherwise will not repeat his prejudice arguments. Forall these reasons as well as those argued in the opening brief, counts 10 through 18, and 24 through 27, and the death sentences must be reversed. 51 VI. EVEN IF ROSA SANTANA WAS A CONSTITUTIONALLY AVAILABLE WITNESS, THE TRIAL COURT ERRED BY ADMITTING HEARSAY STATEMENTS THROUGH HER IN VIOLATION OF THE ARANDA/BRUTON” RULE AND RESTRICTING APPELLANT’S CROSS-EXAMINATION OF HER IN VIOLATION OF THE SIXTH AMENDMENT In his openingbrief, appellant argued that the trial court erred in admitting a taped statement by Rosa Santana containing a codefendant’s hearsay statements against appellant. Appellant wrote that in Santana’s taped statement, she told the police that she learned from Navarrothat he and appellant boughtcars from the proceeds of another robberythree to four months earlier where they had each received $14,000. (AOB 132,citing Vol.2, 6SCT: 219-220.)'® Respondentcorrectly points out that Santana recited this piece of information without directly attributing it to Navarro. (RB 173.) Nevertheless, the court at both the preliminary hearing andtrial consistently recognized thatthe statement was hearsay asto appellant such that admission would haveviolated the Aranda/Brutonrule. The portion of Santana’s taped statementrelevanthereis: Q: [Navarro] and [appellant] boughtthat, the red car together? A: Yeah, each of them got their money, so each them got - bought their car. Q: Wheredid they get the money? '5 People v. Aranda (1965) 63 Cal.2d 518 (Aranda); Brutonv. United States (1968) 391 U.S. 123 (Bruton). '6 Exhibit 47 is the tape and Exhibit 48, located at Vol.2, 6SCT: 212-220, is the transcript of the tape. Santana’s preliminary hearing testimony is at 2CT: 349, 367-523, 530-547. Detective Perales read her testimonyat trial. (IORT: 3363-3370; 20RT: 3391 et seq.) 52 A: From another store robbery. Q: How much did they have? A: About $14,000 each. Q: How long ago wasthat? A: About three or four months. (Ex. 48,Vol.2, 6SCT: 220.) When the preliminary hearing testimony was read attrial, the above reference to appellant was redacted and the jury instructed that the statement should be considered only as to Navarro. But the above-quoted portionof the transcript and tape were not redacted. Over appellant’s objections, trial Exhibit 47, the tape, was admitted and played at the preliminary hearing andtrial. (2RT: 426-428; 20RT: 3414-3415 [tape played]; 19RT: 3195 [renewing hearsay objection from the preliminary hearing transcript, pages 43 to 45 (2CT: 423-425)]; 19RT: 3196 [renewing Arandaobjection to taped statement and arguing admonitions would not cure harm from jury hearing inadmissible hearsay as to appellant]; 3197 {noting ruling at preliminary hearing that statements ontape would be limited under Aranda; see 2CT: 427-428]; 19RT: 3374-3376 [hearsay objection to admission of Exhibit 47, the tape]; see also LORT: 3222 [objecting to Santana’s testimonyattrial by renewingall preliminary hearing objections}; 20RT: 3504-3505 [renewing all objections from preliminary hearing and in limine motion to Santana’s testimony].) Appellantfirst objected at the preliminary hearing on hearsay grounds whenthe prosecutor asked Santana whether she was ever with Navarro when he discussed doing a prior robbery. (2CT: 411.) The court overruled the objection, with the caveat that statements would be limited to the defendant speaking, unless a codefendant waspresent. (2CT: 411-412.) The prosecutorthen limited his question to Navarro and elicited Santana’s 53 testimony that Navarro pointedouta little market they werepassing,telling her he had robbedit and boughthis car with the proceeds. (2CT: 412-414.) Appellant next unsuccessfully objected to the playing ofthe tapeat the preliminary hearing. (2CT: 423.) After the court heardit, appellant movedto strike it in its entirety, including Santana’s recital of numbers and figures, on groundsof hearsay, lack of foundation and Aranda, (2CT: 426- 427.) The court denied the motionon the groundthat there were no Aranda/ Bruton problemsas the statements would belimited to the speaker. (2CT: 427-428.) Shortly thereafter, appellant objected to admission of Santana’s taped statement becauseit violated his rights to confront and cross-examine witnesses, to due process and toa fair trial underthe Fifth, Sixth, Eighth and Fourteenth Amendments to UnitedStates Constitution and the provisions of California Constitution. (2CT: 433-436: see also 2CT: 481-482 [renewing confrontation and cross-examination objections].) Citing Idaho v. Wright and Maryland v. Craig,'’ the court overruled appellant’s objections in large part on the ground thatpreliminary hearings are unknownto federal constitutional law and the confrontation right is not at issue at a preliminary hearing asit applies only to evidence admitted to convict a defendantattrial. (2CT: 434-435, 481-482.) The court granted appellant’s request to make the objections continuing ones. (2CT: 436.) Navarro then cross-examined Santana on whether Navarro and appellant had purchased a car together or separately.'® (2CT: 512.) Santana '7 Idaho v. Wright (1990) 7 U.S. 805; Maryland v. Craig (1990) 497 U.S. 836. '§ Santana’s testimony that Navarro told her he had donea prior (continued...) 54 testified that they each boughtdifferent cars. (/bid.) Attrial, the court sustained defendant’s objection on hearsay groundsto this question and response, recognizing that Santana’s knowledge as to whether they purchaseda car together would be hearsay and“if it’s [Navarro] talking, how do wegetit in as to Mr. Sanchez-Fuentes?” (19RT: 3233- 3234.) During redirect examination at the preliminary hearing, the prosecutor tried to elicit testimony from Santana about appellant’s presenceat the prior robbery. Appellant’s objections again were sustained: Q: Now,youtestified that Hector told you about another robbery of a small market that he had done. He pointed it out to you as you drove around one day. A: Yeah. Q: Did hetell you whohe did the robbery with? A: No. Hetold methat they had also done that store. He told methat. (2CT: 519-520.) The prosecutor, after noting that Santana’s source of information was Navarro, questioned Santana about who “they” were, but following defense objections, her responsesthat “they” must have been Contreras, appellant and the others, were stricken as speculative and hearsay, except as to Navarro. (2CT: 520-523.) At trial, over the prosecution’s objection, the court ruled further that both the question “Did hetell you who he did the robbery with?” and Santana’s answer, “No. He told me that they had also donethat store,” were inadmissible because of the impact of the testimony onthe other defendants. (19RT: 3238-3235.) '8( continued) robbery and purchasedhis car with money from it was admittedattrial. (20RT: 3405-3406; 2CT: 412-413.) 55 By all these rulings, the preliminary hearing andtrial court recognized that Navarro was Santana’s source for her statement on the tape regarding the prior market robbery, that appellant was not present when Navarro made the statement to Santana aboutthe prior market robbery, and that the statement was inadmissible hearsay as to appellant, and a violation of Aranda and appellant’s confrontation rights. For all these reasons, the court should have sustained appellant’s objections to the admission of Exhibit 47 and 48attrial with regard to the portion of the transcript excerpted abovethattold the jury that appellant and Navarro bought cars basedon a prior robbery they had done. (Ex. 47, Vol.2, 6SCT 220.) Admission of Santana’s statement on the tape that appellant robbed another small market and boughta car with the proceeds violated appellant’s Fifth, Sixth and Fourteenth Amendmentrights under the United States. - Constitution and analogousprovisions of the state constitution to confront and cross-examine witnesses and to due process anda fair trial. (U.S. Const., 5th, 6th, & 14th Amends.; Cal. Const., art. I, §§ 7, 15; Bruton, supra, 391 U.S.at pp. 126-128; Aranda, supra, 63 Cal.2d 518. Theerrors further violated appellant’s right to due process underthe Fifth and Fourteenth Amendments, because confrontation and cross-examination ensure that evidenceis reliable and “subject to the rigorous adversarial testing that is the norm... .”. (Maryland v. Craig, supra, 497 U.S. at p. 847; Michigan v. Bryant (2011) 131 S.Ct. 1143, 1162.) “Theright . . . to due process is, in essence,the right to a fair opportunity to defend againstthe State’s accusations. The rights to confront and cross-examine witnesses ... have long been recognized as essential to due process.” (Chambers v. Mississippi (1973) 410 U.S. 284, 294; see also 56 acer Jackson y. Denno (1964) 378 U.S. 368, 381-383, 388-390 [New York procedure, wherein it was impossible to determine whetherjury relied on unconstitutionally obtained confession to determineguilt, violated defendant’s 14th Amendmentdue processrights]; Aranda, supra, 63 Cal.2d at pp. 528-529 [recognizing that it may be denial of due processto rely on jury’s presumed inability to disregard codefendant’s confession implicating another defendant for purposes of guilt/innocence determination]; People v. Winson (1981) 29 Cal.3d 711, 717 [recognizing that absence of proper confrontation calls into question ultimate integrity of fact-finding process].) Respondent’s remaining contentions with respect to the instant argumentraise no significant issues beyond those addressed in appellant’s openingbrief, and therefore no furtherreply is required. Hf HI 57 VIL. THE COURT PREJUDICIALLY ERRED BY ADMITTING EVIDENCE OF THE ROD’S COFFEE SHOP INCIDENT UNDER EVIDENCE CODE SECTION1101, SUBDIVISION B Appellant argued that the court erred in admitting evidence of an incident at Rod’s Coffee Shop (“Rod’s”) as prior crimes evidence. Respondenthas not successfully rebutted appellant’s arguments, which are based uponthe case law interpreting Evidence Codesection 1101, subdivision (b), and the logic behind its evidentiary theories and principles. (AOB 144-153.) Respondent makes three arguments. First, respondent contendsthat the Rod’s evidence was admissible as to appellant’s identity at each of the charged robberies becausethe prosecution may not be compelled to accept a stipulation-that would deprive its case of its persuasiveness and force. (RB 197.) However, underthat theory, evidencestill mustbe relevant and is subject to Evidence Code section 352. (People v. Scheid (1997) 16 Cal.4th 1, 16; see also People v. Rogers (2013) 57 Cal.4th 296, 331 [because other crimes evidence may be viewed as inherently prejudicial, it must have “substantial probative value” to be admissible].) Here, the probative value was negligible in terms of the uncontested robbery counts (AOB 144-148), and at the very least cumulative and far more prejudicial than probative as to the contested ones. (AOB 143-144.) Moreover, as explained below and in the opening brief, the Rod’s evidence wasirrelevant under the applicable evidentiary theories. 58 Second, respondentargues that because appellant “did not admit to torturing!? Armando with a stun gun,” the court properly admitted the Rod's evidenceasrelevant to prove that appellant used the stun gun, because the use of the stun gun during a takeover robbery is highly distinctive. (RB 197.) This generalization does not address the evidentiary theories under which the Rod’s stun gun evidence was admitted and the jury instructed, nor appellant’s arguments and authorities showing the brokenlinks on the inferential chain of reasoning underlying the court’s decision to admit the evidence. (See AOB 144-48 [common schemeorplan], 148-152 [knowledgeor possession of meansfor the charged offenses].) Also, as demonstrated in the opening brief, the trial court’s view, based on lack of personal familiarity with cases whereelectrical devices were used, was simply not correct. (AOB 150-151.) Moreover, it was improper for the court to rely on personal experience whenruling onthe admissibility of evidence. (United States v. Lewis (9th Cir. 1987) 833 F.2d 1380, 1385[improperfor trial judge to rule, on the basis of his own personal experience and reaction to anesthetic in a prior surgery, that defendant’s confession given after waking up from surgery was involuntary].) In addition, as appellant argued, the stun gun was found underthe passengerseat of the car appellant was driving; the evidence did not show that appellant ever possessedit. (L6ORT: 2566; 18RT: 3032-3033, 3035; 29RT: 5086.) The law “makes the matter of knowledge inrelation to '° The prosecution never charged appellant with the crimeoftorture under section 206 because it was unable to proveall the elements. (7CT: 1932-1933.) Appellant was charged with two countsof assault with a stun gun undersection 244.5, subdivision (b), counts 30 and 33. (7CT: 2009.) 59 defendant’s awareness ofthe presence of the object a basic elementof the offense of possession.” (People v. Gory (1946) 28 Cal.2d 450, 454, original italics.) Thus, “proof of opportunity of access to a place where [contraband is] found, without more,will not support a finding of unlawful possession.” (People v. Redrick (1961) 55 Cal.2d 282, 285-286 [summarizing Cases in which evidenceof narcotics possession wasinsufficient because others besides defendant had access].) Proximity to a weapon, standing alone,is not sufficient evidence of possession. (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417; see also People v. Antista (1954) 129 Cal.App.2d 47, 50; People v. Bledsoe (1946) 75 Cal.App.2d 862; People v. Boddie (1969) 274 Cal.App.2d 408, 411-412.) Thesecases standfor the basic principle that when more than one person has accessto a location, the mere fact that a weapon is found hidden somewhere in that location does not establish constructive possession, regardless of the defendant’s relative proximity to the item’s hiding place. Here, there were two other menin the car appellant was driving when it was stopped, includinga front seat passenger, whofled. (18RT: 3030-3032.) For this reason,there was insufficient evidence to establish that appellant had possession of stun gun under the front passenger seat of the car, or even that he had knownit wasthere. Third, respondentargues that the Rod’s evidence was relevant to prove appellant’s identity for the robbery counts on a “common modus operandi theory,”i.e., “a group of well-armed men would pretend to simply be customers, then take over the establishment in question and commit various violent crimes.” (RB 197.) However,as appellant already demonstrated, evidence of a commonschemeorplanis inadmissible to provide identity. (AOB 145, citing People v. Ewoldt (1994) 7 Cal.4th 380, 60 406.) Moreover, a group takeover robberyis not unusualordistinctive enough to be admissible to show identity. (AOB 152-153; United Statesv. Luna (9th Cir.1994) 21 F.3d 874, 881 {loud entry, profanity, use of guns and abuse of employees are generic features of a takeover robbery, by definition necessary to intimidate people] & id., fn. 6 [by its very use of the label “takeover robbery,” government concedesthat this is a general type of crime].) The other aspect of the supposed modus operandi respondent describes is also not unusual:initially posing as a customer is so common that it is used in the classification of robbery types. (See Altizio, Robbery of Convenience Stores (April 2007) Problem-Oriented Guidesfor Police, Problem-Specific Guides Series, No. 49, p. 4. [as of September 17, 2014].) Moreover, even if respondent’s characterization did comprise a modusoperandi, most of the crimesat issue did not adhere to it. Only at El Siete Mares restaurant did a “group” enter the establishmentand take seats as customers, as was done at Rod’s. (16RT: 2573-2576.) In three other incidents, from one to three robbers made initial contact at a counter, followed immediately by demandsand display of guns. (See 9RT: 1300- 1301 [George’s Market]; 12RT: 1866 [Mercado BuenosAires]; 14RT: 2225- 2226, 2284 [Casa Gamino]’’.) The display of one or more weaponsinitiated °° Armando and Mendozabothtestified they wereat the front greeting customers when three men entered and were asked how many were in their party. (L4RT: 2225; 2284.) Armandotestified that after responding, one of the men immediately pulled a gun on him. (14RT: 2225-2226.) In contrast, Maricella testified that following their response, the men wentto the restroomsand returned about ten minuteslater, when (continued...) 61 the remainderof the incidents. (See 13RT: 1969-1971, 1991-1992, 2078 [Outrigger]; 17RT: 2749-2750 [Woodley Market]; 1SRT: 2392-2393 {Ofelia’s Restaurant].) F. The Admission Of The Rod’s Incident Evidence WasPrejudicial Error Respondent argues that even if the Rod’s Coffee Shop evidence was improperly admitted, the error was harmless because of the overwhelming evidenceat trial that appellant used the stun gun on Armando Lopez”! and Maricella Mendoza. (RB 198-199.) Onthe contrary, appellant thoroughly impeached the witnesses whotestified regarding appellant’s role during the Casa Gamino crimes,i.e., Armando andhis brothers Javier and Arturo Lopez. They were impeached with prior inconsistentidentifications and the circumstancesof the identifications, including the many chancesfor contamination of the memories of the three brothers. Appellant impeached Armandosignificantly with his pre-trial descriptions of the stun gun assailant. On the night of the incident, Armando told Deputy Cabrera that Suspect | hit him with a gun, used the stun gun on him, led him to the cash register up front, took cash, and yelled, ‘““Where’s Morro,let’s go.” (20RT: 3583-3585.) Morro was appellant’s nickname (19ORT: 3178; 26RT: 4614), so logically, Suspect 1 was not appellant. Armando’s initial description of Suspect | as of Mexican descent, while the other robbers were Central American (20RT: 3585), further confirmed that *°(...continued) one of them placed a gun on her. (14RT: 2284.) *! Asin the opening brief, appellant uses first names for members of the Lopez family whotestified. 62 appellant was not Suspect {. Appellant is from Honduras and was described elsewhere as having a Central American accent. (12RT: 1872; 25RT: 4446.) About two weeksafter the May 17, 1992, Casa Gaminocrimes,at a June 4, 1992, photo lineup, Armandopicked out two photosin a six pack, one of a nonsuspect and one of appellant, but was not sure about them and did not specify their roles. (L4RT: 2224, 2249, 2251-2252, 2272-2273; Folder A, Ex. 16; Ex. 232.) He identified Navarro as the one whostayed with the hostess. (14RT: 2252; Folder C, Ex.18; Ex. 232.) In another six pack, Armandoidentified Contreras without reservation as the person who threatened to kill him, hit him in the head with a gun and shocked him with the stun gun. (14RT: 2250-2251, 2273-2274; Folder B, Ex. 17; Ex. 232.) On August 25, 1992, at a live lineup, Armando wasunableto select anyone in lineup three; selected appellant and a nonsuspectin lineup four, again without certainty or any description of the role played at the robbery; and selected a nonsuspect in anotherlineup. (14RT: 2252-2254, 2274; Exs. 27, 233, 234.) In contrast, over two yearslater at trial, Armando identified appellant with certainty as the person whousedthe stun gun on him,but notas the person whotook him to the front of the store and took money from the cash register. (14RT: 2228-2232, 2237-2238, 2279.) Healso testified that appellant had a Central American accent. (14RT: 2240.) When cross- examined about the discrepancies betweenhis earlier identifications and descriptions versus those at trial, Armando denied them, characterized them as inaccurate, or claimed lack of memory. (14RT: 2260, 2265, 2270-2272.) Armando’s brothers Arturo and Javiertestified similarly to Armando regarding appellant’s role and their testimony waslikewise heavily impeached. Javier testified that he saw appellant aim a gun at Armandoand 63 take him to the office, and then could see through the office window that appellant used the electrical device on Armando. (15RT: 2403-2405, 2406- 2407, 2414, 2428-2429.) On June 4, 1992, Armando,Arturo, Javier and Javier’s wife wereall at the restaurant at the same time when theyat looked at photos (14RT: 2325; 1SRT: 2418-2420.) Javier selected Contreras from the photo lineups as the person whopointed a gun at him, and appellant as the person who took his bracelet and had two guns. (15RT: 2413, 2422; Exs. 16, 17 and 252.) He did not identify appellant as the stun gun assailant. Moreover, at trial, Javier insisted that he had identified appellant as the one with the gun who took Armandoto the office, and that someoneelse took his bracelet. (IS5RT: 2423-2425; Ex. 16.) Javier initially denied that he and his brothers each knew whomtheothers had identified, though they did talk about the Casa Gamino robbery and which robbery participants each was able to identify. (ASRT: 2420-2421.) Javier then admitted he told them which of the participants he had picked out. (15RT: 2421.) Arturo testified that appellant aimed a gun at Armando, took him to the office and hit Armando with a gun. (14RT: 2301-2302.) Arturo did not see anyone use a device on either his brother or Mendoza. (14RT: 2305.) Despite the fact that Arturo wasin the kitchen kneeling down, bent forward and looking downwardas instructed by an armed robber,he insisted that | (14RT: 2300-2302; 2313-2317.) In contrast, at the June 4, 1992, photo lineup, through the small office window, he could see appellant’s actions. Arturo selected appellant as the suspect who had a gun andtold people not to move. (14RT: 2307; Folder A, Ex. 16.) Notably, Armando had told Arturo what had happenedto him during the robbery, and after the photo lineup, 64 they told each other whom they had each picked out. (L4RT: 2325-2326.) This caused Arturo to be morecertain of his identifications. (14RT: 2326.) Atjail lineups on August 25, 1992, and September 30, 1992, respectively, Arturo and Javier both identified appellant as a suspect but did not describe his role. (L4RT: 2308-2309, Exs. 27, 243 [Arturo identifies appellant at position numberonein line up four]; 1SRT: 2416; Exs. 23, 254.) Arturo droveto the jail lineup with Armandoand others from the robbery. (14RT: 2327.) Afterwards, Arturo and Armando shared with each other whom they had picked out, which again made Arturo feel morecertain of his identification. (14RT: 2327-2328.) Armando,Javier and Arturo all drove together to the preliminary hearing. (15RT: 2432.) Arturo, but not Javier, recalled that Armandotold him whom he had pickedout in court that day. (L4RT: 2327-2329; I5RT: 2432.) Arturo and Armandoalso cameto court together on the day they testified at trial. (14RT: 2329.) Thus, appellant significantly impeached Javier’s identification of appellantat trial as the stun gun assailant, and Arturo’s identification of appellantat trial as the person who beat Armando with a gun. Appellant also argued that the testimony of Armandoandhis brothers in this regard was at odds with their prior inconsistent identifications, admissions that they had shared information priorto trial about whom they had identified, and the many chancesthere were to consciously or unconsciously contaminate each other’s memories. (See 22RT: 3866-3877 [guilt phase defense closing argument].) The impeachmentof appellant’s identity as the stun gun assailant carries over to Armando’s testimony that appellant also used the stun gun on Maricella Mendoza, because Armandosimilarly did not identify appellant as 65 having used a stun gun on Mendozaat the phoneorjail lineups.** Mendoza herself could not identify any of the suspects, except that Navarro might have been the person who aimed a gun at Armandoin the office. (14RT: 2292-2296.) The testimony of Armando Lopez andhis brothers was the only evidence that appellant was the stun gun assailant and that he assaulted Armando and Mendoza with a gun. Although there were 15 employees present on the night of the robbery (14RT: 2224, 2242), the prosecution only presented Maricella Mendozaand the four members of the Lopez family, Armando,his brothers, and Javier’s wife Lucia Lopez. In light of the brothers’ heavily impeachedtestimony,and the fact that there were no other witnessesto the identity of the stun gun assailant, respondent’s argument that the Rod’s evidence was cumulative to the overwhelming evidence of guilt must be rejected. (RB 200.) Under these circumstances, admission of the Rod’s evidence was prejudicial as to the disputed Casa Gamino counts 28 and 31 (assault with a deadly weapon) and 30 and 33 (assault with a stun gun) as to Armando and Mendoza,and the other disputed counts. In addition to bolstering the weak evidence on the other disputed counts in the case (see AOB 156), the Rod’s evidence was extremely prejudicial because it was the foundation for the prosecution’s underlying theme throughoutthetrial of appellant-as-torturer. It began during voirdire, *? In any case, Armando’s testimony regarding the identity of the person who assaulted Mendozawith the stun gun is questionable. Armando testified “yes” when asked whether he ever saw “them”using the electrical device on Mendoza. (14RT: 2235.) Thereafter, the prosecutor’s questions assumedit was appellant who used the stun gun on her, and Armando’s answered the questions without using appellant’s name. (See 14RT: 2236, lines 1-11.) 66 whenthe prosecutorelicited promises from jurors, including two onthefinal Jury, to be open to circumstancesof the crime evidence that might include torture. (RB 113 [membersofjury]; 7RT: 929 [sitting jurors T.W. & J.R so agree].) The prosecutor repeated the torture theme during guilt phase opening statement (9RT: 1270, 1273, 1281, 1287) and closing argument (21RT: 3779, 3780; 22RT: 3824); during cross-examination of appellant and his mitigation witnesses at the penalty phase (26RT: 4598, 4629; 27RT: 4774); and closing argumentat the penalty phase (29RT: 5264, 5280, 5291; 30RT: 5315, 5334, 5337, 5367, 5377, 5380, 5385). Because of the unique role that the stun gun evidence playedin the prosecution’s portrayal of appellantas a torturer at the penalty phase, the Court should reject respondent’s argumentthat because there was overwhelming evidence of appellant’s guilt as to all the counts of which he was convicted, the admission of the Rod’s evidence during the guilt phase likely weakenedits impact for the penalty phase. (RB 200.) H. The Admission Of The Evidence Violated Appellant’s Constitutional Rights and Reversal Is Required The improper admission of the Rod’s evidence violated appellant’ s rights under the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the federal constitution as well as analogousstate provisions.” (AOB 138, 157- °> Appellant’s federal constitutional claims were preserved below. The court granted appellant’s motion that California and federal constitutional arguments be deemedraised in defensetrial objections. (9CT: 2686-2688; LOCT: 2753; 2RT: 309-310; see People v. Vines (2011) 51 Cal.4th 830, 865 & fn. 15 [stating that defendant had preservedissue, including due process aspect, for review, and noting that trial court granted appellant’s request that “all defense counsel’s objectionsattrial be deemed objections under the Constitutions of both the State of California and the (continued...) 67 158; U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, 88 7, 15, 17; Beck v. Alabama (1980) 447 U.S. 625, 637-638; Gardner v. Florida (1977) 430 US. 349, 357-358.) Reversal of Casa Gamino counts 28, 31, 30 and 33 andthe other disputed counts (5, 10 through 18, and 24 through 27) is required because respondenthasnot carried its burden of showing the erroneous admission of the Rod’s evidence was harmless beyond a reasonable doubt (Chapmanv. California (1967) 386 U.S. 18, 24), as well as understate law. (People v. Watson (1956) 46 Cal.2d 818, 836-837.) / H *3(_ continued) United States’’].) Moreover, his objections based on Evidence Code sections 352 and 1101 also preserved those claims. (See People v. Cole (2004) 33 Cal.4th 1158, 1194-1195 & fn. 6 [defendant’s trial objection under sections 352 and 1101 preserved both a due process claim and an EighthAmendment reliability claim regarding the admission of evidence of prior cohabitant abuse]; People v. Partida (2005) 37 Cal.4th 428, 435-436 [defendant’s trial objection under section 352 rendered cognizable on appeal his claim that admission of gang evidence violated his due processrights].) 68 Vil. THE INSTRUCTIONS PREJUDICIALLY FAILED TO PROPERLY LIMIT THE JURY’S CONSIDERATION OF THE ROD’S COFFEE SHOP INCIDENT EVIDENCE Appellant argued that assuming the Rod’s Coffee Shop (Rod’s) evidence was admissible,the trial court erred in (a) failing to limit the jury’s consideration of it to the Casa Gamino crimes, and (b) instructing the jury such that the prosecution’s burden of proof was lowered. (AOB 158-167.) Respondent contendsthat the claim has been forfeited and fails on its merits. (RB 203-207.) Respondentis incorrect. The claim is not forfeited. Under similar circumstances, this Court has addressed the merits “because the asserted instructional errors are reviewable on appealto the extent they affect [the defendant’s] substantial rights.” (People v. Lindberg (2008) 45 Cal.4th 1, 34, fn. 11; People v. Foster (2010) 50 Cal.4th 130, 1346, fn. 20 [same]; §§ 1259, 1469.) Should this Court nevertheless view the issue as one requiring defense counsel to request a limiting instruction (RB 203), the Court should apply the ‘“‘narrow exception”to this principle that it has recognized. (People v. Collie (1981) 30 Cal.3d 43, 64.) Under the exception, because the past offense was “a dominantpart of the evidence” against appellant as to the stun gun assault charges, and was “both highly prejudicial and minimally relevant to any legitimate purpose”(ibid.), the exception applies here, as shownin preceding Argument VII. Respondent arguesthat the claim fails on its merits becauseall the crimes “involved similar takeover robberies.” (RB 205.) As appellant argued, ante, in ArgumentVII, this generalization is not grounded in the record. Similarly, respondent’s argumentthat People v. Key (1984) 153 Cal.App. 888, is not applicable fails because the Rod’s evidence was 69 improperly admitted to prove appellant’s identity as to the assaults and the stun gun assaults at Casa Gamino andthe contested counts. (See RB 206- 207; Argument VII, ante.) Respondentnotes, as did appellant, that the Court has continued to reject the argumentthat the interplay between CALJIC Nos. 2.50 and 2.51 results in an evisceration of the reasonable doubt standard. (RB 206, AOB 161-165; People v. Rogers (2013) 57 Cal.4th 296, 336-339, and casescited therein; 345, fn. 8.) Appellant nevertheless again urges the Court to reconsiderits view at least with regard to appellant’s case. As argued in Argument VII, ante, and in the opening brief, the jury was permitted to consider the Rod’s evidence to prove any of the 40 offenses charged against appellant. Because the Rod’s evidence wasnot similar to the charged offenses — robberies committed under different circumstances,assaults, stun gun assaults, attempted murder and murder — the only way the jurors could have found the evidence relevant was underthe prohibited theory of propensity. This is why Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812 (Gibson), applies to appellant’s case.”* (See AOB 161-164.) Gibson involved the introduction of a prior uncharged sexual offense under Evidence Codesection 1108. (Gibson v. Ortiz, supra, 387 F.3datp. 817.) The jurors were instructed with CALJIC No. 2.50.01, which told them “As noted in the AOB at page 162, footnote 44, a later case purported to “overrule” that part of the Gibson panel’s decision holding that the error was structural and holding that such errors were subject to the harmlesserror rule based in part upon the intervening decision of Hedgepeth v. Pulido (2008) 555 U.S. 57. (Byrd v. Lewis (2009) 566 F.3d 855, 864, 867; see also Doe v. Busby (9th Cir. 2011) 661 F.2d 1001, 1018- 1023 [harmonizing and distinguishing Gibson and Byrd].) Appellant does not dispute that the harmless error standard appliesto the errorat issue here. 70 thatif they found that the defendant committedthe prior offense, “you may, but are not requiredto, infer that the defendanthad disposition to commit the sameor similar type sexual offenses. If you find that the defendant had this disposition, you may, but are not requiredto, infer that he was likely to commit and did commit the crime or crimes of which heis accused.” (Gibson v. Ortiz, supra, 387 F.3d at p. 817.) CALJIC No.2.50.1 told the Jurors that the prosecution had to prove the prior offense by a preponderance of evidence. (Gibson v. Ortiz, supra, 387 F.3d at p. 818.) This was reversible error despite other correctinstructions on the burden of proof because“the interplay of the two instructions allowed the jury to find that Gibson committed the uncharged sexual offenses by a preponderanceofthe evidence and thusto infer that he had committed the charged acts based upon facts found not beyonda reasonable doubt, but by a preponderance of the evidence.” (/d. at p. 822.) Appellant’s jury was nottold directly, as the Gibson jury was,thatit could use the Rod’s evidenceto infer that appellant had a disposition to commita prior crime, andif it did so, it then could infer that he committed the crime at issue. Underthe facts below, however, the impactof the instruction wassimilar to that given in Gibson. The court neverlimited the crimes to which the Rod’s evidence could be used. The court instructed appellant’s jurors that the evidence could be used to show appellant’s identity as the perpetrator of any of the charged crimes; as proof that any of the charged crimes werepart of a larger continuing plan, scheme, or conspiracy, or as proof that appellant possessed the meansfor any of charged crimes. (18 RT 3011-3012; 21 RT: 3681-3682; 11CT: 3102-3103.) As demonstrated in ArgumentVII, ante, the jury had no way to make any logical, permissible inferences from the Rod’s evidence to the robberies, 71 stun gun assaults or for completelydissimilar crimes such as the attempted murder charge in Count 5. Therefore, the only inference that could be drawn from the Rod’s evidence and applied to appellant’s role at the Casa Gamino and any of the other charged crimes wasthat of criminal propensity, whichis prohibited under Evidence Codesection 1101, subdivision (a). For this reason as well, contrary to respondent’s argument (RB 205-206), and the circumstances in People v. Lindberg (2009) 45 Cal.4th 1, 35-36, neither CALJIC No.2.50 northe instructions as a whole cured the error in appellant’ scase. E. The Failure Of The Instructions To Properly Limit The Jury’s Consideration Of The Other Crimes _ Evidence Violated Appellant’s Rights Under The Fifth, Sixth, Eighth and Fourteenth Amendments and Analogous Provisions Of The California Constitution, Prejudiced Appellant and Requires Reversal Of His Conviction Here, there wasatleast a reasonable likelihood that the jury misunderstood and misapplied the instruction so as to violate appellant’ s constitutional rights as just stated. (See Estelle v. McGuire (1991) 502 U.S. 62, 72.) Because the misapprehension affected the disputed counts for which the evidence was weak orinsufficient (Counts 5 [attempted murder of Medina], 10 through 18 [Outrigger counts], 21 [Flores robbery county], and 24 through 27 [El Siete Mares counts]) and the death verdicts, appellant’s right to due process wasviolated. (Estelle v. McGuire, supra, 502 U.S.at pp. 72, 75, fn.5; U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, sections 7, 15 & 16.) In addition, the erroneousinstruction violated appellant’s Sixth Amendmentrightto trial by jury. (6th & 14th Amends.; Cal. Const., art. I, sections 7, 15 & 16; see People v. Sengpadychith (2001) 26 Cal.4th 316, 324; Sullivan v. Louisiana (1993) 508 U.S. 275, 281-282.) 72 The admission of the Rod’s evidence withoutlimitation also violated appellant’s right to reliable guilt and penalty determinations. (U.S. Const., Sth & 14th Amends.; Cal. Const., art. I, section 17; Beck v. Alabama (1980) 447 U.S. 625, 637-638 & fn. 13.) For the reasons argued above and in the opening brief, appellant’s convictions for the Counts 5, 10 through 18, 21, and 24 through 27, must be reversed and his death sentences vacated. // // 73 X. THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY, PURSUANT TO CALJIC NO.2.92, THAT A WITNESS’S CONFIDENCE IN HER IDENTIFICATION IS A RELEVANT FACTORFOR THE JURY TO CONSIDER IN ASSESSING THE ACCURACYOF THAT IDENTIFICATION Appellant was convicted of 11 counts based entirely or primarily on eyewitnesstestimony given by just two witnesses, one presentat the Outrigger crimes andthe other at the El Siete crimes. Their selections of appellant as the perpetrator were weak and belated but expressed with certainty. The court then instructed the jury with a critically flawed portion of CALJIC No.2.92: in determining the weight to be given to eyewitness identification, you should consider . . . factors which bear upon the accuracy of the witness’ identification of the defendant, including .. .[ {] . . . [Sl] [t]he extent to which the witnessis either certain or uncertain of the identification. (11CT: 3106-3107.) Appellant argued that this portion of CALJIC No. 2.92 is based on an erroneousinterpretation of case law,lacks scientific support and is factually erroneous. (AOB 174-175.) Respondent counters that appellantforfeited the claim, whichfailed on its merits and was harmless. (RB 215-217.) Respondentis incorrect. Respondentargues that appellant forfeited the claim becausethe instruction wascorrect in law, responsive to the evidence and appellantdid not object or request a modification. (RB 215.) However, as appellant has pointedout, the reliability of an identification involves the constitutional rights of an accused. (AOB 174-175 & fn. 46, 180.) Thus, this Court may review an instructional error on appealthat affects a defendant’s substantial rights. (People v. Prieto (2003) 30 Cal.4th 226, 247; §1259.) 74 Moreover, as appellant argued (AOB 176), the instruction is not correct insofar as it permits jurors to take into account a witness’s certainty regarding the identification expressedat trial, rather than, as correctly stated in Neil v. Biggers (1972) 409 U.S. 188 (Neil v. Biggers), “the level of certainty demonstrated by the witness at the confrontation.” (Id. at p. 199, italics added.) In Neil v. Biggers, the “central question, [was] whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” (/d. at p. 199.) Specifically, the Court considered the admissibility of a witness’s identification of the defendant at a showup held seven monthsafter the crime at issue. (/d. at pp. 198, fn. 5; 200-201.) Thus, both the plain language and facts of Neil v. Biggers confirm that the relevant issue for the jury is the certitude expressed by a witnessatthe initial confrontation, rather than at subsequent identifications inside or outside the courtroom. A. CALCIC No. 2.92 Incorrectly Expresses The “Certainty” Factor Derived From Neil v. Biggers Respondent next arguesthat the claim fails on its merits, because this Court has previously rejected it. (RB 215-216.) Appellant acknowledged this in his opening brief (AOB 179-180, discussing People v. Johnson (1992) 3 Cal.4th 1183), and respondent does not address appellant’s arguments on why the Court’s prior case law is distinguishable and should be reconsidered. Notably, respondent has not countered appellant’s authorities and the mounting evidence andcasesonthe lack of correlation between witness confidence and accuracyofidentification. (AOB 178-179.) Respondent instead claims that CALJIC No. 2.92 does not contradict any consensus of recent scientific evidence undermining the assumptionthatcertainty of 75 1Capotn identification is linked to a more accurate identification. (RB 116-117.) This argument ignores the weight of authority that appellant has cited. Moreover, case law and socialscience literature supporting this point continue to build. “Study after study demonstrates that . . . jurors routinely overestimate the accuracy of eyewitness identifications; [and] that jurors place the greatest weight on eyewitness confidencein assessing identifications even though confidence is a poor gauge of accuracy.” (Perry vy. New Hampshire (2012) __ U.S. __ [132 S.Ct. 716, 739] (dis. opn.of Sotomayor, J.) [footnotes listing studies omitted].) Lowercourts also have increasingly rejected the link between eyewitness confidence expressed attrial and the accuracy of an identification. (See, e.g., United States v. Greene (4th Cir. 2013) 704 F.3d 298, 309, fn. 4 [noting that the Nei//Manson”witness certainty factor “has come under withering attack as notrelevantto the reliability analysis ... . [M]any courts questionits usefulnessin light of considerable research | showing that an eyewitness’s confidence and accuracyhavelittle correlation’”]; State v. Lawson (2012) 352 Or. 724 [291 P.3d 673, 777] [citing studies]; State v. Guilbert (2012) 306 Conn. 218 [49 A.3d 705, 721 & fn. 12, 725 & fn. 23 [collecting cases].) Respondent also arguesthat the instruction states variousfactors in a neutral manner, leaving it to counsel to put on evidence and argue how the factors operate. (RB 216-217, citing People v. Wright (1988) 45 Cal.3d °5 Neil v. Biggers, supra, 409 U.S. 188, set forth a legal framework, formally adopted in Manson v. Brathwaite (1977) 432 US. 98, for adjudicating a due processchallenge to the admissibility of eyewitness identification. California courts have followedthis legal framework. (See People v. Cunningham (2001) 25 Cal.4th 926, 989; People v. Gordon (1990) 50 Cal.3d 1223, 1242.) 76 1126, 1143.) In People v. Johnson, supra, 3 Cal.4th 1183, this Court followedits prior ruling in People v. Wright (1988) 45 Cal.3d 1126, which approvedofthe use of eyewitness identification jury instructionsthat “focus the jury’s attention on facts relevantto its determination” and disapproved instructionsthat explained the effects of the various factors,i.e., witness certainty. (People v. Johnson, supra, 3 Cal.4th at pp. 1230, 1231, citing People v. Wright, supra, 45 Cal.3d at pp. 1141-1142.) However, as argued above, becausecertainty is not a relevant factor, thatis, it has been shown to have essentially no correlative relationship to the reliability of the identification, and in light of the Neil v. Biggers focus on certainty at the time of confrontation, this Court should reconsider its reasoning in Johnson. Moreover, in appellant’s case, there was nothing “neutral” about instructing the jurors that their evaluation of eyewitness testimony should be guided by the empirically unsupported notion that the confidence of the witness is correlated with the accuracy ofthe identification. (See State v. Cabagbag (2012) 127 Hawai’i 302, 311 [277 P.3d 1027, 1036] [citing studies].) Rather, the instructionalerror unfairly bolstered the government's case and undermined appellant’s defense of mistaken identification. Forall these reasons, appellant asks this Court to reconsiderits prior position, and join otherstates in holding thatit is error to instruct a jury that it can consider witness confidence asa factor in assessing the accuracy of an identification. (See AOB 179-180,State v. Mitchell (2012) 294 Kan.469, 479-48 1 [275 P.3d 905, 912-913] [error to instruct jury to consider certainty in its determination of the accuracy of the eyewitness identification]; State v. Guilbert, supra, 49 A.3d at p. 717, fn. 5, 734 [disapproving broad generalized instructions on eyewitnessidentification, including instruction permitting jury to consider,inter alia, “that the level of certainty indicated by 77 a person... may not always reflect a corresponding level of accuracy of [the] identification’]; Brodes v. State (2005) 279 Ga. 435, 440-441 [614 S.E.2nd 765, 770-771] [‘‘in light of the scientifically-documented lack of correlation between a witness’s certainty in his or her identification of someoneas the perpetrator of a crime and the accuracy ofthat identification,” court holds that giving such an instruction was harmful error]; Commonwealth v. Santoli (1997) 424 Mass. 837, 845-846 [680 N.E.2d 1116] [dueto significant doubt between witness confidencein, and accuracyof, an identification, juries should not longer be instructed that they may consider “the strength of the identification’].) B. The Instructional Error, Which Violated Appellant’s State and Federal Constitutional Rights, Was Prejudicial and Reversal On The Outrigger and El Siete Mares Counts, As Well As Casa Gamino Counts 28, 30, 31 and 33, Is Required CALJIC No. 2.92 directed the jury to consider an irrelevantfactor, as the certainty expressed by a witnessat trial is not rationally related to the accuracyofthe identification. Thus,it failed to be one of the necessary safeguards “built into our adversary system that caution juries against placing undue weight on eyewitness testimony of questionablereliability.” (Perry v. New Hampshire, supra, 132 S.Ct. at p. 729; U.S. Const., 14th Amend; Cal.Const., art. I, §7, 15 & 16.) The right to due process underthe Fifth and Fourteenth Amendments and the right to jury trial under the Sixth Amendmentrequire the prosecution to prove beyond a reasonable doubt every element of a crime. (See Peoplev. Sengpadychith (2001) 26 Cal.4th 316, 324.) A conviction thatis not supported by evidencesufficient to prove each element beyond a reasonable doubt violates the due process clauses of the Fourteenth Amendmentofthe 78 United States Constitution (Jackson v. Virginia (1979) 443 U.S. 307, 318; In re Winship (1970) 397 U.S. 358, 364), and article 1, section 15 of the California Constitution. (People v. Rowland (1992) 4 Cal.4th 238, 269.) Underthe facts of this case, the instruction, which relied on an erroneous factor in its evaluation of the eyewitnesstestimony, allowed appellant to be convicted uponproof ofless than beyond a reasonable doubt, and violated appellant’s due process right for that reason as well. Respondentarguesthat because the certainty factor wasjust one of many that the jury was told it could consider, appellant did not suffer prejudice. (RB 216-217.) However, the selections of appellant as the perpetrator of both Outrigger counts 10 through 18 and El Siete Mares counts 24 through 27, was based uponthe belated confidence expressed by one out of 11 of the Outrigger witnesses and oneof three El Siete Mare witnesses. (AOB 175, 180-184.) Under these circumstances,the state cannot show that the errors were harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S.at p. 24.) Respondentalso ignores the recognition that eyewitness confidence is the most powerful single determinant of whether or not jurors will believe that the eyewitness made an accurate identification. (AOB 178-179; Statev. Guilbert, supra, 49 A.3d at p. 725; State v. Lawson, supra, 291 P.3d 673, 705, and studies cited therein]. In addition, jurors are often unaware of the weak or nonexistent relationship between confidence and accuracy and of how susceptible witness certainty is to manipulation by suggestive procedures or confirming feedback. (State v. Lawson, supra, 293 P.3d at pp. 777-778; see also State v. Guilbert, supra, 49 A.3d at pp. 720-721 [noting the “widespreadjudicial recognition,” whichtracks“a near perfect scientific consensus”that 79 eyewitness identifications are potentially unreliable in a variety of ways that are unknownto the average juror]; United States v. Brownlee (3d Cir. 2006) 454 F.3d 131, 142 [“jurors seldom enter a courtroom with the knowledge that eyewitness identifications are unreliable”]; State v. Outing (2010) 298 Conn.34, 108 [3 A.3d 1, 47 } (Palmer, J., concurring) [“[MJost people believe that the more confidence that an eyewitness demonstrates in his identification, the more likely it is that his identification is accurate,” but this belief is not true].) As a result, jurors tend to overvalue the effect of the certainty variable in assessing eyewitness accuracy. (State v. Lawson, supra, 291 P.3d at p. 778.) Respondentalso arguesthatthe incorrect instruction was harmless in light of appellant’s cross-examination of witnesses on their identifications of appellant and argumentthat certain identifications were unreliable. (RB 216.) However, cross-examinationis of limited usefulness in eyewitness cases for several reasons. (State v. Guilbert, supra, 49 A.3d at pp. 725-726.) First, the courts should not“rely on jurors to divine rules themselves or glean them from cross-examination or summation.” (State v. Henderson (2011) 208 N.J. 208, 296 [27 A.3d 872] modified on other grounds by State v. Chen (2011) 208 N.J. 307, 327 [27 A.3d 930, 942-943 ].) Second, cross- examination isless likely to be effective in discrediting an eyewitness because jurors confound certainty and accuracy. (Young v. Conway (2d Cir. 2012) 698 F.3d 69, 88-89.) Third, eyewitnesses who “sincerely believe their testimony andare often unaware of the factors that may have contaminated their memories, [] are more likely to be certain abouttheir testimony,” which in turn can enhancetheir credibility. (/d. at p. 88; see also Jones v. State of Wisconsin (7th Cir. 1977) 562 F.2d 440, 444 [eyewitness’s confidenceis irrelevant as “the very harm of an irreparably suggestive confrontationis its 80 capacity to render the witness unable to separate initial recollections from those affected by prejudicial police actions’”].) Fourth, at least one study showedthat the study jurors were not sensitive to eyewitnesses who displayed confidencethat inflated over time. (Douglass & Steblay, Memory Distortion in Eyewitnesses: A Meta-Analysis of the Post-Identification Feedback Effect (2006) 20 Appl. Cognit. Psychol. 859, 965.) Finally, cross- examination cannot effectively educate jurors about the significance of factors that undermine accuracy of an eyewitness identification. (State v. Guilbert, supra, 49 A.3d at pp. 725-726.) Respondentsimilarly argues that any instructional error was harmless in light of appellant’s argumentattacking the eyewitness identifications. (RB 216.) This rationale also cannot stand because “the arguments of counsel cannot substitute for correct instructions from the court.” (People v. Rogers (2006) 39 Cal.4th 826, 869-870, citing Carter v. Kentucky (1981) 450 U.S. 288, 304; see also Boyde v. California (1990) 494 U.S. 370, 384 [defense counsel’s summationis “billed in advanceto the jury as matters of argument, not evidence”] Taylor v. Kentucky (1978) 436 U.S. 478, 489 [“it wasthe duty of the court to safeguard petitioner’s rights, a duty only it could have performedreliably [via instructions]’’].) This is especially so in eyewitness identification cases. (See, e.g., State v. Guilbert, supra, 49 A.3d at p. 726 [in the absence of evidentiary support from an expert, defense closing argument that an identification is unreliable is likely to be viewed “as little more than partisan rhetoric”’]; State v. Cabagbag, supra, 277 P.3d at p. 1038 [jurors may ignore counsel’s arguments regarding factors that affect eyewitnessreliability, but the law generally presumesthat juries follow court instructions]; see also Taylorv. Kentucky, supra, 436 U.S. 478, 488-489 [defendant’s right to have the jury 81 deliberate solely on basis of evidence cannot hinge upon hopethat defense counsel will be a more effective advocate than the prosecutor will be].) Respondentcites to the strength of evidence on counts other than the Outrigger counts 10 through 18 and El Siete Mares counts 24 through 27. (RB 216-217.) The evidence on the other counts, many of which appellant conceded, was of course completely irrelevant to the jury’s determination of appellant’s guilt as to the Outrigger and El Siete Mares counts, and are equally irrelevant to this Court’s consideration of this issue on appeal. Respondentdid not include a record cite for the assertion that appellant’s possession of stolen jewelry whenarrested “clearly shows”his connection to the instant crimes. (RB 217.) Appellant’s review of the record indicates that there was no such showing. The officer who arrested appellant removed a sock containing “a bunch of jewelry” from appellant’s person. (13RT: 2180.) He did not catalogue the contents but nevertheless testified that the jewelry in Exhibit 136 (a bag of jewelry) appeared to be the same as that in the sock. (13RT: 2181; 12CT: 1826.) Marjorie Livesley, an Outrigger bar patron witness, testified that a small gold chain bracelet removed from Exhibit 136 looked like the type she was wearing that night, but it was just the samestyle, had no distinctive marks, and she was unable to say it was the same. (13RT: 2088-2089, 2091.) Her uncertainty in this regard did not “clearly show”that appellant waslinked to the Outrigger, and she wasthe only one of the witnesses on the Outrigger and El Siete counts asked to identify jewelry from Exhibit 136.°° (13RT: 2088-2089.) *© The property taken from the others wasnot linked to appellant. (For witness testimony regarding property taken at the Outrigger, see 13RT: 2038, 2124 [John & Marjorie Tucker, counts 10, 18]; 13RT: 2059-2060 (continued...) 82 The prejudice extends to the convictions for the stun gun and gun assaults at the Casa Gamino,counts 28, 30, 31 and 33. After appellant impeached Armando and Arturo Lopez, the prosecutorelicited their testimony that they were “certain” of their identifications of appellant. (14RT: 2279, 2334.) Given appellant’s significant impeachmentofthe identifications by Armando and/or his brothers of appellant as the person whoassaulted both Armando and Mendoza with a gun andstun gun, respondent cannot show beyond a reasonable doubt the eyewitness certainty instruction was harmless. At the guilt phase, appellant contested his identity as a perpetratorof Outrigger counts 10 through 18, El Siete Mares counts 24 through 27, and Casa Gaminocounts 28, 30, 31 and 33. (See defense closing argumentat 22RT: 3827, 3857-3865, 3884 [Outrigger]; 3881-3884 [El Siete Mares]; 3866-3877 [Casa Gamino].) The instruction given, however, wascritically flawed in its emphasis on the eyewitness’s certainty as an important factor in assessing the witness’s accuracy. Scientific research hasestablished that certainty has at most a weak correlation with accuracy;yet certainty is fixed in the minds of laypersonsas the single factor mostlikely to influence the conclusion that the witness’s identification was accurate. The combination of certainty’s nonexistent correlation with accuracy coupled with the 26continued) [Englesberger, Count 11]; 13RT: 2060-2061; 16RT: 2607 [Gallegos, Count 12]; 13RT: 2109 [LuettJohann, Count 13]; 13RT: 2076-2079, 2088-2089 [Lively & Skinner, Counts 14 & 15]; 13RT: 2013 [Lehman, Count 16]; 12RT: 1937-1939 [DeWitt, Count 17].) For property taken at El Siete Mares restaurant, see 16RT: 2668 [Count 24, Urietta]; 1SRT: 2503-2504 [Nelson Hernandez, Count 25]; 16RT: 2578 [Aguilar, Count 27]; 2628 {Guizar, Count 26]. For witness/robbery victim names and corresponding counts, see 7CT: 2019-2025, 2029-2032.) 83 conventional wisdom misstating its importance rendersits interjection into a misidentification case prejudicialerror. Forall the reasons above and in appellant’s openingbrief, and whether viewedasstate law or federal constitutional error, the erroneous instruction was prejudicial and requires reversal of counts 10 through 18, 24 through 27, 28, 30, 31 and 33. Hf Hf 84 XII. APPELLANT’S DEATH SENTENCE MUST BE REVERSED BECAUSEIT IS BASED UPON THE IMPROPER AND PREJUDICIAL ADMISSION OF EDUARDO RIVERA’S PRELIMINARY HEARING TESTIMONYIN LIEU OF LIVE TESTIMONY EduardoRiveratestified at the preliminary hearing about witnessing the shooting of Kim at the Woodley Market. (19RT: 3256, 3259 et seq.) Priorto trial, the prosecution learned that Rivera was a Mexican National whohadreturnedto live in Mexico. The prosecution successfully argued at a contested hearing that because the Mutual Legal Assistance Cooperation Treaty with Mexico contained no provisions that would compel Rivera to return to testify, it did not need to show due diligence. (19RT: 3132; 11CT: 3045.) Appellant argued that understate law and the Sixth Amendmentright to confront witnesses, the trial court erroneously concluded that Rivera was unavailable and allowed the prosecution to present Rivera’s preliminary hearing testimony. (AOB 199-206.) Respondent’s claims to the contrary must be rejected because they rely on a factually unsupported reading ofthe record, incorrect application of relevant case law and becausethe | prosecution failed to meet its burden of proof below. A. Respondent’s Argument That The Prosecution Satisfied Its Good Faith Obligation To Attempt To Locate Rivera Is Legally and Factually Unsupported Appellant argued that as in People v. Sandoval (2001) 87 Cal.App.4th 1425 (Sandoval), the prosecution had a duty to make a goodfaith effort to obtain Rivera’s testimony even though the court could not compelhis presence underthe Treaty, including use of Articles 7 and 9 ofthe Treaty, 85 which provided for cooperative means of obtaining witness testimony either in Mexico or the United States. (AOB 201-202.) In an attempt to distinguish Sandoval, respondent argues that the Mexican witness in Sandoval had beenlocated and waswilling to testify, but here, the prosecution “could not locate” the witness, who had “indicated he would not testify.” (RB 226-228.) The record does not support either contention. Respondent repeatedly relies on the unsupported factual assertions that Rivera “had indicated he would nottestify because the incident had so disturbed him” (RB 227-228), that “he did not wantto testify” (RB 229), and - that “he did not want to come back to Los Angeles.” (RB 228.) However, the prosecution’s actual proffer at the due diligence hearing was that Rivera told his former coworkers at the Market that (a) he had mental and psychiatric problems from witnessing the killing; and (b) that he was buying land in Mexico anddid not plan to return. (19RT: 3127-3128.) Rivera’s brother told the prosecution that Rivera had no “definite plans”’ to return. (LORT: 3129.) Thus, there is no evidence that Rivera told anyonethat he did not wantto testify or would refuse to return to Los Angelesto do so or that he went to Mexico because of his mental problems. Nor are respondent’s unsupported assertions even a likely or logical conclusion to draw from Rivera’s statements. For example, Rivera may have wantedto testify in order to help to get convictions. Ultimately, respondent argues that “at most” Rivera possibly could have been compelled to testify in Mexico orinvited to testify in LA. (RB 228-229.) That is exactly the point — there were methods under the Treaty that the prosecution could have used to attempt to get Rivera’s testimonyat appellant’s trial, but did not. 86 Respondent agrees with appellant that Sandoval required the prosecution to make reasonable, good faith efforts to obtain the witnesss presenceattrial by utilizing the applicable treaty provisions. (RB 228; AOB 202.) However, despite the fact that the prosecution below did not utilize the applicable treaty provisions, respondentasserts that the prosecution made the required efforts. (RB 228.) This court should reject respondent’ s baseless assertion. Moreover, there is no record support for what respondent asserts were the required efforts: Here,asthe trial court found, the prosecution did makethe required additional effort by repeatedly trying to contact [Rivera], even after learning that Rivera did not wantto testify, that he was emotionally scarred by appellant’s crimes, and that he did not want to come back to Los Angeles. (RB 228.) As just described, there was no evidencethat Rivera did not want to testify and would not come back to do so. Andthetrial court did not make factual findings, instead ruling simply that due diligence had been shown.”” (19RT: 3136-3137.) Respondent’s argumentthatits efforts to locate Rivera were sufficient, even thoughit did not use the cooperative meansavailable through the Treaty, is based on these nonexistent facts. (See *T Tn lieu of live testimony, the defense stipulated to the prosecution’s offer of proof, and only a prosecution investigatortestified at the due diligence hearing. (19RT: 3131.) “When,as here, the facts are undisputed, a reviewing court decides the question of due diligence independently, not deferentially.” (People v. Smith (2003) 30 Cal.4th 581, 610.) 87 RB 228.) For these reasons alone, respondent’s counter-arguments must be rejected.” Moreover, Sandoval did not turn just on the fact that the prosecution had located the witness, who appeared willing to testify if given assistance. (People v. Sandoval, supra, 87 Cal.App.4th at p. 144.) Rather, the court found that “the prosecution had several reasonable alternatives it could have pursued to obtain [the witness’s] live testimonyattrial.” (/d. at p. 1443.) These included providing the assistance that the witness had requested as well as using the Treaty to enlist the aid of the Mexican authorities either to facilitate the witness’s attendanceattrial in California or to compel the witness to appear in Mexicoto testify during trial. (/d. at pp. 1442-1443.) As the Sandovalcourt stated, Instead of making a good-faith effort to obtain any category of contemporary, live testimony, the prosecution threw upits handsand asserted Zavala was unavailable simply because he was a foreign citizen residing outside of the United States. The confrontation clause, which allows for some exceptionsto the face-to-face confrontation requirement, calls for more. (People v. Sandoval, supra, 87 Cal.App.4th at p. 1443,italics added.) Respondent’s similar assertion here also failed under the confrontation clause. In contrast to the prosecution’s meagerefforts below, People v. Martinez (2007) 154 Cal.App.4th 314, demonstrates the effort thatis sufficient to satisfy the confrontation clause when a witness leaves the “8 Along the samelines, appellant did not argue, as respondent states, that the treaty provided a means for Mexican authorities to compel Rivera’s attendance in Los Angeles. (RB 228, citing AOB 202.) Rather, appellant argued, and respondent appearsto agree, that the Treaty provides cooperative means for obtaining witness testimony. (AOB 202, RB 227.) 388 United States. There, Singh, an important murder witnessoriginally from India, went to Canadaafter testifying at the preliminary hearing. (Jd. at pp. 324-325.) The prosecution made extensive efforts to obtain his presenceat trial, working with the Department of Homeland Security, immigration authorities in both the United States and Canada, the FBI, the Canadian consulate and the Los Angeles Police Department. (/d. at pp. 325-326.) The prosecution also located andtalked directly to the witness using an interpreter, and sent him letter to make sure he understoodthat the prosecutor wanted him to return andtestify and would pay forhis travels. (Id. at pp. 326-327.) However, the witness had applied for asylum in Canada, would not be guaranteed re-entry if he left Canada, and had no passport. (/d. at p. 327.) Moreover, there were no special arrangements between the United States and Canadian governments that could be invoked. (Id. at p. 331.) Under these circumstances,the trial court properly found that witness Singh was unavailable and admitted his preliminary hearing testimony. (d. at p. 332.) In contrast, the prosecution below merely contacted Rivera’s brother by telephone in San Francisco, “who madeseveral attemptsto call and left messages[at the village phone number] for [Rivera] to return the call,” to no avail. (19RT: 3129-3130.) The prosecution’s reliance on the brother’s report, rather then at least having a Spanish-speaking investigator or detective call the village, explore the situation and attempt to contact Rivera itself, is the complete opposite of diligence, respondent’s argumentto the contrary (RB 228) notwithstanding. In fact, respondent’s position reinforces appellant’s argumentthat the prosecution could have used the cooperative meansin the Treaty to attempt to obtain Rivera’s testimony, because Rivera’s location in Mexico was known. (Cf. People v. Herrera (2010) 49 89 Cal.4th 613, 631 [where there was no agreement providing for compelled return or voluntary cooperation, and El Salvadoran authorities, at prosecution’s request, tried unsuccessfully to locate witness, speculative to argue that if prosecution had begun search earlier, witness would have been located].) Further, the prosecution’s serious search for Rivera began quitelate. Abouteight or nine monthspriorto trial, i.e., in January 1994, Rivera told his former co-workers that he was returning to Mexico to buy a plot of land and did not plan to return. (19RT: 3127.) In April 1994 somedetectives searched for Rivera but found “the same information,”i.e., everyone told them that he hadleft and he wasnotat his former addresses or phone numbers. (19RT: 3128.) “Before the commencementof thistrial,” the prosecution’s investigator again checked local addresses anddid the “usual due diligence search” in the community. (ORT: 3128.) However, because searching for a witness within the state after he hasleft the jurisdiction is an idle act (Herrera, supra, 49 Cal.4th at pp. 630-631), the actual relevant efforts did not occur until the month before the October 13, 1994, due diligence hearing, when the prosecution confirmed through the INS that Rivera was in Mexico. (19RT: 3126A, 3128-3129.) Respondentarguesthat “the fact that appellant now suggests other things the People could have done” does not meantheir actual efforts were insufficient to satisfy the good-faith requirement needed for constitutional unavailability. (RB 229.) This point has no application here, because “the government cannot simply throw upits hands and do nothing when faced with the prospect of one of its witnesses being deported or leaving the country on his own accord. Instead, it must undertake reasonable efforts to preserve the defendant’s constitutional right to be confronted with the 90 witnesses against him. [Citations.]” (People v. Roldan (2012) 205 Cal.App.4th 969, 980.) The cases cited above and record below suggest numerousother things of the type that the prosecutor should have done to demonstrate reasonable goodfaith efforts given that Rivera’s location was known. (Cf. Herrera, supra, 49 Cal.4th 613, 627, fn. 8.) For instance, the prosecution could have attempted onits own to contact Rivera, rather than relying on secondhand information from Rivera’s brother obtained overthe telephone; traveled to Mexicoto talk to him, just as both parties had traveled to Central America in search of other evidence in the case (L9RT: 3131-3132); offered to pay Rivera’s expenses (People v. Martinez, supra, 154 Cal.App.4th 314, 326-327); worked with the Mexican Consulate in Los Angeles whether informally or through the applicable treaty provisions(id. at pp. 325-326); contacted immigration authorities in Mexico (ibid.); sent a letter to Rivera (id. at pp. 326-327); contacted police in the area where Riveralived (Herrera, supra, 49 Cal.4th at pp. 620, 631); sought assistance from Los Angeles Police Department agents with contacts in Mexico; and of course utilized Articles 7 and 9 of the Treaty to facilitate Rivera’s testimony at appellant’s trial. (People v. Sandoval, supra, 8 Cal.App.4th at pp. 1442- 1443.) Because the prosecution did not exert reasonable efforts to locate Rivera, the trial court erred when it found he was unavailable and admitted his preliminary hearing testimony. B. Appellant Did Not Forfeit This Argument Respondent contendsthat trial counsel’s failure to argue specifically that “there was a treaty mechanism by which Rivera’s life testimony could be obtained,” forfeits this argument. (RB 224.) Respondentis mistaken. 91 Appellant argued unsuccessfully that the prosecution’s efforts to find Rivera were insufficient (L9RT: 3131-3132), i.e., that it had not met its burden of showing due diligence. This was sufficient, because the prosecution bears to burden of showing thatit “exercised reasonable diligence” (Evid.Code,§ 240, subd. (a)(5)) and madesufficient “good faith effort[s]” (Barber v. Page (1968) 390 U.S. 719, 724-725), to satisfy state law and the Confrontation Clause of the Sixth Amendment. Second, any such argument would have beenfutile. The prosecution below argued that under People v. Denson (1986) 178 Cal.App.3d 788, 790 (Denson) and People v. Ware (1978) 78 Cal.App.3d 822 (Ware), it did not have to show it used due diligence to secure Rivera’s presence because the United States-Mexico Mutual Legal Assistance Cooperation Treaty lacked a provision to compelhim to return from Mexico. (11CT: 3045; 19RT: 3132, 3136.) Appellant did not have any cases contrary to those cited by the prosecution”’ (19RT: 3132), and the court ruled in favor of the prosecution. (LORT: 3136.) [t was not until after appellant’s trial that an appellate court established a contrary interpretation of the cases relied upon bythe court and prosecution below. (See People v. Sandoval, supra, 87 Cal.App.4th 1425, 1437-1440 [limiting Denson and Ware totheir factual and legal contexts]; Herrera, supra, 49 Cal.4th at pp. 625, 626 & 628, fn. 10.) Thetrial court was therefore bound bythe case law at the timeoftrial and any argument by appellant to the contrary would have been futile. (People v. Sandoval, supra, 87 Cal.App.4th at page 1433, fn. 1 [although defendant did not specifically argue in trial court that prosecution had to make good-faith ~ Appellantis also unable to locate any cases from priorto or at the time oftrial that are contrary to those cited by the prosecution. 92 effort to obtain attendanceattrial of foreign citizen residing in foreign country, argument would havebeen futile becausetrial court would have been boundbythen-applicable case law].) C. The Admission of Rivera’s Preliminary Hearing Testimony Prejudiced Appellant, Requiring Reversal Of His Death Sentence After arguing the importance of Rivera’s testimonyattrial (RT: 3132), respondent now arguesthat it was not important, L.e., any error was harmless because Rivera’s preliminary hearing testimony waslargely cumulative to the other evidence of appellant’s guilt as to the Woodley Marketcrimes. (RB 230-232.) Appellant, however, conceded at both phasesoftrial that he shot and killed Kim during the Woodley Market robbery. (AOB 206.) Respondentdoes not address appellant’s actual argumentthat the admission of Rivera’s testimony wasprejudicial because salient parts of it were not cumulative and formedthe basis forirrelevant prosecution argumentat both phasesof thetrial, made to appeal to the prejudice and passionsofthe jurors, which prejudiced appellantat the penalty phase. (AOB 206-207.) Here, the historical facts emphatically do not demonstrate prosecutorial good faith and due diligence under the applicable objective, constitutionally based legal test this Court looks to whenit applies a de novo standard of review. (People v. Cromer (2001) 24 Cal.4th 889, 900, 902-903.) And because the error cannot be deemed harmless, appellant’s death sentences mustbe reversed. // // 93 XII. THE TRIAL COURT DEPRIVED APPELLANTOFA FAIR AND RELIABLE SENTENCING DETERMINATION BY REFUSING TO GRANT A SEVERANCE, SEPARATE JURIES OR SEQUENTIAL PENALTY PHASE TRIALS Although the prosecution claimedthat its theory wasthat all three co-defendants were equally culpable (3RT: 423-425), it had already decided based uponpreliminary hearing testimony that appellant was the dominant and mostviolent of the defendants. (See 1OCT: 2944, 2963.) It was for this reason, among others, that appellant moved for severancepriorto trial and numeroustimesasthe trial proceeded. The court denied these motions, as well as ones for separate juries and sequential penalty phasetrials. As a result, the joint proceeding detrimentally shifted the jury's focus to appellant's actions in comparison to those of the co-defendants; invited the jury to weigh appellant's mitigating evidence against that of the co-defendants; and allowed his case in mitigation to be negated bytheir evidence, including evidence that would have been inadmissible in a severed proceeding. (AOB 208-209.) Respondentarguesthat the defendants were properly joined fortrial at both phases, that neither separate juries nor sequential penalty phasetrials were needed,andthat the jointtrial did not violate appellant’s rights under the Eighth Amendmentor to due process. (RB 246-260.) Respondent's arguments are without merit and should berejected. Respondent argues that appellant waived the guilt phase severance- claims. (RB 232, fn. 84; 249, citing 3RT: 424.) In the portion of the record respondentcites, appellant was responding to the prosecutor’s argument against the severance motion emphasizing the guilt phase issues. Appellant pointed out, as he hadatother times, that the case waslikely to be a penalty 94 phase case. (3RT: 424; see also 3RT: 414.) Nevertheless, appellant had movedforseparate trials or separate juries for both phases (10CT: 2924), focusingon the fact that the prosecution’s case would be that appellant was the most culpable (10CT: 2925-2927, 2937-2938; 3RT: 414, 417-419), and the court ruled on that basis. (LOCT: 2975; 3RT: 425-428.) There was no waiver. Respondentargues that split sentencing verdicts such asthose here demonstrate the jury’s careful consideration and ability to separate outthe defendants. (RB 259, citing People v. Ervin (2000) 22 Cal.4th 48, 96.) In fact, this Court has found that different or the same sentencesfor co-defendants, or difficulty reaching a verdict, all demonstrate that the jury independently assessedthe respective culpability of each codefendant. (See, e.g., People v. Ervin, supra, 22 Cal.4th at pp. 67, 95-96 [death for defendant and one codefendant,life for another]; People v. Taylor (2001) 26 Cal.4th 1155, 1173-1174 [death sentence for defendant, LWOPPsentencefor codefendant]; People v. Carasi (2008) 44 Cal.4th 1263, 1311 [death sentence for defendant, hung jury leading to LWOPPfor co-defendant]; People v. Letner and Tobin (2010) 50 Cal.4th 99, 196-197 [initial difficulty reaching verdict as to one defendantand ultimate death sentencefor both].) Taken together, this case law appears to negate a split verdict as a meaningful factor to be considered in determining prejudice. Moreover, respondenthas not addressed appellant’s argumentthatin opposing appellant’s severance motion, the prosecution arguedthatall three codefendants were equally culpable (3RT: 424), and the court agreed. (3RT: 425; AOB 215-216.) Yet, both the prosecution and court did a complete about-face, respectively arguing and finding that appellant’s particular role and actionscalled for, and completely justified, his death sentence. (AOB 95 215-216, 219-220.) This is despite the fact that the courtknew, whenit denied appellant’s motion for a separate penaltytrial, that there was very little aggravating evidence against appellant other than the circumstances of the crime. (See 23RT: 3989.) This, along with the court’s application of an erroneous understanding of the applicable law (AOB 212), demonstrates that its rulings denying the motions for separatetrials, separate juries or sequential penalty phase trials, was an abuse ofdiscretion. Respondentarguesthat the trial court adequately instructed the jury that it must render individualized sentencing determinations to each defendant. (RB 254.) The Court has reasonedthat jurors are presumed to follow instructions to ensure individualized sentencing atjoint penaltytrials. (See, e.g., People v. Letner and Tobin, supra, 50 Cal.4th at pp. 196-197.) After summarizing more than two decadesof research on whetherjurors can follow instructions to ignore evidence, however, one commentator observed that the consistency of results makesit “safe to say that the research demonstratesthat it is far more likely that admonitions are ineffective than that they work as the courts intend.” (Tanford, Thinking About Elephants: Admonitions, Empirical Research and Legal Policy (1992) 60 U.M.K.C. L.Rev. 645, 653.) Judge Learned Hand recognized muchearlier that an instruction to limit evidence to one defendantis a “recommendationto the jury of a mental gymnastic which is beyond,notonly their powers, but anybody’s else.” [sic] (Nash v. United States (2d Cir. 1932) 54 F.2d 1006, 1007.) In the context of the jurors’ normative penalty phase decision, which is less susceptible to logic than that in the guilt phase decisions,it is much more difficult to separate out one defendant from another. This is why “the standards for severance are necessarily leavened by the fact this is a death 96 penalty case. The threshold for determining whatconstitutes prejudice and whenthe jury's ability to render a reliable verdict is compromisedis necessarily lower than in the ordinary case.” (United States v. Green (D. Mass. 2004) 324 F.Supp.2d 311, 320, citing United States v. Perez (D. Conn. 2004) 299 F.Supp.2d 38) [granting severance based on evidentiary concerns“given the heightened need for reliability in a death penaltytrial”); see also United States v. Taylor (N.D. Ind. 2003) 293 F.Supp.2d 884, 889 [recognizing that because a defendant’s life hangs in the balance, the “court’s discretion with respect to severance is constrained to some degree by thefact that this is a capital case [which] . . . has a heightened need for reliability”].) For this reason, appellant respectfully disagrees with the Court's view that properly instructed jurors, who are presumedto follow instructions, can perform their duty to render individualized sentencing decisions in multiple defendant cases. (See United States v. Lecco (S.D. W. Va. 2009) 2009 U.S. Dist. LEXIS 79799, at pp. 11-12 [“in assuring that only those most deserving of a capital sentence actually receiveit, society benefits from allowing a defendant to makethe best case in mitigation possible to a fact finder who has underconsideration that defendant alone’’].) Respondent’s remaining contentions with respect to the instant argumentraise no significant issues beyond those addressed in appellant’s openingbrief, and therefore no furtherreply is required. The issues are fully joined. // // 97 XIV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REMOVING AN INTERPRETER BECAUSE SHE COMMUNICATED EMOTION WHILE INTERPRETING FOR APPELLANTAS HE TESTIFIED DURING THE PENALTY PHASE Appellant argued thatthe trial court prejudicially abusedits discretion by removing the interpreter who wasinterpreting for appellant during his testimony at the penalty phase. (AOB 224-235.) Respondent rehashesthe trial court’s reasons for removing the interpreter, and then makes the conclusory assertion that the trial court properly exercisedits discretion whenit found no good cause to conduct a hearing. (RB 263-265.) Because respondent never addresses appellant’s arguments andauthorities, appellant will not repeat those arguments here, except to add further supportfor his argument regarding thecritical importance ofthe jury hearing a witness’s intonations during testimony. In considering what deferenceis dueto the trial court in evaluating a Batson claim, this Court discussed the limits of a cold record: Experiencedtrial lawyers recognize what has been borne out by commonexperience over the centuries. There is more to human communication than merelinguistic content. On appellate review, a voir dire answersits on a pageoftranscript. In the trial court, however, advocates andtrial judges watch and listen as the answeris delivered. Myriad subtle nuances may shapeit, including attitude, attention, interest, body language,facial expression and eye contact. “Even an inflection in the voice can make a difference in the meaning. The sentence, ‘She never said she missed him,’ is susceptible ofsix different meanings, depending on which word is emphasized.” (Citation, italics added.) 98 (People v. Lenix (2008) 44 Cal.4th 602, 622.) If inflection is importantfor jury selection, it cannot be any less so when a capital defendanttestifies for his life at the penalty phase. Respondentarguesasa further justification that the trial court’s ruling was proper because undersection 1044°° it had broad discretion to control the conduct of the proceedings. (RB 264.) The cases cited by respondentforthis principle, People v. Calderon (1994) 9 Cal.4th 69, 79 (Calderon), and People v. Cline (1998) 60 Cal.App.4th 1327, 1334 (Cline), both involved the application of section 1044’s abuseof discretion standard to section 1025, which requires that a jury determinethetruth of an alleged prior conviction. Thesecitations are not helpful to respondent, however, because both cases emphasized section 1044’s abuse of discretion standard to protect, rather than limit, a defendant’s trial rights. For instance, Peoplev. Cline, supra, 60 Cal.App.4th at p. 1334, stressed that in “exercisingits discretion undersection 1044, a trial court must be impartial and must assure that a defendantis afforded a fair trial. (Citation omitted.)” In Calderon, supra, 9 Cal.4th at p. 74, this Court considered the authority of a trial court under section 1044 to bifurcate the truth of an alleged prior from the guilt determination. The Court recognized the serious dangerthat in a single proceeding, faced with other crimes evidence,a jury might conclude that a defendant has a criminal disposition andis thus guilty of the charged offense. (Ud. at p. 75.) Despite the widely recognized value ° Section 1044states that “[i]t shall be the duty of the judge to control all proceedings during thetrial, and to limit the introduction of evidence and the argument of counselto relevant and material matters, with a view to the expeditious and effective ascertainmentof the truth regarding the matters involved.” 99 of bifurcation (id. at pp. 75-77), the court foundthat the state’s interest in conserving judicial resources wasinsufficient to deny a motion to bifurcate when having a jury concurrently determine the truth of a prior conviction and the defendant’s guilt “would pose a substantial risk of undue prejudice to the defendant.”*' (/d. at p. 77.) Thus, as in Calderon andCline,the trial court should have exercised discretion to protect appellant’s rightto a fair trial and to avoid undue prejudice. (See Calderon, supra, 9 Cal.4th at pp. 75-77, 80 [court’s error in denying defendant’s motion to bifurcate may have been prejudicial because it apparently caused defendantto forego his right to a jury determination on the priors allegation.) Accordingly, this Court shouldreject respondent’s argumentthatthe trial court’s broad power undersection 1044 justified its refusal to hold a hearing on appellant’s claim of juror misconduct. (RB 264.) For all the reasons argued above andin the opening brief, appellant’ s death sentences must be vacated becausethereis no basis for the governmentto satisfy its heavy burden of proving -- beyond a reasonable doubt-- that the trial court’s errors did not contribute to the jury’s verdicts. (Chapman vy. California (1967) 386 U.S. 18, 24-25.) Reversalis also required underthestate standardfor violation of the right to an interpreter under Article I, section 14, of the California Constitution, because this Court cannot say, based on the record, that the error was harmless beyond a reasonable doubt. (People v. Rodriguez (1986) 42 Cal.3d 1005, 1012 | The Court in Calderon remandedthe matterto the trial court to reconsider defendant’s motion for bifurcationin lightof the principles set forth in that opinion. (People v. Calderon, supra, 9 Cal.4th at p. 82.) 100 {adopting “a Chapman approach”to violations of Art. I, sec. 14, because so many federal constitutional rights may be affected].) H / 101 XV. THE TRIAL COURT PREJUDICIALLY ERRED BY ADMITTING AT THE PENALTY PHASE AN ALLEGED OUT-OF-COURT STATEMENT BY APPELLANT THAT HE HAD KILLED EIGHT OR NINE OTHER PEOPLE Appellant argued in the openingbrief that the court erroneously admitted at the penalty phase 13-year-old Rosa Santana’s unreliable, irrelevant and prejudicial statement that appellant said he had shoteight or nine people in his country. (AOB 235-245.) Respondent’s argumentto the contraryfails. Respondentdoes not addressthe first part of appellant’s argument, that Santana’s statement was unreliable. (AOB 238-240.) Respondentalso ignores the key factor distinguishing appellant’s case from People v. Michaels (2002) 28 Cal.4th 486, 533-534 (Michaels), i.e., that the factor (a) evidenceat issue in Michaels, which was the defendantbragging about 10 or 15 prior contract killings, was linked directly to the capital crime under the prosecution’s motive theory. (See RB 270-271; AOB 241-242.) Also, unlike the prosecutor in Michaels, and contrary to respondent’s argument (see RB 272-273), the prosecutor below misused Santana’s statement, improperly cross-examining appellant about it so as to suggest there was a factual basis for the statement, and then arguing that appellant was a “‘mass killer.” (AOB 242-243.) The limiting instruction was therefore ineffective. (AOB 242-243; see People v. Michaels, supra, 28 Cal.4th at p. 535.) Thus, Michaels does not control this case. Respondentquotes this Court’s language in People v. Box (2000) 23 Cal.4th 1153, 1201, to argue that the trial court retained only limited discretion to exclude inaccurate or unduly inflammatory circumstances-of- the-crime evidence at the penalty phase. (RB 272.) Respondent reads too 102 much in People v. Box, however. While discretion is more circumscribed because of the moral and subjective nature of the jury’s task at the sentencing phase, the bottom line is that a trial court only lacksdiscretion to excludeail factor (a) evidence on the groundsthatit is lacking in probative value, cumulative or inflammatory. (/d. at pp. 1200-1201.) Moreover, the evidenceat issue in People v. Box consisted of crime scene photos. ([bid.; see also People v. Davenport (1995) 11 Cal.4th 1171, 1205-1206.) In contrast, the evidence here was a statement by appellantthat was unrelated to Woodley Market crimes, andfell outside of the rationales approvedby this Court in factor (a) cases in which a defendant’s statements or actions are related to the capital crimesat issue. (See, e.g., People v. Michaels, supra, 28 Cal.4th 486, 533-535 [defendant’s statementthat he had committed prior contract murders related to motive for capital murder admissible under factor (a)]; People v. Ramos (1997) 15 Cal.4th 1133, 1163- 1164 [testimony of witness who overheard defendant admit to shooting victims and enjoying hearing them begfortheir lives admissible under factor (a) as it reflected on defendant’s state of mind contemporaneous with murder]; People v. Ochoa (2001) 26 Cal.4th 398, 448-449 [prosecutor’s characterization of appellant’s statement “hey I just shot the guy”as bragging that he had shotthe victim, and factor (a) evidence wasproper].) Appellant urges the Court not to extend the reach offactor (a) eeevidence of a defendant’s “‘state of mind” with regard to the capital crime to bad character evidence unrelated to the crimes at issue. To do so would go beyondthe already overly broad application offactor (a) that the Court utilizes. (See AOB, Argument XXIV.B.; see also People v. Foster (2010) 50 Cal.4th 1301, 1362-1364 [rejecting argumentthat factor (a), as applied 103 over time, has becomearbitrary and capricious becauseofthe variety of circumstancesit covers].) Here, because the statementattributed to appellant did not reflect the crimesat issue in any way, the court’s admission of it under factor(a) violated appellant’s rights under Eighth and Fourteenth Amendmentsto penalty selection procedures that “minimize the risk of wholly arbitrary and capricious action.” (Tuilaepa v. California (1994) 512 U.S. 967, 973.) The jury’s consideration of “factors that are constitutionally impermissible or totally irrelevant to the sentencing process” (Zant v. Stephens (1983) 462 U.S. 862, 885), also undermined the heightened needfor reliability in the determination that death is the appropriate penalty. (Johnson v. Mississippi (1988) 486 U.S. 578, 585.) The result was an unreliable, arbitrary, and non-individualized sentencing determination in violation of appellant’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. [, §§ 7, 15, 16, 17.) Respondentarguesthatin light of the overwhelming evidence against appellant, any error was harmless. (RB 273.) However, even for very gruesome crimes, the death penalty is not necessarily unavoidable. (Douglas v. Woodford (9th Cir. 2003) 316 F.3d 1079, 1091.) Prejudice may exist even whenthere is substantial evidence in aggravation ormore than one murder involved. (See, e.g., Porter v. McCollum (2009) 558 U.S. 30 [counsel's failure to present mitigation evidence wasprejudicial in case with two murders]; Douglas v. Woodford, supra, 316 F.3d at p. 1091 [mitigation evidence could have evoked sympathy from atleast onejuror where defendant murdered twoteenage girls]; Smith v. Stewart (9th Cir. 1999) 189 F.3d 10094, 1013 [same]; Hendricks v. Calderon (9th Cir. 1995) 70 F.3d 1032, 1044 [failure to present additional mitigation evidence in multiple 104 murdercase prejudicial]; People v. Gay (2008) 42 Cal.4th 1195, 1227 [exclusion of lingering doubt evidence and erroneousinstruction was prejudicial despite significant and unusually brutal aggravating evidence and scant mitigation]; People vy. Sturm (2006) 37 Cal.4th 1218, 1244, 1247 [judicial misconduct prejudicial where defendant murdered three ofhis friends, while they were bound and begging for mercy]; People v. Gonzalez (2006) 38 Cal.4th 932, 962 [despite egregious nature of capital double murder, along with prior assaults on inmates, possession of assault weapon, and possession of shankin jail, “a death verdict was not a foregone conclusion’].) Similarly, the nature of the peace officer murder special circumstance alone did not make a death verdict inevitable. (See, e.g., People v. Gay, supra, 42 Cal.4th at p. 1227 [death verdict was not a foregone conclusion despite aggravating evidence that defendant murdered peaceofficer in the performanceofhis duties and had committed prior violent crimes, which were “unusually — and unnecessarily — brutal and cruel,” and scant evidence in mitigation]; People v. Gonzalez (2005) 34 Cal.4th 1111 [jury rejected death penalty in favor of life for defendant convicted of first degree murder of one peaceofficer with peace-officer murder special circumstance, as well as attempted premeditated murder of second peace officer]; People v. Noble (1981) 126 Cal-App.3d 1011, 1012-1013, 1015 [jury rejects death in favor of life for defendant convicted of murder of peace officer with special circumstance].) The prosecution’s case in aggravation consisted of the circumstances of the crime and evidence underfactor (c) of a prior conviction, possession of cocaine basefor sale. (24RT: 4218, Ex. 334.) It also relied upon the Rod's Coffee shop incident presented previously as evidenceof appellant's 105 prior criminal activity under factor (b). (24RT: 4213-4214.) Notably missing from the prosecution's case were some major aggravating factors, e.g., unlike many capital defendants, he did not have a long history of other violence. (People v. Allen (1986) 42 Cal.3d 1222, 1246 [defendant previously had committed multiple other violent crimes].) In short, appellant’s offense may have been heinous, but he was not one of the most heinous offenders, and a death sentence wasnotinevitable. Because jurors in California will reject death in favor of life verdicts in cases with multiple murders, murderof police officers and strong aggravating evidence, the Court should reject respondent’s talismanic reference to the “overwhelming” aggravating evidenceat trial. Respondent still must prove beyond a reasonable doubt and based uponthe entire record that the errors of the court and prosecutor in allowing and making improper arguments did not contribute to the death verdict under Chapmanv. California (1967) 386 U.S. 18, 24, and, under People v. Brown (1988) 46 Cal.3d 432, 448, that there is a reasonable possibility that the erroneous exclusion of his statements affected the verdict. In light of appellant’s mitigating evidence of his extremely impoverished upbringing in Honduras and religious conversion (see AOB 29-30, 32-33) and all the reasons above and in the openingbrief, the trial court’s error was prejudicial, and appellant’s death sentences mustbe reversed. // // 106 XVI. THE TRIAL COURT ERRONEOUSLY ADMITTED EVIDENCE OF THE ROD’S COFFEE SHOP INCIDENT UNDER SECTION 190.3, FACTOR(b) Appellant argued in the opening brief that the court committed prejudicial error when it admitted the Rod’s Coffee Shop (Rod’s) evidence as criminal activity involving violence within the meaning ofsection 190.3, factor (b), because it was insufficient to establish the elements of an | attempted robbery or the possession of a stun gun indicating express or implied violence. (AOB 245-255; 24RT: 4180-4181 [court denies appellant’s motion under section 1118.1].) Respondent’s argumentto the contrary is unsupported. Respondenthas not countered and does not even discuss appellant’ s arguments and authorities that there was insufficient evidence of an attempted robberyto allow rational fact finder to find the existence of such activity beyond a reasonable doubt. (AOB 247-250.) Respondentalso ignores appellant’s argumentthat the presence of a stun gun in the same car as appellant after he left Rod’s Coffee Shop did not constitute an implied threat of violence. (AOB 250-252.) Respondent’s prejudice argumentis another broad generalization that fails to refer to or counter appellant’s points. (See RB 280; AOB 253-255.) Respondent cites two cases in which this Court found the possession of firearms constituted an implied threat of violence. (RB 279-280.) In People v. Elliott (2012) 53 Cal.4th 535, 586-587, evidence, which showed that the defendant reached toward his pocket containing a gun after a deputy told him to place his hands on patrol car, was properly admitted as gun possession constituting an implied threat of violence. In People v. Thomas (2011) 52 Cal.4th 336, 362, the defendant wentto the house of the intended 107 target, who wasnot home,and threatened to “get” him. Shortly after, the defendant fired his weapon, thus committing the crime of grossly negligent discharge of a firearm. (/bid.) This Court found that the defendant intended his action to serve as an express or implied threat of violence. (Ibid.) These factual scenarios have nothing in common with the Rod’s evidence, wherein the alleged weapon wasa stun gun, and there wasinsufficient evidence that appellant possessed it or of an implied threat. The stun gun, which was 4.1 inch long, was found underthe passengerseatof the car that appellant was driving after he left Rod’s. (18RT: 3032-3035, 3048-3049; Ex. 236A; Vol. 1, 4SCT: 186, 188 [xerox copy of Ex. 236A].) The evidence did not show that appellant even knew the stun gun wasthere. (29RT: 5086.) The law “makes the matter of knowledgein relation to defendant’s awareness of the presence of the object a basic elementof the offense of possession.” (People v. Gory (1946) 28 Cal.2d 450, 454, original italics.) Thus, “proof of opportunity of access to a place where [contrabandis] found, without more, will not support a finding of unlawful possession.” (People v. Redrick (1961) 55 Cal.2d 282, 285-286 [summarizing cases in which evidence of narcotics possession was insufficient because others besides defendant had access].) Proximity to a weapon,standingalone,is not sufficient evidence of possession. (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417]; see also People v. Antista (1954) 129 Cal.App.2d 47, 50; People v. Bledsoe (1946) 75 Cal.App.2d 862; People v. Boddie (1969) 274 Cal.App.2d 408, 411-412.) These cases stand for the basic principle that when more than one personhasaccessto a location, the mere fact that a weapon is found hidden somewherein that location does notestablish constructive possession, regardless of the defendant’s relative proximity to the item’s hiding place. For this reason, 108 there was insufficient evidence to establish that appellant possessed the stun gun found underthe passengerseat of the car he droveafter he left Rod’s Coffee Shop. Because of the requirement of reasonable-doubt instructions for proof of uncharged crimesat the penalty phase (People v. Robertson (1982) 33 Cal.3d 21, 53-55), the trial court may “not permit the penalty jury to consider an uncharged crime as an aggravating factor unless ‘a rationaltrier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” (People v. Boyd (1985) 38 Cal.3d 762, 778, quoting Jacksonv. Virginia (1979) 443 U.S. 307, 318-319, and People v. Johnson (1980) 26 Cal.3d 557, 576.) Because norationaltrier of fact could find the essential elements of the alleged prior crimes proven beyond a reasonable doubt, the court’s admission of the evidence violated appellant’s rights to due process, a fair trial and reliable guilt and penalty determinations. (U.S. Const., Amends.5th, 6th, 8th, & 14th; Cal. Const., art. I, §§ 1, 7, 15, 16 & 17; Jackson v. Virginia, supra, 443 U.S. at p. 319.) The admission of the evidenceviolated the Eighth and Fourteenth Amendments by undermining the reliability of the jury’s death verdicts and violating appellant’s state law liberty interests. (See, e.g., Johnson v. Mississippi (1988) 486 U.S. 578, 584-585, 590 [death sentence based upon “materially inaccurate” information may violate Eighth and Fourteenth Amendments]; Robinson v. Schriro (9th Cir. 2010) 595 F.3d 1086, 1103 [recognizing that in certain circumstances, insufficiency of evidence supporting aggravating factors can constitute independent due process or Eighth Amendmentviolations]); Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295, 1300 [state trial court’s misapplication of its capital sentencing statute implicates the Eighth 109 Amendments prohibition against cruel and unusual punishment and the liberty interest protected by the Fourteenth Amendment].) For the reasons argued above andin the opening brief, appellant’s death sentences must be vacated. // // 110 XVII. THE TRIAL COURT PREJUDICIALLY ERRED BY ALLOWING THE PROSECUTOR TO IMPEACH APPELLANT ABOUT DETAILS OF THE CRIMESIN RESPONSE TO HIS PENALTY PHASE TESTIMONY OF RELIGIOUS REFORMATION In the opening brief, appellant argued that the court erred whenit permitted the prosecutor to cross-examine appellant regarding the crimes in response to appellant’s penalty phase testimony abouthis religious conversion in jail. Respondent contendsthat the prosecution “hadthe right to test appellant’s claim of redemption by cross-examining appellant about the defense he waspresenting.” (RB 287.) Respondent’s argument consists of this statement, preceded by variouscitation with general language. (RB 285-286.) Neither the facts below nor respondent’s authorities support respondent’s very broad conclusion. C. The Impeachment Of Appellant With Questions About The Crimes Was Improper Rebuttal Respondent states that a criminal defendanthasno right to mislead the jury through one-sided character testimonyat the penalty phase. (RB 286.) However, the cases respondentcites for this unremarkable proposition in fact support appellant’s position that rebuttal must be specific. (See People v. Eubanks (2011) 53 Cal.4th 110, 145-146 [where defendant, convicted of killing her four children, put on evidence she was a good mother, evidenceof specific incident where she mistreated her nephew was within scope of rebuttal]; People v. Payton (1992) 3 Cal.4th 1050, 1064- 1067 [mitigation witnesses whotestified about defendant’s religious faith in custody and good influence on other inmates properly impeached with questions aboutspecific incidents ofjail misconduct].) itl Thus, evenif the trial court was correct that “the whole impact of the document[appellant’s religious writing] is he is now a good personasin contrast from before,” its conclusion — that this permitted the prosecution to cross-examine appellant extensively regarding “what happenedbefore,”L.e., the circumstances of the crimes — was not. (26RT: 4500.) This is because the scope of rebuttal to general character evidence “must be specific, and evidence presented or argued as rebuttal mustrelate directly to a particular incident or charactertrait defendant offers in his own behalf.” (People v. Rodriguez (1986) 42 Cal.3d 730, 791-792 & fn. 24 [where defendant presented evidence through family members that he was gentle and avoided violent confrontations, prosecutor’s reference to prior incident involving shotgun wasproperrebuttal to this specific asserted aspect of defendant’s personality].) Respondentcites this Court’s language People v. Montiel (1993) 5 Cal.4th 877, 934 (Montiel), that “[n]o constitutional principle precludes examination of a witness aboutthe sincerity and depthofreligious and remorseful feelings he himself has placedin issue.” (RB 282, 286.) In Montiel, the defendanttestified at the penalty phase on direct examination that he accepted Christianity, read the Bible, and felt remorse for the murder victim and his family. (Montiel, supra, 5 Cal.4th 877, 934.) Montielis distinguishable; the language quoted above respondedto that defendant’s claim that the impeachmentat issue, which involveda specific Bible verse, penalized his freedom ofreligious beliefs. (/bid.) In short, respondenthas not specifically countered appellant’ s argumentthat the facts and holdings of Montiel and others discussed in appellant’s opening brief demonstrate that because of the limits on rebuttal to, and impeachmentof, a defendant’s evidence or testimony regarding 112 postcrimereligious conversion, the court erred in allowing the prosecutor to cross-examine appellant regarding the crimes. (AOB 258-260.) Respondentstates that rebuttal evidence is relevant and admissible if it tends to disprove a fact of consequence upon which the defendant has introduced evidence and the scope of cross-examinationis a function of the “breadth and generality” of the direct testimony. (RB 285, citing People v. Loker (2008) 44 Cal.4th 691, 709.) Here, appellant proposedlimiting the mitigation evidence in various ways (AOB 256-257), none of which included questioning the guilt phase verdicts. For instance, appellant proffered testimony about his jailhouse conversion, authorship of a religious writing, and his ability to help others in the future. (26RT: 4495-4496, 4501-4502.) Cross-examination about the crimes would not and did not disprove a fact of consequenceas this proposed testimony. Appellant further proposed not to discuss remorse or the sincerity of his conversion, but just abouthis ability to help others in the future, or even just to take the stand to authenticate the religious documenthe wrote. (26RT: 4495-4497, 4501-4502.) Nevertheless, the court erroneously and illogically ruled that appellant’s currentreligious feelings were essentially telling the jury that he was remorseful, and that his conversion wassincere and the prosecution could therefore cross-examine him onthesincerity of his beliefs as well as on remorse by cross-examining him about the circumstances of the crimes.’ (26RT: 4496, 4500-4504.) However, the 2 After the court overruled appellant’s various attempts to exclude the topics of remorse, the crimes, and thesincerity of his conversion from cross-examination (24RT: 4200-4202; 26RT: 4496-4504), the court ruled that appellant’s testimony on these various points did not waivehis prior objections. (26RT: 4570-4571.) Appellant’s claims have not been (continued...) 113 premises underlying this ruling were incorrect and for this reason as well, cross-examination on the circumstances of the crime did not tend to disprove a fact of consequence stemming from appellant’s testimony. (See People v. Loker, supra, 44 Cal.4th at p. 709.) The court’s first premise, that religious conversion is inevitably linked to remorse, was incorrect. The two concepts are not equivalent, noris one a necessary or sufficient condition for the other. (Murphy, Remorse, Apology, and Mercy (2007) 4 Ohio St. J. Crim. L. 423, 432-433 (Murphy).) Take, for example, a person who has weak ornoreligious beliefs but whois against abortion. That person could shoot andkill an abortion provider. Unrepentantandinjail, the shooter could then have a religious conversion, and believe more strongly than ever that his acts were justified. Similarly, an atheist mercenary whojoinedthe fight against Syria could commit war crimes before converting to the religioustraditions of fellow soldiers and remain remorseless before and after his conversion. Similarly, whether or not appellant’s conversion wassincere did not hinge on whether he was remorseful. Sincerely religious people can be unrepentant, and somesincerely repentant people can be nonreligious or even antireligious. (Murphy, supra, 4 Ohio St. J. Crim. L. at pp. 432-433; Randall, The Psychology of Feeling Sorry: The Weight of the Soul (2013)p. 127.) The court’s second premise — that expressions of remorse open the door to cross-examination about the crimes — wasalso erroneous. By definition remorse is something that occurs after an offending behavior. 2continued) forfeited. (People v. Venegas (1998) 18 Cal.4th 47, 94.) 114 Remorseis “a feeling of being sorry for doing something bad or wrongin the past: a feeling of guilt.” (http://www.merriam-webster.com/dictionary/ remorse [as of June 22, 2014] italics added.) Remorse,then, is a feeling that arises after some thoughtor reflection on the gravity of one’s prior actions. (Ward, Sentencing Without Remorse (2006) 38 Loy. U. Chic. L.J. 131, 150 (Ward).) The prosecutor, on the other hand, asked appellant argumentative questions about whetherhe felt remorse during or immediately after the crimes (26RT: 4552-4554, 4574-4575, 4579-4581), and then argued that appellant’s actions during the crimes demonstrated his lack of remorse. (29RT: 5288-5289.) This meantthat the very fact that the crimes were committed indicated a lack of remorse. (Ward, supra, 38 Loy. U. Chic. L.J. at p. 150.) This renders the concept of remorse for actionsin the past meaningless. (/bid.) Because remorse “by definition can only be experienced after a crime’s commission” (Brown v. Payton (2005) 544 U.S. 133, 142-143), such logic unconstitutionally removes remorse from the jury’s consideration in violation of the Eighth Amendment. (Seeid.at p. 150, citing Skipper v. South Carolina (1986) 476 U.S. 1, 4-5 [mitigation includes evidence of defendant’s behaviorafter offense].) For the same reasons, the court’s rationale that the prosecution had the right to test the sincerity of appellant’s conversion by asking about the crimes was erroneous. Respondentcites People v. Farnam (2002) 28 Cal.4th 107, 197 (Farnam)for the proposition that at the penalty phase, a prosecutoris entitled to inquire about the circumstancesof the underlying crimes, but does not otherwise discuss the case or any possible application here. (RB 286.) In Farnam, the defendant was convicted of first degree murder, rape and sodomy andthe jury found true five special circumstances. (/d. at pp. 125- 115 126.) At the penalty phase, the defendanttestified on his own behalf regarding his upbringing; admitted killing the victim and several of the special circumstances; denied the sodomyor that he had premeditated the ‘killing; and said he wassorry that the victim was dead. (/d. at p. 131.) The defendant argued that certain of the prosecutor’s questions were misconduct, e.g., whether defendant enjoyed raping the victim. (/d. at p. 197.) The Court noted there was no objection and found the questions proper because the prosecutor wasentitled, under factor (a), to cross-examine on the circumstances of the crime. (/bid.) In contrast, appellant did not open the door to cross-examination regarding the crimes. As a result of the court’s ruling that any evidence of appellant’s postcrime jailhouse conversion opened the doorto a wide- ranging cross-examination regarding the circumstancesof the crimes, appellanttestified briefly on direct examination that he shot Hoglund to get away;shot and killed Kim; and knewthe crimes were wrong and did them anyway. (26RT: 4538-4540.) The court ruled that appellant’s testimony did not waive his prior objections. (AOB 257.) Thus, appellant’s testimony did not open the door to cross-examination on the crimesor the evidence underlying the guilt phase verdicts as it appears was the case in Farnam. (See People v. Venegas, supra, 18 Cal.4th at p. 94.) Thetrial court’s view of the connections betweenreligious conversion, remorse and sincerity was problematic for other reasons. The concept of remorse is subject to varying interpretations depending upon how it is understood by both a defendant and the sentencer, and the cultural and religious values of each. (Ward, supra, 38 Loy. U. Chic. L.J. at pp. 133- 136.) For this reason, the jurors’ consideration of appellant’s remorse was a 116 very subjective one and introducedan arbitrary element into sentencing. (See id. at pp. 133-136, 142-143.) Thus, the court erred whenit reasoned that appellant’s testimony regarding his conversion presented to the jury that he was reformed, and the people hada right to cross-examine him onhislife before to test the sincerity of what he is doing now. (26RT: 4496.) E. The Error WasPrejudicial and Reversal Is Required Respondent arguesthat evenif there waserror, there was no prejudice because the prosecution could still have argued against appellant’s “religious defense” based uponthe guilt phase evidence. (RB 287.) This argument strains credulity. As described in the openingbrief, the prosecutor conducted a lengthy and extremely damaging cross-examination of appellant regarding the charged crimes and whether he was remorseful; used appellant’s testimony to impeachthe defense mitigation witnesses; and elicited denials when appellant maintained his innocence in responseto the prosecutor’s questions and characterizations of the evidence. (AOB 260- 262.) In fact, with the exception of three pages of questions about the Bible study appellant wrote (26RT: 4609-4612), and brief questioning about appellant’s lack of contact with his family (26RT: 4612-4613), virtually the entire cross-examination consisted of questionsrelated to the crimes. The prosecution then made extensive use of the cross-examination during closing argument to excoriate appellant, accuse him of repeatedly lying under oath, deceiving and manipulating his religious mitigation witnesses and failing to admit the crimes or to express remorse. (AOB 260- 262.) These arguments, which appealed to the passions and prejudicesof the jury by again and again accusing appellant of lying, including to God, contrast sharply with the relatively tame argumentthat the prosecutor could 117 have made without the ammunition gained during the cross-examination on the crimes. A majorthemeofthe prosecutor’s argument wasappellant’s lack of remorse. (See, e.g., 29RT: 5287 [asking jury to consider remorse in determining penalty]; 5287-5289 [describing certain actionsafter the murders and arguingthat “the best measure of remorse”is appellant's actions during and after the crime]; 30RT: 5335-5336 [no remorse expressed in appellant’s Bible study].) She posted a chart with excerpts of appellant’s testimony, and usedit to argue repeatedly that appellantlied and lacked remorse. (30RT: 5311-5327.) The prosecutoralso told the jurors that while they could not count appellant’s lies as aggravation, they could consider them “as lack of remorse and facts and circumstancesof the crimeas indicated in his character.” (30RT: 5326; 29RT: 5287 [same].) Thus, she argued that appellant's lies showed lack of remorse, which wasfactor (a) evidence, and that appellant’s character was also factor (a) evidence on the facts and circumstancesof the crime. This is another way that the prosecutor prejudicially misused her cross-examination of appellant regarding the crimes: the jury was given backwards and erroneousguidance,i.e., that appellant’s trial testimony demonstrated his lack of remorse and character, and both were a fact and circumstance of the crime. This is not the law. (See, e.g, People v. Farnam (2002) 28 Cal.4th 107, 198-199 [prosecutor may commenton lack of remorse as long as she does not suggest it should be considered a factor in aggravation]; People v. Avena (1996)13 Cal.4th 394, 439 [“‘after [People v.] Boyd [(1985)38 Cal.3d 762], the People maynotpresent aggravating evidence showing the defendant’s bad character unless the evidenceis admissible under oneofthe listed factors or as rebuttal’’].) 118 The prejudice from the court’s decision allowing the prosecutorto cross-examine appellant in detail about the crimes cannotbe understated with regard to the remorse issue. Remorse, despite the arbitrary use to which itis put, is a significant factor for jurors in penalty phase decisions. (Eisenberget. al., But Was He Sorry? The Role ofRemorse in Capital Sentencing (1998) 83 Cornell L. Rev. 1599, 1632-33 [finding, ina multivariate empirical study of South Carolina capital jurors, that “[t]he difference . . . between jurors’ beliefs about the defendant’s remorsein life cases and in death casesis highly significant” and that “if jurors believed that the defendant was sorry for what he had done, they tended to sentence him to life imprisonment, not death]; Sundby, The Capital Jury and Absolution: the Intersection of Trial Strategy, Remorse, and the Death Penalty (1998) 83 Cornell L. Rev 1557, 1558, fn. 2 [citing studies].) In a study of a representative sample of 37 death California penalty trials tried between 1988 and 1992, a perceived lack of remorse was one of the most compelling reasons that a majority of capital jurors voted in favor of death. (Sundby, The Capital Jury and Absolution: the Intersection of Trial Strategy, Remorse, and the Death Penalty, supra, 83 Cornell L. Rev.at pp. 1559-1560 & fn. 6 [jurors from death cases interviewed in 1991 and 1992].) A defendant who presented a complete innocence/lack of responsibility defense was most likely to be deemed remorseless, whereas those accepting responsibility found more favor with juries. (/d. at pp. 1574-1577, 1584.) Given that the guilt phase defense included admitting the vast majority of the crimes, the prosecutor would have understoodthat this wasa strong factor in appellant’s favor at the penalty phase. For these reasons, the prosecutor’s cross-examination of appellant linking the crimes to lack of remorse was devastating. L19 For the reasons aboveas well as those set out in Argument XV,ante, and in the opening brief, the death judgments mustbe vacated. Hf H 120 XVIII. THE PROSECUTOR’S IMPROPER CROSS-EXAMINATION OF DEFENSE MITIGATION WITNESSES AND OTHER MISCONDUCT VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTSTO A FAIR TRIAL AND RELIABLE PENALTY VERDICT Appellant argued that the prosecutor improperly insinuated through cross-examination that appellant had committed other murders; repeatedly violated court rulings limiting cross-examination to appellant’s own actions during the crimes; erroneously caused replacementof appellant’s interpreter; and improperly used sarcasm andtheatrics to communicatehisbeliefthat appellant was not credible. Respondentincorrectly argues that the claims are forfeited, lack merit, or are not reflected in the record. B. The Prosecutor Improperly Insinuated That Appellant Had Committed Prior Murders Appellant argued that the prosecutor committed error when he asked appellant “Did you feel especially in a humorous moodasyourecalled killing those eightor nine other people that you killed?” (AOB 267; 26RT: 4609.) Respondentargues that this claim was forfeited because appellant did not object on the basis of prosecutorial error in a timely way. (RB 291- 292.) As argued in the openingbrief, the court refused appellant’s requestto instruct the jury that the prosecutor had no evidence to back uphis assertions. (AOB 267.) Giventhis, it is highly unlikely that the court would have assigned the error as misconduct and any such request would have been futile. (See People v. Hill (1998) 17 Cal.4th 800, 820.) Futility may arise whenthe trial judge errs by overruling proper objections (People v. Zambrano (2004) 124 Cal.App.4th 228, 237) and when the prosecutor’s acts of misconduct were not deterred even whenthetrial court attempted to prevent them. (People v. Hill, supra, 17 Cal.4th at p. 821.) 121 As argued here and in Arguments XVII, ante, XIX and XXI,post, the court overruled most of appellant’s objections regarding the prosecution’s impropercross-examination questions and argument. Appellantwill not repeat each of those exampleshere, but will highlight some aspectsof the court’s responses to appellant’s objectionsto illustrate the futility of perfecting the record with regard to prosecutorial error at appellant’s penalty phasetrial. For instance, the court refused to sustain appellant’s objections, but nevertheless made suggestions to the prosecutor about permissible areas, whichthe prosecutor largely ignored. (See, e.g., 26RT: 4576-4579, 4586-4588.) In other instances, the court sustained appellant’s objections, but the prosecutor ignored the court with impunity. (AOB 276-277 & 26RT: 4594-4595; AOB 270 & 26RT: 4571, 4573-4574, 4586-4588, 4631; see also 23RT: 4162; 30RT: 5368-5370 [ prosecutor knowingly argued a prohibited topic].) Thus, the record amply demonstrates that the court overwhelming rejected appellant’s attempts to object to misconduct and/or cite the prosecutor for misconduct. Forthis reason, a request for an assignment of misconduct here would have beenfutile. Respondent’s argumentthat at most, the question was assailable due to ambiguity (RB 294), is incorrect as thetrial court recognizedthat the question was inappropriate, and asked with the force and effectasif the prosecutor knewit to be the truth. (27RT: 4742-4743.) Thetrial court next ruled, incorrectly, that the prosecutor’s follow-up question, after appellant asked “which eight or nine other people,” was appropriate, and on that ground denied appellant’s request to instruct the jury that the prosecution did not have evidence to support the truthfulness of the charge implied by its question. (AOB 267; 27RT: 4743.) Respondentargues that in context, it 122 wasClear that the prosecutor’s questioning wentto appellant’s state of mind, a permissible area of inquiry. (RB 293-294.) Nothing, however, cancelled out the insinuation from thefirst ostensible question, where the prosecutor stated that appellant recalled killing, and hadkilled, eight or nine people. (AOB 267-268; 26RT: 4609.) The prosecutor’s response to appellant’s initial request for clarification (“what eight or nine people?”) introduceda tertiary premise aboutthe appellant’s behavior in a conversation,i.e., “the ones that you talked about when you were giggling and laughing overkilling the officer.” (26RT: 4609.) Neither that, nor appellant’s response — “I neverdid say that” — respondedto or undercut the underlying premises of the prosecutor’s first question,i.e., that appellant recalled killing, and had killed, eight or nine other people. Moreover, the prosecutor’s initial question embeddedwithinit a polar question (one that requires either a yes or no answer),i.e., “did you feel in an especially humorous moodas yourecalled... .”” This is an example of the classic loaded question,e.g., “just answer yes or no, have you stopped beating your wife?,” in which the question contains a supposition and entraps the person who answersit in a yes-or-no format. The prosecutor’s improper cross-examination here wasjustthefirst arrow in his quiver: the prosecutorpersisted in suggesting to the jury through cross-examination that appellant wasinvolved in criminalactivity involving a shooting in Hondurasduring the further cross-examinationof appellant as wellas that of his sister Argentina. (AOB 268-269; Argument XIX.) Respondentasserts that any claim of prosecutorialerror as to Argentina’s cross-examination wasforfeited and that appellant’ s futility argument should be rejected because of the many favorable rulingsthe court made for the defense. (RB 295-296.) Respondentdoes notlist these rulings, 123 T L E T D n w i l a ) T U R E T t s : but the rulings sustaining appellant’s objections to improper cross- examination of Argentina are irrelevantto the forfeiture issue as the court consistently refused to admonish the prosecutor for misconduct. (See 26RT: 4555-4557, 4577, 4586-4587; see also 4618 [asked to admonish prosecutor for unprofessional behavior, court warns both prosecutor and codefendant’s counsel not to editorialize, despite any indication thatthe latter acted improperly].) Given these circumstances and the pattern of misconduct described herein and in Arguments XVII, ante, and XIX through XXI, post, this Court should excuse any failure to object to every instance of misconductor to request an admonishment. (People v. Hill, supra, 17 Cal.4th at p. 820 [defendant excused from necessity of either timely objection and/or request for admonition if either would be futile]; People v. Estrada (1998) 63 Cal.App.4th 1090, 1100 [where misconductis part of pattern and multiple objections made, court may considerall cited examples in evaluating pattern of impropriety]; People v. Pitts (1990) 223 Cal.App.3d 606, 692 [admonitions will not generally cure harmful effect of misconduct interspersed throughouttrial].) Should the Court disagree, appellanturgesit to reach the issue despite the lack of a request to admonish the prosecutorfor misconduct. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) On the merits, and contrary to respondent’s argument (RB 296), the prosecutor repeatedly violated the court’s ruling on the permissible scope of cross-examination of Argentina. On direct examination,she testified about certain aspects of appellant’s upbringing and asked the jury for compassion and a life sentence so that appellant could dedicate his life to God. (27RT: 4764-4772.) During cross-examination, the court overruled appellant’s 124 objection to the questions of when and where she last saw appellant. (27RT: 4775, 4779.) After she testified that she last saw him in Hondurasat their mother’s house (27RT: 4775), the court sustained appellant’s objections on the grounds ofirrelevancy and as beyond the scopeof direct to six improperly suggestive questions regarding appellant’s presence in Honduras in 1992. (27RT: 4775-4781.) These improper questions did nottest the quality of Argentina’s relationship with appellant, nor did they respond to herdirect testimony. Rather, as appellant predicted, they had a more particular purpose. (27RT: 4776) Thetrial court had earlier ruled that the prosecutor could not question witnesses about whether appellant was involved in a shoot-out in Honduras in February 1992. (24RT: 4191-4193.) By questioning Argentinaashe did, the prosecutor repeatedly emphasizedto the jury that appellant wasin Hondurasduring this time period. The questions further invited the jury to speculate regarding inadmissible and irrelevant matters, such asillegal activities by appellant during this time period. (27RT: 4779 [What month ofthe year did you see him in Hondurasin 1992?” and “Did he tell you why he wasback in Hondurasin early 1992?”]; 4780 [“Did your brothertell you why he was leaving youto return to the United States .. . ?”]; 4781 [“Do you know what your brother was doing to earn a living in the United States?”].) The jury maywell have thoughtthat by objecting, appellant was trying to keep 3 The prosecution had argued that because Argentinatestified that appellantwas like a son to her, and madean appealforhislife, it was entitled to ask about how much and whattype of contact they had. (27RT: 4775-4776, 4779.) 125 evidence from it. (See United States v. Coveney (5th Cir. 1993) 995 F.2d 578, 586 [government put on defendants’ former lawyersin tax fraud case; no prejudicial error where court gave limiting instructions that invocation of privilege should not be perceived as effort to hide evidence |.) The questions were also improper because the prosecutor unduly emphasized the matter by repeating and enlarging on the erroneous question. (People v. Grimes (1959) 173 CaL.App.2d 248, 253-254.) Moreover,in light of the prosecutor’s various attempts to get before the jury information andinsinuationsthat appellant committed other murders and/or wasinvolved in a shootout, “[i]t would be an impeachmentof the legal learning of counsel for the People to intimate that he did not know the aforesaid questions were improper, wholly unjustifiable, and peculiarly calculated to prejudice the substantial rights of the defendant.” (People v. Lynch (1943) 60 Cal.App.2d 133, 143; People v. Ford (1948) 89 Cal.App.2d 467, 470 [“We would be accusing the deputy district attorney of crass ignorance or deplorable inexperience, or both, were we to assumethat he did not know the wholly improper and inexcusable nature of his remarks”].) Respondent argues that the court’s weak admonition in response to appellant’s objection to the prosecutor’s improper questions, which merely remindedthe jury that the statement about appellant having killed eight or nine people had been offered notfor its truth, but as to appellant’s state of mind, along with generic instructions, would have cured any harm. (RB 297-300.) However, particularly in a trial for murder, hearing accusations that the accused had previously killed is precisely the sort of bell that cannot be unrung. (See People v. Johnson (1981) 121 Cal.App.3d 94, 103-104.) For this reason, the prosecutor’s questions would hardly pass without impact to the jury. 126 Moreover, this Court has also recognized that in somesituations an admonition will actually exacerbate the prejudice to the defendant. (People v. Bolton (1979) 23 Cal.3d 208, 215-216, fn. 5; see also People v. Pitts, supra, 223 Cal.App.3d at p. 692.) Evidence of other crimes has been regarded as evidenceof this type. The prejudice inherent in such evidence led one court to observe: It is the essence of sophistry and lack of realism to think that an instruction or admonition to a jury to limit its consideration of highly prejudicial evidence to its relevant purpose can have anyrealistic effect. It is time that we face the realism of jury trials and recognize that jurors are mere mortals. Of what value are the declarations of legal principles with respect to the admissibility of other-crimes evidence. . . if we permit the violation of such principles in their practical application? We live in a dream world if we believe that jurors are capable of hearing such prejudicial evidence but not applyingit in an improper manner. (People v. Gibson (1976) 56 Cal.App.3d 119, 130.) In any case, despite the court’s admonition, the insinuation remained that the prosecutor knew something outside of the evidence. (People v. Wells (1893) 100 Cal. 459, 460-461, 465 [reversing even though objections to content-laden improper questions were sustained]; People v. Holt (1984) 37 Cal.3d 436, 457-458 [instruction at end of guilt phase that punishment wasnot to be discussed or affect verdict did not negate prosecutor’s improperreference to the effect that jury’s adoption of the defense theory could lead to parole date].) In addition, the mere fact that the improper statements and evidence came from the prosecution gives them added impact. The courts have long recognized the special regard jurors have for the prosecutor and the likelihood that jurors will give undue weight to statements made by the 127 prosecutor. (People v. Bolton, supra, 23 Cal.3d at p. 213.) For these reasons, the court’s admonition to the jury did not cure the damaging impact of the prosecutor’s continued questions implying appellant had murdered others in Honduras. Moreover, contrary to respondent’s argument (RB 299), the prosecutor improperly argued that appellant was responsible for other killings, i.e., he told the jury that appellant was a “mass killer.” (30RT: 5311.) If the jury believed that appellant was or may have been involved in other murders, or a shootout, it would have considered him more culpable and moreof a threat to society, and the prosecutor’s “masskiller” description would have appeared even more compelling. C. The Prosecutor Repeatedly Violated The Court’s Ruling Limiting Cross-Examination To Appellant’s OwnActions and Role In The Instant Crimes Appellant argued that the prosecutor erred whenhepersistently violated the court’s ruling that the prosecutor could not cross-examine appellant aboutthe activities of coperpetrators. (AOB 270.) Respondent arguesthat the issue wasforfeited, the prosecutor did not violate any rulings and if it did, it was because they were ambiguous. (RB 305.) The ruling that appellant cited was not ambiguous. Appellant explained prior to cross-examination that he would not answer questions about others involved in the robberies. (26RT: 4511.) The prosecution argued that asking appellant whether he had turned in others wasrelevant to test the sincerity of his religious beliefs. (26RT: 4511.) The court prohibited the prosecutor from asking appellant about the two codefendants, but initially did not limit questions about “the unnamed six or seven people” whoalso participated in various robberies. (26RT: 4511-4513.) 128 After the lunch break, the prosecutor told the court he planned to ask appellant with whom he did the robberies other than the codefendants. (26RT: 4571.) The court responded “no,” explaining that although the original ruling excluded only questions about the codefendants,the court now realized that asking about anyoneelse wasirrelevant to appellant’s remorse and “as I think aboutit, the whole point of the penalty phase is to determine [appellant’s] culpability.” (26RT: 4571.) The court instructed the prosecutorto “[j] leave it alone” and even asked the prosecutor if he wanted to “go to the side” because the jury was comingin,but the prosecutor declined. (26RT: 4571.) Almost immediately after this discussion, the court sustained appellant’s objections to three questions implicating others and denied his requests to approach,but instructed the jury that the cross-examination was limited to appellant. (AOB 270; 26RT: 4573-4574, 4576.) The court permitted counsel to approachafter a fourth objection, but denied his request to hold the prosecutor in contempt or cite him for misconduct for violating the court’s clear ruling. (26RT: 4577.) After a fifth improper question, appellant unsuccessfully renewed his request to find the prosecutorin contempt and further asked that the court stop appellant’s cross-examination. — (26RT: 4586.) The court merely told the prosecutorthat he wasrisked eliciting inadmissible testimony about others, and should “leaveit alone.” (26RT: 4587.) Appellant’s comment during this discussion that he did not rememberthe court changingits rulings did not reflect confusion as respondentstates (RB 305), but was a reminderto the prosecutor and court of its earlier rulings, which the court then repeated. (26RT: 4588.) 129 Underthese circumstances, and contrary to respondent’s argument (RB 303, 305, 307, 309), the court’s rulings were not ambiguous, and appellant did notforfeit the issue. Respondentattempts to get around the record by arguing that questions that the prosecutor asked about appellant’s conduct were only “inartful.” (RB 303-304, 305, 307, 311-313.) Thetrial court ruled otherwise whenit sustained appellant’s objections to questions implicating others. (26RT: 4574, 4576, 4598, 4631; see also 4565 [without directly responding to appellant’s objection, court instructs prosecutorto limit his questions to appellant].) Moreover, contrary to respondent’s argument (RB 307), that the prosecutorfinally asked a permissible question does not negate the earlier ones that the court recognized were improper. (See People v. Wells, supra, 100 Cal.459, 461-462.) Respondentargues that any possible prejudice stemming from cross- examination implicating the codefendants was harmless because it would have worked against his codefendants,rather than appellant. The record belies this claim. As explained above, despite the ruling that the prosecutor could not ask appellant questions about the involvementofeither the codefendants or other coperpetrators (26RT: 4512-4513, 4571), the prosecutor continued to ask such questions, and appellant’s objections were sustained. The prosecution then improperly argued that appellant’ s conversion wasfalse and he lacked remorse because he did notturn in others. (30RT: 5316-5317.) Respondentalso claimsthat the court’s instruction to the jury cured any possible prejudice. (RB 314, citing 26RT: 4565-4566;see also 26RT: 4576.) This is not so, given the prosecution’s repeated defiance of the court’s orders and the court’s later refusal to instructthe jury that the 130 prosecution lacked evidence to support the facts implied in its questions. (28RT: 4873-4874.) (See People v. Kirkes (1952) 39 Cal.2d 719, 726 [objections and requests for admonishmentwould not have cured error whererepeated objections to improperassertions and comments throughout a trial may serve to impress on jury the damaging force of the misconduct]; People v. Pigage (2003), 112 Cal.App.4th 1359, 1374 [defiance of court rulings brings disorder to court process and causes an unfairtrial].) D. During a Break In Appellant’s Cross-Examination the Prosecutor Initiated an Improper Ex-Parte Contact With The Court, Which Resulted In a Change Of Interpreter Over Appellant’s Objection Appellant argued that the prosecutor committed error because during a break, he aggressively criticized appellant’s interpreter and then approachedthe court ex parte regarding the matter. (AOB 271-273; 26RT: 4567-4569.) Respondent argues forfeiture and that there is no indication of an ex parte contact. (RB 314-315.) Appellant disagrees. The rule that a defendant must object and request an admonition at trial in order to preserve the issue for appeal “applies onlyif a timely objection or request for admonition would have cured the harm.” (People v. Hamilton (1989) 48 Cal.3d 1142, 1184, fn.27.) Here, as argued in the opening brief, by the time the matter was discussed on the record, the decision to switch the interpreter had been made andthe court rejected the defense objections to the prosecutor’s actions. (AOB 272-273.) Thus, a request for an assignment of misconduct and request for admonition would have beenfutile. The proceeding began with the prosecutor announcing the court’s ruling, prior to any discussion. 131 Court: Everyoneis here, do we havethe hookups? Mr. Leonard? Are weset up? Mr. Grosbard: Your honor, we understand we were going to have a different interpreter this afternoon. Mr. Richard Leonard: Your honor, I was approached by the interpreter during the lunch break and she informed me that Mr. Grosbard verbally attacked her in the waythat she was conducting the interpretation. He did not like the way she wasinterpreting for Mr. Sanchez Fuentes and he threatened herin terms of taking her off the case, or somethingto that effect. {...If he has any problems. . . he should bring it to your attention. The Court: It was brought to my attention andI agree. (26RT: 4567-4568.) This interchange demonstrates that at the start of the proceeding, the prosecutor and court knew thingsthat the defense did not, i.e., that the matter had already been broughtto the court’s attention, that the court agreed with the prosecutor’s position, and that the interpreter would be switched. Respondent argues that court staff could have told the court about the matter or the parties could have already discussed the matter on a break. (RB 315.) These explanationsare belied by the actual record showing pre-existing knowledgeon the part of the prosecutor and court, and the absence ofa reference to a prior discussion amongthe court and parties regarding the matter. In any case, respondent does not address appellant’s argumentthat the prosecutor’s initial approach and castigation of the interpreter, rather than 132 bringing his complaints to the attention of the court and ail parties, was improper. (See RB 313-315.) Thus, no further reply is required. E. Other Misconduct Appellant argued that the prosecutor committed error whenit used theatrics and sarcasm while cross-examining appellant, in an attempt to testify about his disgust with appellant. (AOB 273-274 & fn. 65: 26RT: 4555-4556.) Respondent argues that there was no misconduct because sarcasm and “other rhetorical devices” during cross-examination of a defendant properly may highlight for the jury the improbability ofa defendant’s testimony. (RB 318.) The casesit cites for this proposition are inapposite. In People v. Guerra (2006) 37 Cal.4th 1067, 1127, this Court rejected the defendant’s argumentthat a specific question was argumentative because the question highlighted the improbability of specific testimony the defendanthasjust given. In People v. Bemore (2000) 22 Cal.4th 809, 845-847, the Court found that given the evidence and defense argument,the prosecutor’s arguments referring to counselin the first person and alluding to the lack of evidentiary support for the defenses, were rhetorical devices properly usedto focus the jury’s attention on strong evidenceofguilt and the weak defense case. Neither case counters the principle that a prosecutor may not, by way offacial expression, laughter or body language imply to the jury that the prosecutor does not believe the testimony of a defense witness. (People v. Tate (2010) 49 Cal.4th 635, 693; Peoplev. Hill, supra, 17 Cal.4th at p. 834 [criticizing prosecutor for laughing during defense examination of witnesses].) Respondent argues there could be no prejudice becauseit wasclear to the jury that the prosecutor did not believe that appellant’s life should be spared. (RB 318-319.) The Court should reject this argumentas it ignores 133 the whole point of recognizing and curbing prosecutorial error, i.e., to obtain convictions by legitimate and fair meansrather than by arousing the passion and prejudice ofthe jury. (Viereck v. Unites States (1943) 318 U.S. 236, 247; Berger v. United States (1935) 295 U.S. 78, 88.) In addition, the prosecutor’s repeated failure to abide by court rulings, as argued in Arguments XVII through XXI, demonstrated an overall pattern of misconductthat separately and additionally constitutes prosecutorial error. (See People v. Glass (1975) 44 Cal.App.3d 772, 781-782 [failure of counsel to abide by court ruling “inexcusable”]; People v. Pigage, supra ,112 Cal.App.4th at p. 1374 [regardless of whethera rulingis right or wrong, an attorney must follow it]; People v. Davis (1984) 160 Cal.App.3d 970, 984 [counsel have duty to submit to court rulings and accept them].) F. The Prosecutor’s Actions Were Prejudicial Misconduct and Reversal Of The Death Judgments Is Required In addition to the combined prejudice described in each of the above subsections, the errors were prejudicial because a prosecutor has a special status with the jury, which stems from the average juror’s confidence that the prosecutor’s obligations of fairness “will be faithfully observed. Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” (Berger v. United States (1935) 295 U.S. 78, 88; People v. Hill, supra, 17 Cal.4th 800, 828 [prosecutor’s statement of supposed fact not in evidence worthless as a matter of law, but can effectively circumventrules of evidence due special regard jury has for prosecutor].) Respondent argues that even if the prosecutor committed error, the court’s instructions and admonitionsto the jury cured the harm. (RB 297- 134 299.) Appellant has argued above whythis is not so. Furthermore, the prosecutor’s errors were prejudicial because they forced appellant to risk that the jury would view the defense as obstructionist or forfeit a misconduct claim. (United States v. Grayson (2d Cir. 1948) 166 F.2d 863, 871 (Frank, J., conc.) [prosecutor should notdeliberately and repeatedly put defendant’s lawyer in dilemma whereclient will suffer if lawyer objects or he does not}; see also United States v. Coveney, supra, 995 F.2d at p. 586.) Thus, when appellant objected, the jury could very well havefelt that he wastrying to hide damaging information about a shoot-out and other murders that the prosecutor sought to put before them. A jury’s “verdict must be based uponthe evidence developedat the trial. [Citation omitted.] This is true, regardless of the heinousnessof the crime charged, the apparent guilt of the offender or the station in life which he occupies.” (/rvin v. Dowd (1961) 366 U.S. 717, 722.) Here, in contrast, the prosecutor repeatedly and erroneously invited the jury to cometo conclusions not based on the evidence, but on his own personal speculations. For this reason, as well as the others argued above, in Argument XV,ante, and in the opening brief, appellant’s death judgments must be vacated. iH // 135 XIX. THE TRIAL COURT PREJUDICIALLY ERRED IN ALLOWING THE PROSECUTOR TO COMMIT MISCONDUCT BY REPEATEDLY QUESTIONING APPELLANT ABOUT WHETHER HE HAD BEEN INVOLVEDIN A SHOOTOUT IN HONDURAS Appellant argued that the court abusedits discretion by permitting the prosecutor to cross-examine appellant on whether he was woundedduring a shoot-out in Honduras, rather than by Kim during the Woodley Market crimes. As a result, the jury heard inadmissible, inflammatory and prejudicial nonstatutory aggravating evidence. Respondent’s argument that the claims are forfeited and lack merit is incorrect. The claimsare not forfeited. Appellant objected on the groundsthat the prosecutor lacked a good faith basis for his questions and was attempting to present other crimes evidence. (26RT: 4592-4594.) This complied with the general rule that to establish misconduct, the defense must objectattrial on the groundsthat the prosecutor lacked a goodfaith belief that the suggestedfacts exist, and that the prosecutordid not have evidence to prove those facts. (People v. Bolden (2002) 29 Cal.4th 515, 563-564; see also People v. Pearson (2013) 56 Cal.4th 393, 434 [objection to admissibility of evidence for impeachment purposes preserved misconductissue for appeal].) Additionally, contrary to respondent’s argument, in context, both the prosecutor and the court would have understood that appellant’s objection to “other crimes evidence”referred to aggravating evidence ofprior criminal activity admissible underfactor (b).** (See, e.g., 24RT: 4213 [prosecutor ** Factor (b) of section 190.3 permits the introduction of evidence of the presence or absenceof criminalactivity by the defendantthat involved (continued...) 136 describes forthcoming “prior criminal activity” evidence underfactor (b)] during penalty phase opening statement]; see also People v. Partida (2005) 37 Cal.4th 428, 434-435 [to further purposes of requirementof a specific objection, the requirement mustbe interpreted reasonably, not formalistically; objection mustfairly inform court and opposing party reasonsforit].) Finally, any possible forfeiture should be excused for the reasons stated ante, in Argument XVIII. For these reasons, the court should reach the merits of appellant’s claims. Cc. The Court Erred In Allowing Repeated Questions Suggesting Appellant Was Involved In a Shootout In Honduras In February 1992 Appellant testified at the penalty phase that Kim fired his gun, whereuponappellant shot back and, he believed, killed Kim. (RT: 24RT: 4191: 26RT: 4538.) In response, the prosecutor cross-examined appellant with a series of questions based upon information from an inadmissible Honduran newspaperarticle. (AOB 276-277; 26RT: 4592-4596.) Respondentcites People v. Harris (1981) 28 Cal.3d 935, 953 (Harris), for the proposition that “evidence of ‘an unrelated offense’ may be introduced through cross-examinationif it refutes a defendant’s statement made on direct examination” (RB 324), but Harris is not applicable. There, the defendant volunteered information — that he was on parole — in response to cross-examination on a different topic at the guilt phase. (Peoplev. Harris, supra, 28 Cal.3d at pp. 952-953.) The Harris court found the “4. continued) the express or implied use or attempted use of force or violence. (People v. Bacon (2010) 50 Cal.4th 1082, 1126-1127.) 137 question proper; the prosecutor had not intendedto elicit the information and the scope of cross-examination is wide when a defendant makesa general denial of the crime, as Harris had. (/d. at p. 953.) Here, there was no general denial; in fact, appellant concededhis culpability for shooting Kim during his guilt phase opening statement (9RT: 1292-1293), told the jury at the guilt phase closing argumentthat it was “abundantly clear” that appellant shot Kim, and testified to this at the penalty phase. (22RT: 3885; 26RT: 4538.) Also unlike Harris, the prosecutor here pressed appellant until he elicited the inadmissible evidence. (AOB 281-282.) Respondent nevertheless argues that the court properly permitted the prosecutor to ask about the three-month gap between the Outrigger crimes on December 31, 1991, and the El Siete Mares Restaurant crimes on April 18, 1992, because this gap, “rendered it more likely that appellant received his wounds in January or February 1992” than during the Woodley Market crimes. (RB 327.) The Court should reject this relevancy argument because it is illogical and lacks evidentiary support. Respondent does not explain why one should infer that appellant was shot during the first three months of 1992 rather than any other time period predating the Woodley crimes. Thus, even underthe court’s theory that the prosecution was entitled to suggest the bullet was acquired someother time (26RT: 4593), the proper question would only have been whether appellant got shot at a time other than by Kim. (AOB 278-281.) The cross-examination at issue showsthat the prosecutor had a differentinterest, i.e., telling the jury that the prosecution had information that appellant was involved in “the shoot-out” that took place in Hondurasin early 1992. (26RT: 4595.) 138 D. The Prosecution’s Repeated Improper Questions AndInsinuations Constituted Misconduct Contrary to respondent’s argument (RB 325-327), the prosecutor did not have a goodfaith basis for cross-examining appellant based on information in a Honduran newspaperarticle (AOB 285, 24RT: 4192-4193), and the court abusedits discretion by letting him do so. As respondent notes, without a good faith basis that other, uncharged crimes occurred, a prosecutor cannot cross-examine a defendant about them for the purpose of placing “damaging insinuations before the jury.” (RB 323-324, quoting People v. Mickle (1991) 54 Cal.3d 140, 191.) Respondentcites no authority for the argumentthat the unsubstantiated contents of a Honduran newspaperarticle provided a good faith belief in the facts underlying the cross-examination. Indeed, much more is required under this Court’s cases, e.g., some types of institutional and criminaljustice records maysuffice. (See e.g., People v. Pearson, supra, 56 Cal.4th at p. 434 [prosecutor read from complaint charging witness with fraud]; People v. Friend (2009) 47 Cal.4th 1, 80-81 [records]; Peoplev. Hughes (2002) 27 Cal.4th 287, 386-388 [police records]; People v. Mickle, supra, 54 Cal.3d 140, 190-191 [Napa Hospital records]; People v. McPeters (1992) 2 Cal.4th 1148, 1181 [statement given to prosecutor’s investigator].) The prosecutor’s failure to follow the court’s ruling regarding the Honduran newspaperarticle further demonstrates the prosecutor’s lack of good faith. When the prosecutorfirst brought up the possibility of impeaching defense mitigation witnesses using the article, the court observedthat it was a “pretty broad leap” from “just the fact that [appellant] had an article there and there’s a reference to El Morro”to questioning appellant’s witnesses aboutit. (LORT: 3244-3245.) At the prosecution’s 139 request, the court reserved ruling on the matter, but instructed the prosecutor to cometo the side before asking a question aboutit. (19RT: 3245.) Atthe start of the penalty phase, the court asked the prosecutorif he had talked to any witnesses to the alleged robbery/shooting in Honduras so that he had “some goodfaith position as to the accuracyof those statements” in the article.” (24RT: 4192.) Because the prosecution had not, the court prohibitedthe prosecutor from questioning defense mitigation witnesses using the article. (24RT: 4191-4194.) The court granted the prosecutor’s request to renew the motion depending uponthe testimony of defendant and his witnesses. (24RT: 4193-4194.) However, the prosecutor never renewed the motion, or approached the bench before questioning appellant about events apparently described in the article,i.e., a shootoutearly in 1992. (26RT: 4595-4596.) This alone demonstrates the prosecutor’s lack of good faith. (See People v. Glass (1975) 44 Cal.App.3d 772, 781-782 [failure of counsel to abide by courtruling “inexcusable”]; Thomas v. Hubbard (9th Cir. 2001) 273 F.3d 1164, 1175-1177, overruled on other grounds by Payton v. Woodford (9th Cir. 2002) 299 F.3d 815, 829,fn. [1 [intentional misconduct where, after court excluded evidence that defendant used a gun in prior robbery, prosecutor cross-examined defendant on whether he robbed someonewith, andplead guilty to robbery with, firearm].) * The prosecutorinitially described the article as indicating that a suspect named “El Morro”wasinvolved in a Honduran bank robberyin which six or seven bank tellers were killed. (19RT: 3244).) The prosecutor later stated that there were six articles, and two people were shot but not killed. (24RT: 4191-4193.) 140 Respondentargues good faith was supplied by appellant’s response to the prosecutor’s question implicitly acknowledging that a shootout had taken place when he denied involvement. (RB 325, 327.) Appellant disagrees. First, as the court recognized, at most this might show that appellant may have “collected articles.” (24RT: 4193.) Second, a prosecutor may attempt to establish the foundation for relevance of other evidence through questioning a defendant, but only if he has a goodfaith belief that such facts exist. (People v. Lucas (1995) 12 Cal.4th 415, 467.) As explained above, both the nature of the evidence, a newspaperarticle from Honduras,the court’s ruling that the prosecutor could not question witnesses based onit, and the prosecutor’s failure to renew his motion to use the newspaperarticle (24RT: 4191-4194), all establish that the prosecution did not have a good faith basis. The fact remains that the article and its contents were inadmissible evidence, and a “prosecutor commits misconduct by intentionally eliciting inadmissible evidence.” (People v. Hajek (2014) 58 Cal.4th 1144, 1210, original italics; AOB 279-282; see also People v. Wells (1893) 100 Cal. 459, 462 [even where prosecutor has reason to believe the matter insinuated in his question, asking question is error where prosecutor knowsjury should not consider the evidence].) Respondentargues that because the prosecution did not present evidence of other crimes related to the newspaperarticle, there was no misconduct. (RB 327.) However,the fact that the prosecution did not further violate the court’s order is irrelevant, not least because this Court long ago recognized the importance of questions over answers, even when a witness answers in the negative: It is quite evident that the questions, and not the answers, were whatthe prosecution thought important. The purposeof the 141 questionsclearly was to keep persistently before the jury the assumption of damaging facts which could not be proven, and thus impress upon their mindsthe probability of the existence of the assumed facts upon which the questions were based. To say that such a course would not be prejudicial to defendantis to ignore human experience and the dictates of commonsense. (People v. Wells, supra, 100 Cal. at p. 464, quoting People v. Mullings (1890) 83 Cal. 138.) Asa fallback, respondent contendsthat even if the prosecutor framed one question in an objectionable matter, he reframed it, complying with the court’s rulings. (RB 327.) This Court has previously rejected this type of argumentand should reject it here. In People v. Wells, supra, 100 Cal. at pp. 461-462, the prosecutor asked three questions while cross-examining the defendant, then asked whether he had previously admitted to a forgery. (Ibid.) The Court recognized the significance of proper questionsthat set up an improperone. (/bid.) The court in People v. Grimes (1959) 173 Cal.App.2d 248, 253-254, also recognized the “vice”of a line of questioning such as that here whereby the prosecutor unduly emphasizes a matter by repeating or enlarging on a question evenafter getting a negative answer from a witness. Finally, respondent justifies the cross-examination on the ground that the prosecution neededto refute appellant’s weak and “apparently false” evidence that he was shot at Woodley Market. (RB 325-327.) If there is supporting authority for a logical relationship between the strength or weakness of evidence and the scope of cross-examination, respondent does not supply it. Respondentis also wrong on the facts. There was substantial evidence that Kim shot his gun at Woodley Market (AOB 286), and that appellant was shot then. According to the prosecution’s guilt phase 142 evidence, appellant and Kim were together in the close confinesof the freezer when the shooting started, and although witnesses heardthe first shot, no one saw whofired it. (17RT: 2804-2807 [Galvez testimony]; 19RT: 3285-3288 [Rivera testimony].) Similarly, respondent argues that appellant’s testimony was improbable because his blood wasnot foundat the crime scene, and he wasable to participate in the Case Gaminocrimes two weekslater. (RB 325.) However, the record does not support these inferences as it indicates only that a wound such as appellant received “may” bleed. (27RT: 4694-4695.) In any case, the matteris irrelevant to the issue at hand, i.e., the proper scope of cross-examination and prosecutorial error. G. The Errors Were Prejudicial and Reversal Is Required Respondentargues there could be no prejudice because the jury was instructed that the only other crimes evidence it could consider was appellant’s conviction of possession for sale, and crimes associated with Rod’s Coffee Shop,and that given all the aggravating evidence, the “brief . mention of a shootout” could not have tipped the scales in favor of a death verdict.” (RB 328.) Appellant suggests this argumentis disingenuous, considering the prosecutor’s repeated efforts to get before the jury suggestions, insinuations and inadmissible, unreliable evidence that appellant engaged in a shoot-out in Honduras in which he might have been shot, and might have killed people, as described above and in Arguments XV and XVIILB, ante. (See People v. Hall (2000) 82 Cal.App.4th 813, 818 [‘‘A statement of supposed fact not in evidenceis a highly prejudicial form of misconduct. As such, it is a frequent basis for reversal”]; People v. Estrada (1998) 63 Cal.App.4th 1090, 1099 [once improper suggestion made, any question or remark related to earlier one, whether or not admissible, again raises the offensive suggestion].) This is especially so, considering the 143 prosecutor’s penalty phase argumentthat petitioner was a ‘“‘mass killer” (30RT: 5311), who had denied talking to Santana “‘about the eight or nine people that he killed.” (30RT: 5325.) (See State v. Hinds (App.Div.1994) 278 N.J.Super. 1, 17-19 [650 A.2d 350], revd. on other grounds (1996) 143 N.J. 540 [ 674 A.2d 161] [prosecutor's improper questions of witness regarding stolen items in her home, and reference in argumentto his longstanding position as prosecutor, may have conveyedto jury that prosecutor knew of bad acts not in evidence; thus comments were highly prejudicial and deprived defendantoffair trial].) In addition, the denial of involvementthat the prosecution elicited from appellant (26RT: 4595-4596), fit right in with its penalty phase theme that appellant lied under oath and deceived and manipulatedhis religious mitigation witnesses. (See AOB 260-262.) The factthat the court sustained some of appellant’s objections did not mitigate the harm: [W]here the prosecuting attorney asks a defendant questions ... Where the clear purposeis to prejudice the jury against the defendantin a vital matter by the mere asking of the questions, then a judgmentagainst the defendantwill be reversed, although objections to the questions were sustained, unless it appears that the questions could not have influencedthe verdict. (People v. Wells, supra, 100 Cal. at p. 463.) Asargued above, in Argument XV and XVIII, ante, and in the opening brief, the prosecution cannot showthatthe errors did not influence the penalty phase verdicts, and appellant’s death judgments mustbeset aside. // // 144 XX. THE TRIAL COURT ERRONEOUSLY PERMITTED IMPROPER IMPEACHMENT OF APPELLANT’S RELIGIOUS MITIGATION WITNESS Thetrial court prohibited appellant from asking his religious mitigation witnesses whether they believed he wastelling the truth abouthis religious conversion, because that was a question for the jury. Prison minister Arturo Talamante volunteered on direct examination that he had seen only two other inmates with appellant’s level of spirituality. Over defense objection, the court then ruled that the prosecutor could impeach Talamante’s purported assessmentof appellant’s sincerity through extensive cross-examination about one of those inmates, Bedolla Duarte (Bedolla). Despite the irrelevant, collateral, and improperly prejudicial evidence elicited during the cross-examination regarding Bedolla, respondent disagrees that the court’s ruling was an abuseofdiscretion. Respondentstates that appellant called Talamante andothers to testify aboutthe sincerity of appellant’s conversion, which wasappellant’s penalty phase defense. (RB 340, 342.) This misapprehendsthe record. *° Appellant initially proposed to present two religious witnesses as experts to talk about the quality of the content of Exhibit 505,”’ a Bible study *© Respondent’s factual discussion for this argument covers preliminary discussions amongthe parties and court about various aspects of the proposed religious mitigation evidence (see RB 329-333), but does not appear to reference the initial discussion and ruling relevant here,1.e., that religious witnesses could not be asked their opinions whether appellant wastelling the truth regarding his conversion. (25RT: 4363-4373.) 57 Exhibit 505Ais the original Spanish version of appellant’s Bible study, and Exhibit 505 an English translation; only the latter was admitted (continued...) 145 that appellant wrote in jail called “The Fundamental Truth of the Bible.” (25RT: 4362-4363.) They would testify that appellant accurately understood the theology of the Bible, allowing the inference that he had converted in both mind and heart. (25RT: 4362-4365.) Other religious witnesses would then testify regarding religious discussions with appellant. (25RT: 4364.) Appellant’s theory was that a converted person who devoted himself to studying the Bible, and then truly understoodit, could reflect the truthfulness of his conversion. (25RT: 4364-4365.) The court denied appellant’s request on the groundsthat testimony that appellant correctly interpreted the Bible constituted expert testimony on an inappropriate subject for expertise, was irrelevant, and would create confusion under Evidence Code 352.°8 (25RT: 4366-4369.) Thereligious witnesses could testify about their discussions with appellant, but not that they believed appellant had found Godorask the ultimate question,ice., whether appellant wastruthful, as the latter was for the jury to decide. (25RT: 4369-4371, 4373.) Appellant could also elicit testimony that he had a deep understanding ofthe Bible andthe ability to help other inmates accept religion, which wasa benefit to society and a reason to keep him alive. (25RT: 4371-4373.) As argued in the opening brief, appellant abided by the court’s ruling. (AOB 293, 295.) Thus, to the extent respondent suggests that appellant asked Talamante on direct examinationtotestify about the sincerity of appellant’s conversion (RB 340, 342), respondentis incorrect. *7(,. continued) into evidence. (27RT: 4791.) *§ Respondenttherefore incorrectly describes Talamante as ‘“‘a religious expert.” (RB 342.) 146 Consistent with the court’s ruling, defense counsel asked Talamante on direct examination to describe appellant’s knowledgeofthe Bible. (26RT: 4622.) Talamante respondedthatin “the past 25 years, I’ ve only found two people who havethe spirituality that [appellant] has had. In every one ofhis letters, he has demonstrated a love, a desire to give himself over to the Lord... . I saw so muchlearning and so muchspirituality within” a Bible study appellant sent that Talamante typed it up. (26RT: 4622.) Respondentargues that based on the testimony aboutonly finding two people with appellant’s level of spirituality, the court properly ruledthatthe prosecutor could impeach Talamante onhis belief in Bedolla’s sincerity. (RB 340, 342; 26RT: 4641.) However, the court’s ruling was incorrect because,inter alia, it falsely equated testimony on appellant’s level of spirituality with inadmissible opinion testimony aboutthe sincerity of appellant’s religiousbeliefs. Spirituality is defined as “[o]f, relating to, or affecting the human spirit or soul as opposed to material or physical things” and “[o]f or relating to religion or religious belief.” ( [as of June 27, 2014].) Asked to describe appellant’s knowledge of the Bible, Talamante respondeddirectly to the questionbytestifying about the level of appellant’s learning as reflected in his Bible study. (26RT: 4622.) This matched the definition of “spirituality” above, as did his testimony that in every letter appellant wrote to Talamante, appellant demonstrated his desire to give himself over to God. (26RT: 4622.) Respondent nevertheless argues that the prosecution wasentitled to question Talamante’s testimony favorably comparing appellant and others in terms of religious knowledgeandspirituality. (RB 342.) But respondent 147 never explains the leap of logic from that testimonyto the issueofsincerity, arguing only that without the cross-examination on the comparison,the jury would havebeen left with a false or incomplete factual basis upon which to evaluate Talamante’s testimony. (RB 340, 342.) Thus, contrary to court’s ruling and respondent’s argument, Talamante’s testimony above wasnot a commenton the sincerity of appellant or Bedolla. The court also never explained why it was “appropriate” to cross- examine Talamante onhis “belief in the sincerity of [Bedolla] andtest his belief also of [appellant]. (26RT: 4640.) Similarly, when appellant objected to questions about Bedolla’s criminal conduct as impeachmenton a collateral matter, the court repeated, but again did not explain, the logic of its earlier ruling: “I’m allowingit... . [H]e indicated of his 25 years there’s only been two people of the levelof spirituality he has ever experienced,” and the prosecutor hada right to explore that. (26RT: 4641.) In fact, the prosecutor’s questions about whether those whohada true conversion would go out and commit vicious acts of murder, followed by questions revealing Bedolla’s post-conversion criminality (26RT: 4637-4643) were completely collateral and even more removed from the proper scope ofcross- examination. (AOB 292-295.) Respondentaddressesonly one of the cases appellant discussedin his opening brief, People v. Melton (1988) 44 Cal.3d 713, 742-744 (Melton). (AOB 290-291.) Respondent argues that Melton is inapposite because once Talamantetestified about appellant’s “purported religious knowledge and depth of spirituality .... he was subject to cross-examination on his opinion to test the sincerity of appellant’s beliefs.” (RB 342.) As argued above,this conclusion does notstand up to logical analysis, and under the reasoning and holding of Melton, supra, 44 Cal.3d at pp. 743-745, Talamante’s opinion 148 about Bedolla’s believability had no “tendency in reason”to prove or disprove Talamante’s testimony regarding appellant. (/d. at p. 744.) Respondentalso argues that the Court’s analysis in People v. Melton, supra, 44 Cal.3d at pp. 743-744, is inapplicable to the circumstances of appellant’s penalty phase, where the jury’s task was to make an individualized, normative decision regarding punishment. (RB 342-343.) Respondentdoes not otherwise explain or provide authority for this argument. In Melton, supra, 44 Cal.3d 713, 744, the Court relied upon Evidence Codesection 780,” and has applied section 780 to penalty phase issues as well. (See, e.g., People v. Friend (2009) 47 Cal.4th 1, 85-86; People v. Bennett (2009) 45 Cal.4th 577, 603-604; People v. Carpenter (1997) 15 Cal.4th 312, 408; People v. Mickle (1991) 54 Cal.3d 140, 196-197 [all analyzing propriety of penalty phase cross-examination using Evidence Codesection 780).) As respondentpointed out, the jury’s role at the penalty phaseis “to renderan individualized, normative determination about the penalty appropriate for the particular defendant.” (RB 342, quoting People v. Brown (1988) 46 Cal.3d 432, 448, italics in original.) This in turn requires “reliability in the determination that death is the appropriate punishmentin a specific case.” (Id., quoting Woodson v. North Carolina (1976) 428 U.S. 280, 305.) Here, the proceeding was manifestly unreliable because the prosecutor wasable to twice establish that appellant and Bedolla had developed a “close relationship”in jail (26RT: 4637, 4639), and then, over * Evidence Code section 780 providesthat a “court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including butnot limited to” certain listed factors. 149 defense objection, ask a series of questions about whether “someonelike Mr. Bedolla or [appellant]’’ who had found God could nevertheless go out and commit murder (26RT: 4637), and then further tie appellant to Bedolla by twice asking whether Talamante expected that the two would work together if sentenced to same prison. (26RT: 4639-4640.) All this suggested guilt by association because the prosecutor testified, through her question, that Bedolla had just been convicted of three counts of first degree murder, five counts of attempted murder, 12 robbery related counts and 12 counts of assault with a firearm. (26RT: 4643.) The prosecutor again brought the two together whenshe argued,“[w]ell, Mr. Talamante knew about as much about Mr. Sanchez and the crimes he committed as he did about Mr. Bedolla, that he also was a masskiller and robber” who found religion before he committed his crimes. (30RT: 5329.) The court’s rulings regarding the Bedolla cross-examination introduced unreliable, irrelevant and inflammatory evidence lacking in probative value and combined with the prosecutor’s argument, suggested guilt by association. (See People v. Hamilton (1963) 60 Cal.2d 105, 131-132, overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631, 637, fn. 2 [irrelevant penalty phase evidence that drug addicts entered defendant’s residence appearedto be effort to prove “guilt by association’’].) In short, nothing that appellant asked or that Talamante said during his direct examination raised the issue of Talamante’s ability to judge the sincerity of those whom he ministeredinjail. 150 E. The Errors Were Prejudicial and Reversal Is Required Respondent argues that there could be no prejudice because appellant was“an uneducated thug . . . closely associating with Bedolla Duarte,” whichcontradicted Talamante’s testimony aboutthe level of appellant’s Bible study. (RB 343.) For this reason, appellant’s defense was “patently unbelievable,” and gave “the lie to appellant’s gallows conversion.” (RB 343.) This prejudice analysis must be rejected because it assumesthe very evidence appellant is challenging, rather than assessing the possible impact of the error on the trial. (See Chapman v. California, supra, 386 U.S.at p. 24; People v. Watson, supra, 46 Cal.2d at p. 837.) Appellant attempted to rehabilitate Talamante on redirect examination by eliciting testimony that despite the charges against Bedolla, he had providedreligious help to many inmatesin jail (26RT: 4647), but the damage was done. Asarguedin the prejudice discussion in the opening brief, the prosecutor exploited the extensive cross-examination involving Bedolla during closing argument, and separately as well as together with the improper impeachmentof appellant argued in Argument XVII, ante, this had a devastating impact on appellant’s mitigation case. (AOB 260-264, 297- 299.) For this reason, the Court should find prejudicial error. (See, e.g., People vy. Cruz (1964) 61 Cal.2d 861, 868 [“There is no reason why we should treat this evidence as anyless ‘crucial’ than the prosecutor — and so presumably the jury — treated it’].) In addition, the error, and the prosecutor’s exploitationofit, distracted the jurors from the true question before them and playedto their potential biases. (See Brown v. Payton (2005) 544 U.S. 133, 157 (dis. opn. of Souter, J.) [noting skepticism of jurors toward postcrimereligious conversion evidence].) This in turn improperly undermined their 151 impartiality. (See People v. Mendoza (1974) 37 Cal.App.3d 717, 727 | [finding constitutional error where prosecutor, despite a strong case, needlessly coupledit with even stronger appeal to passion and prejudice].) The jury instructionsdid not act as an effective counter. The jurors were instructed at the guilt phase that they were the sole judges of the believability of a witness (11CT: 3101; 21RT: 3677) andat the penalty phase that they were to be guidedbythe earlier instructions that were “pertinent and applicable to the determination of penalty.” (12CT: 3497; 29RT: 5235.) However, given the extensive, inflammatory nature of the cross-examination and the prosecution’s argumentonit, it was too late to unring the bell. (See People v. Hill (1998) 17 Cal.4th 800, 845-846.) Respondentarguesthat the persuasive value of appellant’s penalty phase defense was so minimalthat there could be no prejudice. (RB 344.) However, appellant had only to persuade a single juror to prevent the death sentences from being imposed. (Wiggins v. Smith (2003) 539 U.S. 510, 537; 12CT: 3505; 29RT: 5255.) And this Court has recognized that evidence from religious witnesses about the ability of life-sentenced individuals to changecan alter the outcomeat the penalty phase andthat mitigation evidencethatis not “very compelling” may makethe difference between a life or death verdict even in an egregious case. (People v. Gonzalez (2006) 38 Cal.4th 932, 953-954, 962.) Here, appellant presenting a mitigatinglife history, had no prior violent criminal history, took responsibility for the two murders and mostof the other counts, and presented strong evidence regarding his religious conversion and desire to help others have better lives through spiritual renewal. (See AOB 30-33.) Given this, respondent has not shown, beyond a reasonable doubt, that no juror would have struck a different balance had she been able consider appellant's mitigation case 152 withoutthe inadmissible, irrelevant, collateral and extremely prejudicial nonstatutory aggravating evidenced adduced during cross-examination of Talamante regarding Bedolla. (Chapman, supra, 386 U.S. 18, 24-25.) Forall the reasons above, in Argument XVII, ante, and in the opening brief, appellant’s death judgments must be vacated. H if 153 XXI. THE PROSECUTOR’S IMPROPER ARGUMENT VIOLATED APPELLANT’S RIGHTS TO A FAIR TRIAL AND A RELIABLE PENALTY VERDICT Appellant argued that the prosecutor erred multiple times during closing argumentat the penalty phase and the Court therefore must grant appellant a new penalty phasetrial. Respondent argues that some of appellant’s contentions are waived and noneare meritorious. Appellant addresses only those contentions requiring a response and does not waive other portions of his argument. B. Misstatements And Misrepresentations Of The Law Respondentclaimsthat evidence of premeditation was highly relevant to the jury’s penalty determination because it showedthat appellant’s conduct amounted to far more than the “typical” felony murder. (RB 351- 352.) There are several problems with this contention. First, what the prosecutor actually argued — that a murder with premeditation and deliberation “certainly” was more aggravating than an unintentional or accidental killing during the court of a robbery — was a misstatement ofthe law.” (29RT: 5279.) This Courtrejected a proposed jury instruction to this effect in People v. Ochoa (2001) 26 Cal.4th 398, 454- 455, abrogated on anotherpoint as noted in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.) © The prosecutor argued: “Certainly premeditation and deliberation is certainly more aggravating than an unintentional killing or accidental killing during the course of a robbery, which would also be first degree special circumstancekilling. But this makes it even more aggravated.It’s not legally necessary for you to find premeditation or deliberation, but it’s helpful to your determination in assessing the weightto give to this crime.” (29RT: 5279) 154 The proposed Ochoainstruction would havetold the jury that, “[t]he circumstancesofthe crimes can be either aggravating or mitigating. Their character depends onthe greater or lesser blameworthiness they reveal ranging, for example, from the mostintentional of willful, deliberate, and premeditated murder to the most accidental of felony murders.” (People v. Ochoa, supra, 26 Cal.4th at p. 454.) This Court noted that under California law, both premeditated and felony murders qualify as murderin thefirst degree, and California deems both to be among the most serious kinds of murder. (/d. at p. 455.) California has further categorized murderin the commission of an enumerated felony as a special circumstance, which supports a sentence of death orlife imprisonment withoutpossibility of parole. ([bid., citing § 190.2, subd. (a)(17).) The Court held that the proposed instruction would have incorrectly informed jurors that felony murders are less serious for the purpose of punishment than premeditated and deliberate murders. (People v. Ochoa, supra, 26 Cal.4th at p. 455.) The proposed instruction was also improper because there was no evidencethat the murderat issue was accidental. ([bid.) Here, the prosecutor argued exactly the same hierarchy of blameworthiness that this Court rejected in Ochoa,starting with an unintentional killing during a felony and ending with deliberate and premeditated murder. (29RT: 5279.) Forthis reason, the trial court incorrectly overruled appellant’s objection that the line of argument went beyond the scope ofthe instructions. (29RT: 5279.) The court, in overruling appellant’s objection, characterized the prosecution’s argument as “what the common person would understand as premeditation — or intentional as opposedto the technical elements werefer to.” (30RT: 5299.) The prosecutor’s language, however, strongly implied 155 that she was using a “technical” term, as in the very next sentence, she linked premeditation to what was and wasnot“legally necessary” for the jury to find. (29RT: 5279.) Moreover, the prosecutor could easily have made these points without using these particular technical, legal terms, whichare highly salient in the context of a murdertrial. (See United States v. Sanchez (9th Cir. 2011) 659 F.3d 1252, 1257 [rejecting government’s contention that improper argument was a fair comment on defense argument where“the prosecutor could easily have made these points without” the improper implication]; State v. Akins (2014) 298 Kan. 592, 604-605 [315 P.3d 868, 878] [where no expert testimony on grooming introduced, court found misconduct, rejecting State’s argumentthat prosecutor was merely using word “grooming” as commonly understood, as jury could reasonably infer it referred to defendant’s “grooming” of sexual assault complainants, whichhas specific meaning in context of sexual abuse].) Instead, the prosecutor presented the argument in a mannersuch that it is reasonably likely that the jury was misled into thinking that evidence of premeditation did, by law, make the crime more aggravating. Telling the jury that it was not necessary to make sucha finding for a death sentence did not nothing to reduce the misleading nature of the argument, especially as there were noinstructionsto the contrary either before or after the argument. Moreover, the prosecutor’s argumentto the jury that finding premeditation and deliberation would be “helpful to your determination in assessing the weight to give to this crime,” and reminder that some ofthe jurors had indicated on their questionnaires that a premeditated murder was more aggravating (29RT: 5279), demonstrates that her use of the language 156 was not casual, but directed toward improperly bolstering factor (a) evidence by tying it to inapplicable legal concepts.*! Second, as appellant argued below,the prosecution insisted on proceeding only on a felony murdertheory at the guilt phase, eliminating any chance that the jury might return a verdict of second degree murder. (AOB 300; 30RT: 5297; see also 21RT: 3697-3708 [discussion of guilt phase instructions].) The prosecution had charged appellant in Count 5 with the attempted willful, deliberate, premeditated murder of Medina. (7CT: 2015.) Recognizing the possible conflict between a felony-murder theory as to Hoglund, and a premeditated theory as to the attempted murder of Medina very shortly afterwards, which might benefit the defense, and after the court noted that it would “eliminate an issue on appeal,” the prosecutor decided to withdraw premeditation instructions as to Count 5. (21RT: 3708.) Plainly put, the prosecution should not be permitted to have gained the benefit of not having to prove premeditation and deliberation beyond a reasonable doubtat the guilt phase underjury instructionsthat correctly stated the law, and which the defense could have argued, and then have been permitted to use these termsloosely to unfairly bolster the prosecution’s factor (a) evidence when the jury would decide appellant’s fate. ‘| Sitting jurors V.L., S.B. and E.S., all indicated on page 16 oftheir questionnairesthat they “strongly agree[d]” that anyone whointentionally kills any other person should alwaysget the death penalty. (2SCT, Vol. 6 at 1747, Vol. 5 at 1435 and Vol. 3 at 621.) (Juror R.H. strongly agreed as well, but appellant has not counted this response becausehealso strongly agreed that such a person should never get the death penalty. 2SCT, Vol.1 at 568.) All but one oftherest of the sitting jurors agreed somewhat with the statement. (2 SCT, Vol. 4 at 963, 989, 1148; Vol. 5 at 1409; Vol. 6 at 1669; Vol. 7 at 1903, 1825, 1877.) 157 “California public policy ‘will not permit a litigant “to blow hot and cold” by taking the benefits of a doctrine ‘whenit suits his purpose’ and then repudiating the samefacts ‘whenit is no longerprofitable orto his advantageto do so’ [Citations].” (Kunec v. Brea Redevelopment Agency (1997) 55 Cal.App.4th 511, 525 [agency maynotrely on statutory provision to overcomea conflict of interest and simultaneously deny the existence of the conflict of interest].) Basic notions of equity prohibit such gamesmanship, whichis particularly unseemly in a capital trial where the defendant’s life is at stake. As this Courtstated in granting a new/|penalty retrial because the prosecutor used inconsistent theories of culpability without a goodfaith justification, “‘[{t]he criminal trial should be viewed not as an adversarial sporting contest, but as a quest for truth.’” (In re Sakarias (2005) 35 Cal.4th 140, 159-160, quoting United States v. Kattar (1st Cir. 1988) 840 F.2d 118, 127.) People v. Williams (2006) 40 Cal.4th 287 (notcited by respondent), does not defeat appellant’s claim. There, the defendant was asked to, and did, plead guilty to premeditated and deliberate malice murder, with his attorney noting that he did so only under a felony murder theory, whichis whatthe evidence would have supported. (Jd. at p. 305.) The prosecutor then argued atthe penalty phase that the defendant committed the murder with premeditation and deliberation. (Ibid.) On appeal, the defendant contended that the prosecutorthereby affirmatively misled him regarding the evidence to bepresentedin violation of due process as well as the notice requirement ofsection 190.3. (People v. Williams, supra, 40 Cal.4th at pp. 304-305.) The Courtrejected both arguments. There was no unfair surprise because nothingin the plea colloquy suggested that the prosecution hadagreednotto present evidence 158 or argue duringthe penalty phase that the murder was premeditated. (/d. at p. 305.) The prosecution did not violate the statutory notice requirement because section 190.3 authorizes a prosecutor to present evidenceofthe circumstancesof the crime in aggravation. (Ibid.) Here, in contrast, appellant was not charged with premeditated murders (7CT: 2011, 2015), and the prosecutorspecifically chose to proceed only on a felony murder theory at the guilt phase, as noted above. Respondent argues that even without the prosecutor’s remarks, the actions of appellant were such that the jurors would have “noticed”that his actions demonstrated premeditation and deliberation. (RB 352.) However, the jury neverreceived instructions on premeditation and deliberation, so had no waytoassess the prosecutor’s use of these terms. And, although the prosecutortold the court and counselthat“[o]bviously, we are way beyond” the issue ofa first degree murder conviction on a premeditation and deliberation theory (30RT: 5298), she did nottell the jury this. (Cf. Kaiserv. New York (1969) 394 U.S. 280, 281, fn. 5 [although prosecutor mischaracterized recorded conversation as confession, no prejudice because jury knew prosecutor was referring to recording and there was no representation about evidence which jury wasnotitself in a position to evaluate].) Thus, the jury would have understood that underthe law, premeditated and deliberate murder is more aggravated than felony murder, and waspresentin appellant’s case as demonstrated by the evidence described by the prosecutor. This improperly bolstered the circumstancesof the crime evidence, such that the jury would havefelt that evidence was even more aggravated than it otherwise would be. 159 The jurors were a receptive audiencefor the prosecutor’s misleading and erroneousstatements, because, as noted ante, all the sitting juries agreed or agreed strongly that an intentionalkilling should get the death penalty. This comports with the result of studies showing that manyjurors believe — despite a judge’s instructions — that they must impose the death penalty if the crime was premeditated or intentional. (Blumeet al., Competent Capital Representation: The Necessity ofKnowing and Heeding What Jurors Tell Us About Mitigation (2008) 36 Hofstra L. Rev. 1035, 1037.) Respondent arguesthat there can be no prejudice becausethe jurors, whoare presumedto follow instructions, were given the applicable factors and instructed that their decision must be based on the law and evidence and that the instructions trumped attorney argumentif there was a conflict. (RB 357.) However, neither the instruction on factor (a), circumstancesofthe crime (12CT: 3499; 29RT: 5238-5239), or any other penalty phase instruction, alluded to premeditation and aggravation. (12CT: 3495-3505; 29RT: 5233-5256; 30RT: 5498-5499.) Thus, the instructions, which were given before closing arguments, did nothing to dispel the deceptive waythat the prosecutor described premeditated murder as more aggravating, and then pointed the jurors to various bits of evidence through which the Jury could find premeditation and deliberation. (29RT: 5279-5282.) This including the overall number ofcrimes; the “well over 100 victims;” photos of the codefendants, but not appellant, with guns; photosof appellant and his codefendants wearing jewelry; and jewelry and property foundin the defendants’ possession through search warrants. (29RT: 5279-5282.) Accordingly, the instructions did nothing to counter the prosecution’s legally erroneous argumentandinflation of the circumstancesof the crime evidence. (AOB 300-302.) 160 Forall these reasons,it is reasonably likely that the jury misconstrued or misapplied the prosecutor’s improper argumentthat they should find and use premeditation anddeliberation as factor (a) evidence against appellant. (People v. Clair (1992) 2 Cal.4th 629, 663.) C. ImproperTactics Designed To Mislead The Jury Appellant recognized in the openingbrief that the issue of the prosecutor’s improper argumentalluding to evidence outside the record was imperfectly preserved. (AOB 303.) Forthe reasonsstated there, as well as in Argument XVIII, ante, the Court should review this claim. Respondent argues that the prosecutor’s comments during opening statement merely informed the jury that it must focus its attention on the statutory factors in aggravation, and during closing argument, that the prosecution would focus onfactor (a) evidence. (RB 356.) Were that the case, the prosecutor could have used straight forward languageto thateffect. Instead, she told the jury the prosecution “chose”to rely on the guilt phase evidence atthe penalty phase. (29RT: 5261.) To “choose”is not to “focus.” Choosing meansto “decide on a course of action, typically after rejecting alternatives” and to “pick out or select (someone or something) as being the best or most appropriate of two or more alternatives.” (Oxford English Dictionary [as of July 7, 2014].) By using the languageshedid, the prosecutorinvited the jury to speculate on the evidence the prosecution “chose”not to select. This dovetails with the prosecutor's similar remark during the penalty phase opening statementthat they were not permittedto tell the jury everything about the defendants. (AOB 302-303.) 161 It is improperfor the prosecution to hint that but for certain rules,it would have presented other evidenceto the jury. (See People v. Bolton (1979) 23 Cal.3d 208, 212 & fn. 1 [where defendant had impeached prosecution witness with prior felonies, improper for prosecutor to argue that but for certain rules of evidence he could show that defendant was “just as bad a guy”); Kitchell v. United States (1st Cir. 1966) 354 F.2d 715, 719 [improperto refer jury to “certain rules of evidence”that the judge would instruct on, regarding limits on prosecution evidence]; People v. Castricone (N.Y. App. Div. 1993) 604 N.Y.S.2d 365, 366 [198 A.D.2d 765, 766] [improperfor prosecutor to insinuate during summation that dueto a “rule of law,”she was notallowedto presentto jury other information to support defendant’s conviction].) Respondentarguesthat there can be no prejudice becausethe jury wasinstructed thatits decision had to be based on the law and evidence, and that the court’s instructions trumped attorney argumenton the law. (RB 357.) However, the remarks were not madein isolation. Petitioner incorporates by reference herein Arguments XV, XVIII, XIX, and XX,ante, and in the opening brief. In light of the prosecution’s numerousefforts, described in these arguments, to lead the jury to speculate that appellant had previously killed people in his own country,it is reasonably likely that the jurors misconstrued or misapplied these improper remarks despite any general instruction. D. Improper Vengeance Argument Respondentincorrectly argues that this claim has been forfeited because appellant merely commented upon codefendant Navarro’s objection, rather than objecting and requesting an admonition. (RB 358-359.) As stated in appellant’s opening brief, however, all defendants were deemed to 162 join in all of each others motions/objections unless they specifically excluded themselves. (AOB 273, fn. 65.) Here, the court overruled the first defense objection to the vengeance argument without allowing counsel to approach. (30RT: 5367.) When defense counsel were permitted to argue the matter, the court defended the prosecutor, incorrectly characterizing her argument as merely saying that the jurors swore to uphold the law. (30RT: 5371.) After defense argument, the court again overruled the objection, but told the prosecutorto “stay away from any further discussion of vengeance.” (30RT: 5372.) Underthese circumstances, and as demonstrated ante, in Argument XVIII, any further requests would have beenfutile. Moreover, even if appellant simply had commented on Navarro’s objection, as respondent maintains, his objection would be preserved. (See People v. Chism (2014) 58 Cal.4th 1266, 1291 [on appeal, defendant may raise a claim his codefendant madeattrial even though defendantdid not join in the objection, where defendant reasonably believed doing so would be futile].) Respondent argues that the prosecutor’s vengeance arguments were madeto counter possible defense arguments that sympathy and mercy should mitigate the aggravating factors. (RB 359.) The record shows, however, that the prosecutor introduced the topic to counter possible defense argumentsthatthe death penalty is “pure revenge.” (30RT: 5365.) Of course, the defense had not yet argued, and in any case, would not have opened the doorto the prosecutor’s misconduct. (See People v. Pic’! (1981) 114 Cal.App.3d 824, 871, (disapproved on other grounds in People v. Kimble (1988) 44 Cal.3d 480, 496-498 [“‘two wrongs do not makea right”; 163 defense counsel’s misconduct doesnotjustify tit-for-tat answering misconductby prosecutor].) Respondentarguesthat the prosecutor’s statement that “[w]e owe the victims in this case vengeance aspart of our system ofjustice and as sanctioned by the lawsof this state, and that you swore to uphold asjurors in this case in determining penalty” (30RT: 5367), reasonably related to the jurors’ oath to follow instructions, and thus to California’s laws. (RB 360.) It appears thatthe trial court overruled the defense objection on the same theory, as it remarkedthat the prosecutor had “refined [her argument]. They swore to uphold the law, not to impose death, is what she argued.” (30RT: 5371.) This interpretation of the prosecutor’s remarks is specious for several reasons. First, even though vengeance may be a penological justification for the death penalty,it is not part of the law that the jurors swore to uphold. (AOB 304-305.) For this reason, vengeance was not“owed”to the victims as a result of the jurors’ oaths. Rather, the jury’s duty is to weigh the aggravating and mitigating factors and decide whether death orlife without the possibility of parole is more appropriate. (People v. Boyde (1988) 46 Cal.3d 212, 253-254.) Thus, the prosecutor improperly described the jury’s role, and in that regard misstated the law. This in turn diverted the jurors’ attention from being able to consider and giveeffectto all relevant mitigating evidence as required by the Eighth and Fourteenth Amendments. (Boyde v. California (1990) 494 U.S. 370, 377-378; Eddingsv. Oklahoma (1982) 455 U.S. 104, 110-113.) Moreover, the prosecutor’s suggestion to the jury thatit “owed” something to the victims was not an argument aboutthe evidence presented during trial. Rather, it was an appealto the jurors’ self-interest and 164 suggested that they had a personalstake in a certain outcome. Anattorney’s appeal in closing argumentto the jurors’ self-interest is improper because such arguments tend to underminethe jury’s impartiality. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 796; People ex rel. Dept. of Public Works y. Graziadio (1964) 231 Cal.App.2d 525, 533-534 [the “vice” of appealing to jurors’ self interest violates the fundamental conceptof an objective trial by an impartial jury]; see also People v. Pitts (1990) 223 Cal.App.3d 606, 695-696 [prosecutor’s argumentthat “if we fail to persuade all 12 of you... . it wipes out six months” improperly exerted pressure on jurors and appealed to their self-interest to take up a personal point of view|.) Second, by using “we,” the prosecutor improperly teamed up with the jurors to the exclusion of the defense. “‘The prosecutor speaksnot solely for the victim, or the police, or those who support them, but for all the People. That body of “The People” includes the defendant and his family and those who care about him.’” (People v. Eubanks (1996) 14 Cal.4th 580, 589-590, quoting Corrigan, On Prosecutorial Ethics (1986) 13 Hastings Const. L.Q. 537, 538-539.) The phrasing linked back to the start of prosecutor Speer’s closing penalty phase argument where (without objection), she thanked the jury “[f]rom the five police agencies, the 10 investigating officers, Deputy Perales, the surviving victims, and the families of the non-surviving victims, Mr. Grosbard, and myself” for their time and consideration. (29RT: 5260-5261.) Although appellant did not object to this, the vengeance argument should be viewedin this context. The prosecutor’s vengeance argument wasnot, as respondent maintains a “brief, isolated reference” that passes muster under Peoplev. Zambrano (2007) 41 Cal.4th 1082, 1178. (RB 359-360; AOB 304-306.) 165 Rather, over the course of three pages (30RT: 5365-5367), the prosecutor built up to her exhortation that the jury “owed” the victims vengeance, because the survivors of Kim and Hoglund, the robbery victims, witnesses 3D 66“and all the sea of faces” before you,” “would like to go out and probably achieve some type of vengeance” because they could not personally “take the defendants out and shoot and torture and terrorize them or gun them down on 52ndStreet.” (30RT: 5367.) This aspect of the argument was improperas there wasno basis in evidence for whatthe victims wanted to do; it was irrelevant; it went beyond any permissible policy argument; it could only appealto the passions and prejudice of the jury; and was impermissibly based on victim impact evidence,i.e., the supposed wishesof the victims and their families. (AOB 306; see United States v. Lighty (4th Cir. 2010) 616 F.3d 321, 360-361 [holding that both subtle and direct argumentthat victim’s family was asking jury to imposedeath penalty was improper and violated Eighth Amendment as it lacked factual support and was based on victim impact evidence].) Accordingto the prosecutor’s argument, appellant’s jurors were not acting “alone” but instead were acting as the representatives of the People of the State of California with a license — indeed, a powerful revenge-motivated obligation — to kill. The court’s earlier advisementto the jurors thatif anything a lawyersaid conflicted with the court’s instructions, they should follow the latter (12CT: 3497; 29RT: 5234), was “not equivalent to advising it to consider only the facts of the immediate case, rather than the possible ” During the prosecution penalty phase closing argument, the prosecution displayed posters with photos ofvictim-witnesses. (29RT: 5262.) 166 societal consequencesofits ruling.” (United States v. Sanchez, supra, 659 F.3d at p. 1258.) For these reasons as well as those argued in the openingbrief,it is reasonably likely that the jury interpreted and took to heart the argumentas an exhortation to vote for death penalty to avenge the victims, rather than properly basingits decision on the aggravating and mitigating factors, and making an individualized determination of appellant’s death-worthiness. (Boydev. California, supra, 494 U.S.at pp. 377-378; Eddings v. Oklahoma, supra, 455 U.S. 104, 110-113.) E. Improper Argument Under Caldwell v. Mississippi Respondentfirst argues that Caldwell v. Mississippi (1985) 472 U.S. 320, is inapplicable because the prosecutor merely compared the appellant’ S crimes with the safeguards built into our justice system that protect people, like appellant, who are charged with crimes. (RB 361-363.) However,the suggestion that appellant is more death worthy because he did not accord the victims due processof law is contrary to the Eighth Amendmentbecausein no homicidecase, capital or non-capital, will the defendantbe able to make such a showing. (See Le v. Mullin (10th Cir. 2002) 311 F.3d 1002, 1016 [state’s contention that it is unfair for defendantto live since victim is dead created “‘super-aggravator”applicable in every death case and which no amount of mitigating evidence can counter, andifjury agrees they may not even consider mitigating evidence].) This proffered basis for the imposition of a death sentence does nothing to channelthe juror’s discretion, and it operates to preclude consideration of those factors relevantto the determination ofa sentence in a capital case. (See Lockett v. Ohio (1978) 438 U.S. 586; Eddings v. Oklahoma, supra, 455 U.S 104.) 167 Next, citing Romano v. Oklahoma (1994) 512 U.S. 1, 9, and this Court’s cases subsequentto that opinion, respondent argues that there was no error because appellant’s jury was not affirmatively misled abouttheir role in choosing the appropriate sentence. (RB 362-363.) However,as this Court has noted, “Caldwell’s prohibition against misleading the jury as to the importanceof their role ‘is relevant only to certain types of comment—those that mislead the jury as to its role in the sentencing process in a waythat allowsthe jury to feel less responsible than it should for the sentencing decision.’” (People v. Harris (2005) 37 Cal.4th 310, 356, quoting Darden v. Wainwright (1986) 477 U.S. 168, 184, fn. 15.) As appellant argued in the openingbrief, the prosecutor’s argumenthere did just that. (AOB 306-307.) In any case, even if the prosecutor’s argumentdid not violate the Caldwell prohibition, it was still misconduct. Caldwell recognized that a certain kind of prosecutorial argument, if not corrected by a judge, was so damagingthatit is likely to lead to reversal and established a particular standard of review for the error. (Caldwell, supra, 472 U.S. at pp. 340-341.) Caldwell does not stand for the proposition that any lesser attempts to mislead the jurors so as to diminish their sense of responsibility are acceptable and nonharmful. Respondent arguesthat various instructions would have cured any prejudice. (RB 363.) For the reasons argued post, in subsection G., appellant disagrees. F, Other Flagrant Misconduct Respondentarguesthat the prosecutor’s deterrence argumentwasat most “ephemeral” (RB 365) and that her comment on method of execution was a “passing reference” and “minor comment”andthat the prosecutor 168 “may have misspoken”in seeking to counter a possible defense argument on method of execution. (RB 367-368.) In fact, the prosecutor knew the court the court had ruled that the topics were not permissible areas of argument, yet nevertheless argued them. (AOB 307-308.) Moreover, the court’s rulings in this regard followed long-established California law. (People v. Collins (2010) 49 Cal.4th 175, 233, citing People v. Whitt (1990) 51 Cal.3d 620, 644; People v. Thompson (1988) 45 Cal.3d 86, 138; People v. Harris (1981) 28 Cal.3d 935, 962 [neither party may offer evidence on the manner in which executionsare carried out]; see also People v. Love (1961) 56 Cal.2d 720, 731 [misconduct to argue general deterrent effect of capital punishment]; People v. Harris (2005) 37 Cal.4th 310, 356 [Court has “long held that the jury should not concernitself with protecting society’].) For this reason alone, the prosecutor’s deterrence and execution method arguments wereerror. Respondentargues that because the court instructed the jury that it could not consider deterrence, there was no prejudice as the jury is presumed to follow the law. (RB 365.) Appellant disputes that contention. The instructions here, given before the prosecutor’s argument, “did not neutralize the harm of the improper statements because ‘{t]hey did not mention the specific statements of the prosecutor and were not given immediately after the damage was done.’” (United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1151, quoting United States v. Kerr (9th Cir. 1992) 981 F.2d 1050, 1054; see also United States v. Perlaza (9th Cir. 2006) 439 F.3d 1149, 1172 [curative instructions inadequate where they were delayed over a period that spanned 50 pagesof transcript; failed to tie in the prosecutor’s misconduct; and nevertold the jury that the prosecutor’s statement was improper].) 169 Method of Execution Asargued in the preceding subsection, the prosecutor erred when she discussed method of execution because under California law andthetrial court’s ruling, it was a prohibited topic. Citing Antwine v. Delo (8th Cir. 1995) 54 F.3d 1357, appellant also argued that the prosecutor’s argument wasanother attempt to minimize the burden onthe jurors in sentencing someoneto death. (AOB 308.) Respondent argues that the prosecutor below did not make statements similar to those of the Antwine prosecutor. (RB 368.) This is a distinction without a difference. (Compare Antwine v. Delo, supra, 54 F.3d at p. 1361 [with gas chamberexecution, defendantwill “be put to death instantaneously”] and 30RT: 5368 [“any means of execution in our state ...is done... with great attempts to make it as humane as possible”].) Moreover, the prosecutor argued facts not in evidence whenshetold the jury that executions in California are done as humanely aspossible. As the prosecutor undoubtedly knew,at the time of her argument on November 15 and 16, 1994 (29RT: 5062;30RT: 5294), a federal court had recently ruled that execution by lethal gas constituted cruel and unusual punishment. Contrary to the argumentof the Antwineprosecution,the district court found that given evidence ofintense physical pain during the condemned inmate’s period of consciousness, as well as the overwhelming evidenceofsocietal rejection oflethal gas as method of execution, execution by lethal gas violated the Eighth Amendment. (Fierro v. Gomez (N.D. Cal.1994) 865 F.Supp. 1387, 1415, affd. (9th Cir. 1996) 77 F.3d 301, cert. granted, 170 judgmentvacated (1996) 519 U.S. 918, and vacated sub nom. Fierrov. Terhune (9th Cir. 1998) 147 F.3d 1158.) Because of the recent publicity, the prosecutor here was faced with the real possibility that jurors were aware that execution by lethal gas, the then current method of execution in California, had just been foundto be cruel and unusual punishment. (See, e.g., Morain, Judge Bars Use of Gas Chamberin Executions, Los Angeles Times (Oct. 5, 1994), Part A, p. 1; Why Fightfor a Cruel Method? California Shouldn’t Appeal Court Ruling that Shut the Gas Chamber Door, Los Angeles Times (Oct. 6, 1994), Part B, p. 6; Gladstone, Gas ChamberIssue Enters Campaign, Los Angeles Times(Oct. 6, 1994) Part A, p. 3; Gas Chamber Barred, (October 13, 1994), Part B, Letters.) Indeed, her reference to “any meansof execution in ourstate” (30RT: 5368), suggests that this was the case. The prosecutor could have asked the court for an instruction that execution method could not be taken into account in sentencing. This would have dealt with any problem ina neutral and appropriate way. Instead, the prosecutor chosetotestify to inadmissible and unsubstantiated information about how executionsare carried out in California. 3 The United States Supreme Court vacated the Ninth Circuit’ s decision affirming the district court’s decision and remandedthe case for further decision in light of section 3604, which had recently been amended to makelethal injection the fallback method of execution if a prisoner did not elect between lethal gas and lethal injection. (Fierro v. Terhune, supra, 147 F.3d at pp. 1159-1160.) On remand, the Ninth Circuit instructed the district court to vacate its previous judgement, subject to reinstatement on the motion of from a death row inmate with standing to present a ripe claim. (Id. at p. 1160.) Thus, the district court’s original finding thatthe lethal gas execution violated the Eighth Amendmentwere not questioned. 171 The prosecutor also improperly vouchedfor the constitutional sufficiency of executions in California whenshe told the jury in California, they are done “with great attempts to make it as humaneaspossible.” | (30RT: 5368.) Of course the prosecutor had no idea what execution method might be used in the future, and should not have speculated “as to what future officials in another branch of governmentwill or will not do.” (People v. Thompson (1988) 45 Cal.3d 86, 139.) Moreover, in lightof the difficulty that California has had coming up with constitutionally sufficient regulations for conducting executionsas well as recent evidence of “botched” executions elsewhere using lethal injection cocktails, factual support for the prosecutor’s prognostication is utterly lacking. (See Morales v. Tilton (N.D. Cal. 2006) 465 F.Supp.2d 972, 975 [citing evidence suggesting that six of the 11 California inmates executed by lethal injection may have been conscious when injected with second and third drugs in cocktail, which would cause an unconstitutional level of pain if injected in a conscious person]; Sims v. Dep’t of Corr. & Rehab. (2013) 216 Cal. App. 4th 1059, 1075 [affirming portion of judgmentthat invalidated California’s execution protocol for substantial failure to comply with Administrative Procedures Act]; (as of September 23, 2014) [discussing problems in 2014 with executions in Ohio and Oklahoma].) Asrespondentpoints out, this Court has rejected similar claims. (RB 367-368, discussing People v. Collins, supra, 49 Cal.4th at pp. 231-234.) In particular, the Court questioned the rationale of the Antwine v. Delo court, finding no relationship between a juror’s relief over not condoning gratuitous suffering and their decision of whether or not to vote for a death 172 sentence. (/d. at p. 233.) Appellant respectfully disagrees with this reasoning. This Court rejects method of execution evidence and argument because “evidence on how the death penalty would be carried out” is “more an attemptto appealto the passionsof the jurors” (People v. Thompson (1988) 45 Cal.3d 86, 139); because “a vivid account of an execution” has no place at the penalty phase andis unrelated to the individualized sentencing task before the jury (People v. Grant (1988) 45 Cal.3d 829, 850); and 6bebecause “‘f]urther dramatization . . . [about execution] distract[s] the jury's attention from the task at hand.’” (People v. Pride (1992) 3 Cal.4th 195, 260-261, quoting People v. Morris (1991) 53 Cal.3d 152, 218.) The Court thus acknowledges the possible impactthis irrelevant testimony might have ona jury. This is consistent with evidence suggesting that the public in general prefers more humane execution methods. (Radelet, The Changing Nature ofDeath Penalty Debates (2000) 26 Annu.Rev. Social. 43, 54-55 [citing studies, including one in 1991].) There is no reason to think that appellant’s jury was different. The prosecutor inserted completely unsupported evidence outside the recordinto the deliberations. The prosecutor then arguedit was relevant and took unethical advantage of defense counsel's inability to answer the false evidence either with contrary evidence or argument. Because respondent inserted the issueinto deliberations, and in such an unreliable and improper way, respondent cannotcarryits burden of proving that any error was harmless. (Chapman, supra, 386 U.S. at p. 24.) The courtinstructed the jury after a recess that it was not to consider method of execution. (30RT: 5375.) However, the court did not inform the jury that the argument was in anyway improperand indeed, asked the 173 prosecutorif she could give the admonition and then apologized to the prosecutorfor interrupting her to give it. (30RT: 5374.) Considering the salience of the issue for the jury and the mannerin which the admonishment wasgiven,it is reasonablylikely that it did not dissipate the effect of the improper argument. G. The Prosecutor’s Argument Was Cumulatively Prejudicial Respondentarguesthat evenif there was prosecutorial error, there was noprejudice based on several factors. (RB 378-379.) First, respondent contendsthere is no prejudice because the aggravating evidence was overwhelming. (RB 379.) As argued ante, in Argument XV, the Court should reject this contention. Second, respondent arguesthat the jury’s failure to return death verdicts against appellant’s two codefendants demonstrates there was no prejudice. (RB 379.) This is sheer speculation about what would have made a difference to appellant’s jury. The argumentis also flawed because ascribing to it would indemnify prosecutors in all codefendantcases with split penalty phase verdicts, such as occurredhere. Third, respondentarguesthat the jury was able to compare the evidence with the prosecutor’s remarks because noneofthe prosecutor’ s argumentreferred to facts outside the scope ofevidence. (RB 379.) As argued above andin the openingbrief, appellant strongly disagrees with this contention. Fourth, respondent argues that none of the prosecutor’s comments in themselves were so egregious as to have prejudiced appellant. (RB 379.) This does not respond to appellant’s argumentthat the prosecutor’s errors were cumulatively prejudicial. 174 Fifth, a prosecutor’s argumentat the penalty phasecarries great weight with the jury because ofspecial regard jurors hold for prosecutors. (Berger v. United States, supra, 295 U.S.at p. 88; People v. Hill, supra, 17 Cal.4th 800, 828.) In addition, because the jury has accepted the prosecutor’s position at the guilt phase, the jury may view her as more credible than the defense andbe predisposed to accept her view conceming the criteria to use in making the penalty decision. (White, Curbing Prosecutorial Misconductin Capital Cases: Imposing Prohibitions on improper Penalty Trial Arguments (2002) 39 Am. Crim. L. Rev. 1147, 1150 [White].) Finally, respondent contendsthat unspecified instructions given by the court would have remedied anypossible error, and that counsel’s argumentscarry less weightthan instructions. (RB 379.) This ignores several aspects of the issue. To begin with, improper argumentis more likely to be prejudicial wheretrial court overrules a defendant’s objection to remarks, as consistently occurred here. (People v. Hall (2000) 82 Cal.App. 4th 813, 817-818.) Next, with the exception of the court’s instruction not to consider deterrence and admonishment regarding method of execution (29RT: 5242: 30RT: 5375), there were nocurative instructions to mitigate the impact of the prosecutor’s remarksandthe court nevertold the jury that any of the prosecutor’s remarks were improper. (See Donnelly v. De Christoforo (1974) 416 U.S. 637, 644 [finding that court’s instruction to jurors that prosecutor’s comment was unsupported and they should disregard it was sufficient to cure any prejudice].) Furthermore, as argued above,failure to correct the improper Statements at the time they were made cannotbesalvaged bythelater 175 generalized jury instruction reminding jurors that a lawyer’s statements during closing argumentdo not constitute evidence. (United Statesv. Weatherspoon, supra, 410 F.3d at p. 1151; United States v. Perlaza, supra, 439 F.3d at p. 1172.) For this reason, the court’s later, generalized instructions did not dissipate either the individual or cumu lative impact of the prosecutor’s errors during argument. Last, even whenthe jury receives proper instructions from the judge, empirical evidence indicates thatthe jury is likely to be confused asto the criteria it should employ in makingits life-or-death sentencing decision. (White, supra, 39 Am. Crim. L. Rev.at pp. 1149-1 150.) Here, the prosecutor’s arguments misinformedthe jury about the proper sentencing criteria, introduced extraneousandirrelevantfactors into the jury’s deliberations, communicated misinformation, and deflected the jury from its task of evaluating the mitigating and aggravating evidence to make an individualized sentencing decision. It is reasonably likely therefore that under all these circumstances,the general penalty phaseinstructions did not cure the harm from the prosecutor’s numerous improper arguments. The prosecutor’s argument wasprejudicial, and as argued in the openingbrief, under any standard of review, appellant’s death sentences must be reversed. (AOB 313.) H 176 XXIII. THE TRIAL COURT ERREDIN DENYING APPELLANT’S MOTION FOR MODIFICATIONOF THE DEATH VERDICT In the openingbrief, appellant established that the court erred in denying his motion to modify the verdict of death by relying upon evidence not in the record, including the uncharged crimeof sexual assault; rejecting appellant’s mitigating evidence on the ground thatit did not serve as a moral justification for his conduct; and apparently considering a posttrial letter appellant sent to the court. (AOB 324-326.) Respondentclaimsthat(1) appellanthasforfeited this claim byfailing to objectto the trial court’s reasonsfor denying the motion; and (2) the court properly fulfilledits obligations under Penal Code section 190.4, subdivision (e), and the federal Constitution. (RB 384-393.) Appellant disagrees with both points and addresses the forfeiture issue and the court’s improper application of law; respondent’s remaining contentions with respect to the instant argument raise no significant issues beyond those addressedin appellant’s opening brief, and therefore no further reply is required. Thenotion that appellate review oferrors in the ruling on an automatic motion to modify may be waived orforfeited by failure to object appearsto derive from an unexplained reference in People v. Hill (1992) 3 Cal.4th 959,overruled on another pointby Price v. Superior Court (2001) 25 Cal.4th 1046, where the defendantargued thatthe trial court erred whenit stated at the beginning of the hearing on the automatic application under section 190.4, subdivision (e), that it had read and considered the probation officer’s report. (See People v. Riel (2000) 22 Cal.4th 1153, 1220; People v. Hill, supra, 3 Cal.4th at pp. 1012-1013.) This Courtrejected Hill’s claim on the merits but also stated: “As respondent points out, however, defendant’s 177 R y u i t i ca te ae d aol g L Ba ne da n oe e d i g e SA RE E e i d e i i ee t assertionof error fails at the threshold becausehefailed to object at the hearing except to challenge onespecific portion of the report.” (People v. Hill, supra, at p. 1013.) The Court hassince held that failure to make a specific objection to the court’s ruling at the modification hearingforfeits the claim. (People v. Riel, supra, 22 Cal.4th at p. 1220.) However, in People v. Ochoa (1998) 19 Cal.4th 353, the Court reviewedthe trial court’s ruling on a motion to modify the death verdict despite the fact that the defendant did notfile papers or even arguethe motion. (/d. at pp. 469-470.) Relying upon its own readingof the record, the Court concludedthatit could not say “that there was muchto add to what counsel had already presented, giventhetrial court’s degree of conscientious engagement.” (/d. at p. 470.) Thus, wheretrial counsel made no arguments at all, the Court took uponitself a review of the record to determine whether error occurred, but when defendantspoint outspecific factual and legal errors readily apparent from the record, as appellant has, the Court finds they are waived. | These two approachesare inconsistent. The Court’s former approach is consistent the constitutional significance of the automatic nature of the motion to modify. Both “this court and the United States Supreme Court havecited the provisions of section 190.4, subdivision (e), as an additional safeguard against arbitrary and capricious imposition of the death penalty in California.” (People v. Lewis (2004) 33 Cal.4th 214, 226; see also Pulley v. Harris (1984) 465 U.S 37, 51-53 [holding that review under § 190.4(e)is one of four statutory safeguards in California’s capital sentencing scheme that make comparative proportionality review unnecessary underthe Eighth Amendment].) Because the trial court’s independent review of the sentencing verdict providesa critical safety valve to ensurereliability and 178 fairness of the ultimate sentence, this Court should review thetrial court’s independent weighing of the aggravation and mitigation circumstances below without regard to preservation of specific factual or legal arguments. Failure to address the merits of appellant’s claim is also inconsistent with anotherline of authority from this Court. In People v. Stanworth (1969) 71 Cal.2d 820, 833 (Stanworth), 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 proceedings hadin the trial court, to the endthat it be ascertained whether defendant was given a fair trial.”’ Carrying outthat duty, the Court in People v. Easley (1983) 34 Cal.3d 858, 863-864, reversed a judgment of death upon groundsraised for the first time in an amicuscuriaebrief in support of a petition for rehearing followingthefiling of an opinion by this Court. Similar reasoning indicates that errors in the consideration of the automatic motion to modify cannotbe forfeited by failure to objectin 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. Stanworth is plainly based on the same concern aboutthe public interestin the reliability of judgments of death that motivates the United States Supreme Court’s Eighth Amendmentjurisprudence. Finally, of course, 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, supra, 17 Cal.4th at p. 161, fn. 6.) It should reject respondent’s invitation to refuse consideration and instead review whetherthe death penalty was properly evaluatedattrial to preventthe ultimate injustice of a flawed capital sentence. 179 This is especially so giventhatthe trial court assessed appellant’s mitigation evidence under an unconstitutional standard (AOB 325-326), in contravention of its statutory duty to “make an independentdetermination whetherimposition of the death penalty upon the defendantis proper in light of the relevant evidence and the applicable law.” (People v. Rodriguez (1986) 42 Cal.3d 730, 793, italics added.) A “litigant mayraise forthe first time on appeala pure question of law which is presented by undisputed facts, (Hale v. Morgan (1978) 22 Cal.3d 388, 394; People v. Hines (1997) 15 especially when the enforcementof a penal statute is involved.” Cal.4th 997, 1061 [considering constitutionality of statute though issue not raised below].) Here, the record of the court’s ruling on the automatic modification present undisputed facts, appellant raises a pure question of law, and the penalstatute at issue is central to maintaining the constitutionality of California’s statutory death penalty scheme. (Pulley v. Harris, supra, 465 U.S at pp. 51-53.) Appellant argued that the trial court erred when it found “that the evidence relating to Mr. Sanchez-Fuentes’s upbringing andreligious conversion does not serve as a moraljustification or extenuation for his conduct.” (AOB 325-326; 30RT: 5610.) Respondent counters that the court’s reference to “moraljustification or extenuation” tracked the language in the jury instruction on factor (f) and wasconsistent with the factor (k) instruction. (RB 391-392.) The jury was instructed underfactor (f) that it could consider whether the offense ‘“‘was committed under circumstances which the defendant reasonably believed to be a moraljustification or extenuation of his conduct.” (29RT: 5239-5240.) Factor (f) thus addresses a defendant’s beliefs and actions at the time of the crime. Factor (k) of section 190.3 180 allows the sentencer to consider any circumstances that may extenuate the gravity of the crime. (29RT: 5240.) In contrast, the court’s statement, madeafterit described the specific evidence it considered as mitigating (31 RT: 5608-5609), demonstrates that it at least discounted appellant’s mitigating evidence of his upbringing and conversion becauseit did not somehow morally justify or extenuate his criminal conduct. This is contrary to the Eighth Amendmentbecause a defendantneed not establish a nexus between his mitigation evidence and the crime. (Tennard v. Dretke (2004) 542 U.S. 274, 288-289 (Tennard) {holding that state’s test requiring a “nexus” betweenpetitioner’s evidence of impaired intellectual functioning and the crime was incorrect under Eighth Amendmentlaw]; Smith v. Texas (2004) 543 U.S. 37 [“unequivocally reject[ing]” any test requiring a causal nexus between mitigating evidence and the crime]; see also Brewer v. Quaterman (2007) 550 U.S. 286, 295-296 [standard that jury need only give “sufficient mitigating effect” to defendant’s mitigating evidence has “no foundation in the decisions of this Court’’].) Further, after discounting the relevance of all of appellant’s life history and religious conversion evidence becauseit did not directly mitigate appellant’s crimes, the court went on to reject “such mitigation”as insufficient to serve as a basis for a sentence less than death. (31RT: 5610- 5611.) Thus, the court was under a grievous misunderstanding ofthe applicable law whenit considered the significance of appellant’s mitigation evidencein light of the aggravating evidence. Appellant’s mitigation evidence wasplainly relevant for mitigation purposes underthe high court’s precedents, even those predating Tennard. (See Smith v. Texas (2004) 543 U.S. 37, 45, citing, e.g., Payne v. Tennessee 181 (1991) 501 U.S. 808, 822; Boyde v. California (1990) 494 U.S. 370, 377-378; Eddings v. Oklahoma (1982) 455 U.S. 104, 114.) Thetrial court, however, weighed the mitigating evidence under an unconstitutionally high standard. Becausethetrial court “assessed [appellant’s] claim under an improperlegal standard,” (Tennard, supra, 542 U.S.at p. 287), and “at no point ... manifest{ed] an intent to apply any other standard” this Court cannotsay the court correctly applied the law orthat the error had no impact on the court’s decision to deny the motion. (People v. Burgener (2003) 29 Cal.4th 833, 891-892.) Becausethe trial court’s error was contrary to the dictates of the Eighth and Fourteenth Amendments, the standard of Chapmanv. California, supra, 386 U.S.at p. 24, applies. (People v. Jackson (2014) 58 Cal.4th 724, 771.) Here, given the trial court’s clear pronouncement, the prosecution cannot show, beyond a reasonable doubt, that the error did not contribute to the court’s denial of appellant’s motion to modify the death verdict. For the same reason, there is no reasonably possibility that the error did notaffect its ruling. (/d.) Accordingly, this Court must vacate the death judgments and remand for a new hearing pursuantto section 190.4, subdivision (e). (People v, Burgener, supra, 29 Cal.4th 833 at p. 893.) / / 182 CONCLUSION Forall the reasons above and in the openingbrief, the convictions on counts 5, 10 through 18, 21, 24 through 27, 28, 30, 31 and 33 and the death sentences must be reversed. DATED:September 30, 2014 Respectfully submitted, MICHAELJ. HERSEK State Public Defender ding Thurs SARA THEISS Deputy State Public Defender Attorneys for Appellant 183 CERTIFICATE OF COUNSEL (CAL. RULES OF COURT, RULE8.630(b)(2)) I, Sara Theiss, am the Deputy State Public Defender assigned to represent appellant, Edgardo Sanchez-Fuentes, in this automatic appeal. I directed a memberof our staff to conduct a word countof this brief using our office’s computer software. Onthe basis of that computer-generated word count, | certify that this brief is 49,331 words in length excluding tables and certificates. Dated: September 30, 2014 »,. TT din. / Nits SARA THEISS Deputy State Public Defender Attorney for Appellant 184 People v. Edgardo Sanchez-Fuentes DECLARATION OF SERVICE BY MAIL I, the undersigned, declare as follows: Los Angeles County Sup. Ct. No. BA261252-01 Cal. Supreme Ct. No. §150524 I am overtheage of 18, not a party to this cause. I am employed in the county wherethe mailing took place. My business addressis 1111 Broadway, 10th Floor, Oakland, California, 94607. I served a copy ofthe following document(s): APPELLANT’S REPLY BRIEF by enclosing it in envelopes and / / depositing the sealed envelope with the United States Postal Service with the postage fully prepaid; /X/ placing the envelopesfor collection and mailing on the date andat the place shown below following our ordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondenceis placed for collection and mailing,it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postagefully prepaid. The envelopes were addressed and mailed on September30, 2014,as follows: Office of the Attorney General Attn: Corey Robins, D.A.G. 300 S. Spring St. Suite 500 Los Angeles, CA 90012-1232 Edgardo Sanchez-Fuentes (Appellant) (To be Hand Delivered on 10/01/14) Sara Cohbra, Esq. Habeas Corpus Resource Center 303 Second St. Suite 400 South San Francisco, CA 94107 James Coady, Esq. Los Angeles County Public Defender 210 W Temple St 19th Fl Los Angeles, CA 90012 Maria Arvizo-Knight California Appellate Project Capital Appeals Coordinator 101 Second Street Suite 600 Los Angeles County Superior Court San Francisco, California 94105 210 W. Temple St., Rm M-3 Los Angeles, CA 90012 I declare under penalty of perjury under the lawsof the State of California that the foregoing is true and correct. Signed on September 30, 2014, at Oakland, California. TAMARA REUS