PEOPLE v. BRYANT

Appellant, Donald Franklin Smith, Reply Brief

Cal.January 12, 2007

SUPREME COURT COPY IN THE SUPREME COURT FOR THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Superior Court No. Plaintiff and Respondent, No. A711739 SUPREME COURT vs. FILED California Supreme STANLEY BRYANT, DONALD FRANKLIN Court No. §049596 JAN 1 2 2007 SMITH and LEROY WHEELER Frederick K. Ohirich Cler Defendants and Appellants. Deputy - APPELLANT DONALD SMITH’S REPLY BRIEF APPEAL FROM THE SUPERIOR COURT OF LOS ANGELES COUNTY THE HONORABLE CHARLES M. HORAN, PRESIDING David H. Goodwin, State Bar #91476 P.O. Box 93579 Los Angeles, Ca 90093-0579 (323) 666-9960 Attorney for Appellant Donald Smith TABLE OF CONTENTS APPELLANT DONALD SMITH’S REPLY BRIEF ARGUMENTS GUILT/INNOCENCE PHASE ARGUMENTS I APPELLANT’S CONVICTION MUST BE REVERSED BECAUSE OF RELATED ERRORS RELATING TO THE INTRODUCTION OF ACCOMPLICE TESTIMONY. A. JAMES WILLIAMS WAS AN ACCOMPLICE AS A MATTER OF LAW UNDER SEVERAL THEORIES, AS RESPONDENT CORRECTLY ARGUED THE EARLY STAGES OF THIS CASE. 1. Introduction 2. Respondent’s Arguments That Williams Was Not An Accomplice Are Flawed. 3. Williams As An Aider And Abettor Because OfHis Participation In The Narcotics Business. ° 4. Other Theories Of Second Degree Murder B. THE CONVICTION MUST BE REVERSED BECAUSE THERE WASINSUFFICIENT EVIDENCE TO CORROBORATE ACCOM- PLICE TESTIMONY 1. Corroborative Evidence Must Connect The Defendant To The Crime 2. Other Consequences Of Accomplice Status. C. THE TRIAL COURT ERRED IN FAILING TO EXCLUDE TANNIS CURRY FROM THE INSTRUCTION GIVEN TO THE JURY CONTAINED IN CALJIC NO.2.11.5 D. THE TRIAL COURT ERRED IN REFUSING TO REOPEN JURY DELIBERATIONS, WHEN, AFTER THE JURY RETURNED A VERDICT AGAINST APPELLANT, BUT WHILE THE JURY WAS DELIBERATINGAS TO SETTLE, 11 19 20 28 29 6 THE JURY HAD QUESTIONS ABOUT ACCOMPLICE STATUS AND REASONABLE DOUBT 35 E. THE TRIAL COURT ERREDIN INSTRUCTING THE JURY THAT AN AIDER AND ABETTOR MAYBE A PRINCIPAL IN THE OFFENSE IF THAT PERSONIS “EQUALLY GUILTY.” 43 F. THE COURT ERRED IN TELLING THE JURY THAT IT COULD CONVICT APPELLANT IF THERE WAS SLIGHT EVIDENCE TO CORROBORATE ACCOMPLICE TESTIMONY 45 G. CONCLUSION 47 e IJ APPELLANT WAS PREJUDICED BY THE TRIAL COURT’S ERROR IN DENYING A DEFENSE MOTION TO SEVER APPELLANT’S CASE FROM THAT OF CO-DEFENDANT JON SETTLE 48 A. INTRODUCTION 48 B. THE SPECIFIC ARGUMENTS OF RESPONDENT 49 IW THE TRIAL COURT ERRED IN DENYING A DEFENSE MOTION TO SEVER APPELLANT’S CASE FROM THAT OF THE OTHER APPEALING DEFENDANTS.| 55 IV EVIDENCE OF OTHER CRIMINAL ACTS OF APPELLANT AND OTHER PERSONS WERE IMPROPERLY ADMITTED UNDER EVIDENCE CODE SECTIONS210, 300, 352, AND 1101, AND THE JURY WAS GIVEN ERRONEOUS INSTRUCTIONS ON THE USE OF THAT EVIDENCE 63 e A. POSSESSION OF THE GUN. 64 B. THE EVIDENCE OF THE CHASE 65 C. THE POSSESSION OF THE DRUGS FOUND IN APPELLANT’S POSSESSION. 68 D. EVIDENCE OF THE CURRY SHOOTING 72 E. THE TRIAL COURT ERREDIN INSTRUCTING THE JURY REGARDING THE PROPER USE OF EVIDENCE OF OTHER, UNCHARGED CRIMES 76 i 86 96 96 v6 £6 £6 c6 [6 16 06 98 v8 v8 6L MH SVMSHdVuYDOLOHdAHLJOASNGALWOdaNdAHL“V SHIGOd.SWILLOIA HHLJOSHdVUDOLOHdJALLVTINWNDGNV “AWOSANND‘AYOLVNINVTANIONILLINGVAd NOLLAYOSIGSLIGASNEVLYNOOTWILLAHLTA SOIdnNadd“A SINAWNDUYVTVDATYAdOUdWIAOASNAHL“dG "IBDOL,UlpayphyseAAUMOIGey],ZumMBry°z UOISSaSsSOg sjueyjoddyuypunoj7sures07)oY],JOWeIyonbiuy)oy,Buinsry°] SISVETVOALOVAONCUVHMANY NOILNOASOUdAHLHOTHMSINANNDYVONLINASAYd“DO NOISSVdOLTVHddvV°& “TWHddVNOCHAIVMLONSIANSSIAHL“V NOILOLILSNOOAHLOLSINANAGNAANV HINSAFLUNOACNVLHOIA‘HLXIS“HLAFHLYWaaNnn SLHOMS.LNVT1dddVDNILVTOIA“LONGNOOSIN JOSLOVSNORIVAGALLINWOSNOLLNOASOUdAHLIA YAHSIAGAasINIMJOLNAWALVISAHL“OD ONOULSNAVAOLNAWALVISCddVLAHL “LOALAOOLTASNNOO‘TVILLJOAUNTIVA AHLJOASNVOAdGCHAIVMLONFavSHNSSIASAHHL“V “ATINGAVSUVAHAHLOLNOWddOxXaANVUACNN AdITVNOLONGIGHOIHMSINAWALVLSAVSUVAH SNOYRANNANONILLINGYNIGaetaLYNOOTWILLFHLA ALILNACIAAOUdOL dash44GINOOINACIONIAWaNOAHLLVHLAUN AHLONILOOULSNINIGaedeLANOOWRIAHL“A ell ell cll OTT OL 601 801 LOl eE01 col 101 86 ‘TN 2a TTeae Al OMLDNISNOXAAd‘GNAWVHINAALYNOAGNV ‘HLHOIA‘HLXIS‘HLASHAdGASINVUVNDSVNOLLV -NINMALAGALTVNAdATAVITAYGNV‘ANNETVLLYVdW “TVRLLMIVAVOLSLHDOMSALNVTTdddVDNILVIOIA ‘TIPSN69h(S861).LLIM‘ALHDIMMNIVMGNVO'S 16€(8961)‘SIONITTIAOALVIS‘ANOOdSYTHLIMMAGNA YOUATHISUAAAAGALLINWOSDLUNODTWAHLIX SINHAWNOAVASVHdALTVWNHd ONILSHaATdOddAHLOL Word“AMIHONIASVOS.ATdOddFHLNIGALNASAYd AONACIAdOLWIHLSNIVOVYACISNODGTNOOD AUNLAHLLVHLAONAGIATAHLLIWITOLLSANOTA S.INVTTdddVONIANHCNIGauedLYNODTWRLLAHL uwIVOINONOALSV,SVMTVRAHLAOLSOOAHL IVHIAUNFHLONITTALNIGeaDUNOTWRLLFHL NOISNTIONODO‘OD “ANSSIAHLAOSLTYAWAHL“a GHAIVMLONSVMANSSIAHL“V ASV)‘TVLIdV)VNINOILVNINGALAG ATAVITAYVOLANV“TVRUIVdVOL“TASNNOD TVILOL“TVPALAUNLVOLSLHDMFHLINVT1dddV GHINACwouNnsGHerIVdWIONTAVAHVAOAONASHadAHL SINAWCNANV HINAALYNOAGNV‘HLHDIA“HLXIS“HILALAHLWACNN SLHDMTVNOILALILSNODOS.INVTTAddVNOGHONTUANI ‘X.LISSAOANAOSONIMOHSGaYINOAYFHLLNOHLIM ‘LYNOOTVMALAHLAdGAAOTdWNASAUNSVAW ALIRINDASYAH.LOONVLTANOLSFHLAOASNFHL NOISNTONOO* “ADICNAad* INVATHeLON XI IIA Oo da PROSPECTIVE JURORS FOR CAUSE DESPITE THEIR WILLINGNESS TO FAIRLY CONSIDER IMPOSING THE DEATH PENALTY XIII THE TRIAL COURT IMPROPERLY COERCED A DEATH VERDICT AFTER THE JURY HAD TWICE DECLARED ITSELF DEADLOCKED AND THEN ERRONEOUSLY SUBSTITUTED AN ALTERNATE WHEN THE JURY COULD NOT POSSIBLY BEGIN ITS PENALTY DELIBERATIONS ANEW, THEREBY VIOLATING APPELLANT’S RIGHTS TO A JURY TRIAL, DUE PROCESS OF LAW, AND A RELIABLE SENTENCING DETERMINATION UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE CONSTITUTION AND THE CALIFORNIA CONSTITUTION A. The Unusual Nature Of This Case Render The General Principles Relied On By Respondent To BeInapplicable. B. The Instructions Given To The Jury, After The Jury Announced It Was Deadlocked, Were Coercive Under The Facts Of This Case C. The Improper Substitution of an Alternate Juror 13 Days into Deliberations Contributed to the Coercive Verdict in Violation of Due Process and the Rightto a Jury Trial. D. Conclusion XIV THE TRIAL COURT ERRED IN RULING ON THE AUTOMATIC MOTION UNDER SECTION 190.4 TO MODIFY THE SENTENCE XV THE PROSECUTOR IMPROPERLY DISPARAGED THE MITIGATING EVIDENCEIN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS XVI THE TRIAL COURT ERRED IN REFUSING APPELLANT’S REQUEST FOR AN INSTRUCTION ON LINGERING DOUBT. THIS ERROR DEPRIVED APPELLANT OF THE RIGHTS TO DUE PROCESS OF LAW AND A RELIABLE JURY DETERMINATION OF THE CASE, IN VIOLATION OF FIFTH, SIXTH, EIGHT, AND FOURTEENTH AMENDMENTSOF THE 113 117 117 120 121 123 123 123 UNITED STATES CONSTITUTION 124 XVI THE TRIAL COURT’S ERROR IN PERMITTING THE INTRODUCTION OF NON-STATUTORY AGGRAVATION AT APPELLANT’S PENALTY PHASE DEPRIVED APPELLANT OF RIGHTS UNDERFIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION AND CORRESPONDING SECTIONS OF THE CALIFORNIA CONSTITUTION 125 XVIL INSTRUCTING THE JURY PURSUANT TO CALJIC NO.8.85 VIOLATED APPELLANT’S EIGHTH AND FOURTEENTH AMENDMENTRIGHTS 126 XIX INSTRUCTING THE JURY IN ACCORDANCE WITH CALJIC NO.8.88 VIOLATED APPELLANT’SFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS 126 XX THE PENALTY PHASE INSTRUCTIONS WERE DEFECTIVE AND DEATH-ORIENTED IN THAT THEY FAILED TO PROP- ERLY DESCRIBE OR DEFINE THE PENALTY OF LIFE WITH- OUT POSSIBILITY OF PAROLE 126 XXI CALIFORNIA’S CAPITAL-SENTENCING STATUTEIS UNCONSTITUTIONAL 127 XXII THE CUMULATIVE EFFECT OF THE ERRORS WAS PREJUDICIAL AND REQUIRES A REVERSAL OF THE JUDGMENT OF CONVICTION 127 XXUI APPELLANT SMITH JOINS IN ALL ISSUES RAISED BY CO-APPELLANTS WHEELER AND BRYANT WHICH MAY ACCRUE TO APPELLANT SMITH'S BENEFIT 127 CONCLUSION 128 CERTIFICATE OF WORD COUNT 128 Vi TABLE OF AUTHORITIES FEDERAL CASES Adams v. Texas (1980) 448 U.S. 38 115 Bruton v United States (1968) 391 U.S. 123 54, 102, 105, 119, 120 Carter v. Kentucky (1981) 450 U.S. 288 125 Cohensv. Virginia (1821) 19 U.S. 264 25 Commonwealth ofthe Northern Mariana Islands v. Bowie (9th Cir. 2001) 243 F.3d 1083 24 Crawford v. Washington (2004) 541 U.S. 36 86 Davis v. Wechsler (1923) 263 U.S. 22 18 De Luna v. United States (5th Cir. (1962) 308 F.2d 140 53, 120 Deck v. Missouri (2005) 544 U.S. 622 107 Dyas v. Poole (9th Cir. 2002) 309 F.3d 586 62, 106 Faretta v. California (1975) 422 U.S. 806 48 Gilmore v. Taylor (1993) 508 U.S. 333 101 Holbrook v. Flynn (1986) 475 U.S. 560 107 Jimenez v. Myers (9th Cir. 1993) 40 F.3d 976 Johnson v. Mississippi (1987) 486 U.S. 578 Leary v. United States (1969) 395 U.S. 6 Locks v. Sumner (9th Cir.1983) 703 F.2d 403 Nash v. United States (2d Cir. 1932) 54 F.2d 1006 9 Riggins v. Nevada (1992) 504 U.S. 127 vii 118, 120, 121 101 101 118, 120 53, 119 107 Scales v. United States (1961) 367 U.S. 203 Stumpfv. Mitchell (6th Cir. 2004.) 367 F.3d 594 Thompson v. Calderon (9th Cir. 1996) 109 F.3d 1358 Ulster County Court v. Allen (1979) 442 U.S. 140 United States v. Arteaga (9th Cir. 1997) 117 F.3d 388 United States v. Garza (Sth Cir. 1979) 608 F.2d 659 United States v. Gray (5th Cir. 1980) 626 F.2d 494 United States v. Hall (Sth Cir. 1976) 525 F.2d 1254 United States v. Haupt (1943, 7th Cir.) 136 F.2d 661 United States v. Hitt (9th Cir. 1992) 981 F.2d 422 United States v. Leung (C.D.Cal. 2005) 351 F.Supp.2d 992 Wainwright v. Witt (1985) 469 U.S. 412 Webster v. Fall (1925) 266 U.S. 507 Witherspoonv. Illinois (1968) 391 U.S. 510 Woodson v. North Carolina (1976) 428 U.S. 280 Zant v. Stephens (1983) 462 U.S. 862 STATE CASES Bayside Timber Co. v. Board ofSupervisors (1971) 20 Cal.App.3d Bowen v. Ziasun Technologies, Inc. (2004) 116 Cal.App.4th 777 Canales v. City ofAlviso (1970) 3 Cal.3d 118 Hale v. Morgan (1978) 22 Cal.3d 388 Vill 62 65, 101 65 91, 96 46 46 62 66 4 113, 115 26, 46 113, 115, 116 101 101 1,5 46 26, 46 52 85 Johnson v. Bradley (1992) 4 Cal.4th 389 Jones v. Dutra Construction Co. (1997) 57 Cal.App.4th 871 Pena v. Municipal Court (1979) 96 Cal.App.3d 77 People v. Allen (1974) 41 CA3d 196 - People v. Andrews (1989) 49 Cal.3d 200 People v. Arias (1996) 13 Cal.4th 92 People v. Arjon (2004) 119 Cal.App.4th 185 People v. Balcolm (1994) 7 Cal.4th 414 People v. Barraza (1979) 23 Cal.3d 675 People v. Blanco (1992) 10 Cal.App.4th 1167 People v. Boyer (2006) 38 Cal.4th 412 People v. Bradley (1969) 1 Cal.3d 80 People v. Brady (2005) 129 Cal.App.4th 1314 People v. Brown (1996) 42 Cal.App.4th 461 People v. Bruner (1995) 9 Cal.4th 1178 People v. Bunyard (1988) 45 Cal.3d 1189 People v. Buono (1961) 191 Cal.App.2d 203 People v. Cahill (1993) 5 Cal.4th 478 People v. Chong (1999) 76 Cal.App.4th 232 People v. Daniels (1991) 52 Cal.3d 815 People v. Davis (1903) 210 Cal. 540 26, 46 3, 32 52 86 21, 23 87 78 80 110 52, 86 21 46 71 86 90 25 85 54 76 20, 21 People v. Duran (1976) 16 Cal.3d 282 People v. Duvernay (1941) 43 Cal-App.2d 823 People v. Estrada (1998) 63 Cal.App.4th 1090 People v. Ewoldt (1994) 7 Cal.4th 380 People v. Fuller (1978) 86 Cal.App.3d 618 People v. Gainer (1977) 19 Cal.3d 835 People v. Garcia, 17 Cal.App.4th 1169 People v. Gordon (1973) 10 Cal.3d 460 People v. Gray (2005) 37 Cal.4th 168 People v. Guiuan (1998) 18 Cal.4th 558 People v. Hart (1997) 15 Cal.4th 619 People v. Heishman (1988) 45 Cal.3d 147 People v. Hill (1998) 17 Cal.4th 800 People v. Hinds (1984) 154 Cal.App.3d 222 People v. Huggins (2006) 38 Cal.4th 175 People v. Johnson (2004) 115 Cal-App.4th 1169 People v. Kempley (1928) 205 Cal. 441 People v. Kipp (1998) 18 Cal.4th 349 People v. Kirkes (1952) 39 Cal.2d 719 People v. Lawson (1952) 114 Cal.App.2d 217 People v. Ledesma (2006) 39 Cal.4th 641 People v. Lima (2004) 118 Cal-App.4th 259 106 91 62 16,77, 79, 81, 83 67 110 4 14, 16, 32 79, 80 23 78 25 87, 124 85 39 33, 45 20, 21 79 49 15 122 67 People v. Mar (2002) 28 Cal.4th 1201 People v. Matteson (1964) 61 Cal.2d 466 People v. Maury (2003) 30 Cal.4th 342 People v. McGreen (1980) 107 Cal.App.3d 504 People v. McHugh (2004) 119 Cal.App.4th 202 People v. Menchaca (1983) 146 Cal.App.3d 1019 People v. Mills (1978) 81 Cal.App.3d 171 People v. Morgan (1948) 87 Cal.App.2d 674 People v. Morrison (2004) 34 Cal.4th 698 People v. Narvaez (2002) 104 Cal.App.4th 1295 People v. Nesler (1997) 16 Cal.4th 561 People v. Norwood (1972) 26 Cal.App.3d 148 People v. Price (1991) 1 Cal.4th 324 People v. Pride (1992) 3 Cal.4th 195 People v. Priece (1979) 24 Cal.3d 199 People v. Prieto (2003) 30 Cal.4th 226 30 Cal.4th at 263 People v. Rafter (1974) 41 Cal.App.3d 557 People v. Robinson (1964) 61 Cal.2d 373 People v. Rodriguez (1986) 42 Cal.3d 730 People v. Rogers (2006) 39 Cal.4th 826 People v. Russel (1997) 69 Cal.2d 187 7 Xi 103 85 122 91 67 108 108 15 71 21 39 52, 86 98 98 100 50 50 21,27 16 122, 125 49 People v. Sandoval (2001) 87 Cal.App.4th 1425 51 People v. Satchell (1971) 6 Cal.3d 28 67 People v. Scott (1978) 21 Cal.3d 284 91, 123 People v. Seaton (2001) 26 Cal.4th 598 46 People v. Smith (1970) 4 Cal.App.3d 41 128 People v. Smith (1973) 33 Cal.App.3d 51 102 People v. Stanley (2006) 39 Cal.4th 913 122 People v. Stewart 2004) 33 Cal.4th 425 114 People v. Stewart 2004) 33 Cal.4th 425 115 People v. Stone (1981) 117 Cal._App.3d 15 128 People v. Teixeira (1955) 1369 Cal.2d 136 49 People v. Trujillo (1948) 32 Cal.2d 105 21 People v. Un Dong (1895) 106 Cal. 83 91 People v. Underwood (1964) 61 Cal.2d 113 85 People v. Vera (1999) 15 Cal.4th 269 | 85 People v. Wagner (1975) 13 Cal.3d 612 9] People v. Waidla (2000) 22 Cal.4th 690 122 People v. Watson (1956) 46 Cal.2d 818 106 People v. Wattier (1996) 51 Cal.App.4th 948 90 People v. Watts (1999) 76 Cal.App.4th 1250 4 People v. Wein (1958) 50 Cal.2d 383 81 People v. Wein (1977) 69 Cal.App.3d 79 81 Xit People v. Whitt (1990) 51 Cal.3d 620 People v. Williams (1970) 10 Cal.App.3d 638 People v. Williams (1970) 9 Cal.App.3d 565 People v. Williams (1997) 16 Cal.4th 153 People v. Williams (1997) 16 Cal.4th 635 People vy. Williams (1998) 17 Cal.4th 148 People v. Young (2005) 34 Cal.4th 1149 In re Sakarias (2005) 35 Cal.4th 140 Schlumpfv. Superior Court (1978) 79 Cal.App.3d 892 People v. Scott (1994) 9 Cal.4th 331 Superbrace, Inc. v. Tidwell (2004) 124, Cal.App.4th 388 Walker v. Superior Court (1991) 53 Cal.3d 257 Ward v. Taggart (1959) 51 Cal.2d 736 Wong v. Di Grazia (1963) 60 Cal.2d 525 STATE STATUTES Civil Code section 3510 Civil Code section 3511 Code of Civil Procedure section 128 Evidence Code section 210 Evidence Code section 350 Evidence Codesection 1101 xitl 51 15, 16 124 51 21,45 33 91, 123 50 33 46 40 52, 124 52 118 118 40 21, 82 58 66, 81, 82, 98, 108 Penal Code section 1111 20, 21 Penal Code section 1259 33, 43, 45 Penal Code Section 995 3 Penal Code section 1138 39 Rules of Court, Rule 13 128, 129 MISCELLANEOUS CALJIC No. 2.11.5 29, 30, 32, 33 CALJIC No. 3.00 44 California Center for Judicial Education and Research (CJER), CJER Mandatory Criminal Jury Instructions Handbook (12th ed. 2003), 54 XiV IN THE SUPREME COURT FOR THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, No. A711739 Plaintiff and Respondent, vs. California Supreme Court No. $049596 STANLEY BRYANT, DONALD FRANKLIN SMITH, and LEROY WHEELER Defendants and Appellants. APPELLANT DONALD SMITHW’S REPLY BRIEF In this Reply BriefAppellant does not respond to all ofRespondent's conten- tions, most of which are fully covered by Appellant’s Opening Brief. This Reply Brief is limited to those points upon which further discussion may be helpful to the Court. ARGUMENTS GUILT/INNOCENCE PHASE ARGUMENTS I APPELLANT’S CONVICTION MUST BE REVERSED BECAUSE OF RELATED ERRORS RELATING TO THE INTRODUCTION OF ACCOMPLICE TESTIMONY. Accomplice testimony must be corroborated by evidence connecting a de- fendant to the crime. As will be shown, the prosecution’s original position was that James Williams was an accomplice, and the trial court held there was no other evidence connecting Appellant to the crime. Appellant’s conviction must be reversed because of several related errors arising from the introduction of accomplice testimony, including: 1) Failure to in- struct the jury that Williams was an accomplice; 2) The denial of the motion of acquittal pursuant to section 1118.1! as a result of the lack of corroboration for ac- complice testimony; 3) Failing to instruct the jury that Tannis Curry, Bryant’s ex- wife, also was an accomplice; 4) Failing to re-open deliberations after the jury re- turned a verdict as to Appellant, but had questions concerning the law relating to accomplice testimony and reasonable doubt while deliberating as to Settle; 5) In- structing the jury that an aider and abettor maybe a principal in the offense if that person is “equally guilty;” 6) Instructing the jury that if it found Williams was an accomplice, only “slight” evidence was required to corroborate Williams’s testi- mony. A. JAMES WILLIAMS WAS AN ACCOMPLICE AS A MATTER OF LAW UNDER SEVERAL THEORIES, AS RESPONDENT CORRECTLY ARGUEDIN THE EARLY STAGESOF THIS CASE. 1. Introduction Appellant's convictions must be reversed because there was insufficient evidence to corroborate James Williams’s testimony. Accordingly, the court should have informed the jury that Williams was an accomplice. The trial court recognized there was no evidence connecting Appellant with the offense itself, as required by the rules governing accomplice testimony, but the trial court went on to apply the wronglegal standard in ruling that Williams was not an accomplice. Indeed, Respondent’s current position that Williams was not an accomplice is a total shift from its previous factual and legal claim to the trial court that in fact, Williams was an accomplice. In 1990, the prosecution adamantly argued that Williams’s actions indi- cated he was an accomplice, as a matter of law. Specifically, the District Attorney told the trial court: Just because James Williams is not one of the actual shooters does not mean heis not a principal.... [Williams] was present at the scene of the crime and willingly followed orders actively participating in ‘Further statutory references are to the California Penal Code unless otherwise noted. the commission ofboth the offense and the immediate fight [sic.] af- terwards. He was a lookout on orders of Stan Bryant long before the crime was completed and his cohorts obtained a position of relative safety. He was an employee of the Bryant organization working at the cash house and murder sceneat the time the murders were com- mitted; actually let the victims into the caged in area where they were slaughtered after he buzzed Stan Bryant out; and then backed the car into the garage where the bodies could be loaded, then dis- posedof. ... James Franklin Williams was simply a loyal employee eager to assist his boss Stan Bryant and fully aware that the shooting and violence was the norm for them and the order for the day....As part of his training he was trained to use a gun and one wasprovided to him. As further evidence of his knowledge andintent not only did he perform his talk of looking for witnesses as he dutifully went back to the pool hall, but he actually reported those persons to Stan Bryant. Williams was much more than a bystander.... He actively participated in leading Andre Armstrong and James Brown to slaughter knowingfull well that that was about to happen. (23 CT 6643, 23 CT 6643, People’s Response to Defendant William Gene Settle’s Motion to Set Aside Information Pursuant to Penal Code Section 995, italics added.) Although Williams later offered self-serving testimony that contradicted the fact that he buzzed Armstrong and Browninto the house, none of the other facts relied on by the prosecution in order to arrive at its determination that Williams was an accomplice as a matter of law, as noted in the above passage, have ever been disputed by the prosecution. Respondent’s current contention violates an established rule of appellate procedure that requires when the parties have proceeded on one theory in thetrial court, neither party "can change this theory for purposes of review on appeal." (Jones v. Dutra Construction Co. (1997) 57 Cal.App.4th 871, 877; 9 Witkin, Cali- fornia Procedure (4th ed. 1997), Appeal, § 399, 451-452.) This is akin to the rule that the state is not allowed to use different factual theories to obtain convictions in different trials. (in re Sakarias (2005) 35 Cal.4th 140.) This rule stems from the recognition that the use of inconsistent, irreconcil- able theories to convict two defendants for the same crime is a due process viola- tion. (Stumpfv. Mitchell (6th Cir. 2004.) 367 F.3d 594, 611.) A prosecutor's first obligation is to serve truth. (United States v. Leung (C.D.Cal. 2005) 351 F.Supp.2d 992, 997; People v. Garcia 17 Cal.App.4th 1169, 1181.) The evil in allowing the pursuit of two inconsistent and irreconcilable theories at different times is that one must be false: "Because inconsistent theories render convictions unreliable, they constitute a violation of the due process rights of any defendant in whosetrial they are used." (Stumpf, at 613.) Furthermore, a prosecutor's assertion of inconsistent theories tends to undermine society's confi- dence in the fairness of the process. (People v. Watts (1999) 76 Cal.App.4th 1250, 1262; Thompson v. Calderon (9th Cir. 1996) 109 F.3d 1358, 1371.) Consequently, Respondent should be estopped from changing its position and thus, held accountable for its initial assertions to the court that Williams was an accomplice as a matter of law. 2. Respondent’s Recent Position That Williams Was Not An Accomplice Is Incorrect As A Matter of Law. Respondent concedes that one whoaids in the commission of an offense mayalso be liable for any foreseeable offenses committed by the person heaids. Respondentdistinguishes between accomplices and accessories, with the latter be- ing those whoaid only after a felony has been committed. (RB 358-359.) Respondent contends that whether a person is an accomplice is a question of fact unless the evidence regarding accomplice status is clear and undisputed, a fact which the defendant has the burden of proving, and which Respondent now contends was not met in Appellant’s case. (RB 359.) Respondent argues that Williams cannot be considered an accomplice for a variety of reasons. Examination of those reasons reveals that they are flawed, and that Williams must be considered an accomplice as a matter of law. The first flaw in Respondent’s reasoning is that Respondent looks for the evidence of Williams’s accomplice status only from the testimony of Williams, accepting that at face value. (See RB 360 - “As the trial court recognized, Wil- liams’s testimony did not permit the “clear and undisputed” inference that he was an accomplice...;” thereafter discussing the evidence implicating Williams from his testimony. Italics added.) This ignores the very purpose of distrusting accom- plice testimony — the self-serving need to minimize one’s involvement. (See AOB 49-50.) The court should have looked to all evidence relating to the issue in order to accurately determine Williams’s status, and should not have merely accepted the testimony of Williams, a person receiving immunity in exchange for his testi- mony, at face value. Accordingly, the first error the trial court committed was in applying the wrong standard andthus, basing its ruling solely on Williams’s testi- mony, blindly accepting that testimony as “true.” Furthermore, Respondent accepts the fact that Williams knew “something” was going to happen, but repeatedly argues that Williams did not know the others had anintentto kill, and “he had no reason to suspect” the murders would happen. (RB 360-363.) This reasoning ignores the fact that Williams knew he wasa part of one of the “biggest most violent drug organization[s]” in the city (122 RT 164308), an organization that, in the words of the prosecution, used violence to terrorize the neighborhood, “killing people, blowing up people, beating people.” (122RT 16430T.) This was an organization, according to the District Attorney, whose norm of shooting and violence, was known to Williams. (23 CT 6643.) It belies reason to assume that a member of such an organization can heara test shot being fired and can see four men walking around with gloves on and cocking, guns (97 RT 12305-12306, 12311, 12331), but not know that a murderis being planned. This unreasonable assumptionis an ostrich approach to accompliceliability. Respondent further argues that Williams’s statement to Detective Duncan that he heard a gunshot in the bathroom proves he was not an accomplice because the weapon fired in this case was actually a shotgun. According to Respondent, Williams’s calling it a “gunshot” showshe was not privy to the planning of the murder, because otherwise he would have known it was a shotgun and called it such. (RB 361.) For several reasons Respondent’s argument makeslittle sense as a response to Appellant’s accomplice liability argument. First, a shotgun is a gun. The fact that Williams did not specifically articulate the exact type of weapon he heard be- ing discharged does not mean he remained clueless as to what was going on so as to immunize him from culpability. People do not always talk with the precision required by legal technicalities. Thus, the fact that he did not recognize the exact type of firearm being used after he heard the shot does nothing to diminish his culpability as an accomplice, nor does this fact even address the issue. It is suffi- cient that he knew a gun was going to be used. It is well established that just be- cause a person does not knowall ofthe details of the conspiracy he has joined,this “does not detract from the fact of conspiracy ... or from [his]...voluntary partici- pation in it without complete knowledge of its objective or details.” (People v. Buono (1961) 191 Cal.App.2d 203, 215, listing numerouscitations.) Thus, if Wil- liams thought a “gun” was going to be used, and in fact a “shotgun”wasthe ulti- mate weapon, whether he knew specifically the precise nature of the firearm was irrelevant. In fact, not all of the murders were committed with a shotgun. Although a shotgun was one of the weaponsused,all four victims received some injuries from a handgun. (75 RT 8288-8289, 8299, 8302-8303, 8346, 76 RT 8386.) Therefore, Williams’s knowledge that a “gun” was being readied, even if he was imprecise as to the specific type of gun fired in the bathroom, constituted actual knowledge of the exact type of weapon that was used in the crimes. Similarly, Respondent claims importancein the fact that Williams was mis- taken as to events that happened after he left the house, such as, he might have been in error as to how the bodies were removed. (RB 361.) Again, the fact that Williams did not know every detail is not relevant in determining accomplice status. Such complete knowledge is not necessary for an accomplice, particularly whenit relates to facts that occurred when the accomplice was not present. Ar- guably, when the prosecution informed the trial court that Williams was an ac- complice,” the prosecution also believed that Williams’s lack of knowledge as to every detail did notalter its determination of his accomplice status. Indeed, Bryantleft the house early and presumably wasignorant as to many of the details of how the crime actually occurred, such as, which of the remaining defendants shot which victims. Nonetheless, this lack of knowledge on Bryant’s part did not absolve him of culpability, nor should Williams’s lack of complete knowledge absolve him of culpability. Respondent seeks further support for its position by claiming that the fact that Williams walked downthestreet to see if any neighbors were paying attention establishes he did not know what was happening, and instead proves he was the fall guy. (RB 362.) This reasoning is problematic. Williams heard the gunshots and screaming while he was walking out of the house, thus, by the time he got to the street, he had actual knowledge that people were being killed. Nonetheless, instead of alerting someone that a murder was occurring, as would be expected of someone not involved in the offense, he continued to help in the plan, following the boss’s directions, checking out the neighborhood and moving the car in which the bodies were moved. Indeed, Respondent, quoting the instructions given, notes that if a person aids the crime without knowledge of the offense, that person is not an accomplice. However,at this stage, Williams was aiding Bryant, knowing a crime was then be- ing committed. The fact that Bryant may havealso had other plansrelating to Wil- liamsis not relevant. Other facts relied on by Respondent are equally irrelevant. For instance, Respondent argues that Williams was not an accomplice because he did not buzz in Armstrong or Brown to the house. (RB 362.) The fact that someone else may have done other acts to further the crime along does not mean that Williams was uninvolved. His acts of moving the car in which the bodies were transported and * The position argued by the People in their Response to William Settle’s Motion to Dismiss. (Ante, at p. 3.) scoping out the neighborhood are sufficient, even if other people did other tasks originally assigned to Williams. In short, while working for what he knew wasa violent drug cartel, Wil- liams became aware of facts that made him believe “something” was going to happen. These facts included armed mentest firing weapons and walking around the house wearing gloves. He was given instructions as to what he should do whenthe people arrived, including instructions to let them in the house. When the murders began, hearing shots and screams, Williams continued to follow the in- structions he had been given, including moving a car into the garage, which was later used to transport bodies, checking out the area to see if anyone had heard the shots, and later reporting back to Bryant. (97 RT 12340-12342.) Clearly, Williams knew the crime was going to happen before it did. And, as the prosecution once argued, when he actually knew the crime was happening, he followed instructions that were designed to facilitate the crime. Respondent does not dispute any of these facts. For his role in facilitating the crime, Williams was an accomplice. At one time after Appellant was arrested, Detective Votchecky and Deputy District Attorney Maurizi visited him while he was in custody in order to inter- view him. At that time, Appellant exercised his right to remain silent. (RT E20- E22.) Had Appellant not done so, and had he denied culpability, implicating Wil- liams, and had he, instead of Williarns, been the one to cut a deal with the prosecu- tion, it would have been Williams who stood convicted of murder. To now deny that Williams was an accomplice as a matter of law ignores his active participation in the murders while they were occurring, and ignores the facts as laid out by the prosecution in the its response to the Motion Pursuant to Section 995 (ante, at p. 2- 3), which established sufficient evidence to convict Williams of four counts of first degree murder.) For the foregoing reasons, Williams was an accomplice because of his ac- tual participation in the crimes for which appellant was convicted. 3. Williams Was An Aider And Abettor Because Of His Participation In The Narcotics Business. Respondent does not dispute the rule that a principle in the target offense of narcotics sales can be liable as an accomplice for murder under the natural and probable consequences doctrine. (RB 363-364, see AOB 115-117.) Respondent acknowledges Williams was a member of the organization, al- beit, the most junior member, present in the Wheeler Avenue house, and that 666Wheeler arrived “‘the same way as always’ for his regular shift,” and that he watched television while waiting for customers. (RB 360.) However, Respondent asserts that there was no evidence Williams was engaged in drug sales at the Wheeler house on the day of the murders and that he was not selling drugs to Armstrong. (RB 364.) Apart from Respondent’s self-contradiction of recognizing Williams’s role in the business and four pages later arguing that Williams was not engaged in the sale of drugs that day, the latter contention is simply nottrue. In fact, from the lengthy descriptions of the Bryant family drug houses (AOB 19-24), it is obvious from the prosecution’s facts that the only people in those houses were people engaged in the business. Whether it was a count house, the house where the money wastaken, or the house where the drugs were handed out, all locations involved in the business were used only for various aspects of transacting the cartel’s business. At the Wheeler Avenue location, as well as the other drug houses, such as the house at 13031 Louvre Street, the houses did not contain items evidencing that they were lived in. For example, the refrigerators were mostly empty, there was no food items or cooking utensils in the cabinets, and there were no clothes in the houses. (78 RT 8655, 83 RT 9593.) Therefore, there was no other reason for Williams to be at the house that day except as a par- ticipantin the cartel’s business. Just as it is also self-evident that the look-out man for a bank robbery or the driver of the get-away car is involved in the robbery, so anyone in the houses was involved in the workings of the violent, terrorist, murderous, organization selling drugs in the valley. From the time that the company car came to pick him up to take him to work in the morning, the only reason Williams was there wasto be in- volved in the company businessofselling drugs. Respondent also notes that Williams was not selling drugs to Armstrong. This is a red herring. The danger of narcotics cartels, as argued by the prosecution (122 RT 16430P-16430T), was not only to the customers but also, to those who the business killed and assaulted as a part of maintaining control. In fact, the beat- ing of Francine Smith, the killing of Ken Gentry, the shooting of Reynard Gold- man, and the fact that people working at the drug houses were armed, is illustra- tive of the violence that was a part of the Bryant family cartel. The danger that someone trying to shake down the cartel, and Respondent characterizes Arm- strong’s actions towards the Bryant Family as putting the squeeze on them (RB 17), created the danger that the cartel would kill that person. From the prohibition wars of the 1920’s to the street gangs of today, a natu- ral aspect of crime cartels is that people get killed in business disputes. If Arm- strong wanted a cut of Bryant’s business, the most natural way for this dispute to be settled would be by murder. The fact that Armstrong was or was not a cus- tomerthat day is not the issue. In fact, the prosecution itself relied on this theory of liability for murder, whenit charged Johnson and Newbill with murder although their only participa- tion in the offense was as active membersofthe cartel, in spite of the fact that they were not selling drugs to Armstrong at the time the murders happened. (See e.g. 17 RT 4744-4745, 23 CT 6629-6637, 24 CT 6741-6747.) Further, the prosecution argued in opposing Johnson’s motion to dismiss pursuant to section 995, “The prosecution’s theory of the case is that each of the defendants conspired to operate a drug sales organization and to maintain control by any and all means necessary, including violence and death.” (23 CT 6634.) Likewise, the prosecution argued: 10 A thorough review of the evidence clearly indicates that defendant Antonio Johnson was a valued member of the Bryant family drug organization, that the goal of the organization was drug sales, and that in order to meet this goal, the organization freely committed murders.... As a member of the conspiracy, defendant Johnsonis li- able for the murders. (23 CT 6636.) Indisputably, as with Johnson and Newbill, Williams was engaged in the narcotics business with the Bryant family. Furthermore, Bryant gave Williams a silver .45 caliber gun to carry when he was working at the house,telling him he was to be armed when he answered the door. (96 RT 12235-12236.) Thus, Wil- liams knowingly engaged in the business of the cartel, knowing that its members were armed, and in fact, while working, possessed a gun himself. Moreover, unlike Johnson and Newbill, Williams was actually working out of the Wheeler Avenueresidence until he left the building as the instant crimes were happening. As such, he could easily have been convicted of second-degree murder as a reasonably foreseeable result of participating in a narcoticscartel. 4, Other Theories Of Second-Degree Murder Respondent contends that Williams cannot be an accomplice if the crime in issue is second-degree murder because Appellant was not convicted of that of- fense. (RB 364.) Respondent is simply wrong. Appellant was convicted of two counts of second-degree murder for Counts 1 and 2. He was convicted offirst- degree murder for Counts 3 and 4. (52 CT 15270-15275, 53 RT 15406-15407, 53 RT 15419-15424; 126 RT 17074-17076.) Respondent also notes that Appellant was not convicted under a felony murder theory for second-degree murder. Respondent’s argumentis based onits belief that Appellant was arguing Williamsis liable on a theory of second-degree felony murderas a result of his participation in the narcotics business, and if Ap- pellant was not convicted on the same theory, Williams cannot be an accomplice. (RB 364.) There are two flaws to Respondent’s interpretation of Appellant’s ar- gument. First, Williams’s potential guilt as a result of his involvementin the drug trade is not only a result of the second-degree felony murderrule. It is also a re- sult of the natural and probable consequencesrule for aiding and abetting the nar- cotics cartel. Williams’s culpability is dependent on the same theory as Appel- lant’s — aiding and abetting. Second, the fact that Appellant was not convicted on a felony murder the- ory is irrelevant. Felony murderis a theory ofliability, not a crime. The crimeis murder, regardless of the legal theory upon whichliability is based. Verdict forms do not ask the jury if the defendant committed “felony murder.” Just as Bryant is liable for murder, even though he neverfired a gun, on a theory of vicarious liabil- ity, Williams wasliable for murder, regardless of the theory used to reach that re- sult. Section 1111 defines accomplice by as one “whois liable to prosecution for the identical offense.” It does not require unanimity of theory. Indeed, Appellant was not the shooter of Loretha and Chemise. Likewise, as to Brown and Armstrong, as between Wheeler, Settle, and Appellant, it was not known who the actual shooter was. Therefore, Appellant’s entire liability for those crimes derived from his aider and abettorstatus. Appellant was convicted of second-degree murder. Williams wasliable for second-degree murder. The fact that Williams wasliable as an aider and abettor to the drug charge does not mean he was not an accomplice. Appellant maintains that Williams was an accomplice because he followed directions and actually aided in the murderitself. However, Williams’s culpability as a result of his par- ticipation in the drug trade is offered as an alternative theory should this Court fail to recognize the theory once also espoused by the prosecution (ante, at p. 2-3), that Williams is liable for the murders because he was an actual participant in the crimes. If Williams was a possible accomplice to second-degree murder, which Re- spondent seems to concede, he must be viewed as an accomplice to all counts, since it is absurdly impossible for the jury to view his testimony with distrust as to counts | and 2, and accept his testimony with full faith and credit as to Counts 3 and 4. 12 Next, Respondent fails to understand Appellant’s arguments regarding the fortuity of severing the counts (AOB 57-59), arguing that the defense requested the severance and therefore it was not “fortuitous.” (RB 364.) Respondent does not address Appellant’s argument that a party’s status, in this case, whether Wil- liams was an accomplice, should have been determined based on what he did, rather than on an extraordinary event, an administrative case management decision that determined the details of the severance that separated that charge. Appellant’s argument illustrated that if Williams was an accomplice to some offenses with which both he and Appellant were charged, the fact that some of those counts were ultimately severed was fortuitous in that it was done not for any legal reason, but as a matter of case management. If Bryant and Williams had escaped and never beenarrested, if the District Attorney had not elected to try 12 people at the same time, thereby making the case smaller from the start, if the court severed the other defendants, but had not severed Count 7, the narcotics con- spiracy, if another judge ruled on the severance andsplit the case along different lines, if any number of normal events had or had not occurred Appellant may very well have beentried in a case wherethe narcotics trafficking offense, Count 7, was not severed. Even if the defense did request @ severance, requests of severances are of- ten denied. It was a twist of fate, an anomaly, and a fortuity that in this case Count 7 was severed. The significance ofthis fact is that had this not occurred, Williams unquestionably would be an accomplice to one of the counts for which Appellant was being tried. In such a case, it would be impossible for the jury to separate his credibility along accomplice/non-accomplice lines depending on the facts to which he wastestifying. He would have been viewed as an accomplice. Additionally, Appellant’s Opening Brief addressed the issue regarding the trial court’s denial of Appellant’s judgment of acquittal motion pursuant to section 1118.1 because it believed that an accomplice had to be “guilty” of the same of- fenses as the defendant. Respondent recognizes the fact that the court made this 13 statement. However, in an effort to reconcile the trial court’s language with the correct standard of “charged with the same offense,” Respondent argues that the court was merely using “short-hand,” and when it stated “guilty” it really meant “charged with the same offense.” (RB 365.) For obvious reasons, this contention must be rejected. First, it is clear that the court meant exactly what it stated. The court’s comment was madejust after the defense asked the court to take judicial notice of the fact that the prosecution filed the same charges against Williams that it had filed against Appellant, explaining the test of an accomplice is "liable to prosecu- tion." (108 RT 14446-14447) The court rejected the argument that Williams was an accomplice merely because he was charged in the offense, stating three times that an accomplice is someone whois also guilty of the offense for which the de- fendant is charged. (108 RT 14448-14449 emphasis added) Secondly, there is no authority for Respondentor this Court to interpret the wordsofthe trial court in a mannerthat drastically changes the meaning and legal ramifications of the words spoken. Nor is Respondent in a position to read the court’s mind. If the court repeatedly stated that an accomplice is someone whois guilty of the same offense, there is no reason to assume that something else was meant by the court’s words. Ironically, as previously noted, Respondent argues that Williams is not an accomplice because he said he heard a “gun” and not “shotgun,” the actual weapon fired in the bathroom. While seeming to tie Williams’s status as a result of the exact words that Williams uttered when interviewed by the police, Respon- dent then argues that the trial judge should not be taken at his word, but that a much wider degree of interpretation should be allowed for such a normally, highly articulate jurist. Respondent argues that Williams being named as a defendantis not disposi- tive of his accomplice status. Respondent cites to People v. Gordon (1973) 10 Cal.3d 460, to reach this conclusion. But, this conclusion is based on faulty reason- 14 ing in that People v. Gordonrests on a prior decision made sixty years ago in Peo- ple v. Lawson (1952) 114 Cal.App.2d 217, that never discussed the relevant statu- tory language and cameto a conclusionthat is in fact contrary to that statutory lan- guage. In Lawson, the person that the defendant claimed was an accomplice was also charged with the same offense but was acquitted in a joint trial. With no fur- ther analysis, the court stated “[t]hat the fact that two defendants are jointly charged with a crime does not determine the question as to whether they are in fact and in law accomplices. And a verdict ofnot guilty as to one defendantis afinding offact that he was not an accomplice of another defendant convicted of the same crime with which both were charged.” (d. at 220, italics added.) Lawsonrelied on prior cases that reached the same conclusion. (E.g. People v. Morgan (1948) 87 Cal.App.2d 674, 680 — a jury finding that a co-defendant was not guilty is a determination that the co-defendant was not an accomplice.) How- ever, Appellant contends that reliance on Lawson is in error because the fact of an acquittal merely shows that the jury may have had a reasonable doubtas to that de- fendant. As did Appellant’s trial judge, this reasoning equates “guilty” with accom- plice status. Thus, if a person is found not guilty, as was the case in Lawson,heis precluded from being an accomplice regardless of the facts. Obviously, even Re- spondent’s re-interpretation of the trial court’s language recognizes this should not be the test. Indeed, it is contrary to the statutory definition. The statutory language mandates that an accomplice is a person whois liable to prosecution. A person may beliable to prosecution, and yet may ultimately be acquitted. The fact that the jury had a reasonable doubt is not the same as saying the person was not properly charged. If that were the standard, every acquittal would result in a cause of action for malicious prosecution, as it would demonstrate that the person was notinitially subject to a legitimate prosecution. Having achieved this erroneousresult, after Lawson, in People v. Williams (1970) 10 Cal-App.3d 638, with no further analysis, and citing Lawson, the court 15 noted that although the witness was indicted along with the defendant, this fact “alone and as a matter of law” does not establish that he is an accomplice. (id.at 641.) Later, in People v. Gordon, supra, 10 Cal.3d 460, and again with no further analysis, this court cited Williams for this proposition. (/d. at 467.) Asa result, the rule that having been charged with the same crime is not enough to makeone an ac- complice is based on a case that expressly held that a conviction is a necessary con- dition of accomplice status, a case that did not discuss the relevant statutory lan- guage andis contrary to that language. The express language of the accomplice statute, section 1111, provides that an accomplice is someone whois liable to prosecution for the same offense. To hold that an acquittal precludes accomplice status abrogates the legislative language. Rather, the propertest is the one articulated by this Court in the case ofPeo- ple v. Rodriguez (1986) 42 Cal.3d 730 where it wascourt explained “liable to prosecution" means "properly liable,” requiring "probable cause" to believe that the person committed the offense . Ud. at 759.) This is more in line with the pur- pose of the accomplice rule that requires corroboration because the person himself may be tried for the offense, creating the motive to falsify information. The fact that he was not tried because he received the benefit should not bolster his credi- bility. In this case, Williams was formally charged with the exact same crimes and special circumstances as Appellant. (18 CT 4968-4973.) Thus, unless the prosecu- tion was acting in bad faith, he was not only “liable” to prosecution for the murders, he was prosecuted, a prosecution which concluded when the prosecutor madea stra- tegic decision to grant him immunity in exchangefor his testimony. To regard Wil- liams as a “non-accomplice” renders the express language of section 1111 meaning- less The absurdity of holding that a person is not an accomplice by reason of an acquittal is illustrated by this case. Appellant was acquitted of two of the counts of first-degree murder when the jury found him guilty of second-degree murder. 16 Nonetheless, it would be illogical to argue he is not an accomplice with Bryant and Wheeleras to all of the counts. However, this is the result that would be achievedif the analysis providedin the line of cases adopting the rule in Gordon were followed. Likewise, Settle was a co-defendant throughout the trial, although he was eventually convicted of only manslaughter when he entered a guilty plea after the jury deadlocked on first-degree murder. Indeed, necessarily inherent in the trial court’s acceptance of Settle’s guilty plea is the acknowledgmentby thetrial court and prosecution that Settle was involved in the murders. There are no possible ac- tions, which Settle could have engaged in that would support his manslaughter con- viction and not subject him to liability for the murders. His conviction for man- slaughter, in lieu of being re-tried for murder, was a fluke based solely on the Peo- ple’s decision regarding the cost effectiveness ofnot retrying this case. Settle’s status as an accomplice should be determined by the facts of the case and his actions, not by extrinsic matters such as the People’s decision to economize and not retry the case. However, under the Gordon rationale, Settle would not be an accomplice. Furthermore, there is an important distinction between this case and the line of cases adopting the rule in Gordon; in those cases the suspected accomplice was actually tried and acquitted. Therefore, even assuming arguendo, that an acquittal, the distinguishing fact of Lawson, precludes one from being an accomplice, at least in those cases there was a determination that the suspected accomplice was not guilty. Here, there never was such a determination because the prosecution with- drew the charges to obtain the testimony of the potential accomplice. Therefore, the very determination which Appellant seeks — whether Williams was an accomplice - is prevented by the tactical moves of the prosecution which has removed the issue of the guilt of Williams from the consideration of the jury. While this may have been a valid tactical move on the part of the prosecu- tion, it should not be allowed to become the conclusive determination of the “non- guilt” of Williams for purposes of determining accomplice liability. This type of 17 conduct should not be used as an excuse to overcome important procedural rights. As the United States Supreme Court recognized in Davis v. Wechsler (1923) 263 USS. 22: Whateverspringes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the nameof local practice. (id at 24, quoted in Lee v. Kemna (2002) 534 U.S. 362, 376 To allow the prosecution to advocate the view that Williams cannot be con- sidered to be an accomplice because he was not convicted for the same offenses as Appellant, and yet, at the same time, give the prosecution discretion to not iry Wil- liams,in the first place, puts Appellant in an unfair position of being forced to prove something which has been rendered impossible to prove, not by reason ofits lack of existence, but, rather, by the tactics of the prosecution. As Lee teaches, creating this type of procedural minefield can result in the denial of the right to due process of law. In this case, Appellant should not be precluded from arguing that Williams was an accomplice and thus denied due process, based on the prosecution’s proce- dural maneuvers, which ultimately resulted in Williams never being tried. Further- more, even if Williams being charged is not “dispositive,” as Respondent claims, Appellant submits that this fact, at a minimum, should be given significant consid- eration in determining his accomplice status, since this factor is closer to the intent ofthe legislative language than is a requirement of a conviction. Here, Williams was a capital defendant who participated in the running of the drug cartel. He was present and engagedin the business on the day of the mur- ders. Knowing that something was going to happen involving guns, he started help- ing Bryant achieve his criminal purpose. When people were test firing guns and walking around with weapons, he followed directions that assisted in the crime. Even while the crime was going on and the shots were being fired, Williams contin- ued to follow directions that furthered the completion ofthe crime. 18 As noted in Appellant’s Opening Brief, had Williams exercised his right to remain silent and his version of the events was never told, a version that must be taken with a grain of salt because of the self-serving motive behind his statements, the very purpose of the accomplice rule, Williams undoubtedly would have been convicted, as a memberofthe cartel leaving the scene of the murder. (AOB 62.) Finally, Appellant has presented two alternate theories for Williams’s liabil- ity in this case — liability based on his participation in the narcotics business and li- ability for his actual participation in the murders by following Bryant’s instructions when he knewthe crime was occurring. This court does not have to adopt both of these theories in order to find that Williams was an accomplice. Rather, if either of these theories is adopted, the result would be a finding that Williams acted as an ac- complice. In summary, Appellant submits that in light of these facts, Williams was li- able to prosecution for the same offenses for which Appellant was convicted and accordingly, must be regarded as an accomplice. B. THE CONVICTION MUST BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO CORROBORATE ACCOMPLICE TESTIMONY Respondent contends that even if Williams was an accomplice as a matter of law, the failure of the trial court to recognize this fact was harmless because there was sufficient corroborative evidence. (RB 365-366.) As to Appellant Smith, Respondent argues corroboration of Williams’s testimony can be found in two items of evidence: the shooting of Keith Curry; and the telephonecalls be- tween Appellant, Armstrong, and the other defendants. (RB 371-377.) Respondent’s argumentis flawed for two reasons: First, neither of these two items are the type of evidence that could be deemed sufficient corroboration because neither of them connected Appellant to the crime. Respondent demonstrates a lack of understanding as to the nature of 19 evidence required to corroborate accomplice testimony. Under the express statu- tory language, corroborative evidence must connect the defendant to the offense, not just to the other parties, which the evidence in this case failed to do. (Pen. Code § 1111.) Further, as discussed below, the Keith Curry shooting evidence was improperly admitted. Second, even assuming arguendo that there was sufficient corroboration, there are other consequences to accomplice status, which would havelikely af- fected the outcomein this case. Thus, apart from the issue of corroboration, Ap- pellant was adversely affected by the failure of the court to instruct the jury that Williams was an accomplice. 1. Corroborative Evidence Must Connect The Defendant To The Crime Initially, it must be re-emphasized that in ruling on Appellant’s motion to dismiss, the trial court unmistakably recognized the fact that the other evidence in the case not connect Appellant to the offense, and that if Williams was deemed an accomplice the jury would have to acquit. (108 RT 14457-14458.) Thetrial court’s opinion was based on the court’s clearly expressed belief that absent the testimony of Williams there was no evidence connecting Appellant to the offense, and without Williams’ s testimony there was insufficient evidence to believe that Appellant was involved in the crimes. (108 RT 14456-14458.) In California, the rule has long been established that corroborating evidence must connect the defendant to the offense. (People v. Davis (1903) 210 Cal. 540, 555.) The requirement that the corroborative evidence connect the defendant to the crimeis not a matter ofjudicial construction or interpretation, but derives from the express statutory language of section 1111, which has had the same provision since its adoption as a part of the Criminal Practice Act in 1851. (People v. Kem- pley (1928) 205 Cal. 441, 456.) Section 1111 requires more than the fact that the evidence tends to prove the defendant committed the crime. This is the definition of relevance under Evi- 20 dence Code section 210. The fact that Appellant knew and called Bryant has a tendency in reason to make it more likely that he committed the crime than if it could not be shownthat he knew or was in touch with Bryant. But, section 1111 requires more than simply a tendency in reason. By its very language,it requires that the corroborative evidence actually “connect the defendant with the commis- sion of the offense.” (Pen. Code § 1111.) A reviewing court must eliminate from consideration the accomplicetesti- mony and then determine whether the corroborative evidence has a substantial connection fo the crime. (Kemply, supra, at 457-458.) If the corroborating evi- dence requires the testimony of the accomplice to give it meaning,it is not suffi- cient. (People v. Davis, supra, 210 Cal. Id. at 554-555.) The requirementthat the evidence connect the defendant to the crime is an aspect of the related rule that merely showing association with other people in- volved in the crime is not sufficient corroboration. (People v. Robinson (1964) 61 Cal.2d 373, 400; AOBat p. 64.) Case law demonstrates this principle by explain- ing that if a defendant’s fingerprints are found at the scene of the crime, or if a de- fendant possessed a gun similar to the one used in the crime, or if a defendant pos- sessed property related to the crime, these facts relate to the offense itself and thus constitute corroboration. (See People v. Andrews (1989) 49 Cal.3d 200, 211, Peo- ple v. Narvaez (2002) 104 Cal.App. 4th 1295, 1305, People v. Trujillo (1948) 32 Cal.2d 105; People v. Williams (1997) 16 Cal.4th 635.) Recently, in People v. Boyer (2006) 38 Cal.4th 412, this Court held that there was “ample corroboration” connecting the defendant to the crime where, along with other evidence, the defendant made a commenthinting he had beenin- volved in the murder and blood from pants recovered from defendant’s house con- tained stains that matched both of the victims’ blood. Clearly, the victim’s blood on the clothes of a defendant connects him to the crime in a mannerthat is sub- stantially different from the fact that the defendant had made telephone calls to another person chargedin the offense, the situation here. 21 Before considering whether the telephone calls constituted evidence impli- cating Appellant, Williams’s testimony mustfirst be disregarded. If the telephone calls were the only evidence the prosecution possessed, the calls alone would not connect Appellant to the crime. Thetrial court reached this obvious conclusion when it determined that the other evidence in the case, including the telephone calls, did not connect Appellant to the offense. (108 RT 14457-14458.) In this case, if Williams’s accomplice testimony is eliminated and reliance is placed solely on the acts cited to by Respondent, all that is left is the fact that Appellant committed an act of violence for Bryant in the past and that around the time of the murder Appellant was in phone contact with people who were involved in the murder. Neither of these facts sufficiently “connect” Appellant to the of- fense in the way that he would be sufficiently connected to the offense had he owned a gun similar to that used in the crime, had he ownedproperty involved in the crime, or had Anderson’s blood been found on Appellant’s clothes, such facts as required by the court in Andrews, Narvaez, or Boyer. A comparison ofthe acts Respondent cites to as corroboration for Wheeler and Bryant as opposed to those Respondentcites to regarding Appellant, perfectly illustrates this principle of how corroboration must be related to the offense. For example, as to Bryant, Respondent explains that one of the associates of the Bryant organization, Ladell Player, made a statement that a few days after the murder he told Bryant he had been by the Wheeler Avenue residence and had seen the police tape, and Bryant replied that they had some problems, but they were taken care of. (RB 366.) This is an admission connecting Bryant to the events at the crime scene, that is, he admitted “problems” with the victims, which was the claimed motive for the murder. Indeed, stripped ofits cryptic nature, Bry- ant made an admission to the offense by saying that he had problems with Arm- strong shaking him down, but he resolved those problemsby killing him. Similarly, Respondent notes that a car owned by Bryant was associated with the murder in that it was seen at Wheeler Avenue addressright after the mur- 22 der, and when Bryanttradedit in, blood was found in the car. Also, a bullet at the crime scene wasfired from a gun found at Bryant’s house. (RB 367.) Bryant’s car with blood in it, seen at the murder location, and a gun that was used in the murder being found at his house connected him to the crime and not just to the other defendants. This is even stronger evidence than the corrobora- tive evidence required in People v. Andrew, supra, 49 Cal.3d 200, where the own- ership of a similar gun to the one used in the crime was sufficient. Here, Bryant was connected with the very gun used. Similarly, as to Wheeler, Respondent explains that three people saw a per- son matching Wheeler’s description firing the shots into the Toyota and/or driving off in the Toyota with Anderson’s body. (RB 369.) Likewise, Wheeler owned the same type of gun used to kill Anderson, a fact deemed sufficient corroboration un- der Andrew. (RB 370.) Similarly, Wheeler’s fingerprints were found at the mur- der scene. (RB 370.) Being identified by witnesses as having been the shooter, owning the type of gun used, and having been at the murder scene connects Wheeler to the crime, and not only to the other parties. Undoubtedly, without guidance from Williams’s testimony, a jury could look at this evidence and be- lieve Wheeler was connectedto the offense. On the other hand, the fact that Appellant was in contact with the people involved in the crime wasnot sufficient, without the testimony of Williams, for the jury to conclude that Appellant was involved. Two important principles underlie the necessity of having corroboration connect the defendant to the crime itself and not merely to the parties or the scene of the crime. The first is the recognition that the accomplice's first hand knowl- edge of the facts of the crime allows for the construction of plausible falsehoods not easily disproved. (People v. Guiuan (1998) 18 Cal.4th 558, 575 (Kennard,J., concurring.) The second is the danger that the accomplice will make up evidence to inculpate another person in order to obtain a benefit from the prosecution. 23 (Commonwealth of the Northern Mariana Islands v. Bowie (9th Cir. 2001) 243 F.3d 1083, 1124.) The importance of requiring that the corroboration connect the defendant to the crime itself, and not merely to the parties or the scene of the crime, guarantees that inherently unreliable accomplice testimony that is shrouded with an aura of credibility because it is viewed as insider information, is not used to convict peo- ple on a prosecution’s case that is built primarily on such a shaky foundation. If the contrary were allowed, the accomplice who needs souls to exchange for his own could ensnare many potentially innocent people. The instant case accurately portrays the danger created by relying improp- erly on a person’s connection to the parties and relying on insufficient ties to the crime scene rather than a sufficiently legal connection to the crime. Detective Lambert estimated that the Bryant family organization employed between 125 and 200 people. (84 RT 9891, 102 RT 13421.) All 125-200 of these people were con- nected to the parties through employment with the Bryants. Many of them also had connections to the scene of the crime merely by going to the Wheeler Avenue residence to conduct their drug business. Williams would have known many of these people from his time at the Wheeler Avenue house or from hanging around the pool hall, where members of the organization congregated. Indeed, the finger- prints of some of these people associated with the Bryant family were foundat the Wheeler Avenue location, including William Settle, Antonio Johnson, Anthony Arceneaux, and Nash Newbill. (101RT 13280-13287, 13280-13281.) All of these were defendants in this case, and Johnson and Newbill were charged with the murders and wereeligible for the death penalty. If the improper measure of corroboration as advanced by Respondent were employed, then any one of these 125 to 200 individuals, if named by Williams, could have ended up on death row based on Williams’s testimony plus evidence that they were associates of the family and/or their prints were foundat the scene. The thought that instead of having their cases dismissed, any one of these indi- 24 viduals could be in Appellant’s place right now based on the testimony of a char- acter as unsavory as Williams coupled with other paltry and tenuous evidence, should give one great pause. The insurance against an accomplice entrapping an innocent person is the requirement that the evidence does more than just prove the person named by the accomplice is an associate of other parties. Without that insurance, Williams could hand over any one of the 125 to 200 people working for the family and then the state could build a murder case based simply based on Williams’s testimony and their unrelated association to the Bryant family and the crime scene. Citing People v. Bunyard (1988) 45 Cal.3d 1189 and People v. Heishman (1988) 45 Cal.3d 147, Respondent explains that this Court has held telephonecalls can be sufficient corroboration for accomplice testimony. The problem with this contention is two-fold. First, as will be explained, those cases are distinguishable from the instant case. Second, Respondent asks this court to rely on dicta reached in prior cases as a basis for finding sufficient corroboration in this case; a finding that would be contrary to the statutory language requiring corroborative evidence connect Appellant to the crime, and not merely to the parties. | In Bunyard, the court found corroboration for the accomplice testimony in the testimony of another person, Johnson, who the defendant had tried to hire for the murders, although the Court went on to indicate that there were “many other corroborative factors” in addition to Johnson’s testimony, including the telephone calls alluded to by Respondent. (/d. at 1208.) As a result, because there was other corroborative evidence, it was unnecessary to the holding ofBunyard that the calls themselves be sufficient corroboration. Therefore, the statement to that effect is dicta. As Chief Justice Marshall explained in Cohens v. Virginia (1821) 19 U.S. 264, 399: It is a maxim not be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those 25 expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but the possible bearing on all other cases is seldom completely investigated. Therefore, "[q]uestions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so de- cided as to constitute precedents." (Webster v. Fall (1925) 266 U.S. 507, 511: quoted in Canales v. City ofAlviso (1970) 3 Cal.3d 118, 127-128, fn. 2; Johnson v. Bradley (1992) 4 Cal.4th 389, 415.) Similarly, in Heishman the defendant had been arrested for raping the vic- tim, whom he waslater alleged to have killed in order to prevent her from testify- ing against him. The defendant asked an accomplice to make calls to the commu- nity college where the victim was a student in an effort to get the victim’s class schedule. The court noted two items of corroboration, namely the defendant’s mo- tive and the telephone records showing phone calls between the defendant and the accomplice and the community college. (/d. at 164.) Additionally, the markings on the fatal bullets were consistent with those produced by a gun similar to a gun another witness testified she loaned to the accomplice. Furthermore, another wit- ness selected the defendant’s car as the one being driven away from the scene im- mediately after the murder. (/d. at 157, 161.) Thus, in Hieshman in addition to the telephone calls, there was evidence connecting the defendant to the crime in that a motive for the crime wasproven, a possible murder weapon was tied to the accomplice, and his car was observed at the scene of the crime. Asa result, the statement by the Court that phonecalls could be sufficient corroboration is dicta, not essential in any wayto the resolution of the case. 26 Second, in Heishman, there was no other apparent reason for the defendant or the accomplice to be making the phonecalls to three of the local community colleges. Therefore, the fact of these phone calls did more than merely connect the defendant to the other parties. It tended to connect him to the facts of the crime. Thus, Heishman is not contrary to the well-established rule set forth above in People v. Robinson, supra, 61 Cal.2d 373, that the corroborative evidence must connect the defendant to the crime and notjust to the parties. As shown, because there was other corroborating evidence in Heishman and Bunyard, the pronouncementregarding the phonecalls was not essential to the resolution of the case and should be regarded as dicta. In contrast to Heishman and Bunyard, here, an integral part of the prosecu- tion’s case was the theory that Appellant was friends with all of the parties and had done business out of the Wheeler Avenue residence. Thus, apart from any in- volvement in the murder, there were innocent reasons for his phone calls. As noted in the Statement of the Facts, it appeared that Armstrong had been living with Appellant before he was arrested. Furthermore, Appellant is related to Bry- ant by marriage. Finally, if Appellant was involved in the drug trade with Bryant, and if he had been to the Wheeler Avenue houseto get drugs, it would not be sur- prising to find that Appellant made phonecalls to all of the phone numbers in question. Thus, the defense accurately argued that the phone calls at most showed that Appellant was an accomplice to drug sales and his association with the parties was separate and apart from any involvementin this case. (108 RT 14451-14452.) Consequently, the fact that he made telephone calls to these locations does not connect him to this particular crime, but only to other people involved, and is therefore not corroborative evidence under California case law. (See Robinson, supra, 61 Cal.2d 373.) Finally, the evidence of the Keith Curry shooting was not evidence that could be used to corroborate accomplice testimony. First, as discussed below and 27 further detailed in Appellant’s Opening Brief, the Keith Curry shooting evidence was improperly admitted. (Post, at 72-74, AOB at 1613-168.) Secondly, even as- suming that evidence was properly admitted it did not corroborate the accomplice testimony because it merely connected Appellant to the other parties (Bryant) and not to the offense. The main use of the Curry evidence, as argued by the prosecution, and as the trial court instructed the jury, was “to prove the relationship between Mr. Bry- ant and Mr. [Appellant] Smith in this case.” (91 RT 11314.) Thus, the very pur- pose of this evidence was not to connect Appellant to the crime, but to show his connection and relationship to Bryant, from which the prosecution hoped an infer- ence of guilt could be drawn. However, without Williams’s testimony all that is left is the fact that Appellant was one of the people who did Bryant’s dirty work, with no connection to this particular piece of business. In summary, because neither the Curry evidence nor the phone calls con- nected Appellant to the crime, and merely connected him to the parties, this evi- dence was insufficient to corroborate the accomplice testimony. 2. Other Consequences Of Accomplice Status. The second flaw of Respondent’s argumentis its conclusion that the error of failing to instruct the jury that Williams was an accomplice was harmless be- cause of the existence of corroborating evidence. This conclusion overlooks the fact that there are other consequences to accomplice status besides the requirement of corroborating evidence. If Appellant was deprived of other advantages as a re- sult of failing to instruct the jury as to Williams’s accomplice status, he wasstill prejudiced by this error, even if, arguably, some corroboration waspresent. Failing to appropriately instruct the jury was harmful to and put Appellant at a disadvantage because if the jury had properly been instructed that Williams was an accomplice, they would have been further instructed that his testimony was to be viewed with caution. (53 CT 15516). Thus, had the jury been properly in- formed to view Williams’s testimony with caution, it is reasonable that a juror 28 looking at the total picture could vote to acquit based on a determination that: (1) Williams’s testimony could not be trusted; and (2) only “slight” corroboration of his testimony was presented (post, at p. 45-47). A juror could have concluded that based ona totality of this evidence a reasonable doubt as to Appellant’s guilt ex- isted. Further, if the jury had been appropriately instructed that Williams was an accomplice, a juror could have concluded that Williams’s testimony was suspect and the remaining evidence did not tie Appellant to the offense. A conclusion of this sort would not have been unreasonable, as shown by the fact that the trial court reached the same conclusion. (ante, at p. 20.) Had Appellant’s jurors been given the opportunity to consider Williams’s testimony with caution, it is reason- able that any one of them could have voted to acquit Appellant. On the other hand, the trial court’s failure to appropriately instruct the jury that Williams was an accomplice gave the jury no ability to properly scrutinize his testimony. This failure alone made it more likely that the jury would view Wil- liams’s testimony as credible and further conclude there was some evidence to back him up, even if that evidence was dubious. In short, informing the jury that Williams was an accomplice had ramifica- tions beyond the requirement of corroboration. Therefore, even if slight corrobo- ration existed, Appellant was prejudiced by the failure to inform the jury of the fact that Williams was an accomplice and thus his testimony should have been viewed with caution. C. THE TRIAL COURT ERRED IN FAILING TO EXCLUDE TANNIS CURRY FROM THE CALJIC NO.2.11.5 INSTRUCTION GIVEN TO THE JURY CALJIC No. 2.11.5 instructed the jury, in part, to not consider why Tannis Curry was not being prosecuted for her actions. The jury was told that this in- struction did not apply to witness Williams; and therefore, the jury could consider 29 the fact that Williams testified under a grant of immunity. Thetrial court erred in telling the jury that they could apply the instruction to Tannis Curry. Specifically, the jury should have been instructed that CALJIC No. 2.11.5 did not apply to Tannis, because like Williams, she was an accomplice whotesti- fied under a grant of immunity. Instead, the CALJIC 2.11.5 instruction effectively (and erroneously) told the jury that Tannis Curry was not an accomplice, that the jury should not consider why she wasnot beingtried, and that the jury should not consider the grant of immunity provided to Tannis Curry in reaching its determi- nation as to her credibility. This was improper. As discussed in Appellant’s Opening Brief (AOB 96), when a possible ac- complice testifies under a grant of immunity, the CALJIC 2.11.5 instruction should not be given. Providing this instruction to the jury under this situation sends a contradictory message to the jury, telling them that they cannot consider the very thing that may have inducedhertestimony,i.e. the grant of immunity. In the alternative, when the instruction is given, possible accomplices, such as Wil- liams and Tannis, should be excluded from the scope ofthat instruction. Respondent argues that there was no error in failing to exclude Tannis Curry from consideration of CALJIC 2.11.5 because Tannis was not a possible ac- complice. (RB 382.) Respondent disputes Appellant’s argument that Tannis Curry wasa lure and part of the plot to kill Armstrong, backing out of going to the Wheeler Avenue houseat the last moment in order to set up Armstrong. Respon- dent’s current position as set forth in its brief is that Tannis Curry backing out of going to the Wheeler Avenue house had nothing to do with the crime but occurred because she simply did not want to accompany her lover (Armstrong) to meet her ex-husband (Bryant). The theory advanced by Appellant that Tannis Curry assisted in the crime by luring Armstrong, is not a product of the fevered imagination of appellate counsel. This was the theory under which the prosecution charged Tannis Curry. Respondent should be precluded from changing course midstream by now offering 30 the argument that Tannis Curry was not an accomplice. This argumentis trans- parently factually inconsistent with the prosecution’s previous position where it strongly argued before the trial court that the facts indeed showed that Tannis Curry’s role was that of an accomplice in the crimes. For several years, the prose- cution proceeded under this factual theory until ultimately the prosecution gave Tannis Curry immunity in exchange for her testimony and dropped all charges against her. (See 22 CT 6127-6258.) Evidence of Tannis Curry’s guilt, according to the prosecution, included the fact that Tannis Curry made numerous contradictory statements to the police, abandoned her child, apartment, and expensive car, and fled within hours of the murder. (22 RT 6253.) The prosecution made it abundantly clear that it believed Tannis Curry was an accomplice and guilty of the crimes even though she may have been surprised that the baby was killed. The prosecution noted: that didn’t absolve her from liability therefore. She participated in the plan to kill those people coming down from up north to take a piece of the Bryant family drug action. She set the victims up by feeding information to Stan Bryant after placing herself in a position of trust with the victims.... Tannis Curry is liable for the actions of her confederates....The evidence would be sufficient to go to a jury, certainly it is more than ample to support a reasonable suspicion that defendant Tannis Curry was a co-conspirator and therefore le- gally responsible for the charges setforth in Counts I — IV [murder] of the Information. (22 CT 6254,italics added.) During the Keith Curry shooting admissibility hearings, the prosecutionar- gued the Keith Curry shooting was similar to the Armstrong shooting because Tannis Curry was also with Armstrong before he was shot, pretending to be on his side, and then deserting him to make a phonecall setting him up for Bryant. (91 RT 11287.) In the words of the prosecution, “certainly it is more than ample to support a reasonable suspicion that defendant Tannis Curry was a co-conspirator.” (22 CT 6254.) Once the prosecution proceeded on a factual theory that Tannis Curry was an accomplice, it is improper for the Attorney General to now base its appellate response on a theory that Tannis Curry was not an accomplice. (Dutra Construc- tion Co., 57 Cal.App.4th at 877.) Due process dictates that the prosecution cannot have it both ways. Assuming arguendo, that without a change in material facts, the prosecution can legally transform its position, its argument fails because factually and legally Tannis Curry was an accomplice and as such, should have been excluded from consideration of CALJIC 2.11.5. Indeed, the fact that Tannis Curry wasoriginally charged as a capital defendant is strong evidence of the fact that she was an ac- complice. People v. Gordon, supra, 10 Cal.3d 460 was decided incorrectly (ante, at pp, 15-17.), and under the statutory definition of an accomplice, Tannis Curry wassubject to prosecution and was prosecuted for the identical offenses for which Appellant was tried, and therefore was statutorily deemed an accomplice. In fact, the only reason Tannis Curry was not actually tried with Appellant, as a murder defendant, was because the case was too big and severance was needed. The court severed all non-capital defendants (i.e. Tannis) from capital de- fendants (i.e. Appellant). Indeed, had the trial court only severed the non-murder defendants, such as Blayock or Gillon, and decided to keep together all those charged with murder, Tannis Curry and Appellant would have beentried together. As with Williams, Appellant contends that Tannis Curry’s accomplice status should be determined by the evidence of her actions, and not by an unre- lated happenstance of how many individuals the District Attorney sought to charge, what defendants were severed in order to make the case more manageable, or how many suspects werearrested. Arguably, if Tannis Curry was not an accomplice as a matter of law, she was a possible accomplice as a matter of fact. Even if the current version of facts offered by the prosecution is accepted, it is only one possible interpretation of the facts. If another interpretation of facts, as currently argued by Appellant, and pre- viously argued by Respondent, is accepted, the jury could have found Tannis Curry was an accomplice as a matter of fact. As such, the jury should have been 32 fully informed of Tannis’s possible accomplice status so that they could properly evaluate all issues, including her credibility. Accordingly, Respondent’s argument that Tannis Curry should not have been excluded from consideration under CALJIC 2.11.5 is without merit. Respondent further argues that because there was no instructional error, Appellant’s related constitutional argument must fail. (RB 383.) As demon- strated, Respondent’s arguments that there was no instructional error are incorrect. Appellant has sufficiently demonstrated the instructional error, and consequently, Appellant has shown that this error raises issues of constitutional concern as dis- cussed in Appellant’s Opening Brief. (AOB. 97.) Respondent also contends that this issue is waived because the defense did not object to this instruction when it was given to the jury. (RB 383.) This over- looks the well-established principle that challenges to jury instructions affecting substantial rights are not waived even if no objection is made attrial. (Penal Code § 1259, see also People v. Johnson (2004) 115 Cal.App.4th 1169, 172.) Furthermore, Respondent’s argument in this area, as in other areas where Respondent raises waiver as a bar to this court’s consideration of the issues, fails to understand the nature of waiver. A party’s failure to object may preclude a party from asserting the issue. However, it is not a bar to the issue being resolved by an appellate court if that court sees a need to resolve the issue. As stated in People v. Williams (1998) 17 Cal.4th 148, n. 6: In Scott [People v. Scott (1994) 9 Cal.4th 331], we held only that a party cannotraise a “complaint[] about the mannerin whichthetrial court exercises its sentencing discretion and articulates its supporting reasons ... for the first time on appeal. “ (/d. at 356.) We did not even purport to consider whether an appellate court may address such an issue if it so chooses. Surely, the fact that a party mayforfeit a right to present a claim of error to the appellate court if he did not do enoughto ’prevent[]* or ’correct[]* the claimed error in the trial court (id. at 353) does not compel the conclusion that, by operation of his default, the appellate court is deprived of authority in the premises. An appellate court is generally not prohibited from reach- ing a question that has not been preserved for review by a party. (/d. at 161.) 33 Therefore, this Court is not precluded from addressingthis issue. Finally, Respondent argues there was no prejudice from this error. It is re- spectfully submitted that as to Appellant Smith, Tannis Curry’s testimony was crucial. Her testimony was offered in an effort to provide the basis for the evi- dence of the Keith Curry shooting. (AOB. 163.) This was the prosecution’s cru- cial evidence that it hoped would connect Appellant to the offense, as the “hit man”for the Bryant family. Furthermore, most of the evidence in the case, including the mountain of evidence regarding other crack houses and other bad acts of the Bryant family, were not relevant to Appellant. Therefore, although Tannis Curry was a minor witness in relation to the entire trial, she was a crucial witness in relation to Appel- lant. She also served to confirm the testimony of accomplice Williams. Wil- liams, a shady character whoas a drug dealer for the Bryant family continued his life of crime after fleeing to Pennsylvania, and who escaped the death chamberbe- cause he gave the prosecution the information they wanted on this case. Even Re- spondent must admit that Williams is not exactly the type of person who evokes a great sense of character andtrust. In the case against Appellant, Tannis Curry became a crucial witness be- cause, as the trial court believed, she provided the necessary logical foundation for the admission of the Keith Curry shooting evidence. This evidence was the most important evidence purportedly corroborating the testimony of Williams, as it was offered to tie Appellant to Bryant in the role as enforcer. As a result, Tannis was the cornerstone for the most damaging evidence against Appellant. Because of her crucial role in the portion ofthe trial that related to Appellant Smith, it was crucial that the jury understand her role as an accomplice so as to be able to properly evaluate her credibility. In summary, the instruction given to the jury failed to perform the function of alerting the jury to the credibility problems potentially inherent in Tannis’s tes- 34 timony. Indeed, the instructions actually directed the jury in a false direction by telling the jury that Williams was the only possible accomplice. Had the jury not been precluded from believing that Tannis was an accomplice, the jury may have viewed her testimony in a less credible light. Because she was a crucial witness in the case against Appellant, Appellant was prejudiced by this instructional error. Therefore, a reversal of the judgmentis required. D. THE TRIAL COURT ERRED IN REFUSING TO REOPEN JURY DELIBERATIONS, WHEN, AFTER THE JURY RETURNED A VERDICT AGAINST APPELLANT, BUT WHILE THE JURY WAS DELIBERATINGAS TO SETTLE, THE JURY HAD QUESTIONS ABOUT ACCOMPLICE STATUS AND REASONABLE DOUBT The trial court erred in refusing to reopen jury deliberations after Appel- lant’s verdicts were returned. The error occurred whenthe jury wasstill deliberat- ing as to codefendant Settle and they sent out questions demonstrating they did not understand crucial legal principles relating to the potential accomplice status of Williams and the concept of reasonable doubt as those concepts related to Appel- lant and Settle’s trial. As explained in Appellant’s Opening Brief, section 1161 provides that whenthere is a verdict of conviction, in which it appears that the jury has mistaken the law, the court may explain the law and direct the jury to reconsider their ver- dict. Respondent suggests that the word “may”in section 1161 makes the decision of the trial court discretionary, and reversible only if there was an abuse ofdiscre- tion. (RB 389.) Even if Respondent’s position is true, here, the trial court did abuseits discretion in failing to order that the jury reconsider Appellant’s verdicts. First, the jurors sent out a question asking: “If one is charged with a crime but not brought to trial is he automatically an accomplice?” (53 CT 15439 empha- sis added.) The trial court determined that this question addressed either Williams or Settle’s role in the crimes. (RB 386.) This was error. The language ofthe ju- 35 rors’ question coupled with the evidence presented at trial makes clear that the question wasdirected to only Williams’s status as an accomplice. The jurors’ question cannot be directed to Settle, because Settle was brought to trial, and Williams was not. To reach its conclusion that the jurors’ question applied to either Williams or Settle, the trial court had to ignore the criti- cal portion of the jurors’ question that limited its inquiry to the person(s) who were charged but not brought to trial. The trial court’s effort to broaden the scope of the jurors’ question wasin clear conflict with the evidence and was an abuseofits discretion. Other questions raised by the jury indicated a pervasive concern andlack of understanding of accomplice-related law. For example, the jurors asked the court: “Can there be aiding and abetting after the crime was committed?” (53 CT 15440.) This jury question makes obvious that the jury did not understand whether Wil- liams could be deemed an accomplice if the only act he performed wasafter the murder, i.e., acting as a “scout,” that is, checking to see if anyone onthe street no- ticed the noise. Factually Settle’s role in the crime wassignificant. After the shooting, Wil- liams “scouted out” the neighborhood at Bryant’s request and Settle drove the bodies away. Both of these “after the fact” activities of scouting the neighborhood and driving the bodies away derived solely from Williams’s testimony. However, the evidence showedthat Settle’s involvementprior to the murder wassubstantial, including the fact that he was walking around the house with the shotgun before the murder (97 RT 12305-12306), and arguably his role as one of the actual shoot- ers was clear. If the jury determined Settle was present, they also had to have con- cluded he did far more than drive the bodies away. Therefore, as a matter of logic, the jurors’ question could not have been directed towards Settle’s status. The trial court failed to recognize that the jurors’ questions and confusion related to Appellant’s case, as well as Settle’s case, because as noted by Respon- dent, the court believed the jury was merely having a dispute as to whether there 36 was sufficient corroboration of evidence against Settle. (RB 388.) The court’s belief was unfounded since the jurors’ questions did not address the principles of corroboration, but rather were directed specifically at questions relating to the de- termination of accomplice status. After raising the questions of Williams’s accomplice status based on his ac- tions after the murder, the court correctly explained to the jury that was now delib- erating as to Settle’s fate that Williams could be an accomplice if he agreed to the act in question before the crime, in order to facilitate the crime. (126 RT 17105] - 17105J) Prior to this answer, the jury did not understand this concept, or it would not have asked the question. Unfortunately, the jury did not ask and thetrial court did not clear up the jury’s confusion about accomplice status until after Appel- Jant’s verdicts were returned. Thus, when deliberating as to Appellant’s guilt, the jury was operating under an ignorance of the law and an incorrect belief in what was necessary to determine accomplice status. As such, when deliberating as to Appellant’s guilt, the jury may have excluded Williams from the realm of accom- plice status based on the erroneous ground that Williams’s criminal action took place after the murder. However, based on the court’s response to the jurors’ question submitted after Appellant’s verdicts were returned, had the jury considered this response dur- ing their deliberations of Appellant’s culpability, it is likely that at least one juror could have concluded that Williams was an accomplice and thereby would have voted to acquit Appellant When deliberating Appellant’s fate, if the jury, based on its failure to un- derstand the law, thought Williams was not an accomplice, corroboration would not have been necessary and the jury could have reached a conclusion of convic- tion based on Williams’s testimony alone. However, further definition and in- struction from the court in determining accomplice status changed the scope of the deliberative process during Settle’s deliberations. Unlike the deliberations in Ap- pellant’s case, during deliberations in Settle’s case, the jury now understoodthatit 37 could deem Williams an accomplice based on the facts that showed before the murders Williams received (and accepted) instructions to scope out the area and movethe car, acts which he accomplished after the murders. With this new under- standing, the jury deadlockedasto Settle’s guilt. It was crucial that the jury understand all aspects of Williams’s accomplice status when deliberating Appellant’s guilt. This is especially true given the lack of corroboration as to Appellant, as acknowledged bythetrial court. (108 RT 14456- 14457, 14457-14458, 14458.) Because Appellant’s jury did not have its under- standing of accomplice liability cleared up until after returning a verdict against Appellant, the jury could have convicted Appellant based on the testimony of Wil- liams alone, and only later learned — while deliberating against Settle — that it was mistaken in finding that Williams was not an accomplice. The jury’s failure to un- derstand the law during Appellant’s deliberations was not limited to its failure to understand the legal elements necessary to establish accomplice status. The jury, after Appellant’s verdict and during Settle’s deliberations, raised additional ques- tions. These questions related not to whether there was corroboration asto Settle, but to the relationship of reasonable doubt and corroboration, again, an area at the heart of Appellant’s defense. Thus, during Appellant’s deliberations the jury op- erated under confusion over the fundamental principle of reasonable doubt. (53 CT 154411, 126 RT 17105M.) Respondentis incorrect it its assertion that these jury questions related only to corroboration for Settle’s guilt and did not relate to the concept of reasonable doubtitself. Two of the questions that the jury had were: A defendant cannot be guilty based upon the testimony of an ac- complice unless such testimony is corroborated by other evidence. Doesn’t this constitute reasonable doubt if there is no corroboration of same in your mind? If you have reasonable doubt, you are required to vote not guilty. Is that the law? (53 CT 15441, 126 RT 17105N.) 38 Both of these questions clearly illustrate confusion regarding the meaning and role of reasonable doubt. For the jury to proceed with deliberations against Appellant not understanding the principle reflected in this question, allowed the jury to convict Appellant without reaching the “beyond a reasonable doubt”stan- dard required by the Due Process Clause. Respondent remarks that the jury’s question regarding reasonable doubt was not indicative of a general misunderstanding of the law, but only demon- strated that one juror had doubts as to the guilt of Settle. Assuming this is a true statement, it does nothing to ameliorate the injustice suffered by Appellant that occurred when his jury deliberated at a time when they were unsure of a funda- mental principle of law, that is, reasonable doubt. If true that it was one juror who was not clear as to the concept of reasonable doubt, irrefutably, that juror did not understand the law when it decided Appellant’s fate. Both the federal and the state constitutions guarantee that a defendantis en- titled to be tried by twelve, not eleven, impartial and unprejudiced jurors. Thus, a "conviction cannot stand if even a single juror has been improperly influenced." (People v. Nesler (1997) 16 Cal.4th 561, 578.) . When,as in this case, the jury questioned the meaning of crucial principles of law, Penal Code section 1138 imposes on the trial court "a ‘mandatory’ duty to clear up any instructional confusion expressed by the jury." (People v. Huggins (2006) 38 Cal.4th 175, 261.) Respondent further contends that section 1161 (verdict of conviction result- ing after jury mistakes the law, court may explain the law and direct the jury to reconsider their verdict) is limited to situations where the verdict itself demon- strates the jury may have mistaken the law. (RB 390.) When there is a good rea- son to believe that the jury did not understand important and fundamental aspects of the law,as is clear from the jurors’ inquiry in this case questioning whether they had to vote not guilty if there was a reasonable doubt, justice would demand that 39 the curative action of section 1161 not be limited to errors found only in the ver- dict itself. Appellant has suffered a terrible injustice by being sentenced to death by a jury whodid not express its failure to understand the fundamental concept ofrea- sonable doubt until a few days after rendering a guilty verdict against Appellant. All courts are invested with inherent powers to do what is needed to achieve justice. Thus, under Code of Civil Procedure section 128, subdivision (a)(8) a court is given the power“to amend andcontrolits process and orders so as to make them conform to law and justice.” Subdivision (5) of that section gives a court the power“to control in furtherance ofjustice... all ... persons in any man- ner connected with a judicial proceeding before it, in every matter pertaining thereto.” Such all inclusive language of “all,” “any,” and “every” clearly shows a duty on courts to reach a just result by any reasonable means. This Court has stated "We have often recognized the 'inherent powers of the court ... to insure the orderly administration of justice.’ [Citations.]” (Walker v. Superior Court (1991) 53 Cal.3d 257, 266.) In the normal course of events such a misunderstanding of the law on the part of the jury, the verdict may be the only place where one would see reflection of its confusion. Normally, the jury is discharged after the verdict, and there is no further communication with the jurors. Even in most multi-defendant and multi- count cases, normally the jury does not return any verdicts until all verdicts are reached, and therefore there would be no possible indication of confusion except for the verdicts. Indeed, in this case, the only reason that partial verdicts were re- turned was because Juror 77 had medical problems and had to be excusedafter some verdicts had been reached. This entire procedure was done overthe objec- tion of the defense. (125 RT 16895, 16905, 16926-16927, 16928-16929, 16930- 16931, 16938-16939-16944.) Had it not been for the chance event of Juror No. 77 needing medicalaid, the deliberations might have continued until verdicts were reachedasto all defen- 40 dants. Had that happened, the jury would not have returned the verdict as to Ap- pellant until after its misunderstanding and confusion over the principles of ac- complice status and reasonable doubt had been further defined and corrected by the court. Based on the tenor of the questions, it is very likely that the jury would have reconsidered its decision as to Appellant Smith. Respondent contends that the result urged by Appellant “would permit re- opening deliberations upon a finding that the jurors’ reasons for voting guilty were incorrect.” (RB 390,italics in original), a result that would be in conflict with set- tled law. Respondent completely misconstrues Appellant’s argument. Appellant is not seeking to delve into the reasons why the jury voted the way it did. Attrial, in making this request, Appellant only sought to make sure that the jury deliber- ated under a correct understanding of the law. As long as the jury correctly under- stood the law, which it was obligated to apply, Appellant was not seeking to de- termine the reasons for the jurors’ ultimate decision. Respondent further contends, “there is nothing in the verdicts ... that would indicate the jurors misunderstood the law...,” and that Appellant “impermissibly speculate[s]” that the jurors’ reasoning was incorrect. (RB at 390, italics in origi- nal.) Although there is nothing directly stated in the verdicts, Appellant is not “speculating” that the jurors’ reasoning is incorrect. Rather, from the clear tenor of the questions involvedthere is a strong inference of confusion. When a juror asks a question, it is not speculation to presume that the juror does not know the answer to the question or understand the concepts involved in the answer re- quested. Respondent continues by stating that there was nothing demonstrating that the jury misapplied the reasonable doubt or accomplice instructions when deliber- ating the verdict of the three appealing defendants, but that the questions were an attempt by the jury to break the deadlock as to codefendant Settle. (RBT 390.) Again, the questions the jury raised were questions as to the law; the law that ap- plied equally to all defendants. If the jury were unclear as to the law regarding the 41 definition of an accomplice, the application of this definition would apply to Ap- pellant’s case as well as to Settle’s case. Furthermore, Respondent argues that Settle’s case compared to Appellant’s case, showsless corroborating evidence linking Settle to the crime. (RB at 390.) Appellant respectfully disagrees. In contrast to the two items cited by Respondent as corroborating evidence against Appellant, namely, the Keith Curry shooting and the telephone calls, the corroborating evidence against Settle was very strong,in- cluding but not limited to the following: Settle predicted the untimely demise of Armstrong, saying that Armstrong would not be around muchlonger; (81 RT 9278.) Settle was a narcotics dealer, working for the Bryants; (84 RT 9771- 9773.) Settle attempted to dissuade a witness, Una Distad, from testifying in this case, reflecting a consciousnessof guilt; (84 RT 9724-9725, 9734-9735) One of the Bryant Family’s distinct drug houses wasin Settle’s name; (84 RT 9835, 88 RT 10661-10663, 87 RT 10400-10401, 102 RT 13367-13368.) Settle admitted supplying the car used in the murder; (122 RT 16542.) After he was arrested, Settle made an admission that he was the one who “did it;” (104 RT 13360-13361, 13667-13558.) and Settle’s telephone number wasin the list of phone numbers found in the Wheeler Avenue residence. (122 RT 16539.) This directly contradicted his testi- mony that he was not involvedin the drug trade, a falsehood from which the jury could draw an inference of a consciousnessofguilt. Furthermore, as argued by Respondentat trial, other corroboration of Set- tle’s guilt included the fact that he committed perjury at trial and that he fled after the crime, both facts from which an inference of guilt could be drawn. (122 RT 16531-16533, 16537-16538.) In short, there was substantial evidence connecting Settle to the crimeitself. 42 Because Appellant had a compelling interest in having the jury deliberate with a clear and accurate understanding of the law applicable to fundamental principles and crucial issues in the case, the court’s refusal to re-open deliberations under section 1161 deprived Appellant of a state right of real substance, thereby violat- ing Appellant’s federal and state constitutional rights to trial by jury and due proc- ess of law. Accordingly, the judgment entered below must be reversed. E. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT AN AIDER AND ABETTOR MAY BE A PRINCIPAL IN THE OFFENSE IF THAT PERSONIS “EQUALLY GUILTY.” Thetrial court erred in instructing the jury that an aider and abettor may be 39a principal in the offense if that person is “equally guilty.” This instruction had the effect of removing the issue of Williams’s status as a principal in the offense from the jury’s consideration, thereby depriving Appellant of his right to a trial by jury and to due process of law by lessening the degree of proof required to convict Appellant. Initially, Respondent contendsthat this issue is waived because the defense did not object to this instruction when it was given to the jury. (RB 380.) As ex- plained above(ante, at p. 33), challenges to jury instructions affecting substantial rights are not waived even if no objection is madeat trial. (Penal Code § 1259.) As explained in Appellant’s Opening Brief (AOB at pp. 146-150), Appel- lant was convicted of two counts of first-degree murder and two counts of second- degree murder. In addition to the theory espoused by Appellant and the same theory es- poused by the prosecution in 1990 (ante, at p. 3) that Williams was an actual par- ticipant in first-degree murder because of the assistance he gave while the crime was occurring, the jury also could have convicted him of second-degree murder on a “natural and probable” theory because he was engagedin the narcotics business, again a theory with which the prosecution had no dispute. However, if the jury 43 thought that Williams was only guilty of the second-degree murder, he would have been an accomplice to two of the second-degree murder counts Appellant was convicted of, but not the two counts of first-degree murder. Having been subject to conviction for less serious offenses, he would not be “equally” guilty. Conse- quently, following instructions to the jury that an aider and abettor maybe prin- cipal in the offense if that person is “equally guilty,” the jury could believe that Williams was guilty of second-degree murder, but was not an accomplice. Respondent further argues that even if Williams could be convicted of sec- ond-degree murder, the plain meaning of CALJIC No. 3.00 is that direct perpetra- tors and aiders and abettors are subject to the same criminal liability, and this Court has explained that aiders and abettors are guilty of any foreseeable offense committed by the personhe aids and abets. (RB 381.) It is respectfully submitted that this ignores the confusion created by this instruction. Regardless of how this Court explains the correct way to interpret these instructions, taken as a whole, the impact of the instructions as given,is to tell the jury that Williams was not an ac- complice unless he was “equally guilty.” Trying to understand the plain meaning of this phrase, a lay juroris likely to understand that if someone is not “equally guilty,” i.e., guilty of the identical crimes, he is not aiding and abetting a crime and therefore is not an accomplice. Applying this common sense understanding, a juror could have concluded that Williams was guilty of second-degree murder, but not guilty of first-degree mur- der, and because Appellant was convicted of both first and second-degree murder, they are not equally guilty. As noted in the Opening Brief (AOB 148-149), the trial court recognized there was no evidence, independent of Williams, connecting Appellant to the crimes, thereby making the correct determination of Williams’s status crucial to Appellant’s case. The confusion that this instruction created likely had the effect of lowering the burden of proof, as explained in Appellant’s Opening Brief (AOB 149-150.) 44 Because of the paucity of evidence against Appellant and the crucial role that the issue of accomplice status played, this error cannot be deemed harmless beyond a reasonable doubt, and a reversal of the judgment entered below is required. F. THE COURT ERRED IN TELLING THE JURY THAT IT COULD CONVICT APPELLANT IF THERE WAS SLIGHT EVIDENCE TO CORROBORATE ACCOMPLICE TESTIMONY Thetrial court erred in telling the jury that the evidence needed to corrobo- rate accomplice testimony “is sufficient...even though it is slight and entitled whenstanding alone, to little consideration.” (53 CT 15514.) This improper in- struction allowed the jury to convict on a standard lower than the beyond-a- reasonable-doubt standard required for criminal convictions. Initially, Respondent contends that this issue is waived because the defense did not object to this instruction when it was given to the jury. (RB 378.) This overlooks the well-established principle that challenges to jury instructions affect- ing substantial rights are not waived even if no objection is madeat trial. (Penal Code § 1259, see also People v. Johnson (2004) 115 Cal.App.4th 1169, 172.) Respondent argues that giving this instruction was not error because it is a correct statement of the law. (RB 378, citing People v. Williams, supra, 16 Cal.4th 635) In Williams, the issue was the sufficiency of the evidence necessary to cor- roborate the accomplice’s testimony. The court found defendant’s presence at the murder to be sufficient corroboration. It is true that Williams referred to the same instruction, which had been given in that case, with apparent approval. However, for at least two reasons, Williams does not provide authority for the use of the in- struction in Appellant’s case. First, that approval was implied. The court noted that the instruction was given, although it did not discuss the propriety of that instruction. “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided asto constitute prece- 45 dents." (Webster v. Fall (1925) 266 U.S. 507, 511: quoted in Canales v. City of Alviso (1970) 3 Cal.3d 118, 127-128, fn. 2; Johnson v. Bradley (1992) 4 Cal.4th 389, 415.) Because this was not an issue discussed in Williams, the fact that the instruc- tion was mentioned in passing should not be regarded as authority for the correctness of the instruction. The Williams Court made a blanket statement regarding the in- struction without considering any arguments relating to that instruction being raised in the case, therefore, this Court should not be bound by the unessential dicta of that case on an issuethat is actually raised in Appellant’s case. (Peoplev. Seaton (2001) 26 Cal.4th 598, 653.) Respondent correctly notes that the federal cases cited by Appellant (United States v. Gray (Sth Cir. 1980) 626 F.2d 494 and United States v. Hall (5th Cir. 1976) 525 F.2d 1254) are not binding on this court. (RB 378.) Nonetheless, fed- eral cases may be persuasive authority, even if not binding. (People v. Bradley (1969) 1 Cal.3d 80, 86, 81; Superbrace, Inc. v. Tidwell (2004)124 Cal.App.4th 388, 397.) Indeed, even unpublished opinions of the United States District Court may be viewed as persuasive, even if not “precedential” authority. (Bowen v. Zi- asun Technologies, Inc. (2004) 116 Cal.App.4th 777,767, fn. 6.) As to the merits of the issue, Respondent explains that the federal cases cited by Appellant do not address the instruction given here. It is true that the fed- eral court was not discussing the California instruction, because it was not dealing with a California case. Nonetheless, the principle is applicable. In the federal cases, the jury was told once it found the conspiracy it could convict, with the government needing only to introduce “slight evidence” of a particular defendant’s involvement to convict. Here, the jury was told that it could convict if there was slight corroboration. The two situations are analogous. The netresult in this case is that if the yury found that Williams was an accomplice, it was allowed to convict with slight evidence. Because accomplice testimonyis to be distrusted, this allows for a conviction based partly on untrustworthy evidence combined with slight cor- roboration. Appellant submits that this does not comport with the reasonable 46 doubt standard for criminal convictions demanded bythe right to due process of law. Finally, Respondent contends that this instruction only related to “‘a collat- eral factual issue having no direct bearing on any link in the chain of proof of any element’ of the charged crimes.” (RB 379.) Thus, the issue addressed does not relate to an “element” of the offense. However, the distinction made by Respon- dent is not of any relevance to the question at hand. As to Appellant Smith, the prosecution’s case relied almost exclusively on the testimony of Williams. As ex- plained above,this instruction allowed a conviction based on “suspect plus slight.” The fact that this relates to the overall body of evidence that must be present for a conviction, as opposed to the evidence that may relate to one element of the of- fense, does not changethe principal involved and the defect present. For the foregoing reasons and the reasons explained in Appellant’s Opening Brief addressing this issue, Appellant submits that it was error to lower the beyond a reasonable doubt standard required for criminal convictions by telling the jury that the evidence needed to corroborate accomplice testimony wassufficient even if it was “slight.” Therefore, the judgment of conviction entered below must be reversed. G. CONCLUSION In this case, the issues surrounding Williams and accomplice testimony were crucial to the determination of Appellant’s guilt. Even the trial court recog- nized that Williams’s testimony was the only evidence that connected Appellant to the offense. All of the issues discussed aboverelate to this crucial area. Prior to sentencing Appellant to death, the due process clause of the United States Consti- tution and the Eighth Amendment requirement of a reliable determination in a capital case, require that the jury be properly instructed as to these crucial areas of the defense and that the jury consider these issues under a correct and proper un- derstanding of the correct law. Misdirecting the jury as to the status of Williams 47 and Tannis Curry, the failure to have the proper and sufficient type of corrobora- tive evidence, allowing the jury to reach its verdict as to Appellant under a misun- derstanding of the correct law, and providing the jury with confusing instructions in this crucial area all served to undermine the federal and state constitutional standards imposedin criminal cases in general, and capital cases in particular. Therefore, the judgment entered below must be reversed. i APPELLANT WAS PREJUDICED BY THE TRIAL COURT?’S ERRORIN DENYING A DEFENSE MOTION TO SEVER APPELLANT’S CASE FROM THAT OF CO-DEFENDANT JON SETTLE After co-defendant Jon Settle exercised his right to self-representation un- der Faretta v. California (1975) 422 U.S. 806, the defense moved to sever defen- dants’ case. It was error for the court to deny the defense’s motion to sever. A. INTRODUCTION Despite substantial authority cited in Appellant’s Opening Brief, Respon- dent’s argumentfails to address, in any manner, the dangers inherent in a jointtrial when one defendant has exercised the right to represent himself. This is the exact mistake that the trial court made whenit also failed to understand the problems inherent in this type of case, a failure which is evident from thetrial court’s stated belief that pro per rights are not balanced against anything, and that the analysis as to whether a severance should be granted has no relation to whether a defendantis acting pro per. (60 RT 6149-6150.) In fact, as the cases cited in Appellant’s Opening Brief clearly recognize, in a multi-defendant case pro per rights must be balanced against the rights of other defendants who may be adversely affected in a jointtrial. The cases cited demon- strate that this is a factor for the trial court to consider when making a decision re- garding a severance. 48 Here, the trial court did not even recognize that this situation could pose a problem. Failure to recognize the problems inherent in this type of situation un- derlines the flaw in both the trial court’s handling of the matter below and Re- spondent’s discussion of the case in its brief. Because the court applied the wrong standard andprinciples to this question, the ruling of the court is not entitled to the deference normally accordeda trial court’s evidentiary rulings, since "all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." (People v. Russel (1997) 69 Cal.2d 187, quoted in People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) B. THE SPECIFIC ARGUMENTS OF RESPONDENT. Respondent notes the trial court’s finding that there was no potential for conflict because, according to the trial court, it could not envision how co- defendant Settle could present a defense that the other defendants were guilty but he was not, and the court believed Settle would not be capable of implicating the other defendants while asserting his own innocence. (RB 175.) In fact, Settle did exactly what the court could not foresee. He denied his own guilt and implicated Appellant by describing Appellant’s job in the Bryant family business as being someone who bagged cocaine, and he further stated that Appellant was the shooter in this case. (123 RT 16612-16613, 16631.) Aspredicted by the defense, Settle was able to achieve this result by failing to follow the rules of evidence and the rules governing attorney conduct. (60 RT 6147-6148.) Settle, by arguing facts not in evidence, improperly presented accu- satory information against Appellant to the jury during his final argument, rather than during his testimony. (People v. Teixeira (1955) 1369 Cal.2d 136, 147-148; People v. Kirkes (1952) 39 Cal.2d 719, 723-724.) This is an egregious form of misconduct. Settle’s misconduct served to compound the denial of Appellant’s fundamental rights, as Appellant was deprived of the opportunity to confront and cross-examine his accuser. 49 Respondentstates that at the time the severance was requested there was no indication that the defenses would be inconsistent. (RB 175.) This is true. How- ever, just as the presence of inconsistent defenses may be a factor in granting a severance, the unusual situation presented by a pro per co-defendant, as discussed in Appellant’s Opening Brief, is in itself an indication of the need for a severance, which was ignored by the trial court. Appellant submits that just as it would be error to fail to consider inconsistent factual defenses, so it is error to fail to con- sider the inherent conflicts present in the situation of a pro per co-defendant, par- ticularly in a capital case. Respondentcites to the fact that this was an unusual case in terms ofsize, expense, the number of witness which would have to be recalled, etc. (RB 176.) Though these facts argue in favor of continued consolidation this is only half of the equation to be considered. The other half of the equation that must be consid- ered and which argues in favor of a severanceis the inherent problems present in a pro per representation. The error in this case resulted from the fact that the trial court did not even understand the latter half of the equation, and therefore it could not conduct the balancing necessary to adequately resolve the severance issue. Needless to say, one cannot exercise discretion properly by only looking at half of the situation without considering the totality of the equation. A failure of thetrial court to considerall factors is a failure to exercise discretion and requires reversal of the determination. (Schlumpfv. Superior Court (1978) 79 Cal.App.3d 892, 902, People v. Rafter (1974) 41 Cal-App.3d 557, 560) While typically case size and expense-related considerations argue in favor of a jointtrial, this Court has explained that “death is different” from other penal- ties, and therefore a capital case necessitates greater procedural protections. (Peo- ple v. Prieto (2003) 30 Cal.4th 226 30 Cal. 4" at 263.) Becauseof the additional dangers presented by the unique problemsassociated with a pro per capital defen- dant, the failure to consider these factors is an abuse of discretion. 50 Respondent notes that there was no renewed request for a severance after Settle’s opening statement or after his shenanigans with witness Distad,’ and therefore Respondent arguesthat this issue is waived as to those events. (RB 185.) A waiver should not be found in this case. First, it is well established that the failure to make argument is not waived when it would have been futile to do so. (People v. Williams (1997) 16 Cal.4th 153, 255; People v. Sandoval (2001) 87 Cal.App.4th 1425, 1433; People v. Whitt (1990) 51 Cal.3d 620, 655.) Further- more, as noted above(ante, at p. 33), although a failure to object may hinder a de- fendant’s ability to raise an issue, it does not preclude an appellate court from re- solving that issue should it feel the need to do so. In this case, the trial court previously indicated that it did not believe pro per rights were a matter that could be factored into a decision as to whether a sev- erance should be granted. (Ante, at 48.) However, the court was wrong, as this wasone of the most important factors arguing in favor of a severance. There is no reason to suspect that at the later date the court would have recognized the mistake of law that it had previously made and consider this crucial fact. Indeed, the court’s rulings made clear it was not changing its earlier denial of severance deci- sion. Later, when Settle engaged in othcr misconduct, severance requests were made to no avail as the court denied all such requests. (123 RT 16634-16635.) Clearly, a rencwed request, at the time which Respondent suggests such a request should have been made, would have been futile, and therefore should not be re- quired. * These shenanigans consisted of Settle asking to be allowed to talk to Ms. Distad, telling the court that he only wantedtotell her that it was all right for her to tes- tify. When he madethe request to speak to her, the court specifically told Settle he should nottell her that her statement to the police had been tape recorded, Set- tle assured the court that he would not do so. Thereafter, Settle went back on his word to the court, and did exactly what the court had told him not to do, i.e. he in- formed Ms. Distad that her statement to the police had been tape recorded. (84 RT 9724-9725, 9734-9735.) 51 Furthermore, Appellant contends that this court should not enforce strict waiver policy. California has a liberal policy in attempting to reach the merits of issues, especially issues of constitutional dimension. Thus, courts have often ad- dressed such constitutional questions in the absence of proper objection below. (See, e.g., Hale v. Morgan (1978) 22 Cal.3d 388, 394.) Indeed, this case does not involve a failure to make the request, but rather a failure to renew the request. Additionally, as the facts relating to the contention raised on appeal appear to be undisputed and there would likely be no contrary showing at a new hearing, the appellate court may properly treat the contention solely as a question of law and pass on it accordingly. (Ward v. Taggart (1959) 51 Cal.2d 736, 742.) This is particularly true when the new issue is of "considerable public interest" or con- cerns "important issues of public policy" and has been briefed and argued before the reviewing court. (See, Wong v. Di Grazia (1963) 60 Cal.2d 525, 532, fn. 9; Pena v. Municipal Court (1979) 96 Cal.App.3d 77, 80-81; "[W]hether the [gen- eral] rule shall be applied is largely a question of the appellate court's discretion." People v. Blanco (1992) 10 Cal-App.4th 1167, 1172-1173; People v. Norwood (1972) 26 Cal.App.3d 148, 153 ["A matter normally not reviewable upon direct appeal, but whichis ... vulnerable to habeas corpus proceedings based upon consti- tutional grounds may be considered upon direct appeal."].) In a cursory manner, Respondent dismisses Appellant’s argument that Set- tle committed perjury. The sum of Respondent’s reply to this argument is that Settle’s testimony presented no true conflict with Appellant, and that this issue is a red herring because there was noirreconcilable defense. (RB 190-191.) Unfortu- nately, Respondent ignores the potential impact and taint that prevarication and perjury are likely to have on the jury. Although the jury was instructed to consider cach defendant separately, it should be recognized that this is a legal fiction born of necessity, and therefore the reality of psychological factors should not be sum- marily dismissed. It has long been recognized that type of distinction is precisely the type of impossible mental process, which Learned Hand described as “mental 52 gymnastics.” (Nash v. United States (2d Cir. 1932) 54 F.2d 1006, 1007, quoted in People v. May (1988) 334 44 Cal.3d 309, 329.) In this case, eleven jurors believed that Settle committed perjury. This is evident from the fact that eleven jurors voted to convict Settle, whereas, if they had believed he wastelling the truth whenhe testified he was not at the Wheeler Avenue house when the murders occurred, they would have instead voted to ac- quit him. (127RT 17137-17367 53 CT 15443.) It is only possible to believe Settle wasguilty if one accepts the premise that his testimony wasfalse. Coming to this conclusion had to leave a bad taste in the jurors’ mouths as to criminal defendants, in general. (127 RT 17137-67.) Further, this issue should not be considered in a vacuum,arriving at a con- clusion that Appellant cannot demonstrate prejudice as to this form of misconduct. Rather, this Court should look to Settle’s continued and persistent misconduct as a whole and consider the impact of that course of conduct in relation to whether a severance should have been granted and whether Appellant was prejudiced. Thus, this court should consider Settle’s perjury in conjunction with his other miscon- duct, such as arguing facts not in evidence. Finally, contrary to Respondent’s assertion, Settle did present a true conflict with Appellant. Admittedly, there was no conflict in Settle’s sworn testimony, but conflict did arise when Settle offered to the jury his unsworn testimony in the form of closing argument. His unsworn testimony informedthe jury aboutfacts truly at odds with Appellant’s defense. Because both of these stages involved Settle ex- plaining his case to the jury, they should be viewed in conjunction with each other, rather than separately. Furthermore, as explained in Appellant’s Opening Brief (AOB 113-117), Settle engaged in improper argument under De Luna v. United States (Sth Cir. (1962) 308 F.2d 140, highlighting his decision to testify and repre- scent himsclf as evidence of his innocence. This wasin direct conflict with Appcl- lant who did nottestify and was represented by counsel. 53 Respondent next argues that Appellant did not explain how Settle’s mis- conduct in argumentresulted in an unfairtrial. (RB 192.) In this regard, Respon- dent ignores Appellant’s explanation that Settle’s argument to the jury was not supported by facts in evidence. Moreover, the unsupported statements before the jury were damning to Appellant, such as Settle’s claimed “facts” that Appellant shot Brown,and that it was Appellant’s job to put the cocaine into packagesat the crack house. (123 RT 16612-16613, 16631.) Both of these facts tied Appellant to the Bryant family organization, generally, and to the murderitself, and thereby served to improperly corroborate Williams’s testimony. In this case, Settle, acting as his own attorney, was permitted by the court to engage in uncensored miscon- duct. "[T]o allow an attorney to engage in unprofessional conduct before the jury without a prompt and strong response from the court undermines the judicial proc- ess." (People v. Chong (1999) 76 Cal.App.4th 232, 244.) Respondent also contends that any possible misconduct by Settle in argu- ment was cured by the instructions given which informed the jury that what it was hearing was only argument, and not evidence. (RB 192.) This contention is prob- lematic in that the instructions to which Respondent refers are standard instruc- tions given when there is no misconduct. (California Center for Judicial Educa- tion and Research (CJER), CJER Mandatory Criminal Jury Instructions Hand- book (12th ed. 2003), § 2.4 General Instructions for Use in the Guilt Phase of All Criminal Trials) Surely, uncensored misconduct calls for unusual instructions or action beyond the standard ones usually given. In fact, in many different contexts it has been recognized that the instructions of the court may be insufficient to overcome the arguments of counsel or evidence introduced in the case. (Bruton v United States (1968) 391 U.S. 123.) Therefore, these instructions should not be viewed as a cure-all, as Respondent urges, for Settle’s egregious misconduct. Finally, in determining this issue this court should examine Settle’s mis- conduct as a whole, rather than parsing each individual act of misconduct and de- termining whether any one act could have affected Appellant’s right to a fair trial. 54 If each act is segregated, the total impact of his misconduct on Appellant cannot be truly appreciated. As shown with the examples of Settle’s perjury and his mis- conduct in argument, his misconduct wasinter-related. Accordingly, he does not implicate Appellant in his sworn testimony, but does so in an unsworn manner while addressing the jury. Clearly, the trial court did not understand that it could consider Settle’s status in making the decision as to whether to sever the cases. Having initially failed to consider proper factors in exercising its discretion, the court was unable to reign in Settle when the defense predictions of misconduct materialized. As a result of the court’s failure to properly exercise its discretion, as explained in Ap- pellant’s Opening Brief and herein, Appellant was deprived of the right to con- front witness, a fair trial, due process of law, the right to counsel, and the right to a reliable capital sentencing determination, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution. il THE TRIAL COURT ERRED IN DENYING A DEFENSE MOTION TO SEVER APPELLANT’S CASE FROM THAT OF THE OTHER APPEALING DEFENDANTS. Thetrial court erred in denying a defense motion to sever Appellant’s case from that of the other appealing defendants. Respondent disputes the need for a severance, arguing the case against Appellant “was as strong as the cases against Appellants Bryant and Wheeler.” (RB 195.) In support, Respondent points to the testimony of Williams, the Keith Curry evidence, and the “highly incriminating oo4telephone records.”” (RB 195-196.) There are numerous flaws with this hyper- * The characterization of the telephone calls as “highly incriminating”is itself an exaggeration. While the calls clearly connected Appellant to the parties involved, they did not connect him to the crime itself. Because he had other connections to 55 bolic statement that the case against Appellant was equal to that of the other de- fendants. First, concerning the claim that the testimony of Williams and the evidence regarding the phone calls were as incriminating against Wheeler and Bryant as they were against Appellant, a review of the facts dispels Respondent’s notion that the cases were equally as strong. In comparing the cases against each defendant for relative strength it is necessary to balance the remaining evidence against Ap- pellant — the Keith Curry shooting incident — in comparison to the abundance of remaining evidence against Wheeler and Bryant in order to determine whether the evidence against Appellant was “as strong” as the case against the others as claimed by Respondent. When that is done, the conclusion is obvious; the case against Appellant was far weaker than the case against Wheeler and Bryant. Briefly, the evidence connecting Bryant to the offense was extensive, in- cluding: Bryant’s motive in protecting his family business, Bryant’s cryptic ad- mission to Player that he killed Armstrong because of a problem he was having with him; blood found in a car connected to both Bryant and the crime scene; a bulletat the crimescene fired from a gun found at Bryant’s house; Bryant’s family ties to the business; Bryant’s own dealings with Armstrong when Armstrong was in Monterey; Bryant’s close association with the Wheeler Avenue house, includ- ing his admitted payment for the cages on the drug houses and his possession of the keys to the Wheeler house; Bryant’s possession of records relating to the drug business; Armstrong’s statements to Greer that Bryant owed him moneyfor a "hit" that Armstrong had done for him, and that he was going to get that money; and a whole host of other evidence tying Bryant to the scene. Likewise, the evidence against Wheeler wasalso extensive, including but not limited to: Wheeler’s fingerprints found at the murder scene; Wheeler was identified as the shooter; Wheeler owned the same type of gun used to kill Ander- all parties independent of the murder, this evidence is not as inculpatory as Re- spondent would havethis court believe. 56 son; Wheeler admitted selling drugs from the Wheeler Avenue house; and Wheeler possessed an address book with numerous names, numbers, and ad- dresses of people associated with the business. Indeed, even the evidence against Settle far exceeded the evidence against Appellant. This evidence included: Settle’s prediction of Armstrong’s death be- fore it happened; Settle was a narcotics dealer, who worked for the Bryants; Set- tle’s name waslisted in the Wheeler Avenuekitchen as a contact; Settle attempted to dissuade a witness, Una Distad, from testifying; one of the Bryant’s drug houses was in Settle’s name, Settle bailed out Appellant after Appellant was arrested, a fact typical of involvementin the Bryant family business, Settle’s admission after he wasarrested and his perjury at trial are indicators of consciousness of guilt.” In contrast to the plethora of evidence connecting Bryant, Wheeler and Set- tle to the crime, the only evidence that relates to Appellant was the evidence of the Keith Curry shooting, which, as discussed below, is highly problematic in itself. Indeed, as noted above, even thetrial court judge concluded that the case against Appellant was weak and if Williams’s testimony was removed, there would be no remaining evidence that could lead to a conclusion that Appellant was involved in the offense. (108 RT 14456-14458.) The trial court did not reach this same con- clusion with regard to Bryant, Wheeler or Settle. The record negates Respondent’s response. It is clear that the case against the other defendants was far more extensive than the case against Appellant. Moreover, as explained in Appellant’s Opening Brief, and as more fully recounted below (AOB 163-165,post, 72-73 the prosecution failed to lay a foundation for the Keith Curry shooting evidence and thus, it was inadmissible against Appellant. Consequently, besides the improper evidence of Williams’s testimony, the other evidence (Keith Curry shooting evidence) used by the prosecution against Appel- lant was legally problematic. Additionally, the Keith Curry shooting evidence was ° For a more complete list of the evidence against the other defendants in relation to the evidence against Appellant, see Appellant’s Opening Brief pp. 149-151. 57 not used to connect Appellant to the crimeitself, but to show his relationship to Bryant. Evidence such as Wheeler being actually identified as the shooter was of a far more damning nature than the evidence showing Appellant was an associate of Bryant. Respondent contends that Appellant provides no authority for his position that the Keith Curry shooting evidence was inadmissible against Appellant. (RB 197.) However, this is a simple matter. It is bedrock law that only relevant evi- dence is admissible. (Evid. Code § 350.) The trial court ruled that the Keith Curry shooting evidence wasnotrelevant unless it was shown that Bryant knew of the Tannis/Curry affair and was angry aboutit. (91 RT 11158.) Evidence that met the trial court’s foundational standard came in the form of statements made by Tannis Curry to an acquaintance, Gwendolyn Derby. Tannis told Derby that her ex-husband (Bryant) admitted placing the bomb under her boyfriend, Keith Curry’s car, and Bryant told her he would do it again until the boyfriend was dead. (101 RT 13097-13098.) The relevance of the Keith Curry shooting evidence established by Bryant’s admission only madea sufficient foundational showingof its relevance to Bryant, and it offered nothing to establish its relevancy as to Appellant. Moretelling, if Appellant had been tried alone, the Keith Curry shooting evidence could not have been admitted against him because no foundation for that evidence,as it related to Appellant, could be laid. However, when Appellant wastried jointly with Bryant, the jury was instructed that the evidence could be used against both Bryant and Appellant, albeit for the limited purpose of showingintent, identity, motive, and relationship between Smith and Bryant. (91 RT 11313-11314.) This was error be- cause the logical foundation of that evidence had never been established against Appellant, and therefore that evidence should not have been considered against him in any manner, just as it would not have been admitted against Appellant had he been tried alone. 58 Respondentalso suggests that Pierre Marshall’s testimony was circumstan- tial evidence that met the court’s foundational requirement that Bryant knew ofthe Tannis/Curry affair and was angry about it, and thus made the Keith Curry shoot- ing evidence relevant. (RB 197.) (91 RT 11158.) In essence, the testimony was that Marshall told Detective Vojtecky that Bryant made remarks to Marshall im- plying that he (Bryant) was responsible for Keith Curry’s condition. (RB 197.) For several reasons, Marshail’s testimony does not provide the necessary foundation that the trial court believed was necessary for the admission of the Keith Curry shooting evidence. The totality of the Marshall evidence was that Marshall was having an affair with Rochele, Jeff Bryant’s wife, and co-defendant Stan Bryant made a cryptic remark about “a nigger [that] got paralyzed,” who Marshall assumed was Curry.” (94 RT 11791.). This evidence may show that Bryant injured Keith Curry and was capable of carrying out threats against Mar- shall. However, it does not show why Bryant had Keith Curry shot, whichthetrial court believed was a crucial factor in establishing the foundation for admitting the Curry shooting evidence. Indeed, unlike Bryant’s admission to Tannis, the Pierre Marshall evidence wasnot argued to the jury as evidence of Appellant’s alleged role as the Bryant’s henchman. However, it now appears that Respondent is attempting to change course and use that evidence for a purpose not urged by the People at trial. In fact, the Marshall evidence typifies the confusion caused by the size of this case, thereby arguing for a severance, rather than offering support for the claim that the failure to sever was harmless. As argued in Appellant’s Opening Brief, and as Judge Smith prophetically stated, this case was just too big. (32 RT 3923-3933, 33 RT 3943, 3974-3978, 3796.) Assuch,this large case ran a great risk and in fact, unduly tainted Appellant’s trial with irrelevant evidence. This is made obvious by the fact that Marshall’s state- ment should not have been admitted against Appellant. It was a declaration of Bryant, standing on the same grounds as his declarations to Tannis, admitted 59 through the testimony of Gwendolyn Derby. When Appellant’s attorney objected to the introduction of the Bryant/Derby/Tannis statement, the court agreed and limited that evidence to Bryant. (100 RT 13086.) Just as the Bryant/Derby/Tannis conversation was limited to Bryant, so should any evidence introduced be simi- larly limited when that evidence’s relevancy depended on this statement. Here, although the relevancy of the Keith Curry shooting depended on the Bry- ant/Derby/Tannis conversation, the jury was allowed to consider the Keith Curry shooting against Appellant, even though there was no logical foundation making that evidence admissible. Marshall’s recounting of Bryant’s statement regarding Keith Curry is iden- tical in every conceivable way — its hearsay nature and inadmissibility as to Appel- lant, its impact in proving Bryant’s knowledge and motive regarding Keith Curry, its prejudicial impact, and every other possible impact. There is no reason why Appellant’s counsel would object to the Bryant/Tannis/Derby statement, but not object to the Bryant/Marshall/Vojtecky statement. In the context of the issue of the motion to sever, the mountain of evidence that camein becauseofthe joint trial compared to what evidence would have been admissible had Appellant been tried alone must be considered. In that context, it can be seen that had Appellant been tried alone, the case would have been much smaller, much more manageable, and Appellant would not have been burdened by mountains of prejudicial evidence relating only to the other defendants. Regarding Appellant’s claim as to the evidence admitted after he rested, Respondent’s sole contention is that Appellant claims that “although he presented no defense, ‘extensive’ rebuttal triggered by his co-defendants’ cases was admitted against him.... Appellant Smith does not indicate what ‘extensive’ evidence was admitted against him.” (RB 199-200.) In fact, Appellant did list some of that evi- dence in his Opening Brief. (AOB 283.) Briefly this included the testimony of Flowers, which further connected Appellant to Armstrong. 60 Furthermore, it was not only the prosecution’s rebuttal evidence to which Appellant objected. Rather, the objection was to all evidence admitted after the state rested its case-in chief. This includes literally volumes of perjury by Wheeler, Bryant, and Settle. It was not so much the content of that testimony that implicated Appellant rather, it was the fact that the jurors believed these defen- dants were committing perjury.® This created an inevitable guilt by association, as it was likely that the co-defendants’ perjury tainted Appellant in the jury’s mind by their association of him with the others after months of seeing Appellantsitting at the sametable as his co-defendants. In this regard, in arguing that there was no prejudice to Appellant from the joint trial with Bryant and Wheeler, Respondent downplays the misconduct of the others at trial, limiting its discussion to improper acts of laughing and making noises. (See AOB 136-137.) This conveniently overlooks the constant stream of perjury, excuses, and convenient lapses of memories of Byrant and Wheeler when they testified. Quite simply, the jury believing that the volumes of co-defendant evidence wasperjurious, likely led to a negative impact on the jurors. Appellant suffered substantial prejudice by having to share a table with the perjurious co- defendants. It is unreasonable to expect the jury to look at Appellant and be able to separate him from the other defendants who committed such egregious and transparent misconduct. Had Appellant been tried alone he would never have been associated with such misconduct. Appellant should not be so tarnished because of the State’s in- terest in economics, and if that interest prevails, the court should have, at a mini- mum, mitigated the prejudicial effect of the misconduct by instructing the jury to not consider evidence against Appellant that was introduced after Appellant rested. ° To be accurate, as to Settle, only 11 of the 12 jurors believed he was committing perjury. (53 CT 15443.) 61 In response to Appellant’s claim that Appellant’s shackling was mandated by the presence ofthe other parties at trial, Respondent, for the most part, relies on the behavior of others to justify the level of security needed. (RB 200.) Respon- dent’s reliance on facts related to the actions of the other parties is problematic be- cause Appellantis entitled to a trial based on his actions. In fact, the only reasons given for the increased security as to Appellant was that he wasbeing tried with Bryant. No fact other than the joint trial and the conduct of others was used to jus- tify the shackling of Appellant. A defendant clearly has a due processright to a trial based on his own "per- sonal guilt” and "individual culpability." (United States v. Haupt (1943, 7th Cir.) 136 F.2d 661; Scales v. United States (1961) 367 U.S. 203, 224-225.) The use of restraints brands the defendant “as having a violent nature." (Dyas v. Poole (9th Cir. 2002) 309 F.3d 586, 588.) Just as one should not be prejudiced by the con- duct of co-defendant (People v. Estrada (1998) 63 Cal.App.4th 1090), nor should a defendant be branded as dangerous because of security concerns arising from factors related to other defendants. Regarding the penalty phase instructions as addressed in this argument in Appellant’s Opening Brief, Respondent argues that Appellant was not prejudiced by an instruction advising the jury to consider evidence “received during any part”’ of the trial because the jury had previously been instructed during the guilt to not consider evidence against Appellant when that evidence was not received against Appellant. (RB 201.) Respondent’s argumentis problematic because the penalty phase instruction about which Appellant is complaining does not tell the jury to merely “consider ail the evidence which was received against Appellant.” Such an instruction would, as to Appellant, properly limit the evidence the jury could consider in the penalty phase to evidence which wasoriginally limited to Bryant or Wheeler. Rather, the instruction given told the jury that in considering the case against Appellant it could consider “all evidence received.” 62 Knowing generally that different rules apply to the penalty phase, there is no way that the jury would understand that this evidence had a limitation not ex- pressed. Thus, following instructions, the jury could consider evidence “received” against Bryant, and because that evidence was in the class of “all evidence re- ceived,” it could consider that evidence against Appellant. Noris this an irrational reading. In the context of a conspiracy case, when the jury weighs a vast range of evidence in mitigation and aggravation, it may well believe that indicia of Appellant’s future dangerousness, to use but one example, may be foundin his association with crime families such as the Bryants. Thus, the activities of the Bryants, which did not play a role in Appellant’s guilt, may have played a role in their decision as to penalty when the jurors were evaluating the nature of Appellant’s criminal associations. In conclusion, the trial court erred in denying a defense motion to sever Appellant’s case from that of the other appealing defendants. Appellant was prejudiced by this ruling due the fact that the evidence against him was substan- tially weaker than the evidence against the other defendants, the continuous mis- conduct of the other defendants, the introduction of evidence against Appellant which should not have been admitted had be been tried alone, and the confusion in instructions resulting from the jointtrial. Therefore, the judgment against Appellant should be reversed. IV EVIDENCE OF OTHER CRIMINAL ACTS OF APPELLANT AND OTHER PERSONS WERE IMPROPERLY ADMITTED UNDER EVIDENCE CODE SECTIONS210, 300, 352, AND 1101, AND THE JURY WAS GIVEN ERRONEOUS INSTRUCTIONS ON THE USE OF THAT EVIDENCE The admission of numerousprior acts of misconduct of Appellant and the other defendants wasprejudicial error. 63 A. POSSESSION OF THE GUN. Respondent’s arguments regarding Appellant’s possession of the gun at the time of his arrest are typical of the flawed reasoning used by Respondentto justify the use of “other crimes’” evidence. Simply put, these arguments are notlogical. In response to Appellant’s argument that Appellant’s possession of a gun at the time of his arrest after the chase, a gun which he did not use, was inadmissible, Respondent argues that “the evidence showed the extent Appellant Smith was willing to go to protect the interests of the Bryant organization. In other words, the evidence tended to show Appellant was willing to kill in order to protect the interests of the Bryant organization....”. (RB 335.) However, Respondent loses sight of the fact that no claim was ever made that the gun was involved in this case. It is respectfully submitted that the inference Respondent suggests can be madeis not logical. Appellant’s mere possession of a firearm does not warrant an inference of a willingness to commit murderat the behest of someone else. Many people possess and carry weapons without a willingnessto kill for another person. It is bad public policy to conclude that possession of a gun is evidence of willing- ness to kill, and bad logic to promote such an inference when the gun at issue is not even used in the crime at issue. Indeed, if any inference can be drawn from Appellant’s possession of that particular gun, at that particular time, it would be that when push came to shove, Appellant was not willing to use the weapon. Furthermore, the inference now promoted by Respondentin its brief, that is, that the evidence purportedly showed the extent Appellant was willing to go to protect the interests of the Bryant organization, is a new purpose advancedby the State for admission of this evidence. If this was the proper use of this evidence, the jury should have been instructed accordingly. The fact that this theory was never argued to the trial court or the jury and no such instructions were given demonstrates that this is a newly created rationalization for evidence that clearly had no serious probative value when introduced at trial. In fact, the jury was told 64 it could use evidence of other crimes to prove motive, intent, identity, and a vari- ety of other factors. The jury was not instructed that the evidence could be used to prove either the use now proposed by Respondentnor the relationship of Appel- lant to Bryant. (122 RT 16393-16395, 53 CT 15488-15489.) Whenthe prosecution agreed to a limitation of the evidence, it cannot now argue otherwise on appeal, because a court of appeal is limited to deciding whether the jury properly convicted on the evidence before it -- and "properly" means following the limiting instruction given to the jury by thetrial court. (United States vy. Arteaga (9th Cir. 1997) 117 F.3d 388, 397.) Consequently, the prosecution should not be allowed to now argue this new theory asa basis for the admission of the gun possession evidence. Finally, because this evidence does not reasonably giverise to the inference suggested by Respondent, as discussed in Appellant’s Opening Brief (AOBat p. 161.), it violates the Due Process Clause which demandsthat inferences be based on a rational connection between the fact proved and the fact to be inferred. (Ulster County Court v. Allen (1979) 442 U.S. 140, 157.) B. THE EVIDENCE OF THE CHASE In a similar argument, Respondent contends that the evidence of an unre- lated chase involving Appellant was relevant to show the extent to which Appel- lant would go to protect Bryant’s interests. (RB 335.) I[t is respectfully submitted that this position is more of a pretense that does not mean anything. The police were pursuing Appellant because he had recently shot Keith Curry, he had cocaine in his car, and he had a gun that had just been used in a crime. The fact that he was trying to avoid the police under such circumstances demonstrates his willingness to flee for his own reasons, reasons that had nothing to do with protecting Bryant’s interests. To clearly spell out the inferences Respondent is suggesting showsthe il- logical nature of its arguments. Essentially, Respondent suggests the following illogical inferences: 65 “Appellant fled from the police to protect Bryant. Therefore, it can be in- ferred that Appellant would kill for Bryant.” “It is more likely that Appellant would conspire to kill Armstrong because he is the type of person who would engage in a high speed chase to avoid the po- lice and arrest.” “While in possession of drugs Appellant fled from police. Therefore, one can infer a commonplanto kill for Bryant.” These are simply not logical inferences. Asit did with the gun possession evidence, Respondent has again offered in its appellate brief a brand new theory of relevancy for the chase evidence. Ac- cordingly, if this was the desired use of the evidence, the jury should have been so instructed. The fact that no such instructions were given, and that this theory was not even mentionedattrial, indicates that this was not the desired use of the evi- dence whenit was introducedin thetrial court. Respondent submits that Appellant has not shown he was prejudiced by admission of this evidence. (RB 335.) Appellant has established sufficient preju- dice and Respondent’s claim is without merit. First, and generally, the very reason behind Evidence Code section 1101 is the universal recognition that hearing evidence of a defendant’s badactis likely to improperly influence a jury. Therefore, the evidence must be truly relevant in or- der to alleviate its misuse by the jury. (See United States v. Hitt (9th Cir. 1992) 981 F.2d 422, at p. 424 - "It is bad enough for the jury to be unduly swayed by something that the defendant did; it's totally unacceptable for it to be prejudiced by something he seems to have donebutin fact did not do.") Second, this bad act evidence, if the prosecution’s arguments are believed, further connects Appellant to the Bryant family. If Williams is viewed as an ac- complice, even if this section 1101 evidence is not technically “corroboration”be- cause it connects Appellant to the parties and does not connect Appellant to the crime,it still bolsters Williams’s testimony. On the other hand, even if Williams 66 is not viewed as an accomplice, the jury may have qualms about accepting the word of that particular character at face value. Therefore, this evidence admitted under section 1101 gives credence to Williams in the eyes of the jury, as the jury sees the character evidence as further proof of Appellant’s involvement with the Bryants. Third, as it specifically relates to this case, this show of egregious conduct portrays Appellant in a most despicable light in front of the jury. He is shown as an armed drug-dealer, with no regard for the safety of others. Indeed, the law cor- rectly recognizes the fact that engaging the police in a high-speed chase com- pounds reckless and dangerous driving. (People v. McHugh (2004) 119 Cal.App.4th 202, 209-8-209.) Attempting to escape a crime by meansofa high- speed and reckless chase constitutes " ‘highly dangerous’ " conduct, demonstrates that the defendant has a conscious disregard for human life, and is sufficiently egregious conduct to support a second-degree murder charge if someoneis killed as a result of the chase. (People v. Satchell (1971) 6 Cal.3d 28, 33-34; People v. Lima (2004) 118 Cal.App.4th 259, 265-266; People v. Fuller (1978) 86 Cal.App.3d 618, 629.) Totell the jury the facts of this callous and reckless behav- ior will encourage the jury to want to punish Appellant for past crimes to prevent further threats to public safety. Nor is this a problem about which the jury was unaware. High-speed chases are a prime-time gold mine, with every mile covered by news helicopters and afternoon reporters gasping each time the fleeing car misses another vehicle. Finally, Respondent contendsthat in light of the “overwhelming strength of | the People’s case, which was uncontradicted as to Appellant Smith, because he did not present a defense” there was no reasonable probability of prejudice. (RB 336.) First, as noted before, this case was far from overwhelming. In thetrial court’s view, there was no evidence connecting Appellant to the offense apart from the testimony of Williams, testimony that was suspect even it was deter- mined he wasnot an accomplice. (Ante, 20.) 67 Secondit is true the evidence was not “contradicted” in the sense that Ap- pellant did not put on evidence. However, Appellant did have a viable defense and that defense was a legitimate challenge to the prosecution meeting its burden of proving the charges. When a defendantbases his defense on the theory that the People did not prove its case, as is his fundamental right to do so, any “additional evidence” supporting the People’s case that was improperly admitted creates an- other item of evidence which the defense must refute or explain. Specifically, Appellant’s defense was that the testimony of Williams com- bined with the other evidence offered by the State was insufficient to meet the State’s burden of proof. When the jury was allowed to considerthe irrelevant bad act evidence of the chase, the drugs, and the gun possession, it was in essence pro-. vided with erroneous evidence of Appellant’s “identity” as the killer. It thus be- came necessary for Appellant to refute the irrelevant evidence admitted against him. Appellant was prejudiced by the need to refute evidence that was improperly admitted. Third, as noted in the Opening Brief (AOB 148-149), the trial court recog- nized there was no other evidence that connected Appellant to these crimes, apart from the testimony of Williams. Even if he was not an accomplice, Williams was a participant in the narcotics industry, was a former defendant who entered a plea in exchange for this testimony so as to avoid capital charges, was a petty criminal with other criminal activities in his past, and was not the type of witness who in- spired great confidence. The other evidence was at best ambiguous, connecting Appellant to the other people in the case. Combined with the lack of physical evi- dence or eyewitnesses implicating Appellant, it can hardly be said that this was an overwhelming case. C. THE DRUGS FOUND IN APPELLANT’S POSSESSION Appellant has argued that the prosecution failed to prove the logical foun- dation necessary for the admission of evidence of the cocaine found after the chase, because it was not proven that the cocaine was in the cookie-shaped wafer 68 form that was unique to the Bryant family cocaine, therefore it was not shown that the cocaine was “Bryant family” cocaine, and therefore there was no logical basis for the admission of that evidence. (AOB 168-170.) In response, Respondent has argued that the cocaine was in half-ounce bin- dles, one of the ways in which the Bryants sold cocaine, and therefore it can be 29inferred that this was “Bryant cocaine.” Respondent readily admits that the drug packaging was not unique to the Bryant organization. Respondentstated “there may not have been evidence that on/y the Bryant Organization sold drugs in this manner.” (RB 335, italics in original.) Despite this recognition, Respondent goes on to make a quantum leap and arguably a nonsensical argument, , reversing posi- tions, by stating that the packaging is “undeniably distinct.” (RB 335.) Essentially, Respondent is arguing that it is sufficient to show the cocaine was Bryant-family cocaine because the drugs were commonly packagedin half-ounce bindles and the Bryants’ packaged their drugs in this manner. (RB 334-335.) Respondent claims, that “this distinctive packaging was a perfect match with the cocaine found in Appellant Smith’s possession.” (RB 335.) However, the important question is not whether the Bryants packaged their drugs in this manner, but whether on/y the Bryants packaged their drugs in this manner. By contrast, evidence of the other crack houses could be identified as Byrant family houses because only the Bryant family crack houses had certain unique features such as the fortified cage at the front door and a crock-pot and hot oil used as a meansofdestroying evidence. (83 RT 9643, 9657.) The uniqueness of these crack houses made the evidence of the other crack houses relevant to show Bryant’s involvement with the Wheeler Avenue residence, which had simi- lar unique features as the other houses described. Similarly, only if the drugs foundin Appellant’s possession bore a unique characteristic, can it be said that the logical foundation needed for the evidence was established. Appellant contends 69 that the uniquenessof the ‘Bryants’ cocaine” wasin the cookie-shaped wafer form of the drug. As Respondent correctly notes, Detective Lambert testified that the Bryant family always packaged its drugs in grams or half ounces. (85 RT 9960-9967.) However, neither Lambert nor any other officer testified that this was a unique trait to the Bryants, and as admitted by Respondentin its brief, this in fact was not unique to the Bryant organization. (RB 335.) Obviously, because other dealers also sell half-ounce quantities there is nothing to connect this cocaine to the Bry- ants, and all contrary conclusions must fail. As shown below, the only reasonable interpretation is that the requisite uniquetrait of the Bryant organization was the cookie-shaped wafer form, and not the half-ounce packaging. First, at the hearing on the admissibility of the evidence, the defense argued that it expected there would be testimony that the cocaine found on Appellant was in a half-ounce wafer that was “peculiar” to the form in which the Bryant-family cocaine was sold. (emphasis added) (85 RT 10035.) The prosecution did not dis- pute this statement; nor did the prosecution attempt to stake out a position that the distinctiveness of the Bryant family cocaine did not depend on its cookie-shaped wafer form, butrather it was distinguished by its packaging. Having lulled Appel- lant and the trial court into believing that this was the fact in issue, the prosecution should be estopped from nowasserting for the first time that the uniquenessof the Bryant-family drugs could be established by traits other than its cookie-shaped wafer form. Second, in allowing the evidence of the drugs, the trial judge also believed the prosecution would show that the cocaine was unique to the Bryantfamily be- cause of the cookie-shaped wafer form. This was made clear during the Curry hearing. After the Curry evidence was admitted on the People’s representation that it would eventually establish the relevant foundation, the trialjudge reminded the People that the prosecution had promised to prove that the narcotics were in 70 the form ofthe cookie-shaped wafer, and the court had not yet heard that evidence. (91 RT 11286-11288.) Again, the defense indicated that this had been its under- standing. And once again, the prosecution accepted the court’s statement and never informed the court or the defense to the contrary. At trial, the prosecution never indicated that in proving the uniqueness of the drugs the People had been referring to the packaging by weight. (9 RT 11299-11300.) Third, it is a firmly established principle that the proponent bears the bur- den of establishing the relevance of a proffered piece of evidence. If there is a foundational fact necessary for that relevance, this includes the burden to establish that fact as well. (People v. Brady (2005) 129 Cal.App.4th 1314, 1331; People v. Morrison (2004) 34 Cal.4th 698, 586.) Applied to this issue, the desired relevance of the cocaine Appellant possessed depended upon it being Bryant-family cocaine. If others used half-ounce packaging, the manner in which the drugs were packaged failed to proveits origin. It is only if this packaging is peculiar to the Bryants that it is possible to use it to trace the cocaine. Therefore, the very relevance ofthis item dependedonthat factor. Testimony did establish that the Byrants packaged their drugs in half-ounce packaging, but there was no testimony showing that this type of packaging was distinct to them. The prosecution’s failure to establish this fact resulted in its fail- ure to establish the relevancy of the cocaine evidence. Having failed to establish its relevancy, the evidence was not admissible. From the foregoing, it is clear that at trial, the necessary foundation for the admissibility of the evidence,that is, that the cocaine found in Appellant’s posses- sion was in a form (cookie-shaped wafer) unique to the Bryant organization was not proven. Thus, the evidence of the cocaine was not relevant and therefore should not have been admitted. Respondent’s attempt to change gears and now forthe first time argue that the uniqueness was found in the half-ounce packaging and not in the cookie- shaped wafer form of the cocaine mustalso fail for the reasons cited above. 71 D. EVIDENCE OF THE CURRY SHOOTING In Appellant’s Opening Brief, he argued that because Bryant’s admission to his ex-wife Tannis was not admissible against Appellant, the foundation for the evidence relating to the Curry shooting was not established as to Appellant, and therefore the evidence of the Curry shooting was inadmissible against Appellant. (AOB 163-165.) Respondent again argues that Appellant has provided no authority for this proposition. (RB 329.) As explained above, it is bedrock law that only relevant evidence is admissible. (Ante, at p. 58.) Becausethe trial court held that there was no probative value of the Curry shooting unless the prosecution established the foun- dation, the failure to establish that foundation rendered this evidence inadmissible. Second, it is bedrock law that when evidence is admissible for only one pur- pose or against only one party, the jury should be instructed not to consider that evi- dence for another purpose or against another party. Indeed, as Respondent recog- nizes, the trial court realized that the evidence of the Curry shooting was not admis- sible against Wheeler or Settle, and therefore the court instructed the jury to only consider the evidence against Appellant and Bryant. (RB 328, 121 RT 11313.) The proposition Respondent claimsis so novelis, in reality, merely the well- recognized evidentiary principle that unless the foundation of the evidence is es- tablished as to Appellant, that evidence may not be used against him. Thenet re- sult of the trial court’s ruling on this matter was its determination that the Curry shooting evidence could not be offered unless Bryant’s motive for the shooting was shownto the jury. The trial court’s foundational ruling regarding the Curry shooting evidence was problematic because the evidence of Bryant’s motive for the shooting was only admissible against Bryant and not against Appellant. Nev- ertheless, the jury was allowed to consider the Curry shooting evidence against Appellant, even though the necessary fact to establish its relevant foundation — Bryant’s admission and therefore Bryant’s motive- was not to be considered against Appellant. In short, the trial court’s ruling allowed the jury to consider the 72 evidence of the Curry shooting against Appellant in spite of the fact that it bore no relevance to Appellant because the legal foundation for that evidence in relation to Appellant was neverproven. As Respondent notes, prior to the admission of the Keith Curry shooting evidence, the prosecution stated that in addition to the testimony of Tannis, the prosecution would offer the testimony of Pierre Marshall who would testify he dated Rochelle Bryant while Jeff Bryant was in custody, and that he later found out that the Bryants were upset with him about this and the fact that his cousin, “D-Dog,” managed to cheat the Bryant’s out of narcotics. (91 RT 11260.) The People further offered to show that in an attempt to intimidate Marshall, Bryant went through the shootings that he had been involved in, one of which was the Keith Curry shooting, saying that the “nigger” was paralyzed as a result of the shooting. (91 RT 11261.) Attrial, after Marshall denied making these statements (94 RT 11752), De- tective Vojtecky testified he interviewed Marshall regarding the meeting between Marshall and Bryant, and Marshall told Vojtecky that when Marshall sat down at Bryant’s table, Bryant began mimicking, holding his hands in a deformed fashion, laughing, and saying, "Remember howthat nigger got paralyzed." They then dis- cussed other matters. (94 RT 11753, 11791.) Marshall said he knew that Stan Bryant was talking about Keith Curry. (94 RT 11792.) The evidence relating to Pierre Marshall was not sufficient to establish the necessary connection of Bryant to the Curry shooting in relation to the case against Appellant for several reasons. First, as discussed above, (Ante, at p. 60), the statement of Bryant to Mar- shall was hearsay, and should have been limited to Bryant, just as Bryant’s state- ment to Tannis was so limited. (100 RT 13086.) Second, the Tannis/Derby evidence established a crucial link in a manner that the Marshall/Vojtecky evidence did not. This is because in her statements, Tannis said that her ex-husband (Bryant) planted a bomb underneath Keith 73 Curry’s car and Bryant said he would do it again until her boyfriend (Curry) was dead. (101 RT 13097-13098.) This is precisely the logical foundation for which the trial court was looking: evidence that Bryant was angry at Keith Curry for sleeping with Tannis, and that he was doing something aboutit. Similarly, as discussed above, (Ante, at p. 59), the Marshall/Vojtecky statement was more vague than the evidence relating to the Keith Curry shooting. It showed Bryant mimicking a paraplegic, but who that paraplegic was and why that person was in that condition was only established through Marshall’s specula- tive assumptions. When Marshall told Detective Vojtecky that he knew Bryant wasreferring to Keith Curry, it would have been more accurate for him to say that he “assumed” Bryant was talking about Keith Curry. Moreover, even if it can be inferred that the person being mimicked was Keith Curry, from the evidence alone it is speculative to conclude the motive was Tannis’s infidelity as opposed to some other dispute. Finally, Respondent argues that if the Keith Curry evidence was admitted improperly, in light of the “overwhelming” nature of the case, any error in admit- ting the evidence would have been harmless. (RB 332.) Respondent’s continued reliance on this exaggerated claim necessitates Appellant to once again note that the only overwhelming evidence related to the fact that Armstrong and the others were murdered. However, once again, as to Appellant, one is reminded of the ob- servations of the trial court that repeatedly held that apart from the evidence of Williams, there was no evidence that connected Appellant to the crime. (Ante, at p. 20.) Even if Williams was not an accomplice, he was hardly the type of person warranting great credence. The improper admission of the Keith Curry shooting and possession of the “Bryant” cocaine wasparticularly damaging becauseit tied Appellant to the Bry- ant organization. In this light, it must be remembered that contrary to the situation with the other defendants, including those who were severed from this case, there 74 wasa striking absence of evidence connecting Appellant to the Bryants, except for the fact of his marriage to Bryant’s sister-in-law. In particular, as explained in Appellant’s Opening Brief (AOB pp. 76-77), the chart prepared by Detective Dumelle did not depict Appellant as being among the large list of players in the Bryant organization. He was not known to many of the people active in the organization, such as Walton. His name was not on the “ninety-minute” schedule or list of phone numbers found at the Wheeler Avenue address. His picture was not in Wheeler’s photo album. None of the witnesses had ever seen him at the drug houses, with the exception of Williams. He was not recognized among the hundreds of pictures seen by witnesses such as Ladell Player, who identified other employees of the organization. He was not on the pa- per trail of deeds and bills connected to the Bryant family. In short, compared to many other people, there was very little evidence that connected Appellant to the Bryants. In light of the lack of evidence connecting Appellant to the offense, the prosecution’s successful effort to show that Appellant had engaged in a cold- blooded shooting of a former friend (Keith Curry) was incredibly powerful evi- dence. It defies reality to assume that a jury would hear of an attempted murder and give it no significant weight. In summary, the evidence necessary to establish the logical foundation, which the trial court demanded was lacking, and therefore should not have been admitted against Appellant. Considering the incredibly harmful nature ofthis evi- dence showing that Appellant committed an attempted murder in the past was clearly prejudicial, especially given the lack of evidence connecting Appellant to the murdersin this case. 75 E. THE TRIAL COURT ERREDIN INSTRUCTING THE JURY REGARD- ING THE PROPER USE OF EVIDENCE OF OTHER, UNCHARGED CRIMES Thetrial court erred in instructing the jury regarding the use of evidence of other uncharged crimes. Respondent contends that because the defendants did not enter a guilty plea, all the elements of the crime were in issue, citing People v. Ewoldt (1994) 7 Cal.4th 380, 400 and People v. Daniels (1991) 52 Cal.3d 815, 857-858. Respon- dent further notes that because Bryant did not concedeit wasa first-degree murder case, intent remained in issue and a part of the case that the People had to prove. (RB 349.) While it is true intent was an issue, this ignores the language of Ewoldt, that in many cases the prejudicial effect of evidence of uncharged acts will “outweigh its probative value, because the evidence would be merely cumulative regarding an issue that was not reasonably subject to dispute.” [Citation].” (Ewoldt, at 405- 406, italics added.) Similarly, it has been explained that the prosecution has no right to present cumulative evidencethat creates a substantial danger of prejudice. (People v. La Plane (1979) 88 Cal.App.3d 223, 242.) Indeed, to give the prosecu- tion a trump card which allows for the admission of such evidence merely because it is “in issue”as a result of a plea of not guilty would abrogate the very purpose of both Evidence Code sections 352 and 1101, since the “facts” would always be in issue, In cases such as this, where victims are shot multiple times at close range, while trapped in a sally port, to allow this type of prior bad act evidence to prove intent would abrogate the principles discussed in Ewoldt and inherent in sections 352 and 1101 because,since there is no serious dispute as to that particular issue, other-crimes evidence would be cumulative, leaving only “[T]herefore, it is im- perative that the trial court determine specifically what the proffered evidence is 76 offered to prove, so that the probative value of the evidence can be evaluated for that purpose.” (Ewoldt, at p. 406.) Regarding the trial court’s failure to properly instruct on evidence of un- charged crimes, Respondent contends Appellant has failed to show how evidence of the other crimes “could have prejudiced his defense (which was non-existent since he did not present one) or made any difference in the verdicts rendered.” (RB 350.) While Appellant did not present an affirmative defense or introduce evi- dence of an alibi or some other defense, this does not mean he did not “present a defense” or that his defense was “non-existent.” It should go without citation that at the core of our criminal justice system is the principle that the State must prove its case beyond a reasonable doubt and Appellant has no obligation to put on any evidence. Appellant’s defense was that the state did not prove its case. Indeed, the closer Williams was to being properly viewedas an accomplice, the more compelling Appellant’s defense becomes. In light of the arguments presented re- garding whether Williams’s actions made him an accomplice, combined with the prosecution’s advocacy of that position in the early stages of the case, arguably Appellant came close to presenting a substantial defense simply based on ques- tioning Williams’s status. This is particularly true in light of the trial court’s ob- servations regarding the lack of evidence connecting appellant to the crime. (Ante, at p. 20.) Indeed, these two facts, Williams’s accomplice status and no evidence connecting Appellant to the crime, the positions of the prosecution andtrial court, were a complete defense. In such a situation, every item of evidence improperly admitted against Ap- pellant became an additional burden he had to overcomein his effort to show that the State did not prove its case. By way ofillustration, using just two pieces of evidence remarked on by Respondent (RB 350), the introduction of evidence that the Bryant Family beat up Francine Smith or that Appellant participated in the sale of cocaine, when the jury had not been properly directed on how it should view 77 that evidence, became another piece in the convoluted jigsaw puzzle that Appel- lant had to unnecessarily explain away. Put another way, accepting the principle that jurors are presumed to under- stand and follow the court instructions (People v. Hart (1997) 15 Cal.4th 619, 644; People v. Arjon (2004) 119 Cal.App.4th 185, 194), if the jury had been properly instructed that evidence of the Francine Smith beating could not be used against Appellant, it would have resulted in one less piece of damning evidence against Appellant. If the jury had been properly instructed to limit its consideration of the evidence of Appellant’s drug sales to that of establishing his relationship to Bry- ant, he would not have been burdened with a rebuttal to any other improperinfer- ences that the jury may have been tempted to draw. Conversely, the jury being improperly instructed that it could consider evi- dence of Appellant’s gun possession, discovered after an unrelated reckless, high- speed chase, for the purpose of proving Appellant’s intent to kill Armstrong or as part of his common plan to commit the murdersin this case, created an additional and an unnecessary burden which Appellant had to overcome. In a similar vein, Respondent contends that “in view of the abundant and uncontradicted evidence of Appellant Smith’s guilt” Appellant does not explain how properlimiting instructions would have affected the trial. (RB 351.) Once again, this position ignores the findings of the trial judge that apart from thetesti- mony of Williams, there was no evidence that connected Appellant to the crimes. Furthermore, because Williams’s credibility was subject to substantial impeach- ment through a showing of his involvement with the Bryant cartel, his continuing life of crime after he fled California, and his self-serving motive to shift the blame to others, it is clearly hyperbolic to claim this testimony was “uncontradicted.” Appellant submits that the testimony of Williams, with its inherent credibil- ity problems, is hardly “abundant and uncontradicted” evidence. 78 In summary,the trial court erred in failing to correctly instruct the jury as to the proper use of the evidence of uncharged crimes. Therefore the judgment must be reversed. F. THE TRIAL COURT ERREDIN INSTRUCTING THE JURY THAT THE KEITH CURRY INCIDENT COULD BE USED TO PROVE IDEN- TITY. Appellant has argued that the trial court erred in instructing the jury thatit could use evidence of other crimes to prove identity. Respondent responds that the trial court properly instructed the jury on the use of the Keith Curry incident to prove identity, noting several facts which Respondentasserts establish the degree of similarity needed for the use of this evidence to prove identity. In particular, Respondent refers to the following facts: Appellant and Bry- ant acted in concert, Appellant was on friendly terms with both Armstrong and Keith Curry and was used as a lure to get close to them, Tannis Curry had a central role in both incidents, and Bryant victimized his ex-wife’s lovers. (RB 330.) Respondent’s reliance on the Keith Curry crime facts as a proper use of evidence to prove identity is in error. As explained in Appellant’s Opening Brief (AOBat p. 158), differing degrees of similarity are required for different uses of evidence of uncharged acts with the greatest degree of similarity being required to prove identity. (Ewoldt at 402-404, People v. Kipp (1998) 18 Cal.4th 349, 369.) An example of the similarities needed to prove identity may be found in People v. Gray (2005) 37 Cal.4th 168, where the prosecution noted the similarities between the charged and uncharged offenses. In each offense: (1) the victim was attacked in her home; (2) the crime occurred in the late evening or early morning; (3) the victims included older women; (4) the assailant tied the victim's hands be- hind her back; (5) the assailant tied the victim's ankles together; (6) the assailant wrapped a towel around the victim's head; (7) the assailant pulled up the victim's nightgown; (8) the assailant beat the victim severely; (9) the assailant engaged in criminal sexual conduct; (10) the assailant left candy wrappers at the crime scene; 79 (11) the assailant left personal property at the crime scene; (12) the assailant ran- sacked the bedroom;(13) the assailant took money; and (14) the assailant “made himself at home,” watching television. (/d. at 203.) While someofthese traits, such as the sexual assault occurring in a victim’s home or the taking of money, are admittedly common, other traits, such as the perpetrator binding the ankles, wrists, and head of each victim are rare. Addition- ally, some ofthe traits, such as leaving behind candy wrappers or making himself at home and watching television while the victim was bound, are highly uncom- mon. When two crimes occur having all of these traits in common,particularly the rarer traits, such as the candy wrappers and television watching, it may be in- ferred that the same person committed the two offenses. As explained in of Peo- ple v. Balcolm (1994) 7 Cal.4th 414, “The highly unusual and distinctive nature of both the charged and uncharged offenses virtually eliminates the possibility that anyone other than the defendant committed the charged offense.” (People v. Bal- com, supra, 7 Cal.4th at 425.) Here, no such “highly unusual and distinctive” similarities existed. Indeed, some of the facts upon which Respondent relies as supporting an inference of identity are the facts that Bryant acted in concert to victimize people who werein- volved with his ex-wife Tannis Curry, and that Tannis Curry hada role in the inci- dents. Reliance on these facts is problematic. These facts do not support a finding of uniqueness because Bryant acted in concert with people other than Appellant in order to victimize people involved with Tannis Curry, and Tannis Curry played a central role in these incidents. Case in point, the prosecution concededthat in the second shooting of Keith Curry or the bombing ofhis car, incidents in which Bry- ant acted and in which Tannis Curry played a central role, Appellant was not in- volved at all. As a result, these facts upon which Respondentrelies do not posses the required signature-like uniqueness to make them relevant for proving identity. Therefore, these facts do not constitute common facts of a signature-like nature 80 that would connect the crime to Appellant, as which is required for the use of other crimes evidence to prove identity. (Ewoldt, at 403, Kipp, at 370.) The remaining fact relied upon by Respondentis that Appellant was friends with both victims. On its face, this fact is too commonto meet the signature-like uniqueness requirement necessary to prove identity. No showing has ever been madethat these friendships were such an unusualfact that it would per se qualify for the stringent standard needed to prove identity. Furthermore, Respondentfails to understand that proving “identity” may be accomplished by a direct inference or by a series of inferences, and these two ap- proaches must be regarded as different for the purposes of Evidence Code section 1101. For example, there can be a direct and immediate inference of identity whenjurors view the evidence of two crimesthat bear a strong signature-like simi- larity. The next step in the chain of logic is for the jurors to conclude that, “[t]herefore,it is likely that the person who committed the first crime also commit- ted the second.” Thus, in People v. Wein (1958) 50 Cal.2d 383 and People v. Wein (1977) 69 Cal.App.3d 79 there are numerous crimes where in each case a person went to the victims’ homesin response to advertisements they placed for the sale of an item, and when the perpetrator was in the bedroom looking at the item he told the victims the stem from his wristwatch had fallen off, and when the victims got on their hands and knees to look for the watch stem, the defendant grabbed them from behind, tied their hands and ankles with rope he had brought with him, and raped them. The court explained that considering the “very distinctive modus operandi” and other similarities, it is logical to conclude that the person who committed the first crimes in the 1950s committed the later crimes in the 1970s. This is the proper use of “identity,” in that the facts are so similar one can infer the identity of the person who committed the first crime is the same as the person who committed the second. 81 Similarly, using the facts of Gray, supra, it would be a properlogical infer- ence for the jury to reason, “It is likely that the rapist who on January Ist, bound an elderly victim, and, after assaulting her, ate candy bars and watched television in her homeis the same person who committed the identical act on another victim on January 15th.” A lesser degree of similarity is needed if the purpose of the evidenceis to show that the parties merely knew each other andis not used to establish a defen- dant’s “signature” in two different offenses. However, if the indirect inferences are followed to their ultimate conclusion, this also leads to an inference of “iden- tity.” For example, if it could be shownthat Bryant and Appellant shared an apartment together, this would prove they knew each other.’ Becauseit is more likely that one would commit a crime with a roommate than a stranger, this would meet the test of relevancy under Evidence Code section 210 to show that they committed a crime together. However, it could not be used to prove “identity,” as that requires a high degree of similarity that would be lacking in such evidence. In this case it was argued that the fact that Appellant previously shot Keith Curry established his relationship to Bryant as the “family enforcer.” The follow- ing chain of inference is possible: If Appellant had worked for Bryant in this ca- pacity, it would makeit more likely that he had committed this crime with Bryant. Thus, the fact of relationship can be used indirectly, through a chain of inferences to establish Appellant’s “identity” as one of the participants in this crime. However, showing the “relationship” is not the same as showing “identity” for the purposes of section 1101, as was doneat trial. If inferences stemming from the fact of relationship wasall that was required to prove identity from the proven facts of the uncharged crime (Keith Curry shooting), this would undermine the rule requiring substantial similarity of the offenses in order to prove identity. The ’ Evidence Codesection 1101 deals with the use of “a crime, civil wrong, or other act’ for this purpose. Therefore, any non-criminal act can qualify for one of these uses underthat section. 82 reason for this is that a much lesser degree of similarity is required to proverela- tionship than is needed for identity. If a jury is instructed that a “relationship” showing can be used to prove “identity,” the situation below, the prior crime that required the lesser showing is boot strapped to meet the most stringent standard required for the second inference of identity. The result would be to abrogate the rule requiring a greater level of similarity for identity. It is only when identity is limited to a narrow signature-like meaning, and the only permitted useis the direct inference, that identity becomes a separate use, distinct from the other uses. Another flaw in Respondent’s reasoning is that in seeking similarities be- tween the two crimes Respondent confuses the facts of the crime to be used as sec- tion 1101-evidence with the ultimate facts to be proven. Thus, in the facts Re- spondent believes demonstrate the requisite degree of similarity, Respondentref- erences the fact that Appellant and Bryant acted in concert. What Respondent fails to realize is that as a matter of logic the similarity must be between the proven facts of the crimes, rather than the facts, which are to be eventually in- ferred. There was no evidence in the possession of the cocaine or the shooting of Keith Curry acts that show Bryant and Appellant acted in concert. Rather, that fact may or may not be inferred from the fact that Appellant possessed Bryant- cocaine or shot an acquaintance of his, with whom Bryant had a dispute. This is the ultimate inference. However, this is not a fact of these incidents that was proven at trial. Indeed, as noted above, other people acted in concert with Bryant to try to kill Keith Curry. Therefore, this was not a signature-like fact of that crime. It has been explained that in order to prove a commonplan the uncharged act must demonstrate "not merely a similarity in the results, but such a concur- rence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." (2 Wigmore, Evidence, (Chadbourn rev. ed. 1979) § 304, p. 249); People v. Ewoldt, 83 supra, 7 Cal.4th at 402.) If this type of similarity may not be used to prove com- mon plan, then, a fortiori, it may not be used to prove intent, which requires an evenstricter standard of similarity than commonplan. In this case, the court allowed this evidence to prove identity, through a chain of reasoning approach,by telling the jury that the possession of the cocaine proved the relationship of the parties, which, in turn, proved “identity” of Appel- lant as involved in the murders. Because there was no similarity of the operative facts, as required by the use of other-crimes evidence to prove identity, this is an improperuse of prior-crimes evidence to prove identity. For the foregoing reasons, the use of the Keith Curry offense to prove iden- tity was improper, and the court erred in instructing the jury that it could be used for that fact. Vv THE TRIAL COURT ERRED IN ADMITTING NUMEROUS HEARSAY STATEMENTS WHICH DID NOT QUALIFY UNDER ANY EXCEPTION TO THE HEARSAY RULE. The trial court erred in admitting numerous inadmissible hearsay state- ments. The hearsay erroneously admitted included the statements of Andre Arm- strong to Francine Smith and Mona Scott, the statements of Ken Gentry and G.T. Fisher, as well as written material purporting to be records related to drug transac- tions and evidence of “to-send’’ money forms of Western Union. A. THESEISSUES ARE NOT WAIVED BECAUSE OF THE FAILURE OF TRIAL COUNSEL TO OBJECT. Respondent’s first contention is that the issue as to the admissibility of many of the hearsay items is waived because of Appellant’s failure to object at trial. The statements to which there was no objection included the following: 1) Kenneth Gentry’s statement to Newsom; 2) written material relating to drug trans- 84 actions; and 3) Western Union records. Respondent argues that the cases cited in Appellant’s Opening Brief® are of no assistance to Appellant because they only allow for an exception to the waiver rule in cases involving challenges to the vol- untariness of a confession or admission of the defendant. Appellant submits that Respondent’s reading of the case law is too narrow. For example, People v. Matteson (1964) 61 Cal.2d 466 involved a failure to object to the admission of an involuntary statement, with this Court holding “the introduc- tion of an involuntary confession or admission requires reversal of a judgment of conviction despite defendant's failure to object to its introduction.” (/d. at 469.) However, at no point did this Court attempt to limit the exception to the waiver rule to only cases involving involuntary statements. Nor do the other cases limit the exception to the waiver rule in the narrow manner suggested by Respondent. Furthermore, there are other exceptions to the waiver rule that would also allow for this court to resolve this issue in spite of Appellant’s trial counsel’s fail- ure to raise an objection to the evidence. As noted above (ante, at p. 33), al- though a failure to object may hinder a defendant’s ability to raise an issue, it does not preclude an appellate court from resolving that issue should it feel the need to do so. Also, it has been held that “a defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, con- stitutional rights.” (People v. Vera (1999) 15 Cal.4th 269, 276.) Because of the overlap of the hearsay issues presented herein with issues arising under the Fifth Amendment’s Confrontation Clause, the failure of trial counsel to object should not preclude this court from addressing these issues. This Court and other appellate courts have at times addressed such constitu- tional questions in the absence of proper objection below. (See, e.g., Hale v. Mor- ® People v. Matteson (1964) 61 Cal.2d 466, 468-469, overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478; People v. Underwood (1964) 61 Cal.2d 113, 126; People v. Hinds (1984) 154 Cal.App.3d 222, 237 85 gan (1978) 22 C3d 388, 394 ["[A]lthough California authorities on the point are not uniform, our courts have several times examined constitutional issues raised for the first time on appeal, especially when the enforcement of a penal statute is involved [citation] ... ."; People v. Allen (1974) 41 CA3d 196, 201, fn. 1 — Court of Appeal reached the merits of a constitutional evidence challenge even though the record showed no objection, because "the constitutional question can properly be raised for the first time on appeal [citation]."]; People v. Norwood (1972) 26 CA3d 148, 153 ["A matter normally not reviewable upon direct appeal, but which is . .. vulnerable to habeas corpus proceedings based upon constitutional grounds may be considered upon direct appeal."] Bayside Timber Co. v. Board ofSupervi- sors (1971) 20 CA3d 1, 5 ["[W]hether the [waiver] rule shall be applied is largely a question of the appellate court's discretion."].) Finally, another exception to the waiver rule that is applicable here is the exception that provides that an objection may be excused when the issue involved is a pure question of law. (People v. Brown (1996) 42 Cal.App.4th 461,475; Peo- ple v. Blanco, supra, 10 Cal.4th 1167, 1172.) In this case, many of the hearsay issues presented raise pure issues of law. Becausethe resolution of the admissibil- ity of many of the statements admitted below would be based on a discussion of pure law, such as the admissibility of Western Union records, this exception would allow for this Court to address the issue without Appellant having objected to the evidenceattrail. As a result, Appellant should not be precluded from raising these issues in this appeal. B. THE TAPED STATEMENT OF ARMSTRONG Respondent does not dispute the contention that Armstrong’s statement was hearsay and violated Appellant’s right to confrontation under Crawford v. Wash- ington (2004) 541 U.S. 36. Rather, Respondent’s sole contention regarding this evidenceis that other evidence established the motive for the crimes, and therefore 86 the admission of Armstrong’s statement was harmless. (RB 290-293.) To the contrary, an examination of the evidence relied upon by Respondent demonstrates that absent the taped statement of Armstrong, there was no admissible evidence of the motive for the crimes, a fact which playeda critical role in thetrial. In seeking to establish other evidence of the motive, Respondentrefers to the fact that Armstrong told other people, namely, Mona Scott and Francine Smith, that the Bryants owed him money. (BR 291.) However, as pointed out in Appellant’s Opening Brief (AOB 194), assuming arguendo that the statements to Scott and Smith establish a motive for the crimes as Respondent claims, this evi- dence was inadmissible hearsay.’ The fact that there was no objection to the statements of Scott and Smithis of no consequence and should not preclude Appellant from addressing this issue here. Appellant previously raised a hearsay objection to Armstrong’s statements to Detective Harley that addressed the same substance as the statements made to Scott and Smith, i.e. that Bryant owed Armstrong money. The Armstrongstate- ments to Detective Harley were litigated at great length with the trial court ulti- mately ruling they could be admitted. (73 RT 7973-7979.) The Armstrong state- ments were admitted prior to the admission of the statements made to Scott and Smith. Thus, prior to the admission of the Scott and Smith statements, the damage had been done in that Armstrong’s belief that the Bryants owed him money had already been presented to the jury. There is no reason to believe that the trial court would have reached a different conclusion at a later stage in the trial when the Scott and Smith statements were admitted. Therefore, any objection would have been futile and is therefore excused. (People v. Hill (1998) 17 Cal.4th 800, 820; People v. Arias (1996) 13 Cal. 4th 92, 159.) As such, the issue is not waived, and Appellant may raise this issue at this time. * Appellant’s Opening Briefprimarily discussed Armstrong’s taped statement. However, the statements to Scott and Smith are listed in the heading as hearsay that was inadmissible underthe principles discussed therein. 87 Respondentis in error when it claims that the Scott and Smith statements suffice as “other evidence”to establish a motive for the crimes. These statements only tend to show that Bryant and Armstrong both believed that Bryant owed Armstrong as a former employee and they do not establish the motive for the crime. In Armstrong’s interview with Detective Harley, Armstrong expressly ex- plained it was his intention to take over the Bryant family’s business after he got out of prison. (40 Supp3rdCT 10512-10513, 10521-10522.) The sole fact that Bryant owed something to Armstrong does not establish the motive for the crimes. It is only when the additional fact that Armstrong’s intent was to take over the business is coupled with the fact that Bryant owed something to Armstrong that motives for the crime can be raised. The fact that Armstrong intended to take over the Bryant family’s business was only proven through his taped interview with Detective Harley; this fact is not found in the statements that Respondent claims are “other evidence” of motive. Equally troubling, Respondent construes the facts that Bryant sent money to Armstrong and Armstrong’s family, and arranged for people to visit Armstrong in prison and paid their expenses as evidence that Armstrong was “squeezing” Bryant, and, in Respondent’s view, this was “other evidence” of motive for the crimes. (RB 291.) However, Respondent’s interpretation of these facts contra- dicts the prosecution’s theory of the case at trial. At trial, the prosecution’s theory was that when Bryant family employees werearrested, the Bryants routinely took care of them and their families. For example, when other Bryant family employ- ees, including David Hodnett and Alonzo Smith, were in custody as a result of their activities on behalf of the Bryant family, Bryant arranged to send money to their wives, Tonia Buckner and Iris Brock. (87RT 10448-104450, 104-10465, 89RT 10907-10909, 11RT 15182-15189.) Respondent’s new use of these facts to establish “other evidence” of motive is incredible especially given the fact that 88 there was no evidence that any of the other people routinely provided for by the Bryants, were “squeezing” the Bryant family. Thus, the fact that Bryant was sending Armstrong andhis relatives money does not prove Armstrong was “squeezing” Bryant. Rather, it only showsthat Bryant was living up to his obligations to his employees, as the prosecution claimedat trial. As such, the fact that Bryant was sending money to Armstrong in accordance with the understanding that the prosecution claimed existed among the business and its employees, lends no support for the Respondent’s claim of“other evidence”ofmotive. Finally, Respondent points to Bryant’s statements to Ladell Player that they had a “problem,” but they had taken care of it, an apparent reference to the Wheeler Avenue murders, as “other evidence” of motive. In addition to the fact that this statement does nothing to establish a motive for the crimes, these were also hearsay statements admissible only against Bryant, as an admission. In fact, at the time these statements were admitted, the jury was instructed to consider them only in relation to Bryant. (89 RT 10913.) Likewise, in the instructions at the end ofthetrial, the jury was instructed that admissions by one defendant could only be considered against the defendant making the admission. (122 RT 16398.) Therefore, none of these statements may be considered against Appellant in de- termining whether there was “other evidence” of motive for the crimes. As a result of the foregoing, it is clear that absent Armstrong’s statement, there was no admissible evidence of the motive for the crimes. In light of the weaknesses in the prosecution’s case and lack of corroboration for the testimony of Williams, (ante, at pp. 20, 38, 58.) the motive for the crimes played a major role in the trial below. Therefore, the erroneous admission of these statements violated both the hearsay rule and Appellant’s right to confront witnesses, prejudicing Ap- pellant, requiring a reversal of the judgment. 89 C. THE STATEMENT OF WINIFRED FISHER Respondent contends that this issue is waived because counsel for Appel- lant withdrew his hearsay objection after the prosecutor explained that Fisher was dead. (RB 272.) In fact, the record is ambivalent as to whethertrial counsel withdrew the objection. After being informed of Mr. Fisher’s death, the court asked Appellant’s attorney, “Does that massage your doubts or do you wish more?” to which defense 29counsel replied, “No.” Because of the compound nature of the question, it is not clear whether defense counsel was replying “no” to the question of whether the answer “massaged”his “doubts” or whether he wanted more. Thus, defense coun- sel could have been replying that the answer did not satisfy his doubts and objec- tions as to the admissibility of the evidence. Indeed, at the most it can only be said that defense counsel was not contesting the issue further, submitting on his previ- ously expressed objections. At no time did he “withdraw” his objection, as Re- spondent suggests. In addition to the other exception to the waiver rule, discussed in the pre- ceding section, the ambiguity of defense counsel’s response raises two further rea- sons to hold this issue as not waived. First, any doubts as to the sufficiency of the objection should be resolved in the defendant’s favor. “Because the question whether defendant has preserved his right to raise this issue on appeal is close and difficult, we assume he has pre- served his right, and proceed to the merits.” (People v. Bruner (1995) 9 Cal.4th 1178, 1183, n. 5; see also People v. Wattier (1996) 51 Cal.App.4th 948, 953.) Be- cause the question of whether Appellant withdrew his objection or whether he was simply submitting on the objection as previously made is unclear, this Court should assume Appellant madea sufficient objection and considerthis issue. Secondly, an objection to the admission of evidence is sufficient if it fairly apprises the trial court of the issue it is being called on to decide. In a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the 90 record showsthat the trial court understood the issue presented. (People v. Young (2005) 34 Cal.4th 1149, 1186; People v. Scott (1978) 21 Cal. 3d 284, 290.) Because defense counsel objected to this evidence on hearsay grounds, thereby apprising the court of the nature of the problem, the court had a duty to correctly decide the issue being presentedtoit. VI THE PROSECUTION COMMITTED VARIOUS ACTSOF MISCONDUCT, VIOLATING APPELLANT?’S RIGHTS UNDERTHEFIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTSTO THE CONSTITUTION The prosecution committed numerous acts of misconduct, including mak- ing emotional appeals to the jury and factual misrepresentations to the court. A. THE ISSUE IS NOT WAIVED ON APPEAL. Respondent argues Appellant has waived his claim of prosecutorial miscon- duct in the appeals to the emotions of the jury and in misstating the law because Appellant failed to object to the arguments of the prosecution. (RB 424.) However, in addition to the exceptions to the waiver rule discussed above (ante, at pp. 85-86), and incorporated herein as a part of this argument, other rules provide exceptions to the waiverrule so that this issue may beraised. Appellant should not be precluded from raising this issue because it has been held that a prosecutor's remarks which inflame the passions and prejudices of the jury constitute the sort of misconduct that is not curable by admonition, thus elimi- nating the need for a defense objection in the first place to preserve the issue for ap- peal. (see e.g. People v. McGreen (1980) 107 Cal. App. 3d 504 at 519; People v. Wagner (1975) 13 Cal. 3d 612 at 621; People v. Un Dong (1895) 106 Cal. 83 at 88; People v. Duvernay (1941) 43 Cal.App.2d 823, 828; United States v. Garza (Sth Cir. 1979) 608 F.2d 659, 666.) 91 B. APPEAL TO PASSION Responding to Appellant’s arguments that the prosecutor improperly ap- pealed to the jury’s passions in his description of the Bryant family and in his comments portraying Armstrong’s love of children, Respondent contends that the prosecution did not make an appeal to passion, but rather simply recounted the evidence introduced. Further, Respondent fails to understand the specific arguments that Appel- lant is presenting regarding the prosecution’s characterization of the Bryant family and its impact on the community. Appellant is not arguing that recounting the de- tails of the organization’s structure and scope was improper. Rather, Appellant is arguing that the manner in which this issue was discussed was an improper appeal to the jury’s passion. This included comments to the effect that: the organization was “the worst you can imagine,” that “they have been getting away with it for years,” the repeated statement that this was “as horrible as it gets,” the repeated references to the impact on the community; and the importance ofthe case to “citi- zens of this county.” (122 RT 16430N, 16430T, 16490-16491, 16475-16476, 16554.) A closer look at these statements, reveal that the prosecution wasnot asking the jury to convict because of the evidence. It was asking the jury to convict based on anger and passion. For example, the evidence as to the size and scopeof the Bryants’ business would arguably be relevant to Bryants’ motive of trying to de- fend the business. But arguing that the running of the business was “the worst you can imagine” is a misuse of that evidence because it asks the jury to consider the evidence for an emotional purpose. Likewise, as is the case with evidence of other bad acts, the fact that the or- ganization has been getting away with crime for years had a tendency to makethe jury convict “not because heis believed guilty of the present charge, but because he has escaped unpunished from other offenses." (1 Wigmore, Evidence §194.) Thus, the prosecution was not arguing the facts of the past conduct of the Bryants 92 as it tended to prove the current crime. Rather, it was arguing that the jury should convict because they got away with crimes before and should be convicted now. Also, arguing the importance of the case to the community is not a com- ment on the evidence. Rather, it is telling the jury that they should convict for rea- sons extrinsic to the case, namely the fact that the city is plagued with crime. Similarly, references to how the victim (Armstrong) liked children are as relevant to the issues of this case as a politician kissing babies during election campaigns. Armstrong’s likes and dislikes of children had nothing to do with who committed this crime. Arguing his sterling character as someone who would not hurt children, in a case where a toddler was shot and killed, was bound to create undue sympathy for Armstrong and anger toward the defendants. C. PRESENTING ARGUMENTS WHICH THE PROSECUTION KNEW HAD NO FACTUALBASIS Attrial, during various hearings when the admissibility of evidence was be- ing discussed, the prosecution made a series of misrepresentations that were cru- cial in the determination of whether the disputed evidence would be admitted. 1. ARGUING THE UNIQUE TRAIT OF THE COCAINE FOUND IN AP- PELLANT’S POSSESSION The most damaging of these statements was the promise by the prosecution to the court that it would connect the cocaine found in Appellant’s possession to the Bryants’ cocaine. Influenced by the prosecution’s misrepresentations, the court allowed introduction of evidence that tied Appellant to the Bryant family, labeled him a big-time drug dealer, and corroborated aspects of Williams’s testi- mony that Appellant was involved with the Bryant family. As explained previously (Ante, at p. 71 and AOBat p. 155), when discuss- ing the admissibility of the cocaine, the defense asserted that it anticipated the 93 prosecution would offer testimony that the cocaine found was in a cookie-shaped wafer form that was “peculiar” to the Bryant-family cocaine. (85 RT 10035.) The prosecution did nothing to correct the defense’s statement that the prosecution would prove the cocaine wasin the peculiar wafer form. Likewise, the trial court later indicated that it had been under the same impression, as made clear from the court’s commentthat the prosecution had not lived up to its promise to prove that the narcotics were in the form of the cookie-shaped wafer. (91RT 11299-11300.) (see ante, at p. 71.) The prosecution’s claim that it would connect the cocaine to the Bryants wasa particularly important matter, as this was one of the facts the court consid- ered when ruling on the issue. Nonetheless, the prosecution allowed the trial court to be misled as to what evidence would be presented. Respondent now arguesthat the unique trait of the cocaine was the fact that it was packagedin half-ounce bindles, which was how the Bryants packaged their cocaine. (RB 427.) As noted previously (ante, at p. 70), this is the first time it has been claimed that this half-ounce packaging was the distinctive trait. Although there was testimony that the Bryants packaged their drugs in half-ounce baggies there was notestimony that it was a uniquetrait to the Bryants. The prosecution neverlived up to its promise to connect Appellant’s possession of cocaine to the Bryants’ cocaine andit clearly misled the trial court as to what it intended to prove in relation to this crucial matter. 2. ARGUING THAT BROWN WASKILLED IN THE CAR At the time that the prosecution argued for admission of the photographs of the bodies of Armstrong and Brown, the prosecution informed the court that the pictures of Brown were relevant and important to the prosecution’s case because the prosecution believed that Brown waskilled in the car by a gunshot wound to the head as a coup de grace. (75RT 8268.) (see AOB 228-229.) This was mis- 94 conduct because no such evidence waspresented, a fact that the prosecution must have knownbythe timeit presented these arguments. In response, Respondent claims there was no misrepresentation. In so argu- ing, Respondentreiterates much of the testimony concerning the scalp foundat the Wheeler Avenue address, the testimony of the coroner that this was the result of a shotgun blast to Brown’s head, and other testimony relating to the cause of death. (RB 428.) Respondent’s argument raises concern, in part, because it omits facts crucial to the issue. Respondentfails to mention any evidencerelevantto this dis- puted claim that Brown waskilled in the car. As a result, Respondentcites to no evidence that would back up the representation made by the prosecution attrial. (RB 428.) Additionally, it is ironic that the evidence to which Respondent now cites in fact proves that both the head woundandthe fatal gunshot wounds wereinflicted at the Wheeler Avenue address and not in the car as the prosecution claimed at trial. Rather than demonstrate that the prosecution did not make misrepresenta- tions to the court, Respondent argues facts that support a finding that the evidence conflicted with the prosecution’s representation that it would prove the coup de grace wasdeliveredin the car. In summary, there was no evidence that would support the prosecution’s proffer that Brown waskilled in the car, a fact which must have been known to the prosecution when it presented those statements to the trial court and which argua- bly were made in order to influence the court’s ruling on the death-scene photo- graphs admissibility. The presentation of knowingly false facts to the trial court was misconduct. Because the misconduct contributed to the erroneous introduc- tion of gruesome death photographs, Appellant was prejudiced by the impact such photographs would have on thejury. 95 D. THE USE OF IMPROPER LEGAL ARGUMENTS Respondent does not dispute the fact that the comments complained of, namely, arguing to the jury an incorrect definition of “accomplice,” was, in fact, a misstatement of the law and was misconduct. (AOB 231.) Rather, Respondent’s only responseis that the court gave admonitions that cured the harm. As previously noted, an admonition is unlikely to cure the type of harm caused by misconduct in argument, because "one ‘cannot unring a bell,"" (United States v. Garza (Sth Cir. 1979) 608 F.2d 659, 666, citations omitted.) Furthermore, because the trial court acknowledged that the only evidence that connected Appellant to the offense was the testimony of Williams, as to Appellant, this argument, was particularly harmful because it was directed to perhaps the most crucial issue in the case. E. PREJUDICE Respondent’s position is that even if there was prosecutorial misconductit was harmless. Essentially, Respondent claims that the prosecutorial misconduct was cured by instructions to the jury and the by the fact that the evidence was overwhelming. (RB 429-430.) Aspreviously noted (ante, at p. 54), and incorporated herein, instructions to the jury are not a cure-all for prosecutorial misconduct. Furthermore, Respon- dent’s response ignores a portion of the misconduct, i.e. the misrepresentations madeto the trial court in arguing for the admission of evidence. Clearly, Respon- dent’s position that instructions to the jury cured the harm is not relevant in evalu- ating prejudice resulting from the misrepresentations to the court. Moreaccurately, the prejudice must be determined by evaluating its possi- ble impact on the trial court’s rulings. The trial court told the prosecution that it had relied on its representations in allowing evidence of the cocaine to be admit- ted, and further that the foundation he had been promised, and that the court ex- pected, had not been proven. This is direct and powerful evidence that if the mis- 96 representations had not been made,it is very likely the court would have ruled dif- ferently. Appellant was prejudiced by the court’s ruling because it allowed the prosecution to prove Appellant was a big-time drug dealer, associated with the Bryants, the type of person to engage in reckless and dangerous conduct with no regard for the safety of others, and to be involved in conduct whichreflected a cold and depraved heart. This ruling also further bolstered the testimony of Wil- liams to the effect that he saw Appellant at the crack house when Appellant stopped by the house, thereby connecting Appellant to the Bryant business. (96RT 12234.) In a similar vein, the prosecution’s argument that Brown waskilled in the car allowed the prosecution to introduce gruesome death pictures, which invaria- bly had a dramatic impact on the jury. Finally, Respondent’s contention that the evidence was overwhelming must again be addressed. There was overwhelming evidence of intent and that the vic- tims were killed. Indeed, there may have been overwhelming evidenceas to the other defendants, including Jon Settle. However, the evidence that connected Ap- pellant to the offense was based solely on the testimony of the unsavory James Williams, who, even if arguably was deemed to not be an accomplice, he was not a figure to inspire credibility. Indeed, the evidence against Appellant was so scarce, that that trial court recognized its scarceness. It is respectfully submitted that the evidence against Appellant was a far cry from being overwhelming. Based on the foregoing, Appellant submits that the prosecutor’s actions constituted misconduct, depriving Appellant of his rights as guaranteed under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and his rights as guaranteed by the California State Constitution. The violation of Appellant’s state and federal constitutional rights demands that the judgment en- tered below be reversed. 97 vu THE TRIAL COURT ABUSED ITS DISCRETION BY ADMITTING INFLAMMATORY, GRUESOME, AND CUMULATIVE PHOTOGRAPHSOF THE VICTIMS’ BODIES The trial court abused its discretion by admitting inflammatory, gruesome, and cumulative photographs of the victims’ bodies. The abuse of discretion stems from the fact that there was no probative value to the photographs, leaving only the prejudicial and emotional impact of gruesome and heart-wrenching images of decomposed bodies and a dead baby. A. THE PURPORTED USE OF THE PHOTOGRAPHS WAS NOT RELE- VANT Respondent contends that the admission of these photographs waslargely a matter of the trial court’s discretion. (RB 405.) Whereasthis is undeniably true, this principle of law does not relieve an appellate court from examining the evi- dence and determining whether there was an abuseofdiscretion. However, as will be explained, in a situation such as this, where the evidence was of such a minimal value, Evidence Code section 352 cannot be used as a shield to protect sloppy and superficial reasoning. Similarly, Respondent explains that parties are not required to rely on oral testimony, but may introduce physical evidence such as photographsto substanti- ate the oral testimony. (RB 405, citing various cases including People v. Pride (1992) 3 Cal.4th 195, 243; People v. Price (1991) 1 Cal.4th 324, 433-435.) The physical evidence used to substantiate oral testimony must have some relevance and is still subject to other rules of evidence, such as section 352. If it does not have additional probative value, all that remains is the emotion generated by the evidence. An example of this may be found in the prosecution’s purported justifi- cation for allowing the photographs of toddler Chemise. Respondent explains that 98 the prosecution’s theory was that Chemise was cowering at the time she was killed. (RB 406.) Indeed, this corresponds with the coroner’s testimony that Chemise was cowering. (75 RT 8291.) Initially, this may appear to be a plausible justification for the use of the photographs. However, when a relevancy inquiry is made the justification no longer appears reasonable. The fact that a victim is afraid is not a relevant fact per se. Unless there is some relevance to this fact, this purported use is of no consequence, leaving only the image of a toddler with mul- tiple gunshot wounds, cowering in fear in front of her shooter. The fact that Che- mise wasafraid played nosignificant role in any issue in the case. Another example of the questionable justification for the photographic evi- dence wasthe prosecution’s theory that victims Armstrong, Brown, and Anderson had been executed; they were wounded with shotgun blasts and then fatally shot at close range. (RB 406.) In reality, this justification misstates both the prosecu- tion’s theory at trial and the evidence introduced to support that theory. The coro- ner testified Anderson’s cause of death was the shotgun wound (75 RT 8306- 8307), but he did not express the opinion that Anderson was wounded with the shotgun and then killed in a coup de grace by another weapon. Similarly, he testi- fied that the shotgun wounds to Armstrong were fatal. (75 RT 8344-8345.) Fi- nally, regarding the cause of death for Brown,hetestified that the shotgun wound to Brown could have been fatal, and he did not knowifit killed him immediately, although he also testified that the gunshot wound clearly would have been fatal. (75 RT 8376-8357.) In short, the justification that Respondent now presents to justify the use of these photographs was not the theory argued by the prosecution to the trial court. Respondent also argues that the photographs showing the decomposition of the victims lying in Lopez Canyon for an extended period of time “factored into the medical examiner’s opinions regarding which of the several wounds suffered by each victim were fatal and inflicted at close range.” (RB 406.) It is respect- fully submitted that the decomposition photographs did not serve this purpose. 99 Rather, the coroner concluded that the shotgun wound to Armstrong wasfatal not because of evidence depicted in the decomposition photographs, but because two of the shotgun pellets pierced his heart. (75 RT 8344-8345, 8347.) Nor did he de- termine from the decomposition photographs that the weapons werefired at close range. Instead, he determined the range of the wounds bythe spread ofthe bullets, sooting, and similar evidence. (75 RT 8341, 8353.) Thus, the relevance now sug- gested by Respondent is not based on the evidence presentedat trial or the theory of the causes of death argued in thetrial court. If a trial court exercises its discre- tion to admit gruesome photographs because they tend to prove the closeness of the weapon, as Respondent argues, when,in fact, the closeness of the weapon had no relationship to those photographs, and was proven by evidence other than the photographs, this constitutes an abuse ofdiscretion. Other justifications suggested by Respondent are equally irrelevant. For example, Respondent contends that the photographs from Lopez Canyon “were highly probative, because they depicted the victims wearing the clothes they were last seen wearing on the day of the murder,” and the photograph of the missing piece of scalp created a link to the Wheeler Avenue house. (RB 406.) There was no issue as to whether Anderson and Brown changed clothes between the time they left the Wheeler Avenue residence and the time they arrived at Lopez Can- yon. Indeed, even phrasing the issue in terms of whether they had changed their clothes after the shots at Wheeler Avenue makes the contention soundsilly. Also, merely saying that the piece of scalp connects them to the Wheeler Avenue house does not explain the relevance of the other gruesome photographs of abdomens bursting and skulls grinning. As Respondentnotes, the courts have held that “[m]urder is seldom pretty.” (RB 407, citing People v. Priece (1979) 24 Cal.3d 199, 211.) It is because murder is seldom pretty that the courts have limited this type of evidence. Equally, it is because murder is seldom pretty that the trial court must seriously examine the purported relevance of the evidence against the actual and unnecessary emotional 100 impact created by that evidence. The proffered use had no relevance, and the de- sired inference was proven by other evidence and had norelationship to the pho- tographs, such as the photographs depicting the closeness of the gunshots, it was error to admit these types of photographs. Finally, assuming arguendo there was some minimal probative value for this evidence, the evidence wasstill inadmissible because other evidence had ade- quately proved any fact to which this evidence may have related. As noted above, the prosecution has noright to present cumulative evidence that creates a substan- tial danger of prejudice. (Ante, at p. 76.) Ironically, as noted throughout this Brief, Respondent has argued that the evidence of guilt was overwhelming. If this were true, there would have been no need to introduce these types of gruesome photographs to prove issues that were of such minimal significance. Thus, if somehowthis evidence wasrelevant to prove intent, for example, the fact that the victims were shot multiple times at close range sufficiently proves that element. The graphic photographs were merely cumulative evidence with no serious addi- tional probative value. Because this evidence was not relevant, its introduction violated the Due Process Clause, which requires a rational connection between the fact proved, and the fact to be inferred. (Ulster County Court v. Allen (1979) 442 U.S. 140, 157; Leary v. United States (1969) 395 U.S. 6, 46.) The photographs lacked relevance, and the emotional impact of these types of gruesome photographs violated the Eighth Amendment’s requirement of a greater reliability in capital cases. (Woodson v. North Carolina (1976) 428 U.S. 280, 305; Gilmore v. Taylor (1993) 508 U.S. 333, 334.) (1976) 428 U.S. 280; Johnson v. Mississippi (1987) 486 U.S. 578, 584-85; Zant v. Stephens (1983) 462 U.S. 862, 879.) B. PREJUDICE. Respondent further contends that if there was error in admitting these pho- tographs, the error was harmless for two reasons: First, any potential prejudice 101 was reduced by the corrective actions of the trial court, including the instructions given and the voir dire conducted. (RB 409.) Secondly, any prejudice wasre- ducedby the fact that there was “overwhelming evidence.” (RB 408.) The instructions given by the court were standard California instructions, and were not sufficient in the face of the exceptionally gruesome photographs of decomposition of eyeballs, maggot-ridden bodies, mummification, and a dead tod- dler. Because the instructions given were fairly commontoall cases, to hold that this type of action is an automatic cure would forever abrogate the rules limiting the use of this type of evidence, as discussed in Appellant’s Opening Brief. (AOB at p. 239-241.) In fact, in many different contexts it has been recognized that the instructions of the judge may be insufficient to overcome the evidence introduced in the case. (E.g. see, Bruton v United States, supra, 391 U.S. 123.) Appellant incorporates and adopts herein his response as previously noted, to Respondent’s claim that the evidence was “overwhelming.” Additionally, as noted in Appellant’s Opening Brief (AOB 240), this type of evidence must be ana- lyzed in terms of an “evidentiary mosaic,” and because there were ample descrip- tions of the bodies, and there was no need for clarification or amplification, nor any added probative value, the prejudice outweighs the probative value. (People v. Smith (1973) 33 Cal.App.3d 51, 69 - in view of the testimony of the coroner and the other evidence, the court found the photographs to have been far more prejudi- cial than probative.) Because the evidence wasalready sufficiently presented on issues relating to these photographs,this tends to prove that it was prejudicial error rather than harmless error. Also, because the evidence against Appellant was slight, avoiding highly charged, emotional photographic evidence wasof great im- portance. 102 C. CONCLUSION Because the purported relevance of the death photographs had no probative value, the introduction of these photographs wasprejudicial error, requiring the judgmentof conviction be reversed. Vill THE USE OF THE STUN BELT AND OTHER SECURITY MEASURES EMPLOYED BY THE TRIAL COURT, WITHOUT THE REQUIRED SHOWING OF NECESSITY, INFRINGED ON APPELLANT’S CONSTITUTIONAL RIGHTS UNDERTHEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS The use of the REACTstun belt and other security measures employed by the trial court, without the required showing of necessity infringed on Appellant’s constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. Respondent attempts to justify the use of the stun belt by arguing “Appel- lant Smith fails to appreciate the seriousness of his violent attack on witness Curry.” (RB 501.) According to Respondent, this evidence created an inference that Appellant committed violent acts at the behest of Bryant, and was therefore a dangerin the courtroom. (RB 502.) This argument fails to appreciate the fact that People v. Mar (2002) 28 Cal.4th 1201, reaffirmed the rule that the decision to use restraints must be based on specific information relating to security in the particular case, and the mere fact that the defendant is accused of a violent crime is not sufficient to justify the use of restraints. Ud. at 1220-1222.) The fact that Appellant shot Keith Curry, was part of the accusation against Appellant that he engaged in violent crimes, for which he wasbeing tried. Under the reasoning ofMar this was not a proper basis to justify the use of restraints at trial. In effect, Respondent argues that while charges of violent crimes committed by a defendant cannot be used to justify the use ofrestraints, if the prosecution intends to offer evidence of violent acts to back up those charges, the use of restraints would be justified. Obviously, such an ex- ception would swallow the rule. In Appellant’s Opening Brief, Appellant argued that he should have been given the same option that was given to Settle; the trial court offered Settle the op- tion of a leg brace and one free hand. Although the exercise of the right of self- representation cannot be used to lessen other rights of a defendant, a pro per de- fendant should not gain additional rights, beyond those enjoyed by other defen- dants in the sametrial, by reason of that election. Therefore, Appellant should have been given the same options as Settle. (AOB 255.) Respondent argues that because Settle eventually chose to wear the stun belt, he was subject to the same restraint as Appellant. (RB 503.) This misconstrues the nature of Appellant’s ar- gument. Appellant is not arguing that he should have been subject to the samere- straints chosen by Settle. Rather, he should have been given the same choice as Settle. In Mar, supra, the court held that in determining what security measure to employ,trial courts should adopt “the least restrictive measure that will satisfy the court's legitimate security concerns.” (/d. at 1206.) If the leg brace was sufficient security for Settle so that he could be given that option, there was no reason why the leg brace would not have been sufficient for Appellant, and Appellant should have been given the same option. The fact that Settle made his personal choice otherwise does not resolve the issue as to Appellant. To hold that it does, would empowerSettle with a veto over Appellant’s preference. Respondent urges that the trial court was concerned overthe level of secu- rity needed because of Bryant’s “violent acts against those who crossed him and that Appellant Smith carried out such acts.” (RB 503.) In all cases where violent acts are alleged and violent acts by the defendants are to be proven, the court may have concern. However, as explained above, the nature of the charges aloneis not a sufficient reason for forcing the defendant to wear the stun belt. In fact, if the 104 charges against Bryant and Bryant’s past mandated the needforrestraints, the trial court was in error for not severing Appellant’s case from Bryant based on such evidence. (See AOB ArgumentIII.) The interests ofjudicial economyas a justi- fication for a joint trial may not be the means to overcome a defendant’s funda- mental rights. When a joint trial threatens those rights, a severance is mandated. (E.g., see Bruton v United States, supra, 391 U.S. 123.) Ifthe presence of Bryant as a defendant is the reason why Appellant must be subject to restraints, the an- swer was to sever his case from Bryant so that Bryant’s presence did not nega- tively affect Appellant’s rights. Respondent further contends that there was nothing in the record to indicate that the use of the stun belt actually affected Appellant. (RB 504) Respondent explains that Settle also wore the stun belt, participated in the trial as his own at- tormey, and managed to achieve a hung jury. (RB 504.) There are four fallacies with this contention. First, the fact that Settle managed to achieve a certain level of success does not mean that wearing the stun belt did not affect him. Settle managed to convince one juror that there was a reasonable doubtas to his guilt. It is speculation to as- sume that he would have done no better under different circumstances, including not having the tensions inherent in wearing a stun belt. Second, even if the conclusion that the stun belt did not affect Settle could be drawn, the fact that one defendant was not affected by something is not evi- dence as to whether another defendant wasaffected. Third, the impact of the stun belt may be the type of impact that was not observable or provable. Fourth, Settle’s success may have beenattributable to factors not related to the stun belt or its impact on him. For example, because Settle was acting as his own attorney, while the other defendants remained silent at the defense table for months on end, the jury saw Settle interacting with the court and counsel. Seeing Settle in a more humanerole for the duration of the trial must have influenced at 105 least some of the jurors, who would be rendering a life or death verdict to Settle. Moreover, other factors, such as the court providing the jurors with clarification as to the definition of an accomplice and concept of reasonable doubt when the jury wasdeliberating only as to Settle, may very well have been the catalyst that led to Settle’s success. (See, AOB ArgumentI.) Respondent argues that there was no harm because Appellant did nottestify and therefore, there was no damageto his credibility. As noted previously, Mar cited the problems inherent in restraints, recognized by Duran, including prejudic- ing the jurors, the “affront to human dignity,” and the effect on a defendant's deci- sion to take the stand. (Var, at 1216, quoting People v. Duran (1976) 16 Cal.3d 282, 290.) Respondenthas not addressed any of these factors. Respondent also argues that any potential error should be judged under the lesser standard of People v. Watson (1956) 46 Cal.2d 818 (reasonable-probability standard of prejudice) because no juror saw the belt. (RB 512-514.) However, the facts of the case suggest otherwise. During voir dire, Prospective Juror No. 191 wrote in her questionnaire that she did see something under the sweater of one of the defendants. (4 CT 1013, 1032.)'° Additionally, during jury selection, after Prospective Juror 397 was excused the court asked her to approach the bench. The court asked why she had asked in her questionnaire, “Are they [the defendants] wearing special restraints?” Prospective Juror 397 responded that she believed Appellant Smith was moving in an awkward manner. (Clerk’s Transcript Sup- plemental X, 119-120.) Therefore, at least two prospective jurors saw enoughto come to the conclusion that Appellant might be wearing a stun belt. In Dyas v. Poole (9th Cir. 2002) 309 F.3d 586, the court found that if one juror sawrestraints, it is likely that others saw them. too. Applying the Dyas analysis to this case, if two jurors came to the conclusion Appellant was wearing special restraints, it is likely that others came to the same conclusion. This questionnaire is found in Volume4 of the Clerk’s Transcripts containing the jury questionnaires. This is a separate set of the Clerk’s Transcripts. 106 In Deck v. Missouri (2005) 544 U.S. 622, the Supreme Court recently re- affirmed the prohibition of visible restraints on a criminal defendant whenthere is an insufficient basis for that type of measure. The Court reaffirmed the holding of Holbrook v. Flynn (1986) 475 U.S. 560 that shackling is "inherently prejudicial," (Ud. at 568), a view rooted in the Supreme Court's belief that the practice will often have negative effects that "cannot be shown from trial transcript." (Riggins v. Nevada (1992) 504 U.S. 127, 137.) Asa result, Deck concluded that whena court, without adequate justification, orders the defendant to wear shackles visible to the jury, the defendant need not demonstrate actual prejudice to make out a due proc- ess violation. Rather, the State must prove beyond a reasonable doubt that the shackling did not contribute to the verdict obtained. Finally, slightly modifying its prior arguments that there was “overwhelm- ing evidence,” Respondent contends that there was no prejudice because of the “compelling evidence” of guilt. (RB 513.) Once again, while there was compel- ling evidence that a crime was committed, as the trial court stated, the evidence connecting Appellant to the offense was solely based on the testimony of Wil- liams, at best an unsavory character, a potential accomplice, a petty criminal, and a memberof the drug cartel. Under any standard, this hardly adds up to “compel- ling evidence”of guilt.” IX THE PRESENCE OF A HEARING IMPAIRED JUROR DENIED APPELLANT THE RIGHT TO A JURY TRIAL, TO TRIAL COUNSEL, TO A FAIR TRIAL, AND TO A RELIABLE DETERMINATIONIN A CAPITAL CASE Appellant’s state and federal constitutional rights were violated when a hearing impaired juror in his case continued to sit as a juror without the benefit of a fully functioning hearing device for the entire trial. 107 A. THE ISSUE WAS NOT WAIVED Respondent does not dispute the fact that a hearing impaired juror wasal- lowed to serve without a functioning hearing aid for portions ofthetrial, but rests its response on a claim of waiver based on trial counsel’s failure to object. (RT 418.) As noted above(ante, at 33), although a failure to object may hinder a de- fendant’s ability to raise an issue, it does not preclude an appellate court from re- solving that issue should it feel the need to do so. In addition, Appellant is not precluded from raising for the first time on appeal a claim asserting the depriva- tion of certain fundamental constitutional rights, including the right to a jury. (Ante, at p. 86.) As explained by the Assembly Judiciary Committee comment following Evidence Code section 353:'' “Section 353 is, of course, subject to the constitu- tional requirement that a judgment must be reversed if an error has resulted in a denial of due process of law.” (People v. Mills (1978) 81 Cal.App.3d 171, 176.) Thus, an issue is not waived on appealby the failure to object if the error is so fun- damental that it represents a deprivation of the right to due process of law or the right to a jury. (People v. Menchaca (1983) 146 Cal.App.3rd 1019 — lack of an interpreter for the defendant at the preliminary hearing.) Also as explained above, (ante, at p. 86), an objection may be excused when a pure question of law is involved. In this case, it is not disputed that the ju- '' Evidence Code Section 353 states: A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason ofthe erroneous admission of evidence unless: (a) There appears of record an objection to or a motion to excludeor to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage ofjustice. 108 ror had hearing problemsthat necessitated a hearing device. Norisit disputed that at times he either did not have the device or it was not functioning properly. As such, issue addresses a pure question of law — whether the presence of a hearing impaired juror, without a fully functioning hearing aid, deprived Appellant of the right to a jury trial, to trial counsel, to a fair trial, and to a reliable determination in a capital case. For these reasons, trial counsel’s failure to object to this issue should not prevent this Court from addressing the issue on its merits at this time. B. THE MERITSOF THE ISSUE. Respondent’s sole argument regarding the merits of the issue is that it is pure speculation as to whether the jury received less or different information than the other jurors. However, the very fact that the juror needed a hearing aid creates an irrefutable inference that without such a device the juror would not hear every- thing that was being said. Otherwise, there would have been no need for the juror to have informed the court of the hearing problems, initially, and to request the devicein the first place. (72 RT 7947.) Likewise, when discussing the malfunction of the hearing device, it was the juror who informed the court that he/she wasable to read lips. (87 RT 10436.) Obviously, at that stage of trial, during testimony, the juror was reading lips, and the entire purpose of the juror mentioning the fact of his ability to read lips was to ameliorate the situation caused by his hearing impairment, as the juror seemed to think that by informing the trial court of the ability to read lips, this would lessen the negative impact cause by the inability to hear, not realizing the receipt of other and different information actually aggravated the problem. The dangers of lip reading stem from factors inherent within that system of communication. (AOB 271) Rather than speculation, an inference can be drawnthat this type of error in communication was, to a certain degree, inevitable. While Appellant cannot point to any specific facts which were missed or distorted by the presence of a hearing impaired juror with a malfunctioning hearing aid, it is simply a denial ofreality to 109 assumethat the hearing impaired juror heard the exact things that the other unim- paired jurors heard. However, if specific distortions of testimony are needed itis sufficient to note that without hearing one cannot see the differences between “P” and “B,” “T” and “D,” “K”and “G,” as the difference in those sounds is produced solely by the rate of the expulsion ofair, an invisible occurrence. C. CONCLUSION For the reasons stated above, one juror could not participate equally with the other jurors. Therefore, Appellant was denied a right to a jury trial, to trial counsel, to a fair trial, and to a reliable determination in a capital case, requiring that, the judgment entered below mustbe reversed. x THE TRIAL COURT ERRED IN TELLING THE JURY THAT THE COST OF THE TRIAL WAS "ASTRONOMICAL." Because the cost oftrial is irrelevant to the guilt or innocence of a defen- dant, the trial court erred in repeatedly telling the jury that the cost of the trial was “astronomical,” thus suggesting that a failure to convict would be a massive waste ofpublic resources. Respondent’s primary contention in this area is that there was no error be- cause the statements, which Appellant has complained about, were not made dur- ing deliberations when the jury was deadlocked, but rather prior to the start of tes- timony and during an early stage of the proceedings. (RB 613-614.) It is respect- fully submitted that although greater prejudice may have occurred had these in- structions been given to a deadlocked jury, the fact that they were given at an early stage does nothing to diminish the harmful effect. Evidence relating to the cost of a trial has no relevance to a defendant’s guilt. (People v. Barraza (1979) 23 Cal.3d 675, 684; People v. Gainer (1977) 19 Cal.3d 835, 852, fn. 16.) Therefore, this type of information is simply irrelevant 110 and can play no part in the jury’s understanding of the case. If it is error to im- press upon the jury the cost oftrial, it does not matter when that occurs. More- over, a jury is expected to rememberinstructions given at any point in the pro- ceedings. For example, when the court instructed the jury at the end of the guilt phase ofthe case, the court explained that at the time the certain evidence wasin- troduced the jury had been instructed on the limited use of that evidence, and the jury should only consider that evidence for the purpose for which it was intro- duced or against the particular defendant against whom it was introduced. (53 CT 15473-15474.). With no reminders as to what those items of evidence were and the limiting instructions given months before, the jury was simply reminded not to consider it for any purpose other than for which it was admitted. Arguably, when a court tells and/or instructs jurors about specific information related to a case that they are a part of, including comments such as the “astronomical”cost of thetrial, the jurors will not only remember the remarks but also take them into considera- tion. Finally, Respondent contends that if error occurred, the error was harmless because of the overwhelming evidence of Appellant’s guilt. (RB 615.) Appellant incorporates and adopts herein his response as previously noted, to Respondent’s claim that the evidence was “overwhelming.” It is respectfully submitted that the evidence was not overwhelming, and certainly not of a magnitude to overcome the improper and prejudicial remarks by the court to the jurors regarding the enormous cost of Appellant’s trial. 111 XI THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUESTTO LIMIT THE EVIDENCE THAT THE JURY COULD CONSIDER AGAINST HIM TO EVIDENCE PRESENTEDIN THE PEOPLE’S CASEIN CHIEF, PRIOR TO THE PEOPLE RESTING In response to this issue raised by Appellant, Respondent claimsthe trial court did not error in denying Appellant’s request to limit the evidence that the jury could consider against him to evidence presented in the People’s case in chief. It is Respondent’s position that Appellant has failed to appreciate the nature of a joint trial where the jury considers culpability in light of the totality of the evi- dence presented in the case. (RB 432-433.) Yet, it is the very difference between a joint and individualtrial that man- dates the instruction Appellant has suggested. While the needs of judicial effi- ciency and economy often times mandate a trial with multiple defendants, those needs should not lessen nor increase the burden which the State and/or defendant would bear had the defendant been tried alone. As it applies to this case, the prosecution had its opportunity to present its evidence against Appellant, which it did, after which Appellant rested. However, by reason of the presence of other defendants, additional evidence was admitted, both by the remaining defendants and the rebuttal of the prosecution. Thus, after basing his defense on the fact that the prosecution did not establish its case against him, and having rested on that de- fense, evidence subsequently admitted by other defendants and the prosecution’s rebuttal added to that evidence essentially resulted in evidence bolstering the prosecution’s case against Appellant. Appellant submits that allowing the jury to consider that evidence deprived Appellant of the right to base his defense solely on the theory that the prosecution did not prove its case. Ironically, Respondent recognizes the fact that had Appel- lant been tried alone “surely he might be entitled” to the type of instruction re- 112 quested. (RB 432.) Ignoring the oxymoron inherent in recognizing that Appellant “surely might” be entitled to an instruction, while this would appear to recognize the fact that a defendant is entitled to have the evidence presented in the State’s case-in-chief as the sole evidence against him, Respondent fails to recognize the fact that in a trial with no other defendants, the instruction would be both unneces- sary and surplusage for the reason that the state would have rested and no more evidence would have come in. Therefore, there would be no need to limit the jury’s consideration to the only evidence presented. Thus, it is only in a jointtrial where this issue would arise. If Appellant “surely might” be entitled to have this instruction in a trial with no other defendants, the presence of other defendants in a jointtrial should not defeat that right. In summary, Appellant submits that the trial court erred in denying Appel- lant’s request to limit the evidence that the jury could consider against him to evi- dence presented in the prosecution’s case in chief, prior to the prosecutionresting. PENALTY PHASE ARGUMENTS XII THE TRIAL COURT COMMITTED REVERSIBLE ERROR UNDER WITHERSPOONV. STATE OFILLINOIS.(1968) 391 U.S. 10 AND WAINWRIGHTV. WITT(1985) 469 U.S. 412, VIOLATING APPELLANT'S RIGHTSTO A FAIR TRIAL, IMPARTIAL JURY, AND RELIABLE PENALTY DETERMINATION AS GUARAN- TEED BY THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS, BY EXCUSING TWO PROSPECTIVE JURORS FOR CAUSE DESPITE THEIR WILLINGNESS TO FAIRLY CONSIDER IMPOSING THE DEATH PENALTY The trial court committed reversible error under Witherspoon v. Illinois (1968) 391 U.S. 510 and Wainwright v. Witt (1985) 469 U.S. 412, violating Ap- pellant's rights to a fair trial and impartial jury, and reliable penalty determination as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments, by excus- ing two prospective jurors for cause despite their willingness to fairly consider im- posing the death penalty. Respondent contends that the trial court's determination of a prospective juror's true state of mind is binding on an appellate court if supported by substan- tial evidence. (RB 253.) However, its claim that the state of mind of Prospective Jurors Nos. 52 and 56 was supported by substantial evidence is not accurate, as may be shown from the very facts acknowledged by Respondent. As Respondent recognized, in his questionnaire and/or on voir dire Prospective Juror No. 52 indi- cated he would not automatically vote for death or a sentence oflife without pa- role; the death penalty bothered him but, he could follow the law, be a fair judge; he was "sure" he could follow the evidence and vote for life without parole or death, and despite his reservations, he could vote for death if he had to. (RB 250- 251.) Irrespective of Prospective Juror No. 52's total answers, to reach its conclusion of "substantial evidence" Respondent ignores the totality of Prospective Juror No. 52's questionnaire and voir dire responses and focuses on just one of his answers to the trial court’s voir dire. Respondent’s focus is on Prospective Juror No. 52’s answer where he indicated his religious beliefs made it difficult to sit in judgment and be a fair judge. (RB 251) However, Respondent’s limited reliance on this an- swerignores the established principle that because of the seriousness of the pen- alty, a hesitancy or difficulty in sentencing someone to death is not a sufficient reason to disqualify a potential juror. (People v. Stewart 2004) 33 Cal.4th 425, 446.) As a result, Respondent's focus on just a portion of Prospective Juror No. 52's responses distorts the meaning of the prospective juror's true state of mind. Similarly, as to Prospective Juror No. 56, from the facts advanced in Re- spondent's brief, it is clear that although she was not "overjoyed" with being in- volved in a death penalty case, nevertheless, based on the answers supplied, it was clear that she could put her religious beliefs aside and impose a sentence of death if necessary. In particular, Prospective Juror No. 56 madeit clear that after filling 114 out the questionnaire, when the trial court offered further information and defini- tion regarding the use of aggravating and mitigating circumstances, as often hap- pens with many other prospective jurors, she developed a better understanding of the process and as a result modified her questionnaire remarks. With further in- struction from the court she believed her civic duty required her to follow the law and evidence and impose death if necessary, although, understandably, she was still not overjoyed about being a participant in a death case. (RB 254-255.) As noted above, the case law is clear, Prospective Juror No. 56’s hesitancy or diffi- culty in sentencing Appellant to death was not a sufficient reason to disqualify her as a potential juror. (People v. Stewart 2004) 33 Cal.4th 425, 446.) Respondent further contends that the trial court did not abuse its discretion when it excused Prospective Jurors No. 52 and 56, because both had indicated several times that they had serious concerns with capital punishment and ex- pressed, in various forms, the fact that it would be difficult for them to return a death verdict. (RB 251-257.) While these prospective jurors did express such concerns about the death penalty, the bottom line is when they were asked ques- tions about their views they both repeatedly stated that they could, in fact, impose the death penalty,if the law and the facts warranted that decision. As explained in Appellant’s Opening Brief (AOB 294-297.) Witherspoon established the principle that merely because a prospective juror has “conscien- tious scruples against capital punishment,” that a prospective juror should not be excused for cause if he or she is able to makeit clear that those views would not prevent his or her from making an impartial decision as to the defendant's guilt, and further indicate that he or she could obey their oath to follow the law. (/d., at pp. 512-513, 522.) Respondentfails to appreciate the principles announced in underlying cases such as Witherspoon, supra, Wainwright v. Witt supra, 469 U.S. 412, and Adams v. Texas (1980) 448 U.S. 38. These principles support a finding that a juror cannot be excused for merely voicing general, sincerely-felt, concerns about capital pun- 115 ishment, namely, the juror who voices a general, philosophical opposition, but when asked if he can overcome that view, states that he can and that he would be able to impose the death penalty if the facts demanded sucha result. In this case, Prospective Jurors No. 52 and 56 are precisely the types ofju- ror contemplated by the principles announced in Witherspoon, Wainwright, and Adams. Prospective Juror No. 52 repeatedly stated that he could follow the law, be a fair judge, and would not automatically vote for life in prison. He unequivo- cally informed the court that he believed a juror had to “go by the evidence" when reaching a penalty determination. (66 RT 7018, 7019 7021.) Likewise, Prospec- tive Juror No. 56 indicated on at least three occasions that she could put her feel- ings aside, be fair, and that she could return a sentence of death if warranted. (65 RT 6746, 6747, 6750.) Although both prospective jurors expressed a concern or reservation about imposing a sentence of death, the totality of their remarks to the court, as noted above, make clear they could do so if the facts and law demanded such a determination. Hence, Prospective Jurors No. 52 and 56 should not have been excused for cause simply because they expressed reservations about capital punishment. Asthe United States Supreme Court has noted: Culled of all who harbor doubts about the wisdom of capital pun- ishment-of all who would be reluctant to pronounce the extreme penalty-such a jury can speak only for a distinct and dwindling mi- nority. (Witherspoon, supra, at p. 520) Based on the foregoing, and the arguments presented in Appellant’s Opening Brief (AOB 294-293), Appellant submits that by excusing two prospective jurors for cause despite their willingness to fairly consider im- posing the death penalty, the trial court committed reversible error, violat- ing Appellant's state and federal constitutional rights to a fair trial and im- partial jury, and reliable penalty determination as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments. 116 XI THE TRIAL COURT IMPROPERLY COERCED A DEATH VERDICT AFTER THE JURY HAD TWICE DECLARED ITSELF DEADLOCKED AND THEN ERRONEOUSLY SUBSTITUTED AN ALTERNATE WHEN THE JURY COULD NOT POSSIBLY BEGIN ITS PENALTY DELIBERATIONS ANEW, THEREBY VIOLATING APPELLANT’S RIGHTS TO A JURY TRIAL, DUE PROCESS OF LAW, AND A RELIABLE SENTENCING DETERMINATION UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION AND THE CALIFORNIA CONSTITUTION Thetrial court erred in denying Appellant’s request for a mistrial based on the fact that the jury was deadlocked as to a penalty determination for Appellant. The court further erred whenit thereafter substituted an alternate juror when it was no longerpracticable for the jury to begin its penalty deliberations anew. Asa re- sult, Appellant was deniedhis right to a jury trial and to due process of law.” A. The Unusual Nature Of This Case Render The General Principles Relied On By Respondent To Be Inapplicable. The main fallacy in Respondent’s views regarding both the instructions given to the then-deadlocked jury and the substitution of the juror after the penalty phase verdicts had been reached as to Wheeler, is that Respondentfails to appreci- ate or discuss the unique nature of this case and the impact of that nature on these two decisions of the trial court. Indeed, when this issue was raised in Appellant’s Opening Brief, the argument began with the phrase, “Under the unusual facts of this case...””» (AOB 302.) ° Appellant notes that in Appellant’s Opening Brief, it 1s stated that Juror No. 113 had informed the court that he/she had a pre-paid vacation scheduled for June Ist. The correct date for which the vacation was scheduled wasJuly Ist. 117 In fact, in cases dealing with these issues, the courts have explained that the particular result being reached wasarrived at based on the facts of the case, noting that under different facts a different result might be called for. (E.g., Locks v. Sumner (9th Cir.1983) 703 F.2d 403, 406; Jimenez v. Myers (9th Cir. 1993) 40 F.3d 976.) Indeed, the law recognizes the twin principles of “When the reason of a rule ceases, so should the rule itself,”’ and ““Where the reason is the same, the rule should be the same.” (Civ. Code §§ 3510 and 3511.) Consequently, under the unusual facts presented herein, the “normal” rules should not be automatically ap- plied without carefully examining their appropriateness to the specific situation presented by this case. Thus, while Respondentrelies on principles of law that may be applicable to most cases, under the individual facts of a particular case, such general rules should not be applied in a rote manner. The unusual nature of this case stems from multiple facts working in con- junction with each other. First, this was an exceptionally long case, with jury se- lection beginning on January 25th, six months prior to the jury announcing its deadlock on June 30th. (64 RT 6389, 136 RT 18113.) In fact, the trial lasted so long that one ofthe jurorsstill sitting on Appellant’s case received a summonsto report for jury duty in anothercase.'’ (135 RT 18128.) Second, in addition to the length of the case, the fact that the case involved the State seeking the death penalty against four defendants was also highly un- usual. Third, in this context of a “mega-case” the jury had already returned a ver- dict of death against one of the defendants. In a conspiracy case, it would be natu- ral for jurors to equate the moral culpability of one defendant with his co- conspirator. After a jury is informed of the legal consequencesfor vicariousliabil- ity and aiding andabetting, it may well offend a juror’s sense ofjustice to execute one defendant for the crimes, while letting a co-defendant involved in the same ° The juror was excused from further service on otherjuries. 118 € s crimes escape with his life. The fact that the jury is instructed to consider the case against each defendant separately cannot ignore the psychological realities inher- ent in this type of situation. Indeed, for many years courts have recognized the fact that jurors may be required to perform impossible mental gymnastics in order to follow the instruction, and that when fundamental rights are at stake, the legal fiction must bow to reality. (E.g., Bruton v. United States, supra, 391 U.S. 123; Nash v. United States (2d. Cir. 1932) 54 F.2d 1006, 1007.) Fourth, although the new juror in theory was “an equal” in the renewed de- liberations, in fact, the other jurors had deliberated through the guilt phase, reach- ing those verdicts, and had spent days already debating penalty. Having reached one death verdict, a new juror entering the scene, when eleven jurors have already argued for days before those eleven agreed to the death verdict, it is clear that the new juror was going to be at a big disadvantage. In this situation, the equality of the jurors is reminiscent of the slogan from George Orwell’s Animal Farm that "All Animals Are Equal, But Some Animals Are More Equal Than Others." Finally, this was a case where tempers were frayed, where jurors were argu- ing over bananasandreferring to each other using obscenities. (126 RT 162975- 16992 16370-16374.) Thus, the danger of jurors being tempted to rush to finish the job wasparticularly perilous. In summary, this was a mega-case, with a natural tendency to equate the culpability of the parties against whom guilty verdicts had been rendered. With tempers flared and no visible light at the end of the tunnel, the jury was under natural pressure to want to resolve the case and go home. In such situation, the danger of the jury being rushed or coerced was unusually high. Consequently, the facts of this case serve to create an exception to the general rules relied upon by Respondent. 119 B. The Instructions Given To The Jury, After The Jury Announced It Was Deadlocked, Were Coercive Under The Facts Of This Case In a conclusory manner, Respondentnotes, “the instruction ...did not result in a penalty verdict as to appellant Smith and Bryant...” (RB 582,italics in origi- nal.) Respondent also remarks that the instructions to which Appellant complains “cannot possibly be considered to have, in any manner whatsoever, influenced or coerced the newly constituted jury in reaching penalty verdicts....” (RB 583, ital- ics in original.) It is respectfully submitted that this conclusory and emphatic statement of Respondentis subject to reasonable debate, regardless of the certainty reflected in its rhetorical statement. In support of its argument Respondent explains that the jury was given the appropriate instructions to begin deliberations anew. (RB 583.) In fact, as noted above, in different contexts it has been recognized that the instructions of the judge may be insufficient to overcomespecific problems associated with the case. (E.g. Bruton v United States, supra, 391 U.S. 123; De Luna v. United States, su- pra, 308 F.2d 140, 154 instructions from the court not sufficient when a testifying defendant comments on the silence of a non-testifying codefendant.) Here, the unusual facts of this case, described above, render it impracticable for the new ju- ror to enter into the foray as an equal in deliberations that were beginning, in the- ory, from scratch. Asnoted above, the courts have held that whether a particular charge is impermissibly coercive must be evaluated in light of the totality of the circum- stances. (Locks v. Sumner, supra 703 F.2d 403, 406; Jimenez v. Myers (9th Cir. 1993) 40 F.3d 976 Jiminez v. Myers, supra, 40 F.3d at 979.) Here, the jurors after having served for over six months, were then told by the court that it would not accept their belief that they were hopelessly deadlocked, and the court further in- structed that the “case will take as long as it takes in order for it either to be re- solved or for the court to feel that it cannot be resolved. (138 RT 18727-18728, 120 italics added.) Appellant asserts that under these facts, the charge in question was undeniably coercive. Respondent further contends that Appellant’s argument regarding the July 18th instructions is a red- herring because the instructions did not lead to a verdict. (RB 582.) However, Respondent’s conclusion that the instructions were not coer- cive merely because a verdict was not immediately forthcoming is not based on substance. The jury obviously remembered previous statements and instructions from the court, and while their reaction may not have been immediate,it is impos- sible to conclude that prior court statements and instructions were vacated from the jurors’ minds in future deliberations, especially given the fact that the court did not instruct the jurors to ignoreits prior statements and instructions. Respondent further attempts to distinguish this case from Jimenez v. Myers, supra, 40 F.3d 976, cited in Appellant’s Opening Brief (AOB pp. 311-313), ex- plaining that unlike Jimenez, in this case the trial court “merely stated there was ‘potential’ for a resolution of the matter given the change in votes from 6-6 to 11- 1, unlike Jimenez where the court “praised”the jurors for the movement towards a verdict.” (RB 587-588.) It is respectfully submitted that this semantic parsing of the trial court’s words misses the gist of the trial court’s statements, and is a dis- tinction without a difference. Obviously, after the trial court’s strong languagein- forming the jury of the importance of reaching a verdict (138 RT 18727-18728), recognizing the “potential” for progress and a resolution of the case can only be regarded as implicit praise. C. The Improper Substitution of an Alternate Juror 13 Days into Delibera- tions Contributed to the Coercive Verdict in Violation of Due Process and the Right to a Jury Trial. Respondent’s main argument regarding the propriety of replacing the juror at the late date in trial, after verdicts had been reached as to Wheeleris that Appel- lant’s argument is based on surmise and conjecture as to how a juror would react in that situation, and that this is only speculation. However, when courts resolve 121 issues Of this nature it is often based on how jury is “likely” to react to specific evidence or instructions. Indeed, at least three times in 2006 this Court has re- solved issues based on howit believed a jury was “likely” to react in the particular situation. (People v. Stanley (2006) 39 Cal.4th 913, 935; People v. Ledesma (2006) 39 Cal.4th 641, 716; People v. Rogers (2006) 39 Cal.4th 826, 874.) There was no concrete way for this Court to determine the “likely” manner in which a juror would react in these, or other cases. Rather, such a determination is based on a court’s understanding of how people would be expected to act in any situation, combined with this Court’s common sense. In fact, as this Court has stated, “When reviewing ambiguousinstructions, we inquire whether the jury was “rea- sonably likely” to have construed them in a mannerthat violates the defendant's rights.” (bid.) Thus, how the jury is likely to act is the proper meansof evaluat- ing prejudice. Under the facts of this caseit is likely that the jury would act in the manner described by Appellant. Respondent has not explained why the scenarios presented by Appellant are an unreasonable understanding of how people - and jurors — would normally be inclined to act under the facts presented. Respondent, citing People v. Maury (2003) 30 Cal.4th 342, 439-440 and People v. Waidla (2000) 22 Cal.4th 690, 725, recites the rule that it is presumed jurors follow the instructions of the court. As previously noted, courts have rec- ognized that in unusualsituations, instructions given to a jury may be insufficient to deal with a specific problem. (Ante, at p. 54.) Similarly, while this is the cor- rect rule of law that generally applies, it must again be stressed that this was a highly unusual case. Therefore, this Court should evaluate this issue relying on how the jurors likely reacted in this particular situation. As a result, Appellant submits that under the unusual facts of this case the trial court the court erred whenit thereafter substituted in an alternate juror after the death penalty verdict was reached as to Wheeler. 122 D. Conclusion For the foregoing reasons, Appellant submits that under the unusual facts of this case, the trial court erred in denying appellant’s request for a mistrial based on the fact that the jury was deadlocked, and the court further erred whenit thereafter substituted in an alternate juror when it was no longer practicable for the jury to begin its penalty deliberations anew. XIV THE TRIAL COURT ERRED IN RULING ON THE AUTOMATIC MOTION UNDER SECTION190.4 TO MODIFY THE SENTENCE Because Respondent does not raise any additional arguments necessitating a reply, Appellant relies on his well briefed argument as presented in Argument XVII of his previously filed Appellant’s Opening Brief. XV THE PROSECUTOR IMPROPERLY DISPARAGED THE MITIGATING EVIDENCEIN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS Respondent contends the arguments of Appellant regarding the misconduct of the prosecution are waived because Appellant at trial did not make the specific objection raised in the Opening Brief. (RB 555) To the contrary, Appellant did object after the prosecution made the remarks regarding Dr. Hoagland’stestimony being a bunch of psychobabble. (137 RT 18487.) While the objection made in the trial court was not phrased in the exact manneras framed by appellate counsel, the objection was clear enough to appraise the court of the problem with the prosecution’s argument. In such situations it has been held that the waiver rule should not preclude an appellate court from reach- ing the issue. (People v. Young (2005) 34 Cal.4th 1149, 1186; People v. Scott 123 (1978) 21 Cal. 3d 284, 290; People v. Williams (1970) 9 Cal.App.3d 565.) Fur- thermore, as noted above (ante, at p. 90), if the question as to whether a defendant has preserved his right to raise this issue on appeal is close, an appellant court should we assume the issue is preserved and proceed to the merits of the issue. Additionally, because this issue raises a pure question of law, the requirement of an objection should be excused. (Ward v. Taggart, supra, 51 Cal.2d 736, 742 ) Finally, because appellant did object to this argument and that objection was overruled, there is no reason to believe that the trial court would have sus- tained similar objections at a later stage in the trial. Therefore, the failure to object to other arguments of the prosecution should be waived as they would have been futile. (People v. Hill, supra, 17 Cal.4th 800, 820.) Respondent claims that because ofthe stipulation that Dr. Hoagland’stes- timony was being offered as Factor K evidence under section 190.3, it was not denigrating of that evidence for the prosecution to commentonit as only Factor K evidence and argue that it was limited to a consideration of “sympathy.” This was improper because it incorrectly implied that Factor K evidence is of lesser value than the other factors listed in section 190.3 which may be considered by the jury. Because there in no authority for the proposition that this evidence is of a lesser value, it is improper to belittle the evidence in this manner, an argument which Respondentfails to address. XVI THE TRIAL COURT ERRED IN REFUSING APPELLANT’S REQUEST FOR AN INSTRUCTION ON LINGERING DOUBT IN VIOLATION OF APPELLANT’S RIGHTS TO DUE PROCESS OF LAW AND A RELIABLE SENTENCING DETERMINATION GUARANTEEDBY THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION Respondentargues that the trial court did not err in refusing the defense re- quest for an instruction on lingering doubt because it has been held that there is no 124 right to instructions on lingering doubt and that the question was placed before the jury in the arguments of Appellant’s counsel. (RB 536-537.) It has been recognized that arguments of counsel cannot substitute for cor- rect instructions from the court People v. Rogers (2006) 39 Cal.4th 826, 869; Carter v. Kentucky (1981) 450 U.S. 288, 304.) Therefore, the fact that Appellant’s trial attorney was allowed to argue this theory does not negate the need to have the jury hearthis principle from the trial court judge. Furthermore, although the courts have held that there is no constitutional right to a lingering-doubtinstruction, this case presents the unusual situation of a trial court judge repeatedly commenting on the lack of evidence connecting Ap- pellant to the crime (ante, at p. 20), combined with a jury that announced a dead- lock as to the verdict of death, a deadlock that was only overcomeafter the trial court informed the jury that it would not accept that result until it was convinced that the case could not be resolved and a juror was replaced after a death verdict had been reached as to a co-defendant. (AOBat p. 307.) In light of the lack of evidence connecting Appellant to the crime and the jury’s initial deadlock, it is of unusual importance that the trial court inform the jury as to this undoubtedly correct proposition of law, in order for the jury to have available all of the legal tools necessary to reach a proper resolution of this case. XV THE TRIAL COURT’S ERROR IN PERMITTING THE INTRO- DUCTION OF NON-STATUTORY AGGRAVATION AT APPEL- LANT’S PENALTY PHASE DEPRIVED APPELLANT OF RIGHTS UNDERFIFTH, SIXTH, EIGHTH AND FOURTEENTH AMEND- MENTS TO THE UNITED STATES CONSTITUTION AND COR- RESPONDING SECTIONS OF THE CALIFORNIA CONSTITU- TION Because Respondent does not raise any additional arguments necessitating a reply, Appellant relies on his well briefed argument as presented in Argument XVII of his previously filed Appellant’s Opening Brief. 125 XVI INSTRUCTING THE JURY PURSUANT TO CALJIC NO.8.85 VIOLATED APPELLANT’S EIGHTH AND FOURTEENTH AMENDMENTRIGHTS Because Respondent does not raise any additional arguments necessitating a reply, Appellant relies on his well briefed argument as presented in Argument XVII of his previously filed Appellant’s Opening Brief. XIX INSTRUCTING THE JURY IN ACCORDANCE WITH CALJIC NO. 6 8.88 VIOLATED APPELLANT?’SFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTRIGHTS Because Respondent does not raise any additional arguments necessitating a reply, Appellant relies on his well briefed argument as presented in Argument XVII of his previously filed Appellant’s Opening Brief. XX THE PENALTY PHASE INSTRUCTIONS WERE DEFECTIVE AND DEATH-ORIENTEDIN THAT THEY FAILED TO PROPERLY DESCRIBE OR DEFINE THE PENALTYOF LIFE WITHOUT POSSIBILITY OF PAROLE“ Because Respondent does not raise any additional arguments necessitating a reply, Appellant relies on his well briefed argument as presented in Argument XVII of his previously filed Appellant’s Opening Brief. ‘4 The designation of this Argument in the Table of Contents in Appellant’s Open- ing Brief incorrectly lists this Argument as “XXII.” The correct designation should be “XXIII.” 126 XXI CALIFORNIA’S CAPITAL-SENTENCING STATUTEIS UNCONSTITUTIONAL” Because Respondent does not raise any additional arguments necessitating a reply, Appellant relies on his well briefed argument as presented in Argument XVII ofhis previously filed Appellant’s Opening Brief. XXII THE CUMULATIVE EFFECT OF THE ERRORS WAS PREJUDICIAL AND REQUIRES A REVERSAL OF THE JUDGMENTOF CONVICTION"® Because Respondent does not raise any additional arguments necessitating a reply, Appellant relies on his well briefed argument as presented in Argument XVII of his previously filed Appellant’s Opening Brief. XXII APPELLANT SMITH JOINS IN ALL ISSUES RAISED BY CO-APPELLANTS WHEELER AND BRYANT WHICH MAY ACCRUE TO APPELLANT SMITH'S BENEFIT"’ Appellant Smith joins in all issues he did not raise but were raised by co- appellants, Wheeler and Bryant, and which may accrue to Appellant Smith's benefit. '° The designation of this Argumentin the Table of Contents in Appellant’s Open- ing Brief incorrectly lists this Argument as “XXIII.” The correct designation should be “XXIV.” '® The designation of this Argumentin the Table of Contents in Appellant’s Open- ing Brief incorrectly lists this Argument as “XXIV.” The correct designation should be “XXV.” '’ The designation of this Argumentin the Table of Contents in Appellant’s Open- ing Brief incorrectly list this Argument as “XXVI.” The correct designation should be “XXVII.” 127 (California Rules of Court, Rule 13; People v. Stone (1981) 117 Cal.App.3d 15, 19, fn. 5; People v. Smith (1970) 4 Cal.App.3d 41, 44.) CONCLUSION For the foregoing reasons, the convictions and judgment of death must be reversed. DATED: January 2007 Respectfully submitted, David H. Goodwin Attorney for appellant CERTIFICATE OF WORD COUNT The brief is proportionately spaced with Times Romantypeface, point size of 13, and the total word count is 40,826 not including tables, and is within the limits (47,600 words) of California Rules of Court, rule 8.630. Concurrently with the filing ofthis brief, counsel for appellant is filing a request to file an oversizedbrief. David H. Goodwin Attorney for appellant 128 PROOF OF SERVICE BY MAIL (C.C.P. SEC. 1013.A, 2015.5) STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am a resident of the aforesaid county; I am over the age of eighteen years and not a party to the within entitled action; my business address is P.O. Box 93579, Los Angeles, Ca 90093-0579 On January , 2007, I served the within APPELLANT DONALD SMITH’S REPLY BRIEFon the interested parties in said action, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Angeles , California addressed as follows: Victoria Wilson, D.A.G. Office ofthe Attorney General 300 South Spring Street Los Angeles, CA 90012 Attorney for Respondent Conrad Petermann 323 East Matilija Street Suite 110, PMB 142 Ojai, California 93023 Attorney for co-Appellant Wheeler Donald Smith P.O. Box E07008 San Quentin, CA 94974 Clerk, Superior Court The Hon. Charles Horan Superior Court, Dept. M 400 Civic Center Plaza Pomona, CA 91766 Ms. Kathleen M. Scheidel Office ofthe State Public Defender 221 Main Street Tenth Floor San Francisco, CA 94105 Attorney for co-Appellant Bryant Laura Murry California Appellate Project 101 Second Street, Suite 600 San Francisco, CA 94105 James Gregory 6345 Balboa Blvd Ste 330 Encino, CA 91316-1580 Trial counsel for Appellant Smith District Attorney’s Office 210 W. Temple Street Los Angeles, CA 90012 _ Executed on January, 2007, at Los Angeles, California I declare under penalty ofperjury that the foregoing is true and correct. David H. Goodwin 129