PEOPLE v. BRYANT

Appellant, Leroy Wheeler, Reply Brief

Cal.April 24, 2007

SUPREME COURT COPY IN THE SUPREME COURTOF THE STATEOF CALIFORNIA THE PEOPLE OF THE STATE OF No. S049596 CALIFORNIA,Plaintiff and Respondent, (Related Cases Los Angeles vs. County Superior Court Nos. A711739 and A713611) STANLEY BRYANT, DONALD FRANKLIN PREME COURT SMITH and LEROY WHEELER, a ILED Defendants and Appellants. APR 2 4 200/ Frederick K. Ohlrich Cler k DEPUTY APPEAL FROM THE SUPERIOR COURT COUNTY OF LOS ANGELES Honorable, Charles E. Horan, Judge APPELLANT LEROY WHEELER’S REPLY BRIEF LAW OFFICE OF CONRAD PETERMANN A Professional Corporation Conrad Petermann, State Bar Number 51907 323 East Matilija Street Suite 110, PMB 142 Ojai, California 93023 805-646-9022 fax: 805-646-8250 e-mail: firm@cpetermann.com Attorney for Appellant Wheeler DEATH PENALIY TOPICAL INDEX PAGE TABLE OF AUTHORITIES uuiccceecceecccccccccccccccccecsesesecscsssccscsccscsccecssecsceseeseeeeeeeseess Vi CERTIFICATE OF WORD COUNT u0...icccccccccceeeccceccceccseseccccsesstsececcceessseceeseeeneeeees 1 ARGUMENT ooieeicccccccccccccccccccccceccccccccccencuscucssssscstsesssevecevevsecscssessuuuaesssuscscsseseeeceeesaes 2 I. THE TRIAL COURT FAILED TO SEVER APPELLANT WHEELER’S CASE FROM THAT OF HIS CODEFENDANTS............... 2 A. THE RELEVANT LAW uci... ceeecsccccccccncseccccccescssccsssaceeessescsseecenseesenees 2 B. THE TRIAL COURT ERREDIN ITS FAILURE TO SEVER APPELLANT WHEELER’S CASE FROM CODEFENDANTSETTLE.......+++ 3 C. THE TRIAL COURT ERREDIN ITS FAILURE TO SEVER APPELLANT WHEELER’S CASE FROM THATOF HIS CODEFENDANTS....ecccccccsesssscccccccsssssececcccacscscesccsceuseucccesseceeeeseesaeneeeees 6 D. APPELLANT WHEELER WAS DENIED A FAIR TRIAL AND DUE PROCESS BY FORCING HIM TO BE TRIED WITH HIS CODEFENDANTS........ccscesscccssececcececccsccssceessssccsessccesececeucesseceseeseaeecsees 8 II. THE TRIAL COURT FAILED TO CONTROL THE ORDER OF THE TRIAL AND IMPROPERLY ACQUIESCED TO CODEFENDANT SETTLE’S REQUEST TO TESTIFY AFTER SETTLE HAD RESTED HIS DEFENSE...0...cccccccecceseeesssseneesereseeeeeeneeeees 9 _B. THE RELEVANT LAW........ccccccccecececcsecccecseveccscssccrsceccecscesecseeeceeseees 9 II. APPELLANT’S CONVICTIONS ARE UNCONSTITUTIONAL AS THEY ARE IMPERMISSIBLY BASED ON INSUFFICIENT EVIDENCE, AS THEY ARE SUPPORTED SOLELY BY THE UNCORROBORATED TESTIMONY OF AN ACCOMPLICE, THE RESULT OF THE TRIAL COURT’S REFUSAL TO INSTRUCT THE JURY THAT WILLIAMS WAS AN ACCOMPLICE AS A MATTER OF LAW AND THAT HISTESTIMONY REQUIRED CORROBORATION AND THE TRIAL COURT’S REFUSAL TO ORDER THE JURY TO RECONSIDER THEIR VERDICT WHEN IT BECAME CLEAR THAT THEY HAD NOT UNDERSTOOD THEIR INSTRUCTIONS 00.eeeeeeceaeeeseceeeeeseseseessessensssssesssessceecneseessesereeees 12 iAREANARAPARAPBADENIES Oe 8 A. JAMES WILLIAMS WAS AN ACCOMPLICEAS A MATTER OF LAWUNDER SEVERAL THEORIES, AS RESPONDENT CORRECTLY ARGUEDIN THE EARLY STAGESOF THIS CASE...cccecsccssssssecssesseeseccsseseeceeesseseessseseees 13 TL. Introduction... eecesecscssseesscessceseeceeessesseenseeesssesssseens 13 2. Respondent’s Recent Position That Williams Was Not An Accomplice Is Incorrect As A Matter ofLaw ......... 15 3. Williams Was Also a Principal in the Murders as an Aider And Abettor In The Narcotics Business.................... 21 4, Other Theories Of Murder...............cccccscccsssscssscssssssessseees 23 B. THE CONVICTION MUST BE REVERSED BECAUSE THERE WASINSUFFICIENT EVIDENCE TO CORROBORATE ACCOMPLICE TESTIMONY...........ccccscesseeees 24 1. Corroborative Evidence Must Connect The Defendant To The Crime...........ccccessscsssccsseesecsseesseceseceseees 25 2. Other Consequences OfAccomplice Status................00. 33 C. CONCLUSION...eeeecessesscesesceceetseseecseesscseessceseesessecenesess 34 IV. THE EXTRAORDINARY SECURITY PRECAUTIONS EMPLOYED THAT INCLUDED STRAPPING APPELLANT TO A STUN BELT THROUGHOUTTHE TRIAL IMPROPERLY PREJUDICED APPELLANT ou... cece esccssesecseceserseccsecesseesssceseceseeseseeenes 35 V. THE PROSECUTOR ASSERTED FACTSIN HIS ARGUMENTTO THE JURY THAT HE KNEW OR SHOULD HAVE KNOWN WERE FALSE, COMMITTING FLAGRANT PROSECUTORIAL MISCONDUCT THAT IMPROPERLY CAST DOUBT ON A KEY ELEMENT OF APPELLANT’S DEFENSE, AND THE TRIAL COURT IMPROPERLY REJECTED THE PROFFERED CURE FOR THE ERROR..........cccccsscsscsseseceseseeeesseseeeeees 40 VI. THE PROSECUTION WAS IMPROPERLY PERMITTED TO DEVELOP ARMSTRONG’S BLACKMAIL OF THE BRYANTS AND THEREBY THE PROSECUTION’S THEORY FOR THE MOTIVE FOR THE HOMICIDES BY DEPRIVING APPELLANTS OF THEIR CONSTITUTIONAL RIGHT TO CONFRONT THEIR ACCUSERou...ecceceesesecssesesssensssssscsesseeseseesesneens 43 il VI. THE TRIAL COURT INSTRUCTIONS IMPROPERLY ALLOWED THE JURY TO FIND GUILT BASED UPON MOTIVE ALONE...ccccececsseseeseeseesceeneeeeseseesesceeeeseeeecesesseseessessesecesseesens 46 VIII. THE TRIAL COURT IMPROPERLY REFUSED TO ORDER THE JURY TO RECONSIDER THEIR VERDICT WHEN IT BECAME CLEAR THAT THEY HAD NOT UNDERSTOOD THEIR INSTRUCTIONS oun. eeeeceessecceeseeeneceeeeeeeaesseeeeseeeseseeseeeenseseeses 47 IX. THE CUMULATIVE AND INTER-RELATED GUILT PHASE ERRORS UNDERMINED THE FUNDAMENTAL FAIRNESS OF APPELLANT’S TRIAL IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS, MANDATING REVERSAL oo. eeeeeeeeeeeeseeeeeeseaeesceseeaeeseesecesessaseeenesesaseeees 56 X. THE USE OF SIX UNADJUDICATED OFFENSES AS EVIDENCE IN AGGRAVATION VIOLATED APPELLANT’S EIGHTH AMENDMENT AND DUE PROCESSRIGHTS...........ccceeeee 56 XI. THE TRIAL COURT’S DENIAL OF DEFENSE REQUESTED APPLICABLE AND ESSENTIAL JURY INSTRUCTIONS COUPLED WITH OTHER ERRONEOUS AND INADEQUATE INSTRUCTIONS, RENDERED APPELLANT’S DEATH SENTENCE UNCONSTITUTIONAL ....eeeceeeeeeeeseesscessenseeees 57 A. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY OVER DEFENSE OBJECTION THAT SYMPATHY FOR APPELLANT’S FAMILY COULD NOT BE CONSIDERED ASA FACTOR IN MITIGATION.........--ccccesseccevecccessensveeercees saaeccseconsesesenseeeoes 57 B. CALJIC 8.88 AS GIVEN IS IMPERMISSIBLY VAGUE AND AMBIGUOUS...0..---:cccccceceeccescecccccctsccrscsececcssssceusscecsseseccnescssaessscunscees 57 C. THE COURT IMPROPERLY DENIED FROM JURY CONSIDERATION THAT NO MITIGATION IS NECESSARY TO REJECT A SENTENCE OF DEATH........cccsssseccccceccsssecsccecesecessceeseueeeeeees 58 D. THE REFUSAL OF THE DEFENSE REQUEST THAT THE JURY BE INSTRUCTED THAT A SINGLE MITIGATING FACTOR MAY OUTWEIGH MULTIPLE AGGRAVATING FACTORS IMPERMISSIBLY CONVEYED TO THE JURY THAT MULTIPLE FACTORSIN MITIGATION WERE REQUIRED TO AVOID A DEATH VERDICT........cccssssssssssssseesssssscescsececceeseceucessusesesseeseceseeeeeenee.. 58 ill E. THE COURT IMPROPERLY DENIED FROM JURY CONSIDERATION AS MITIGATION THAT APPELLANT’S ACCOMPLICE RECEIVED A MORE LENIENT SENTENCE............c006- F. THE COURT IMPROPERLY DENIED FROM JURY CONSIDERATION THAT THEY MUST PRESUMETHAT THE ELECTED SENTENCE WOULD BE CARRIED OUT...........ccseeceeeseceeee XI. CALIFORNIA’S DEATH PENALTY STATUTE,AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION......cc ceccceessecsscssesssecesecsecesesenesceeeenscseteneecareaeesasersesaees aomSaLMAEOHRes 38 . 8 59 A. THE DEATH PENALTY STATUTEIS INVALID BECAUSEIT FAILS TO NARROWELIGIBILITY FOR THE DEATH PENALTY ............ 59 B. THE DEATH PENALTY STATUTE IS INVALID AS APPLIED BECAUSE IT ALLOWS ARBITRARY AND CAPRICIOUS IMPOSITION OF DEATH IN VIOLATION OF THE UNITED STATES CONSTITUTION......:cssssesecesecessecscseseceesecesecsssssssceecesessssssssscssessscaseessess 59 C. THE DEATH PENALTY STATUTE UNCONSTITUTIONALLY PERMITS UNBOUNDED PROSECUTORIALDISCRETION........s0seesee00+ 59 D. THE DEATH PENALTY STATUTE CONTAINS NO SAFEGUARDS TO AVOID ARBITRARY AND CAPRICIOUS SENTENCING AND DEPRIVES DEFENDANTSOF THE RIGHT TO A ~ JURY TRIAL ON EACH FACTUAL DETERMINATION PREREQUISITE TO A SENTENCE OF DEATH; IT THEREFORE VIOLATES THE UNITED STATES CONSTITUTION..........::0:cccesereeseeeeees 60 E. THE CALIFORNIA SENTENCING SCHEME VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FEDERAL CONSTITUTION BY DENYING PROCEDURAL SAFEGUARDSTO CAPITAL DEFENDANTS WHICH ARE AFFORDED TO NON-CAPITAL DEFENDANTS......cccscsssscsssssccesssecesscceesccecescecenseeesssnsecseseccesserenssecseecess 60 F. CALIFORNIA’S USE OF THE DEATH PENALTY AS A REGULAR FORM OF PUNISHMENT FALLS SHORT OF INTERNATIONAL NORMS OF HUMANITY AND DECENCY AND AS A RESULT VIOLATES THE UNITED STATES CONSTITUTION.......... 60 iv XIII. THE VIOLATIONS OF STATE AND FEDERAL LAW ARTICULATED ABOVE LIKEWISE CONSTITUTE VIOLATIONS OF INTERNATIONAL LAW, AND APPELLANT’S CONVICTIONS AND PENALTY MUSTBE SET ASIDEooocecescscesceceesessseseeseeseeaceatenecaseaseeesacsacsacsaaeseeseseaseessssessosssssessssetees 60 XIV. THE CUMULATIVE EFFECT OF THE NUMEROUS ERRORS WHICH OCCURRED DURING THE GUILT AND PENALTY PHASES OF TRIAL COMPELS REVERSAL OF THE DEATH SENTENCEEVENIF NO SINGLEISSUE, STANDING ALONE, WOULD DO SO ooo.eeecseeseseeeeetessscceseeseeeeseessessseenenesseneens 60 XV. APPELLANT WHEELER JOINS THOSE ARGUMENTSOF COAPPELLANTS THAT MAY BENEFIT HIM....00...cecececceseesseeeseeeeeee 61 CONCLUSION....ic cecceccseesesseeseeeseeescesecaeeessenaceessesaceeeseseessessstecses Leceeescessssenseee 61 TABLE OF AUTHORITIES PAGE(S) CASES Arizona v. Fulminante (1991) 499 U.S. 279 [113 L.Ed.2d 302, 111 S.Ct. 1246] oo. ceccccssecssecsecesccsccescesscesseeseesscesssesceeseceresesesenseseecsseneeceneess 11,55 Ballard v. Estelle (9th Cir. 1991) 937 F.2d 453 woeessceeeeseetecsssesseeneeseecesenses 35 Brecht v. Abrahamson (1993) 507 U.S. 619 [123 L.Ed.2d 353, 113 S.Ct. V71O) ccscseseccscsessccsssevsccsssssssessssseselescsssssessssssesessessscsecssssuessessssveteecersnuetsesesssnevecsesee 55 Bruton v United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620] ..ccccccccccssccscccsersccssccscceseceteesteeecsseesseesssessecaseseeesssestesetessesseesesees 37 Carella v. California (1989) 491 U.S. 263 [105 L.Ed.2d 218, 109 S.Ct. 2419]cececsccssccssccesesssccssceseceseesseeeseesseessesenesseessecsseesssssessesesseeseseseas 34 Chapmanv. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824] oo. ccccccssccsseecsereessecseceseeseceesseecsnessseesseeesaeesecceseesseeeeeeeseeeses 11, 46 Cohensv. Virginia (1821) 19 U:S. 264 [5 L.Ed. 257] ..cccssscssessesseessssssssseesseessesareenss 29 Commonwealth ofthe Northern Mariana Islands v. Bowie (9th Cir. 2001) 243 F.3d 1083 occesscescecerceeseteesnessecesesssesesessesensensessssensenseensenece 26 Cooperv. Fitzharris (9th Cir. 1987) 586 F.2d 1325ocecesesesseeteeseesseseeseeees 12 Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354] wee ccesccssccsscecsscecseecesecesseeceseecseesseesneesseeesseeesseessaeeesatesseeens 43, 46 Darden v. Wainwright (1986) 477 U.S. 168 [91 L.Ed.2d 144, 106 S.Ct. 2464] oo. ccccesccssssssecssssscssecsseeseesseeeseeeseesseceeesseeseessaecesecseessesseessseseteness 42 Deck v. Missouri (2005) 544 U.S. 622 [161 L.Ed.2d 953, 125 S.Ct. 2007] ....sssccessessecssccscccsscesscescecsecsseesacessecasenssesscseecsnesceescetatetaeessessneessesaeeseeess 39 Donnelly v. DeChristoforo (1974) 416 U.S. 637 [40 L.Ed.2d 431, 94 S.Ct. 1868] oc.cececescsscceeessnessecesecsceseecesnsessessecesseeascesessesseseesseesseessens 12, 42 Dyas v. Poole (9th Cir. 2002) 309 F.3d 586 oo... eeeesessscsecssesseescnceessaseseeeeseesers 39 Gideon v. Wainwright (1963) 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792]...eee 55 Hale v. Morgan (1978) 22 Cal.3d 388 [149 CalRptr. 375]...eee 5, 46, 48 Hicks v. Oklahoma (1980) 447 U.S. 343 [65 L.Ed.2d 175, 100 S.Ct. . , 2227] weecsssccssccssccsscessccseecseecseccseeccesseceseceeeeesseseessseesssessesesessetecssesesasecsseseessens 35 Holbrook v. Flynn (1986) 475 U.S. 560 [89 L.Ed.2d 525, 106 S.Ct. 1340] .....eccesccssesesssstscseesceesssecessecsseseesceesseseecesesseseseseeeeesasetecssesseessssesssenseees 39 In re Sakarias (2005) 35 Cal.4th 140 [25 Cal.Rptr.3d 265] oeeeseseeseeeeeees 14 Jones v. Dutra Construction Co. (1997) 57 Cal.App.4th 871 [28 Cal.Rptr.2d 758) 0... cecscssecssessssscssssscsesssssssesesssessesssssesceesseceesessasseeaees 13-14 Krulewitch v. United States (1949) 336 U.S. 440 [93 L. Ed. 790, 69 S. Ct. 716] ccc ceeccccccscssecessensceecetseeseesscesseessecenecaceeeresseeseeeeseeesseceaeeeaecsseneeenes 8 vi McKaskle v. Wiggins (1984) 465 U.S. 168 [79 L.Ed.2d 122, 104 S.Ct. AA].ccseccssseessccssssecesssseveccessuscecerssucsersssssessssseseceraueesssssevscsansusesssnsesssssetscsssevesssseeetes 55 Orr v. Orr (1979) 440 U.S. 268 [59 L.Ed.2d 306, 99 S.Ct. 1102] 0.eeeee 6 People v. Arias (1996)13 Cal.4" 92 [51 Cal.Rptr.2d 770].......:ceeseeeeceseeseseeeeees 9, 44 People v. Boyette (2003) 29 Cal.4™ 381 [127 Cal.Rptr.2d 544] ....ccccceeeee 40-41 People v. Brown (2003) 31 Cal.4" 518 [3 Cal.Rptr.3d 145] ..ccccccsscscsessesseeseens 40 People v. Bunyard (1988) 45 Cal.3d 1189 [249 Cal.Rptr. 71] oo. cc eee eeeeseeeeeeees 28 People v. Buono (1961) 191 Cal.App.2d 203 [12 Cal.Rptr. 604]...cececece 18 People v. Cleveland (2004) 32 Cal.4" 704 [11 Cal.Rptr.3d 236] ....ceceeceseeeeees 2,8 Peoplev. Coffman (2004) 34 Cal.41 [17 Cal.Rptr.3d 710] ....ccccccsssesesseeteeeee 3 People v. Cuevas (1995) 12 Cal.4™ 252 [48 Cal.Rptr.2d 135] ..ccccccccsssesseeseeeees 32 People v. Cummings (1993) 4 Cal.4" 1233 [18 Cal.Rptr.2d 796]... eeseeseeeeseees 3 People v. Davis (1903) 210 Cal. 540 [293 P. 32] oeeseseeecssesseeeceeseteeseeeeees 25-26 People v. Funes (1994) 23 Cal.App.4" 1506 [28 Cal.Rptr.2d 758] ..ecccssecsssssesseeenes 9 People v. Garcia (1993) 17 Cal.App.4th 1169 [22 Cal.Rptr.2d 545]...ee 15 People v. Guiuan (1998) 18 Cal.4th 558 [76 Cal.Rptr.2d 239] «0...eeeeee 26 People v. Hardy (1992) 2 Cal.4™ 86 [5 Cal.Rptr.2d 796] ..ccccsscsssesssssssssesseeseesseeseeees 3 People v. Heishman (1988) 45 Cal.3d 147 [246 Cal.Rptr. 673] 0.0.0...eee 28-30 People v. Hill (1998) 17 Cal.4th 800 [72 Cal.Rptr.2d 656]... 5, 44, 46, 48 People v. Huggins (2006) 38 Cal.4th 175 [41 Cal.Rptr.3d 593]...eeeeeeeeees 52 People v. Jackson (1993) 14 Cal.App.4" 1818 [18 Cal.Rptr.2d 586] «0.0.0.0... 35-36 People v. Kempley (1928) 205 Cal. 441 [271 P. 478]...cseesseesseeeeeesseeerees 25-26 People v. Mar (2002) 28 Cal.4th 1201 [124 Cal.Rptr.2d 161] oo...ee36-37 People v. Marshall (1996) 13 Cal.4" 799 [55 Cal.Rptr.2d 347] wo.ceseeseeeees 35 People v. Massie (1967) 66 Cal.2d 899 [59 Cal.Rptr. 733] .......:eecesceeeseeeeereesseeeees 8 People v. Mendoza (2000) 24 Cal.4™ 130 [99 Cal.Rptr.2d 485] ...ccccecsecsessessseeneeee 9 People v. Mincey (1992) 2 Cal.4™ 408 [6 Cal.Rptr.2d 822] oo... cecsccsesseesseeeseenee 41 People v. Nesler (1997) 16 Cal.4th 561 [66 Cal.Rptr.2d 454]...eeeeeeeseeees 52 People v. Norwood (1972) 26 Cal.App.3d 148 [103 Cal.Rptr. 7] octeeseeeseeeeeeees 6 People v. Reyes (1974) 12 Cal.3d 486 [116 Cal.Rptr. 217]...eecceessteeeeeaes 31-32 People v. Robinson (1964) 61 Cal.2d 373 [38 Cal.Rptr. 890] ..........0.. 26-27. 30, 35 People v. Sandoval (2001) 87 Cal.App.4th 1425 [105 Cal.Rptr. 504] ............. 5,47 People v. Sheldon (1989) 48 Cal.3d 935 [258 Cal.Rptr. 242] occceeeeeeeee 36 People v. Smith (1970) 4 Cal.App.3d 41 [84 Cal.Rptr. 229] oo... eeeeeecseeeeesceeeeeeees 61 People v. Stone (1981) 117 Cal-App.3d 15 [172 Cal.Rptr. 445] occseeseeeeeeees 61 People v. Toro (1989) 47 Cal.3d 966 [254 Cal.Rptr. 811] ........cecccesceseeceeeeeeeeee 46 People v. Trujillo (1948) 32 Cal.2d 105 [194 P.2d 681] wu... cece esesetceeseereseeeeeees 27 People v. Watts (1999) 76 Cal.App.4th 1250 [91 Cal.Rptr.2d 1] occeeeeeeeeee 15 People v. Whitt (1990) 51 Cal.3d 620 [274 Cal.Rptr. 252] .......ccceccseeseeeeeeseees 5,47 People v. Williams (1997) 16 Cal.4th 153 [66 Cal.Rptr.2d 123]............ 5, 47, 56-57 Vii sonnet amaemANReCTRARAENIRON People v. Williams (1998) 17 Cal.4™ 148 [69 Cal.Rptr. 917) ....eecscssseessessesseeens 6 Peoplev. Young (2005) 34 Cal.4™ 1149 [24 Cal.Rptr.3d 112]... 56 People v. Zapien (1993) 4 Cal.4™ 929 [17 Cal.Rptr.2d 122] ...ceccesssecsseceeeee: 35 Rhoden v. Rowland (9Cir. 1999) 172 F.3d 633 weccsssscssssescsssecssssesssssessessseeesssees 7 Rose v. Clark (1986) 478 U.S. 570 [92 L.Ed.2d 460, 106 S.Ct. 3101] oo...eeceeessceeees 56 Scales v. United States (1961) 367 U.S. 203 [6 L-Ed.2d 782, 81 S.Ct. 1469] oceeccscesscstecsssessccsseeeceessessescessesseesssessseseeessssesssssessussnsestesssssssseseseseasos 3 Spain v. Rushen (9 Cir. 1989) 883 F.2d 712 ..cccseccssecsssesseecssscssscsseessecssssesseesseessees 36 Stumpfv. Mitchell (6th Cir. 2004) 367 F.3d 594 ooo. eeesceseeesesereeessesseeseseees 14-15 Sullivan v. Louisiana (1993) 508 U.S. 275 [124 L.Ed.2d 182, 113 S.Ct. 2078] .....seescccssccssececcescesscessecscenscceecenceseceseceseseseessecseeseessssssssseeeeteseseeesescnaes 55 Thompson v. Calderon (9th Cir. 1996) 109 F.3d 1358 ooo. eeeeeecceeeseceeeeeeeenenee 15 Tumey v. Ohio (1927) 273 U.S. 510[71 L.Ed. 749, 47 S.Ct. 437] oo.cccccsssseeessessesecees 55 United States v. Haupt (7th Cir. 1943) 136 F.2d 661oecceeseestserecsscseseees 3 United States v. Holcomb (5™ Cir. 1989) 797 F.2d 1320 .ecccsssscssssssssssssssesssesessesaee 8 United States v. Mayfield (9™ Cir. 1999) 189 F.3d 895 v.cccccescscsscsscssseccessesceceesecsees 8 United States v. Tootick g® Cir. 1991) 952 F.2d 1078 uo.ccseceesscecesteesseeeseeees 8 Vasquez v. Hillery (1986) 474 U.S. 254 [88 L.Ed.2d 598, 106 S.Ct. 617]oes55 Vitek v. Jones (1980) 445 U.S. 480 [63 L.Ed.2d 552, 100 S.Ct. 1254] ooo... 35 Walker v. Superior Court (1991) 53 Cal.3d 257 [279 Cal.Rptr. 576] ............000 53 Waller v. Georgia (1984) 467 U.S. 39 [81 L.Ed.2d 31, 104 S.Ct. 2210]...eee55 Ward v. Taggart (1959) 51 Cal.2d 736 [336 P.2d 534] oo.eseeseerceteeteeseeeeessens 6 Webster v. Fall (1925) 266 U.S. 507 [69 L.Ed. 411, 45 S.Ct. 148]... 29 STATUTES California Code of Civil Procedure section 128 20.0... cecssssesecesscecseeceecceseseessessenseseeesseeenees 53 Penal Codesection 1111......... Leceesseececsceseeceessseceeeesecesessnceessesseessssecenseceeeesses 25, 34 Penal Code section 1161 ........c cee eesecsccssscsessseesecesensecsecseesscecesesesteacesssesesetesseesses 55 CONSTITUTION Federal Fifth Amendment............ccccccceescescesececeeeeesecsecseeseeeseeseeceesueaseaerseesaseereaeenees 8, passim Sixth AmendMent...........cccsescesceseessceesecsscssesesscesssesssssscsscssesesesesesesassecsseees 9, passim Eighth Amendment .0...... cc ccscssssssssesessssesssesssseseseesesnsseseessessesesssessseseneenes 9, passim Fourteenth Amendmentt............cccccsccssscssececesecesceceeceeeenecseeseeseeseeeeneeeaeesnee 9, passim viii TREATIES & INTERNATIONAL DOCUMENTS Standard Minimum Rulesfor the Treatment OfPriSONY'S....csccceccseccsveesesttsesseesees 36 TREATISES & OTHER PUBLICATIONS 9 Witkin, California Procedure (4th ed. 1997)...ceeeccesteeseeeecessesseeeseseeeeees 13-14 ix IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF No. 8049596 CALIFORNIA,Plaintiff and Respondent, (Related Cases Los Angeles vs. County Superior Court Nos. A711739 and A713611) STANLEY BRYANT, DONALD FRANKLIN SMITH and LEROY WHEELER, Defendants and Appellants. APPEAL FROM THE SUPERIOR COURT COUNTY OF LOS ANGELES Honorable, Charles E. Horan, Judge APPELLANT LEROY WHEELER’S REPLY BRIEF In this Reply BriefAppellant does not respondto all of respondent's contentions, most ofwhich are fully covered by Appellant's Opening Brief. This Reply Briefis limited to those points upon which further discussion may be helpful to the Court. CERTIFICATE OF WORD COUNT The brief is proportionately spaced with Times Roman typeface, point size of 13, and the total word countis 18,073, not including tables, and thus is within the limits (47,600 words) of California Rules of Court, rule 8.630, subdivision (b). ARGUMENT I. THE TRIAL COURT FAILED TO SEVER APPELLANT WHEELER’S CASE FROM THATOF HIS CODEFENDANTS' This complex multi-defendant case resulted in the presentation of evidence that unduly tainted Appellant Wheeler’s trial with a mountain ofirrelevant evidence that came in because ofthe jointtrial. That evidence dwarfs what evidence would have been admissible had Appellant been tried alone. 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 evidencerelating only to the other defendants.” A. THE RELEVANTLAW Respondentcontends, “A ‘classic case’ for joint trial is presented when defendants are charged with commoncrimes involving commonevents and victims.” (RB at p. 179, citing People v. Cleveland (2004) 32 Cal.4" 704, 726 [11 Cal.Rptr.3d 236].) Yet, respondent acknowledges as he must, this Court in Cleveland affirmed “[s|eparate trials may be necessary if a codefendant has made an incriminating confession, association with codefendants may beprejudicial, evidence on multiple counts may cause confusion, there may be conflicting defenses, or a codefendant may give exonerating testimonyat a separatetrial.” Respondent’s Brief designates this as their ArgumentIII. In respondent’srecitation ofthe procedural history on this issue, respondent pulls from a pretrial motion to sever prepared by counsel for Appellant Bryant that stated “co-defendant Wheeler allegedly made a confession that he was the person who had shot two year old Chemise English and her mother, in the red car.” (RB at p. 174, citing CT 14115-14116.) The motion proffers as support a “review of the extrajudicial statements that the prosecution will seek to admit into evidence.” (CT 14115.) This is the only reference to this purported confession that appears in the record on appeal. It should play no part in the consideration of any issue raised in Appellant Wheeler’s appeal. apanatantledieneiniatrenticorenn een SR Fee (RB at p. 180,citing id. at p. 726.) All but the fifth of these four exceptions are present in Appellant Wheeler’s case. However, respondent focuses solely on the fourth ofthose exceptions, where there may be conflicting defenses, and argues “antagonistic defenses alone do not compel severance.” (RB at p. 180, citing People v. Coffman (2004) 34 Cal.4" 1, 40-42 [17 Cal.Rptr.3d 710]; People v. Cummings (1993)4 Cal.4™ 1233, 1286 [18 Cal-Rptr.2d 796]; People v. Hardy (1992) 2 Cal.4" 86, 168 [5 Cal.Rptr.2d 796].) Indeed, in Cummings and Hardy, only the fourth ofthese exceptions was present.’ ([bid.) In Coffman, this Court found in essence that the defenses were not conflicting. (Coffman at p. 42.) Respondent acknowledgesthat reversal is appropriate where, because of consolidation, “a gross unfairness has occurred such as to deprive the defendant of a fair trial.” (RB at p. 181, citing Cleveland, supra, at p. 726.) A defendant clearly has a due processrightto a trial based on his own “personal guilt” and individual culpability. (Scales v. United States (1961) 367 U.S. 203, 224-225 [6 L.Ed.2d 782, 81 S.Ct. 1469]; United States v. Haupt (7th Cir. 1943) 136 F.2d 661, 671-674.) B. THE TRIAL COURT ERREDINITS FAILURE TO SEVER APPELLANT WHEELER’S CASE FROM CODEFENDANT SETTLE Asdetailed in appellants’ opening briefs, pro per CodefendantSettle repeatedly told the court that his defense would be antagonistic to his codefendants’. Yet, as respondent acknowledges, the court perceived no cause for concern (not“the slightest hint”) from Settle’s warnings. (RB at p. 176, 60RT 6149.) Thereafter, at a time most damaging to Appellant Wheeler’s defense and after Codefendant Settle had already rested his defense, Settle delivered the 3 In Cummings dual juries were employed to avoid problems from the additional exception where extrajudicial statements are present. (Cummingsat pp. 1286-1287.) Src preteenBia eatenYom nites fs onaeerOaote gRHINRSANCTSAGERear defense he promised aided by the court’s improper acquiescence. This is also the topic ofAppellant Wheeler’s ArgumentII, below. Respondent now repeatedly suggests a simplistic test to prove that Settle’s defense was not antagonistic to Appellant Wheeler’s defense. Respondent argues that Settle’s defense was that he (Settle) was notat the crime scene anddid not know about the murders, he did not place any appellant at the crime scene. Thus, respondent concludesthat Settle’s defense was notirreconcilable with any other appellants’ defense. (RB at pp. 182, 190, 194.) Notably, respondent’s position is not consistent with the prosecutor below whorepeatedly pointed out the value of Settle’s testimony to the prosecution’s case against Appellants Bryant and Wheeler. (122RT 16526-16527, 16531, 16542.) Respondentattempts to recast Appellant Wheeler’s claim to a challenge that it was the order of presentation of the defendants’ defenses that warranted severance. (RB at p. 193.) However,that is not appellant’s claim. The claim is that the trial court permitted Codefendant Settle to manipulate thetrial process to his advantage and at the expense of his codefendants. As discussed in Argument II of Appellant Wheeler’s Opening Brief, Codefendant Settle repeatedly assured the court that he had rested and would nottestify and then waited until all parties had presented their cases. Once their defenses had all been displayed, Codefendant Settle wovea tale that extricated him from culpability while directly refuting the defenses ofAppellants Wheelerand Bryant. Respondentfails to address this point. This was doubly damaging to Appellant Wheeler, since the Jury likely associated his guilt with that ofAppellant Bryant, as discussed in ArgumentI, C, 3, of Appellant Wheeler’s Opening Brief. The subterfuge Codefendant Settle employed was calculated to obstruct justice in his case while tipping the scales ofjustice against his codefendants. A defense does not get more antagonistic than that. See NOMEETEANVHAiINn mufm ee Abe Seated age OE Alternatively, respondent offers that even if the trial court abusedits discretion in denying severance, Appellant Wheeler has not demonstrated a reasonable probability of a more favorable outcome had severance been granted. (RB at p. 182.) In support, respondentcites only the testimony ofJames Williams, an accomplice and a former codefendant charged with the identical offenses appellants faced and testifying under the protection ofimmunity. Respondent relies solely upon their Argument XI that “compelling other evidence corroborated Williams’s testimony and convincingly established each appellant’s guilt.” (RB at p. 183.) Appellant Wheeler, in turn, relies upon and incorporates herein his ArgumentIII of his Opening Brief that there was constitutionally insufficient evidence to corroborate Williams’ testimony. Respondentalso argues that Appellant Wheeler’s trial counsel’s failure to renew his severance motion on the groundthat the three items ofevidence admitted against only Settle prejudiced appellant has waived this ground ofthe severance issue on appeal. (RB at p. 185.) There are many reasonsthat a waiver should not be foundin this case. Any effort to renew the motion would have been futile. (People v. Williams (1997) 16 Cal.4th 153, 255 [66 Cal.Rptr.2d 123]; People v. Whitt (1990) 51 Cal.3d 620, 655,fn. 27 [274 Cal.Rptr. 252]; People v. Sandoval(2001) 87 Cal.App.4th 1425, 1433, fn. 1 [105 Cal.Rptr. 504].) California courts often examine constitutional issues raised for the first time on appeal, especially when the enforcement of a penal statute is involved (here Penal Code’ section 1098), the asserted error fundamentally affects the validity of the judgment(certainly present here), important issues ofpublic policy are at issue (Hale v. Morgan (1978) 22 Cal.3d 388, 395 (149 Cal.Rptr. 375]) or when the error mayhave adversely affected the defendant’s rightto a fair trial (People v. Hill (1998) 17 Cal.4™ 800, 843, fn. 8 [72 Cal.Rptr.2d 656]), all factors here. 4 All references are to this code unless otherwise noted. In addition, the fact that a state court may legitimately refuse to hear tardily based constitutional challenges does not mean that the state court is obliged as a matter of federal law to refrain from reaching the federal constitutional questions. (Orr v. Orr (1979) 440 U.S. 268, 275, fn. 4 [S59 L.Ed.2d 306, 99 S.Ct. 1102].) Furthermore,as the facts relating to the contention raised on appeal appear to be undisputed and there would likely be no contrary showingat 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 [336 P.2d 534].) Moreover, a failure to object does not preclude an appellate court from resolving that issue should it feel the need to do so. (People v. Williams (1998) 17 Cal.4" 148, 161, fn. 6 [69 Cal.Rptr.2d 917].) “A matter normally not reviewable upon direct appeal, but whichis ... vulnerable to habeas corpus proceedings based upon constitutional grounds may be considered upon direct appeal.” (People v. Norwood (1972) 26 Cal.App.3d 148, 153 [103 Cal.Rptr. 7].) Additionally, this case does not involve a failure to make the request, but rather a failure to renew the request. CASE FROM THAT OF HIS CODEFENDANTS In addressing the relative strength of the cases against appellants, respondentgrossly overstates the evidence that Appellant Wheeler played any role in the commission ofthe felonies. (RB at p. 195.) On this issue as well, respondentcites to and has only the testimony of James Williams to support the arguments. Williams is an accomplice and former codefendant charged with the identical offenses appellants faced and whotestified underthe protection of immunity. Appellant Wheeler, in turn, again relies upon and incorporates herein his ArgumentIII ofhis Opening Brief that there was constitutionally insufficient evidence to corroborate Williams’ testimony. Respondent does not address any ofthe nine pages of facts from Appellant Wheeler’s Opening Brief (pp. 140-148) that demonstrate that he wasthe least likely ofthe Wheeler Avenuestaffto have been presentat the houseat the time of the shooting, let alone involved in the shooting. Had his case been severed from his codefendants’, the scope ofhis trial would have been vastly different. Evidence about the organization’s founders andprincipal lieutenants’ six year reign ofterror on the community of Pacoima and Lake View Terrace would have been irrelevant to the prosecution’s case against Appellant Wheeler as would the multiple attempts on the life ofMr. Curry, the paramour ofAppellant Bryant. Regarding the latter, Appellant Bryant had acknowledgedhis responsibility for the attacks on Mr. Curry that provided evidence ofthe sway that Appellant Bryant had over Coappellant Smith and, by analogy, Appellant Wheeler. (CT3 10552-10533, RT 10263-10264, 10912-10916.) It also provided an additional motive for the homicidesas an illustration of the steps Bryant would take with paramours ofhis former wife, Mr. Curry as well as the victim, Andre Armstrong. Appellant Wheeler’s complaint that his defense was inconsistent with Appellant Bryant’s defense is only one elementofthis claim. Respondent does not address or acknowledgethe description and analysis of pertinent facts from Appellant Wheeler’s Opening Brief (pp. 132-139) that helped to construct the aura of guilt that hung over him as a result of the prosecution’s case against his codefendants marking him “as an obviously bad man”with the suggestion “that his guilt [was] a foregone conclusion” (Rhoden v. Rowland (9™ Cir. 1999) 172 F.3d 633, 636) by his association with his codefendants and the Bryant Organization and the sway that Appellant Bryant had overhis associates. In Appellant Wheeler’s Opening Brief it was argued that a further illustration of the prejudice to Appellant Wheeler by beingtried with three codefendants was the extraordinary security precautions taken by the court because of the numberofdefendants and that these would not have been necessary had Appellant Wheeler been tried alone. Respondent provides no response, but instead limits its response to an argument not madethat no security measures would have been necessary if Appellant Wheeler had been tried separately. (RB at p. 200.) D. APPELLANT WHEELER WAS DENIED A FAIR TRIAL AND DUE PROCESS BY A multiplicity of factors grossly prejudiced Appellant Wheeler by forcing him to be tried with appellants and CodefendantSettle. Appellant Bryant had made incriminating statements that by implication suggested his sway over Appellant Wheeler and provided an explanation for why the latter would have participated in the homicides. Appellant Wheeler’s case asa bit player in the organization could notstand on its own merits in the minds ofjurors who would be ready to believe that birds of a feather are flocked together. (People v. Massie (1967) 66 Cal.2d 899, 917 [59 Cal.Rptr. 733]; Krulewitch v. United States (1949) 336 US. 440, 454 [93 L. Ed. 790, 69 S. Ct. 716], Jackson, J., concurring.) Appellant Wheeler’s defense was inconsistent with that of his codefendants and particularly that of CodefendantSettle. (United States v. Mayfield (9" Cir. 1999) 189 F.3d 895, 904; United States v. Tootick (9" Cir. 1991) 952 F.2d 1078, 1080- 1081; United States v. Holcomb (5™ Cir. 1986) 797 F.2d 1320, 1324.) And, there wasthe confusion resulting from evidence on multiple counts and, particularly, the need for the jury to repeatedly segregate evidence admissible only against one or more codefendants when often that evidence was so prejudicial that its segregation could not be reasonably expected. Certainly, collectively these factors necessitated that Appellant Wheeler be tried separately. (People v. Cleveland, supra, 32 Cal.4" 704, 726.) Onthis record, the compelling conclusion is that Appellant Wheeler has been denied due processanda fair trial in violation of his rights underthe Fifth, EARSmerAreTHMtNaattye te ACM pags A neds Ts eben marie we tp Eighth, and Fourteenth Amendments and requiring reversal of his convictions and judgmentofdeath. (People v. Mendoza (2000) 24 Cal.4™ 130,162 [99 Cal.Rptr.2d 485]; People v. Arias (1996)13 Cal.4" 92, 127 [51 Cal.Rptr.2d 770].) Il. THE TRIAL COURT FAILED TO CONTROL THE ORDEROF THE TRIAL AND IMPROPERLY ACQUIESCED TO CODEFENDANT SETTLE’S REQUEST TO TESTIFY AFTER SETTLE HAD RESTEDHIS DEFENSE Without the assistance of counsel, co-defendant Settle essentially took this case over in a way that deeply prejudiced Appellant Wheeler. Settle engaged in gamesmanship with the court and his codefendants that thetrial court failed to control under the mistaken belief that it had no poweror authority to preclude him from testifying, despite the fact that Settle had rested his case and repeatedly assured the court that he did not intendto testify unless Appellant Bryant, whose defense followed Settle’s, somehowraised issues “that would make[Settle] want to testify.” (110RT 14787-14788.) Bryant did not, yet the court still permitted Settle to testify and directly refute Appellant Wheeler’s defense that he (Appellant Wheeler) was not working for the Organization on the day ofthe homicides and was homewith his family. Thetrial court agreed that there was no question that Settle’s earlier purported indecision on whetherto testify was a premeditated subterfuge. (117RT 15800-15801.) B. The Relevant Law Respondenthas elected not to address any ofthe seven pages of authority provided in Appellant Wheeler’s opening brief (pp. 161-167) that there are limits on the trial court’s discretion to deviate from the statutorily set normal order of trial and that a defendant’s constitutional rightto testify is not absolute and must bow to accommodateother legitimate interests in the criminaltrial process. Respondent’s Brief designates this as their Argument XXIII. 9 oF eratedieeeSRORRSRiSDIGMENR exyAeratntide! 8 reo BRalentachtetsMeioeEttaNa Apparently, respondent, in a state of denial, believes that such a discussion is unnecessary becausealthoughthetrial court stated that “it had no authority to preclude a defendant from testifying in the guilt phase,” the trial court nonetheless was awareof its power. (RB at pp. 488-489.) Yet, respondent can only cite to the trial court’s statementthat it would not have permitted Settle to reopen his case had argumentto the jury commenced. (110RT 14786, RB at p. 488.) Respondent ignores the repeated statements bythetrial court that Settle’s right to testify was absolute; the court could not refuse him; the court could not prevent him; and the court did not have the authority to preclude him from testifying. (110RT 14774- 14775, 14805, 116RT 15473.) Respondentoffers a test found in People v. Funes (1994) 23 Cal.App.4" 1506, 1520 [28 Cal.Rptr.2d 758] for evaluating whethera trial court abusesits discretion in denying a request to reopen a case andpresent additional evidence. (RB at p. 486.) But this case does not involve a mere abuseofdiscretion issue. Thetrial court did not knowthat it had the power, let alone the obligation, to exercise discretion and prevent Codefendant Settle from manipulating the proceedings to his advantage at the expense of his codefendants. (110RT 14774- 14775, 14805, 116RT 15473.) Second, here this is not a case where a request to reopen has been denied. This is a case where one defendant was permitted to manipulate the proceedings and trample overthe rights of his codefendants. In any event, even the application ofthe factors applied in the context before the court in Funes dictate that Codefendant Settle’s request to testify after he had rested his case should have been denied. Those factors are: (1) the stage the proceedings had reached when the motion was made; (2) the defendant's diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence. First, Settle had rested his defense. Bryant’s defense followed and 10 8 eneetRETRRAA ComonMa did not raise any evidence that would have further inculpated Settle to warrant Settle’s rebuttal. Second, Settle’s ultimate testimony presented no evidencethat he had not been fully aware ofwhen he madehiselection notto testify. Third, the very purposeof Settle’s gamesmanship wasto garner undue emphasis with the jury by providing a last minute accountthat inculpated both Appellants Wheeler and Bryant while exculpating himself. Thetrial court acknowledgedthatit was premeditated subterfuge. (117RT 15800-15801.) Fourth, the evidence was extraordinarily significant. That is why Settle saved it to drop onall ofthe parties after his codefendants had displayed their defenses. Respondent’sretort that Settle “did not place any ofthe other defendants at the crime sceneordirectly implicate any ofthem in the murders”is too simplistic to require response. (RB at pp. 487- 488.) Respondent’s efforts to downplay the impactof Settle’s last minute account is, once again, not consistent with their counterpart below whorepeatedly pointed out the value of Settle’s testimony to the prosecution’s case against Appellants Bryant and Wheeler. (122RT 16526-16527, 16531, 16542.) Thetrial court’s acquiescence to CodefendantSettle’s late testimony produceda trial that was fundamentally unfair, and the prosecution cannot demonstrate that this error was harmless beyond a reasonable doubt. (Arizonav. Fulminante (1991) 499 U.S. 279, 306-307 [113 L.Ed.2d 302, 111 S.Ct. 1246] [the Chapman’standard applies to “ordinary trial errors” implicating the federal constitution].) As one ofthe prosecutors observed during jury argument, with CodefendantSettle’s testimony, the jury did not need Williams’ testimony. (122RT 16501.) The prosecutor repeatedly pointed out the value ofSettle’s testimony to the prosecution’s case against Appellants Bryant and Wheeler. (122RT 16526-16527, 16531, 16542.) 6 Chapmanv. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824]. 11 sit erfesie peectnt seeksues chen ep nants gale ageAtREWometeENRNRReece, acagh BoP aotete FN He 2 tapnmniecoanent emits RPM ORM O fEE Pane9 nen ton MEaameon sn caaclze npcaSeGARbnReeeGo The result produced a gross unfairness amounting to a denial of due process and fair trial in violation of appellant’s rights under the Fifth, Eighth, and Fourteenth Amendments and requiring reversal of his convictions and judgment of death. . Appellant further asserts that the trial court’s errorin failing to sever appellant’s case from that of codefendant Settle’s (see ArgumentI, above, incorporated by reference herein), coupled with thetrial court’s failure to make good on its promises to control the conductoftrial so as to protect appellant’s constitutional rights, considered together, violated appellant’s rights to a fair trial and due process of law. (See Cooperv. Fitzharris (9th Cir. 1987) 586 F.2d 1325, 1333 [“prejudice may result from the cumulative impact ofmultiple deficiencies”]; Donnelly vy. DeChristoforo (1974) 416 U.S. 637, 642-643 [40 L.Ed.2d 431, 94 S.Ct. 1868] [cumulative errors mayso infect “the trial with unfairness as to make the resulting conviction a denial of due process”].) Reversal is required. I. APPELLANT’S CONVICTIONS ARE UNCONSTITUTIONAL AS THEY ARE IMPERMISSIBLY BASED ON INSUFFICIENT EVIDENCE, AS THEY ARE SUPPORTED SOLELY BY THE UNCORROBORATED TESTIMONY OF AN ACCOMPLICE, THE RESULT OF THE TRIAL COURT’S REFUSAL TO INSTRUCT THE JURY THAT WILLIAMS WAS AN ACCOMPLICEAS A MATTER OF LAW ANDTHATHIS TESTIMONY REQUIRED CORROBORATION AND THE TRIAL COURT’S REFUSAL TO ORDER THE JURY TO RECONSIDER THEIR VERDICT WHENIT BECAME CLEAR THAT THEY HAD NOT UNDERSTOOD THEIRINSTRUCTIONS’® | Appellant’s conviction must be reversed becauseofseveral related errors arising from the introduction of accomplice testimony,including: 1) Failure to Respondent’s Brief designates this as their Argument XI. This response to Respondent’s Brief draws substantially from the efforts on behalf ofAppellant Smith, in the latter’s Reply Brief, ArgumentI. 12 Sah ok acatanaitenantpateMeni MpcAOEtimespanhireattth aE Nebel once gt AS hf ine Pm rieMASIMaRHECeePree fete ine MO Hoheimeta instruct the jury that Williams wasan accomplice; 2) The denial ofthe motion of acquittal pursuantto section 1118.1 as a result of the lack of corroboration for accomplice testimony; 3) Failing to re-open deliberations after the jury returned a verdict as to Appellant, but had questions concerning the law relating to accomplice testimony and reasonable doubtwhile deliberating as to Settle. UNDER SEVERAL THEORIES, AS RESPONDENT CORRECTLY ARGUED IN THE EARLY STAGES OF THIS CASE 1, INTRODUCTION Appellant Wheeler’s convictions must be reversed because there was insufficient evidence to corroborate James Williams’ testimony. Accordingly, the court should have informed the jury that Williams was an accomplice. However, the trial court applied the wrong legal 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 Williams was an accomplice—andin itself, this remarkable changein positions is itself an error. (Jones v. Dutra Construction Co. (1997) 57 Cal.App.4th 871, 877 [28 Cal.Rptr.2d 758]; 9 Witkin, California Procedure (4th ed. 1997), Appeal, § 399, 451-452.) In 1990, the prosecution adamantly argued that Williams’ actions indicated he was an accomplice, as a matter of law. Specifically, the District Attorney told the trial court: Just because James Williamsis not one ofthe actual shooters does not mean heis not a principal.... [Williams] was present at the scene ofthe crime and willingly followed orders actively participating in the commission ofboth the offense and the immediate fight [sic] afterwards. 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 employeeofthe 13 Bryant organization working at the cash house and murdersceneat the time the murders were committed; actually let the victims into the caged in area where they were slaughtered after he buzzed Stan Bryantout; and then backedthe car into the garage where the bodies could be loaded, then disposed of. ... James Franklin Williams was simply a loyal employee eagertoassist 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 wastrained to use a gun and one was provided to him. ... As further evidence of his knowledgeandintent not only did he perform his task of looking for witnesses as he dutifully went back to the poolhall, 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 knowing full well that that was about to happen. (23CT 6643, People’s Response to Defendant William Gene Settle’s Motion to Set Aside Information Pursuant to Penal Code Section 995.) _ Although Williamslater offered self-serving testimony that contradicted the fact that he buzzed Armstrong and Brown into the house, noneofthe otherfacts relied on by the prosecution in orderto 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 onetheory in the trial court, neither party “can changethis theory for purposes ofreview on appeal.” (Jones v. Dutra Construction Co., supra, 57 Cal.App.4th 871, 877; 9 Witkin, California Procedure, supra,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 [25 Cal.Rptr.3d 265].) This tule stemsfrom the recognition that the use of inconsistent, irreconcilable theories to convict two defendants for the same crime is a due processviolation. (Stumpfv. Mitchell (6th Cir. 2004) 367 F.3d 594, 611-613.) 14 A prosecutor'sfirst obligation is to serve truth. (People v. Garcia (1993) 17 Cal.App.4th 1169, 1181 [22 Cal.Rptr.2d 545].) 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.” (Stumpfv. Mitchell, supra, at p. 613.) Furthermore, a prosecutor’s assertion of inconsistent theories tends to undermine society’s confidence in the fairness of the process. (People v. Watts (1999) 76 Cal.App.4th 1250, 1262 [91 Cal.Rptr.2d 1]; Thompson v. Calderon (9th Cir. 1996) 109 F.3d 1358, 1371.) Consequently, respondent should be estopped from changingits position and thus, held accountable forits initial assertions to the court that Williams was an accomplice as a matteroflaw. 2. RESPONDENT’SRECENTPOSITION THAT WILLIAMS WASNOTAN ACCOMPLICE ISINCORRECTASA MATTER OFLAW Respondent concedesthat 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 being those whoaid only after a felony has been committed. (RB at pp. 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 at p. 359.) Respondent argues that Williams cannot be considered an accomplice for a variety of reasons. Examination ofthose reasons reveals that they are flawed, and that Williams must be considered an accomplice as a matter of law. Thefirst flaw in respondent’s reasoning is that respondent looks for the evidence of Williams’ accomplice status only from the testimony of Williams, accepting that at face value. (See RB at p. 360 — “asthetrial court recognized, 15 Williams's testimony did notpermit the ‘clear and undisputed’ inference that he was an accomplice...” and thereafter discussing the evidence implicating Williams from his testimony. Italics added.) This ignores the very purpose of distrusting accomplice testimony — the self-serving need to minimize one’s involvement. (See Appellant Wheeler’s Opening Brief at pp. 190-191.) The court should look to all evidence relating to the issue in order to accurately determine Williams’ status, and not merely accept the testimony of a person receiving immunity in exchangefor that testimonyat face value. Thefirst error the trial court committed wasin applying the wrong standard and thus, basing its ruling solely on Williams’ testimony, blindly accepting that testimonyas “true.” Furthermore, respondentaccepts the fact that Williams knew “something” was going to happen, but repeatedly argues that Williams did not know the others had an intent to kill, and “he had no reason to suspect” the murders would happen. (RB at pp. 360-363.) This reasoning ignores Williams’ admissionthat at the point in time when he saw the victimsarrive and the preparations being made inside for their arrival he knew someonewasgoingto die.” (People’s exh. 207, p. 4, 111RT 14914-14915.) Yet, he continued to execute his part in the plan. In regard to Williams’ above admission, respondent attempts to rewrite its history. (RB at p. 363.) The admission was made during Williams’ interview by Deputy District Attorneys McCormick and Seki, and District Attorney Investigator William Duncan on January 25, 1993, as recounted in detail in Appellant Wheeler’s Opening Brief at pp. 172-174, and incorporated herein, and was detailed in Duncan’sfirst report,People’s exhibit 207, page 4. (111RT 14905, 14907, 14914-14915.) Respondent doesnot refute that recitation of the facts of ° Respondent’s suggestion that Williams’ failure to mention “murder”is dispositive requires no response. (RB at p. 362.) Equally unavailing is respondent’s reliance on Williams’ statement that he “wasn’t exactly sure” what wasgoing to happen. (RB at p. 362, 97RT 12321-12322, emphasis added.) 16 auntgSAILIRIMRANEESEMRe nea We Aare mak oh tg antemeaSRM the genesis of Williams’ admission and the subsequenthistory leading to and resulting in Investigator Duncan’s secondreport. Investigator Duncan’s second report does not explicitly or impliedly change anything in his first report. In fact, it opens with the statement that it was adding information that McCormick had convinced Duncan thatthe latter’s first report omitted. (111RT 14919-14920, People’s exh. 208, p. 1.) Both reports state that Williams did not believe that Bryant would kill anyone in the house. The second report added that Williams had no idea Bryant and the others were going to kill anyone. Neither ofthese statements identified at what point in time Williams held these beliefs, i.e., when he first arrived at the house for his shift, after he heard the gunshotin the back ofthe house, after he received his instructions, or when he buzzed Bryant out through the front door. However, Williams’ statement that he believed someone wasgoing to die wasdirectly tied to the point in time when the victims arrived, preparations were being madeinside, and Bryant asked the others if they were ready. (People’s exh. 207, p. 4, 111RT 14914-14915.) Thus,there is no conflict in this evidence. Any uncertainty that Williams had had about what Bryant would or would not do was earlier in the afternoon before the swarm of culminating factors emerged that led to only one reasonable conclusion, someone was going to die there and then or after being transported somewhereelse. Respondent’s reasoning that Williams “had no reason to suspect” the violence that awaited the victims’arrival also ignores the fact that Williams knew he wasa part of one ofthe “biggest mostviolent drug organizations” in the city (122RT 16430S), an organization that, in the words ofthe prosecution, used violence to terrorize the neighborhood, “killing people, blowing up people, beating people.” (122RT 16430T.) This was an organization, accordingto the District Attorney, whose norm of shooting and violence, was known to Williams. (23CT 6643.) Given the facts presented,it is illogical to now argue that a memberof 17 such an organization can hear a test shot being fired and can see four men walking around with gloves on and cocking guns (97RT 12305-12306, 12311, 12331), but not know that a murderis being planned. Respondentfurther argues that Williams’ statement to Detective Duncan that he heard a gunshotin the bathroom proveshe was not an accomplice because the weaponfired in this case was actually a shotgun. According to respondent, Williams’ calling it a “gunshot” showshe was notprivy to the planning ofthe _ murder, because otherwise he would have known it was a shotgun and called it such. (RB atp. 361.) For several reasons respondent’s argument makeslittle sense. First, a shotgun is a gun. The factthat Williams did not specifically articulate the exact type ofweaponhe heard being discharged does not mean he remainedclueless as to what was going on so as to immunize him from culpability. The fact that he did not recognize the exact type offirearm 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 sufficient that he knew a gun was going to be used. It is well established that just because a person does not know the details of the conspiracy he hasjoined, this “does not detract from the fact of conspiracy ... or from [his]...voluntary participation in it without complete knowledgeofits objective or details.” (People v. Buono (1961) 191 Cal.App.2d 203, 215 [12 Cal.Rptr. 604], citing numerousauthorities.) Thus, if Williams thought a “gun” was goingto be used, andin fact a “shotgun” was the ultimate weapon, whether he knewspecifically the precise type of firearm was irrelevant. In fact, not all of the murders were committed with a shotgun. Although a shotgun was one of the weapons used,all four victims received some injuries from a handgun. (75RT 8288-8289, 8299, 8302-8303, 8346, 76RT 8386.) Therefore, Williams’ knowledgethat a “gun” was being readied, even if he was imprecise as 18 tanaete ania YET EC to the specific type ofgun fired in the bathroom, constituted actual knowledge of _ the exact type ofweaponthat was usedin the crimes. Similarly, respondent claims importancein the fact that Williams was mistaken as to events that happenedafterhe left the house, such as he may have beenin error as to how the bodies were removed from the scene. (RB at p. 361.) Again, the fact that Williams did not know every detail is not relevant in determining accomplice status. Such complete knowledgeis not necessary for an accomplice, particularly whenit relates to facts that occurred when the accomplice was not present. Arguably, when the prosecution informedthe trial court that Williams was an accomplice”’, the prosecution also believed that Williams’ lack of knowledgeas to every detail did not alter its determination of his accomplice status. Indeed, Bryant left the house early and presumably was ignorant to many of the details ofhow the crime actually occurred, such as which ofthe remaining defendants shot which victims. Nonetheless, this lack of knowledge on Bryant’s part did not absolve him of culpability, nor should Williams’ lack of complete knowledgeofall the details involved in the homicides absolve him of culpability. Respondent seeks further support for its position by claiming that the fact that Williams walked down the street 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 at p. 362.) The flaw in this reasoning is readily apparent. Williams heard the gunshots and screaming while he was walking out ofthe house, thus, by the time that he got to the street, he had actual knowledge that people were being killed. Nonetheless, instead of alerting someone that a murder wasoccurring, as would be expected of someonenotinvolved in the offense, he continued to help in 10 This is the position argued by the People, noted in Part A, 1, above,ofthis Argument. (23CT 6643.) 19 the plan, following the boss’ directions, checking out the neighborhood, and movingthe car in which the bodies were moved. Indeed, respondent, quoting the jury instructions given, offers that if a person aids the crime without knowledgeofthe offense, that person is not an accomplice. However,at this stage, Williams was aiding Bryant knowing a crime _was then being committed. The fact that Bryant may havealso had other plans relating to Williams is not relevant. Otherfacts relied on by respondentare 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 at p. 362.) The fact that someoneelse may have done otheracts to further the crime does not mean that Williams was uninvolved. His acts ofmoving the car in which the bodies were transported and scoping out the neighborhoodare sufficient, even if other people did other tasks originally assigned to Williams. In short, while working for what he knew was a violent drugcartel, Williams becameaware of facts which made him believe “something” was going to happen. These facts included armed mentest firing a weapon and walking around the house wearing gloves. He was giveninstructions 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 instructions he had been given, including movinga 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, (97RT 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 followedinstructions that were designed to facilitate the crime. Respondent does not dispute any ofthese facts. For his role in facilitating the crime, Williams 20 > eS Tenciemiemceenetiontptarentgg soireeeenatnirecanine Qutthea tte was an accomplice in the crimes for which appellant was convicted. To now deny that Williams is an accomplice as a matter of law ignoreshis active participation in the murders, while they were occurring. 3. WILLIAMS WASALSOA PRINCIPAL IN THEMURDERSASANAIDERAND ABETTOR IN THENARCOTICS BUSINESS Respondent does not dispute the rule that a principalin the target offense of narcotics sales can be liable as an accomplice for murder underthe natural and probable consequences doctrine. (RB at pp. 363-364, see Appellant Wheeler’s Opening Brief at pp. 192-193.) Respondent acknowledges Williams was a memberofthe Bryant family organization, offering that he was the most junior memberofthe organization, and that “he arrived ‘the same way as always’ for his regular shift” at the Wheeler Street residence” and “watched television, waiting for a customerto arrive.” (RB at p. 360.) However, respondentasserts that there was no evidence Williams was engaged in drug sales at the Wheeler house on the day ofthe murders andthat he was notselling drugs to Armstrong. (RB at p. 364.) Apart from respondent’s self- contradiction ofrecognizing Williams’role in the business and four pageslater arguing that Williams was not engagedin the sale ofdrugs that day, the latter contention is simply nottrue. In fact, from the lengthy descriptions of the Bryant family drug houses (Appellant Wheeler’s Opening Brief at pp. 24-40), it is obvious that the only people in those houses were people engaged in the business. Whetherit was a count house, the house where the money wastaken, or the house where the drugs were handedout, all locations involved in the business were used only for various aspects oftransacting 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 were no food items or cooking utensils in 21 the cabinets, and there were no clothes in the houses. (78RT 8655, 83RT 9593.) Therefore, there was no other reason for Williams to be at the house that day exceptas a participantin 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-awaycar is involved in the robbery, so anyone in the houses was involved in the workings ofthe violent, murderous, organization selling drugs in the valley. From the time that the company car cameto pick him up to take him to work in the morning, the only reason Williams was there was to be involved in the company businessofselling drugs. Respondentalso notes that Williams was not selling drugs to Armstrong. This is a red herring. The dangerofnarcotics cartels, as argued by the prosecution (122RT 16430P-16430T), was not only to the customers but to those who the business killed and assaulted as a part of maintaining control. In fact, the beating ofFrancine Smith, the killing ofKen Gentry, the shooting of Reynard Goldman, and the fact that people working at the drug houses were armed,isillustrative of the violence that is a part of the Bryant family cartel. The danger that someone trying to shake down thecartel, and respondent characterizes Armstrong’s actions towards the Bryant Family as putting the squeeze on them (RB at p. 17), created the dangerthat the cartel would killthat person. From the prohibition wars ofthe 1920’s to the street gangs oftoday, a natural aspect of crime cartels is that people get killed in business disputes. If Armstrong wanted a cut ofBryant’s business, the most natural way for this dispute to be settled would be by murder. The fact that Armstrong wasor was not a customerthat day is not the issue. In fact, the prosecutionitselfrelied on this theory of liability for murder, as Johnson and Newbill were also charged with murderalthough their only participation in the offense was as active members ofthe cartel, in spite of the fact 22 ontmaaRNRSOMALIdeteLIRAne ANFit paEEOGE FS took aiebi gag wehhee aang ANN AahSMEaietone He Kye od Mee ats eepeiies Sam ganeniEN Renew ima that they were notselling drugs to Armstrongat the time the murders happened. (17CT 4744-4745, 23CT 6629-6637, 24CT 6741-6747.) As the prosecution argued in opposing Johnson’s motion to dismiss pursuantto section 995, “The prosecution’s theory of the case is that each ofthe defendants conspired to operate a drug sales organization and to maintain control by any andall meansnecessary, including violence and death.” (23CT 6634.) Likewise, the prosecution further argued: A thorough review ofthe evidence clearly indicates that defendant Antonio Johnson was a valued memberofthe Bryant family drug organization, that the goal ofthe organization was drug sales, and that in order to meet this goal, the organization freely committed murders.... As a member ofthe conspiracy, defendant Johnsonis liable for the murders. (23CT 6636.) As with Johnson and Newbill, Williams was engagedin the narcotics business with the Bryant family. Furthermore, it must be noted that Bryant gave Williams a silver .45 for when he was workingat the house,telling him he was to be armed when he answered the door. (96RT 12235-12236.) Thus, Williams was knowingly engaging in the business ofthe cartel, knowing its members are armed, and having a gun himself. Unlike Johnson and Newbill, Williams was actually working out of the Wheeler Avenueresidenceuntil he left the building as the crimes were happening. As such, he wasreadily criminally liable for murder as a reasonably foreseeable result ofparticipating in the narcotics cartel. 4. OTHER THEORIES OFMURDER Respondent contends that since appellants were not convicted under a felony murder theory for second-degree murder(based on participation in drug sales), Williams cannot be an accomplice to second-degree murderon a felony murder theory. (RB at p. 364.) 23 There are two flaws to respondent’s take on this issue. First, Williams’ potential guilt as a result of his involvementin the drug tradeis not only a result of the second-degree felony murderrule. It is also a result of the natural and probable consequences mule for aiding and abetting the narcotics cartel. Williams’ culpability is dependent on the sametheory as any ofthe appellants—aiding and abetting. Second,the fact that appellant was not convicted on a felony murder theory is irrelevant. Felony murderis a theory ofliability, not a crime. The crimeis murder, regardless ofthe legal theory upon whichliability is based. Verdict forms do not ask the jury if the defendant committed “felony murder.” Just as Bryantis liable for murder on a theory ofvicarious liability, even though he never fired a gun, Williams wasliable for murder regardless of the theory used to reach that result. In any event, as noted in Parts A, | and 2, above, Williams was also an accomplice because he followed directions and actually aided in the murders. His culpability as a result of his participation in the drug trade is an additional theory ofhis liability and for his accomplice status. This court does not have to adopt both ofthese theories in order to find that Williams was an accomplice. Rather,if either of these theoriesis affirmed, the result would be a finding that Williams acted as an accomplice andhis testimony had to be corroborated. B. THE CONVICTION MUST BE REVERSED BECAUSE THEREWAS INSUFFICIENT EVIDENCE TO CORROBORATE ACCOMPLICE TESTIMONY Respondentcontends that even if Williams was an accomplice as a matter of law,the failure of thetrial court to recognize this fact was harmless because there was sufficient corroborative evidence. (RB at pp. 365-366.) As to Appellant Wheeler, respondent argues corroboration of Williams’ testimony can be found in a proffered list of factors. (RB at pp. 369-370.) 24 Respondent’s argumentis flawed for two reasons: First, none ofthese factors are the type of evidence that could be deemedsufficient corroboration because they do not connect Appellant Wheeler to the crime. Underthe express statutory language, corroborative evidence must connect the defendantto the offense, not just to the other parties, which the evidence in this casefails to do. (§ 1111.) | Second, even assuming arguendothat there was sufficient corroboration, there are other consequences to accomplice status, which would havelikely affected the outcomein this case. Thus, apart from the issue of corroboration, Appellant was adversely affected by the failure of the court to instruct the jury that Williams was an accomplice. 1, CORROBORATIVEEVIDENCEMUST CONNECT THEDEFENDANT TO THE CRIME In California, the rule has long been established that corroborating evidence must connect the defendantto the offense. (People v. Davis (1903) 210 Cal. 540, 555 [293 P. 32].) The requirementthat the corroborative evidence connectthe defendantto the crimeis not a matter ofjudicial construction or interpretation, but is 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. Kempley (1928) 205 Cal. 441, 455-456 [271 P. 478].) The fact that any ofthe factors cited by respondent may be evidencethat has a tendency in reason to makeit more likely that appellant committed the crimes, section 1111 requires more than that. By its very language, it requires that the corroborative evidence actually “connect the defendant with the commission of the offense.” (§ 1111.) Section 1111 requires more than the fact that the evidence provides merely a suspicion ofthe defendant’s guilt. That “is firmly embeddedin our law.” 666(People v. Kempley, supra, at pp. 455-456.) ““‘[C]orroborative evidence is 25 insufficient when it merely casts a grave suspicion upon the accused.”” (dd. atp. 456.) A reviewing court must eliminate from consideration the accomplice testimony and then determine whether the corroborative evidence has a substantial connection to the crime. (Id at 457-458.) If the corroborating evidence requires the testimony ofthe accomplice to give it meaning,it is not sufficient. (People v. Davis, supra, at pp. 554-555.) The requirementthat the evidence connectthe defendant to the crimeis an aspect ofthe related rule that merely showing association with other people involvedin the crimeis not sufficient corroboration. (People v. Robinson (1964) 61 Cal.2d 373, 400 [38 Cal.Rptr. 890].) Thus, appellant’s visit to Jeff Bryant on the day after the murders, appellant’s participation in the sale of Bryant’s Hyundai, the newspaperarticles found in appellant’s apartment, appellant’s fingerprints found in the Wheeler Avenue house,his refusal to provide a handwriting exemplar or evidence indicating his handwriting, and the telephone records all provide corroboration of his association with other people involved in the homicides and his involvementin the sale of narcotics, but do not specifically connect him to the murders. Two important principles underlie the necessity ofhaving the corroboration connect the defendant to the crimeitself and not merely to the parties or the scene ofthe crime. The first is the recognition that the accomplice’s first hand knowledge ofthe facts of the crime allows for the construction ofplausible falsehoods noteasily disproved. (People v. Guiuan (1998) 18 Cal.4th 558, 575 [76 Cal.Rptr.2d 239] (Kennard, J., concurring).) The secondis the danger that the accomplice will make up evidence to inculpate another person in order to obtain a benefit from the prosecution. (Commonwealth ofthe Northern MarianaIslandsv. Bowie (9th Cir. 2001) 243 F.3d 1083, 1124.) 26 etlaalTEedeRneentenee Amongthe factorscited by respondentis the gun found in Appellant Wheeler’s apartment that respondent offers was “the same type of gun usedto kill Chemise.” (RB at p. 370, citing RT 11017-11020, 11219-11220, 13141-13145.) Yet, respondent’s record citations do not support the point. The most that can be said is that the .357 caliber handgun found in appellant’s apartment may have shared a single similarity with the weapon or weapons used during the murders;it may have been the samecaliber as the gun used to kill Chemise. The three copper jacketed rounds that were found on the floorboard and rear seat area of car where Chemise had been shot were either .38 or .357 caliber. (77RT 8674, 8678-8680, 101RT 13141-13145.) Thus, there was nothingto distinguish the handgun found in the apartment from the millions of other .38 or .357 caliber weapons existent that may have been the murder weapon. By contrast, a .45 caliber shell casing recovered from the crime scene was foundto have been fired from a Colt .45 caliber automatic revolver (People’s exh. 152) found at Appellant Bryant’s residence. (LOORT 12913-12916, 101RT 13170-13172.) Contrast also People v. Trujillo (1948) 32 Cal.2d 105 [194 P.2d 681] where in addition to the fact that the bullet that killed the victim could have come from the gun which the defendant admittedly had in his possession prior to the crime, physical evidence from the crime scene wasseen in the defendant’s room andfiber found on his clothes tended to provethat his clothing had come in contact with pieces ofapparel from the victim. (/d. at p. 111.) Appellant Wheeler’s fingerprints found at the scene, cited as a factor by respondent, merely placed him at the house at sometimeprior to the homicides, and thusis not a factor sufficient to corroborate Williams’ testimony. (See People v. Robinson, supra, 61 Cal.2d at p. 400.) The fingerprints ofmany other people associated with the Bryant family were found at the Wheeler Avenuelocation, including William Settle, Antonio Johnson, Anthony Arceneaux, and Nash 27 MCSoAteORA AteRetANSIphec eanpntRokEIRieAPSEHet Newbill. (1OIRT 13280-13287, 13280-13281.) All of these people were originally defendants in this case, and Johnson and Newbill were charged with the murders and wereeligible for the death penalty. Thus, while Williams did not connect them to the crimeitself, there was evidence connecting them to the scene ofthe crime andto the other parties involved, especially to Bryant. If Williams thought that he needed to give up another person to obtain immunity, all he would have to do would be to nameanyorall of these people. Regarding the telephonerecords, another factor cited by respondent, the fact that Appellant Wheeler was in contact with the people involved in the crimes wasnotsufficient, without the testimony of Williams, for the jury to conclude that Appellant was involved. Citing People v. Bunyard (1988) 45 Cal.3d 1189 [249 Cal.Rptr. 71] and People v. Heishman (1988) 45 Cal.3d 147 [246 Cal.Rptr. 673], respondentexplains that this Court has held that telephone calls 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, respondentasks this court to rely on dicta reached in prior cases as a basis for this holding that would appear to be contrary to the statutory language requiring that the 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 hadtried 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 p. 1208.) As a result, becausethere was other corroborative evidence, it was unnecessary to the holding ofBunyard that the calls themselves be sufficient corroboration. Therefore, the statementto that effect is dicta. 28 (NenatianeRitetNON wath pian ndie tt Nagyaast te go sey uansbins * As ChiefJustice Marshall explained in Cohens v. Virginia (1821) 19 U.S. 264 [5 L.Ed. 257]: It is a maxim notto be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. Ifthey go beyond the case, they may be respected, but ought not to control the judgment in a subsequentsuit when the very point is presented for decision. The reason ofthis maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which mayserveto illustrate it, are consideredin their relation to the case decided, but the possible bearing on all other cases is seldom completely investigated. (/d. at p. 399.) Therefore, “[q]uestions which merelylurk in the record, neither brought to the attention of the court nor ruled upon,are not to be considered as having been so decided as to constitute precedents.” (Webster v. Fall (1925) 266 U.S. 507, 511 [69 L.Ed. 411, 45 S.Ct. 148], quoted in Canales v. City ofAlviso (1970) 3 Cal.3d 118, 128, fn. 2 [89 Cal.Rptr. 601].) Similarly, in People v. Heishman, supra, the defendant had been arrested for raping the victim, whom he was later alleged to have killed in order to prevent her from testifying against him. The defendant asked an accomplice to makecalls to the community college where the victim was a studentin an effort to get the victim’s class schedule. The court noted two items of corroboration, namely the defendant’s motive and the telephone records showing phonecalls between the defendant and the accomplice and the community college. (Jd. at p. 164.) Additionally, the markings on the fatal bullets were consistent with those produced by a gun similar to a gun another witnesstestified she loaned to the accomplice. Furthermore, another witness selected the defendant’s car as the one being driven away from the scene immediately after the murder. (/d. at pp. 157, 161.) Thus, in Hieshman in addition to the telephonecalls, there was evidence connecting the defendantto the crimein that a motive for the crime was proven, a 29 possible murder weapon wastied to the accomplice, and the defendant’s car was observed at the scene of the crime. As a result, the statement by the court that phonecalls could be sufficient corroboration is dicta, not essential in any way to the resolution ofthe case. 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, Heishmanis not contrary to the well-established rule set forth above in People v. Robinson, supra, 61 Cal.2d 373, 400 that the corroborative evidence must connect the defendantto the crime and notjust to the parties. Asshown, 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 ofthe prosecution’s case wasthe theory that Appellant Wheeler was friends with all of the parties and had donebusiness out of the Wheeler Avenue residence. Thus, apart from any involvementin the murder, there were innocentreasons for his phonecalls and his fingerprints at the scene. Appellant Wheeler conceded that he was employed by the organization at the Wheeler Avenuehouse. It certainly is not surprising to find that appellant made phonecalls to all of the phone numbers in question and that his prints were found at the house. Consequently, these facts do not connect him to this particular crime, but only to other people involved, and is therefore not corroborative evidence under California case law. (See People v. Robinson, supra, 61 Cal.2d at p. 400.) Finally, respondent offers as a corroborating factor the descriptions of the male whoshotinto and/or drove off in the red Toyota containing three of the 30 victims. Those descriptions were provided by three neighbors, Lucila Esteban, ManuelContreras, and Jennifer Daniel. Respondentasserts that the descriptions fit Appellant Wheeler. Yet, the only similarity respondent can citeto is the fact they saw “‘a Black male” (RB at p. 369), a characteristic not particularly unique. Respondentdoes not refute any ofthe dissimilarities between those descriptions and appellant’s age and appearance; facts detailed in Appellant Wheeler’s Opening Brief (pages 141-145). It is apparent that the descriptions provided by the neighbors as readily fit the appearance oftwo other members of the Wheeler Avenuestaff, Lamont Gillon (as depicted in his photograph, People’s exh. 113, number 10 [88RT 10539-10544]), Williams lifelong best friend (96RT 12115, 12117-12118, 12120, 12131, 12139, 98RT 12663-12664), on the 3:00 p.m. to 11:00 p.m. shift, and Anthony Arceneaux (as depicted in his photograph, People’s exh. 113, number 9, and exh. 122 [88RT 10539-10544, 89RT 10745]) whocovered for the others when they were off (85RT 9959-9960, 9965-9966 86RT 10160-10161; 96RT 12130-12132, 12138-12139, 12141, 12145-12146, 12240.) Even though Jennifer Danielhad been unable to identify anyone for seven years and haddescribedthe driverofthe Toyota as between the ages of25 and 30 (94RT 11886-11887), after her identification ofAppellant Bryant as that driver, respondentasserts that she “continually repeated that the driver ... was the person depicted in photograph number2 ofPeople’s Exhibit 1 13—appellant Wheeler.” (RB at p. 369.) Respondent does not dispute that she also testified that she was positive that Appellant Bryant was the driver. (94RT 11893-11894.) Ms.Daniel’s much belated and suspect photo-identification ofAppellant Wheeleras the driver ofthe Toyota, particularly in light ofher in-court identification ofAppellant Bryant as that driver, provided inherently insubstantial corroboration. (See, e.g., People v. Reyes (1974) 12 Cal.3d 486, 498-499 [116 31 Cal.Rptr. 217], witnesses identification contradicted by three other disinterested witnesses.) This Court in People v. Cuevas (1995) 12 Cal.4" 252 [48 Cal.Rptr.2d 135] confirmeda list of circumstances that can bolster the probative value of out- of-court identification (/d. at p. 267); circumstancesthat are notably absent in appellant’s case. First, the witness’ prior familiarity with the defendant; in appellant’s case the witness had none. (Jbid.) Second, the level of detail given by the witness in the out-of-court identification. (Jbid.) Here Ms. Daniels provided only two details; he was skinny and 18 to 30 years old (94RT 11858-11859, 11886-11887.) As noted above, the three neighbors’ descriptionsas readily fit two other members ofthe organization, Lamont Gillon and Anthony Arceneaux. Third, whether there was a viable explanation for the witness’ inability to identify the defendant during the trial. Once again, there was no viable explanation; in fact Ms. Daniel thought the person she saw was Appellant Bryant. (88RT 10539- 10544, RT 9411862-11865, 11875-11876, 11892-11893, 9SRT 11922, 11939- 11943, 11951-11953, 11959, 104RT 13711-13712.) This Court in Cuevas also acknowledgedthe factors relevantto reliability ofeyewitness identification set forth in CALJIC number 2.92 (5™ ed. 1988). (Ibid.) First here amongthosefactors is the extent to which the defendant either fits or does not fit the description ofthe perpetrator. Here the two details provided by Ms Daniel did not even distinguish the perpetrator from other organization members who could well have been present, let alone from any other non-portly Black male from adolescence to 30 years of age. Secondis the witness’ capacity to make an identification; third is the witness’ ability to identify the alleged perpetrator in a photographic or physical lineup; and fourth is the period of time between the criminal act and the witness identification. Here Ms. Daniels had been unable to make any identification for seven years, and then her ultimate identification was made under very suspect circumstances. 32 5epRalERsnoaeAcneleeANE bee tngSNESEEEBO RAEae EL Mimi ee eANEANmea ah aera ce nee ateTIait ‘a 2 Lariatnate In summary,none ofthe factors relied upon by respondentare individually or collectively up to the task of corroborating Williams’ testimony. 2. OTHER CONSEQUENCES OFACCOMPLICE STATUS The secondflaw ofrespondent’s argumentthat failure to instruct that Williams was an accomplice as a matter of law was harmlessis that the argument overlooks the fact that there are other consequences to accomplice status besides the requirement of corroborating evidence. If appellant was deprived ofother advantagesasa result of failing to instruct the jury as to Williams’ 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 becauseifthe jury had properly been instructed that Williams was an accomplice, they would have been furtherinstructed that his testimony was to be viewed with caution. (See RB at p. 358.) Thus, had the jury been properly informed to view Williams’ testimony with caution, it is reasonable that a juror looking at the total picture could vote to acquit based on a determinationthat: (1) Williams’ testimony could notbe trusted; and (2) only “slight” corroboration of his testimony was presented. A juror could have concluded that based ona totality of this evidence a reasonable doubt as to Appellant Wheeler’s guilt existed. Further, if the jury had been appropriately instructed that Williams was an accomplice, a juror could have concluded that Williams’ testimony was suspect and the remaining evidence did not tie Appellant Wheeler to the offenses. Had Appellant’s jurors been cautioned to consider Williams’ testimony with caution,it is reasonable that any one ofthem could have voted to acquit appellant. Onthe other hand, the trial court’s failure to appropriately instruct the jury that Williams was an accomplice gave the jury no court-informedbasis upon whichto properly scrutinize his testimony. This failure alone madeit more likely 33 that the jury would view Williams’ 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 ramifications beyond the requirement of corroboration. Therefore, even if slight corroboration existed, appellant was prejudiced by the failure to inform the jury of the fact that Williams was an accomplice and thushis testimony should have been viewed with caution. C. CONCLUSION In this case, the issues surrounding Williams and accomplice testimony were crucial to the determination of appellant’s guilt. All ofthe issues discussed aboverelate to this crucial area. Prior to sentencing appellant to death, the due process clause ofthe United States Constitution and the Eighth Amendment requirementofa 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 considerthese issues under a correct and proper understanding of the correct law. Misdirecting the jury as to the status of Williams,the failure to have the properandsufficient type of corroborative evidence, and allowing the jury to reach its verdict as to Appellant under a misunderstanding ofthe correct law (the subject of Appellant Wheeler’s Argument VIII) all underminethe constitutional standards imposed in criminal cases in general, and capital cases in particular. Therefore, the judgment entered below must be reversed. Theresult here effectively lightened the state’s burden of proof and violated appellant’s constitutional right to federal due process. (Carella v. California (1989) 491 U.S. 263 [105 L.Ed.2d 218, 109 S.Ct. 2419].) Furthermore, misapplication of a state law that leads to a deprivation ofa liberty interest, here that no conviction shall be had on uncorroborated accomplice testimony (§ 1111), may violate the Due Process Clause ofthe 14th Amendmentto the federal 34 TR eaeReEERIAAPteataBE atepeatt Hla Mee BbRate RRRSooty obits one oe teetaDens SORES ReATORREMERA ae constitution. (Ballard v. Estelle (9th Cir. 1991) 937 F.2d 453, 456.; Vitek v. Jones (1980) 445 U.S. 480 [63 L.Ed.2d 552, 100 S.Ct. 1254].) In addition, the court’s failure to properly instruct the jury has arbitrarily denied appellant’s application of this state’s own domestic rules in violation of Fourteenth Amendmentdue processprinciples. (Hicks v. Oklahoma (1980) 447 USS. 343, 346 [65 L.Ed.2d 175, 100 S.Ct. 2227]; People v. Marshall (1996) 13 Cal.4" 799, 850-851 [55 Cal.Rptr.2d 347].) This too was reversible error. (People v. Robinson, supra (1964) 61 Cal.2d 373, 394; People v. Zapien (1993) 4 Cal.4"" 929, 982 [17 Cal.Rptr.2d 122].) IV. THE EXTRAORDINARY SECURITY PRECAUTIONS EMPLOYED THAT INCLUDED STRAPPING APPELLANT TO A STUN BELT THROUGHOUTTHE TRIAL IMPROPERLY PREJUDICED APPELLANT!” Extraordinary security precautions taken throughout appellants’ trial employedby the trial court, without the required showingofnecessity, infringed on Appellant Wheeler’s constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (People v. Jackson (1993) 14 Cal.App.4" 1818, 1825 [18 Cal.Rptr.2d 586] [error to impose restraints without a prior on-the- record determination ofthe need forit].) Respondentis mistaken in his beliefthat Appellant Wheeler “appears to acknowledgethat the trial court did not abuseits discretion by ordering [some form of] physical restraints....” (RB at p. 503.) Notso. Appellant Wheeler 11 12 Respondent’s Brief designates this as their Argument XXIV. This response to Respondent’s Brief draws substantially from the efforts on behalf ofAppellant Smith, in the latter’s Reply Brief, Argument VIII. 35 objected below to any form ofrestraint.'? (63RT 6346, Appellant Wheeler’s Opening Brief at p. 216.) Counsel for appellant noted that appellant had been in the courthouse for a numberofyears and had presented no problem to the court staff or its personnel. (61RT 6202-6203, Appellant Wheeler’s Opening Briefat p. 215.) Counsel pointed out and the court agreed that the acts ofviolence while in custody attributed to appellant were mere allegations, and there had been no convictions. (63RT 6377, Appellant Wheeler’s Opening Brief at p. 218.) “The need for restraints must be shown in each case by evidence of non- conforming behavior, such as violence, disruption ofthe courtroom,a history of escapes, or evidence ofan intention to escape.” (People v. Jackson, supra, 14 Cal.App.4" 1818, 1825-1826, relying on People v. Duran (1976) 16 Cal.3d 282 [127 Cal.Rptr. 618].) Due process requires that the use of restraints be imposed only as a last resort. (Spain v. Rushen (9" Cir. 1989) 883 F.2d 712, 728; accord People v. Sheldon (1989) 48 Cal.3d 935, 945 [258 Cal.Rptr. 242]; People v. Jackson, supra, at pp. 1826-1827.) International law also prohibits the degrading treatment ofpersons in custody and requires that restraints be removed when the prisoner appears before a judicial or administrative authority.'* (Standard Minimum Rulesfor the Treatment ofPrisoners (SMR), Article 33.)'° People v. Mar (2002) 28 Cal.4th 1201 [124 Cal.Rptr.2d 161], reaffirmed the rule that the decision to use restraints must be based on specific information 3 Appellant Wheeler also raised the issues raised herein in this Argument IV ofhis Opening Brief as well as in his motion for a new trial. (CT 16111, 16113- 16114.) 4 International law and international agreements ofthe Untied States are law ofthe Untied States. (U.S. Constitution, Article VI, Clause 2; The Paqueste Habana(1990) 175 U.S. 677, 700 [].) '° In Estelle v. Gamble (1976) 429 U.S. 97, 104, fn. 8, 106 [50 L.Ed.2d 251, 97 S.Ct. 285], the United States Supreme Court found “evolving standards of decency” measuredin part by reference to customary international law normsand to the SMR. 36 CreninneneeERRORReneS pigBESTS EOMEERA Me AE TPN coca mtblgNETRA aoe Saree ee ok te relating to security in the particular case, and the mere fact that the defendantis accused ofa violent crimeis not sufficientto justify the use of restraints. (Id.at pp. 1220-1222.) In effect, Respondent argues that while charges of violent crimes committed by a defendant cannotbe usedto justify the use ofrestraints, if the prosecution intends to offer evidence ofviolent acts to back up those charges,the use of restraints would be justified. Obviously, such an exception would swallow the rule. Respondenturgesthat the trial court was concerned overthe level of security needed because ofBryant’s “violent acts against those who crossed him and that Appellant Smith carried out such acts.” (RB at p. 503.) In all cases whereviolent acts are alleged and violent acts by the defendants are to be proven, the court may have concern. However, as explained above,the nature ofthe charges aloneis not a sufficient reason for forcing the defendant to wear the stun belt. In fact, if the charges against Bryant and Bryant’s past mandated the need for restraints, the trial court was in error for not severing appellant’s case from Bryant based on such evidence. (See Appellant Wheeler’s Opening Brief, ArgumentI.) Theinterests ofjudicial economyasajustification for a joint trial may not be the means to overcome a defendant’s fundamental rights. When jointtrial threatens those rights, a severance is mandated. (E.g., see Bruton v United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620].) If the presence of Bryant as a defendantis the reason why Appellant must be subject to restraints, the answer wasto sever his case from Bryant so that Bryant’s presence did not negatively affect Appellant Wheeler’s rights. Respondent further contends that there was nothing in the record to indicate that the use ofthe stun belt actually affected Appellant Wheeler. (RB at p. 504) Respondentexplains that Settle also wore the stun belt, participated in thetrial as 37 his own attorney, and managedto achieve a hung jury. (RB at p. 504.) There are four fallacies with this contention. First, the fact that Settle managedto 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 assumethat he would have donenobetter 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 evidence as to whether another defendant wasaffected. Third, the impact of the stun belt may be the type of impact that was not observableorprovable. 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 remainedsilent at the defense table for month on end,the jury saw Settle interacting with the court and counsel. Seeing Settle in a more humanerole for the duration ofthe trial must have influenced at least some ofthe jurors, who would be rendering life or death verdictto Settle. Moreover, other factors, such as the court providing the jurors with clarification as to the definition of an accomplice, may very well have been thecatalyst that led to Settle’s success. (See, Appellant Wheeler’s Opening Brief, Arguments I and VIII.) Respondentoffers that “there is no evidence in the record that anyjuror observed the REACTbelt on any appellant at any time.” (RB at p. 504.) However,the facts of the case suggest otherwise. During voir dire, one of the prospective jurors wrote in her questionnaire that she did see something underthe sweater of one ofthe defendants. (4CT 1032.) Additionally, during jury 38 MAMETRMA Nit Dine ohne«Io ae Ag au me Femme ate areata ue 8 te Skee Sallean REE FORMSoNeeTm SE tints nee nee ttnaneegemieeacting alahornolentmnnceslenehpiagatecng ndshne he oe ant inne eNMERRL Enkaae!SidSRDBRilGeenesabattbavenn Seer + 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 specialrestraints?” Prospective Juror 397 respondedthat she believed Appellant Smith was moving in an awkward manner. (Clerk’s Transcript Supplemental X, 120.) Therefore, at least two prospective jurors saw enough to cometo the conclusion that appellant might be wearing a stun belt. If one juror saw restraints,it is likely that others saw them too. (Dyas v. Poole (9th Cir. 2002) 309 F.3d 586.) In Deck v. Missouri (2005) 544 U.S. 622 [161 L.Ed.2d 953, 125 S.Ct. 2007], the Supreme Court recently reaffirmed the prohibition of visible restraints on a criminal defendant whenthere is an insufficient basis for that type of measure. The Court reaffirmed the holding ofHolbrook v. Flynn (1986) 475 U.S. 560, 568 [89 L.Ed.2d 525, 106 S.Ct. 1340] that shacklingis “inherently prejudicial,”(id. at p. 635), a view rooted in the Supreme Court’sbeliefthat the practice will often have negative effects that “cannot be shown froma trial transcript” (ibid., quoting Riggins v. Nevada (1992) 504 U.S. 127, 137 [118 L.Ed.2d 479, 112 S.Ct. 1810].) As a result, the Court in Deck concluded that whena court, without adequatejustification, orders the defendant to wear shackles visible to the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. Rather, the State must prove beyond a reasonable doubt that the shackling did not contribute to the verdict obtained. (/d. at p. 635.) Finally, slightly modifying its prior arguments that there was “overwhelming evidence,” respondent contends that there was no prejudice becauseofthe “compelling evidence”of guilt. (RB at p. 513.) Once again, while there was compelling evidence that a crime was committed, the evidence connecting Appellant Wheeler to the offense was solely based on the testimony of Williams, at best an unsavory character, an accomplice, a petty criminal, and a 39 memberofthe drug cartel. Under any standard,this hardly adds up to “compelling evidence”of guilt. The cumulative impact ofthe extraordinary security precautions as well as forcing appellant to wear the stun belt affected Appellant Wheeler’s presumption of innocence, deprived him ofhis right to an impartial jury, a fair trial, and so infected the trial with unfairness as to make his resulting convictions a denial of due process. As a result, his confinementandsentenceare illegal and unconstitutional under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. V. THE PROSECUTOR ASSERTEDFACTSIN HIS ARGUMENT TO THE JURY THAT HE KNEW OR SHOULD HAVE KNOWN WERE FALSE, COMMITTING FLAGRANT PROSECUTORIAL MISCONDUCT THAT IMPROPERLY CAST DOUBT ON A KEY ELEMENT OF APPELLANT’S DEFENSE, AND THE TRIAL COURT IMPROPERLY REJECTED THE PROFFERED CURE FOR THE ERROR” The prosecutor falsely asserted during his opening argumentthat there were unsupportable holes in the defense’s case; yet these purported holes the prosecutor knewor should have known did not exist. As a result of this improper debasement ofAppellant Wheeler’s defense, his confinement and sentenceare illegal and unconstitutional under federal constitutional law and the due processclause ofthe Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Respondent does not dispute that the prosecutor knew or should have known the facts were false, but offers that the prosecutor was merely commenting on the state of the evidence. In support of this sophistry, respondent cites People v. Brown (2003) 31 Cal.4" 518, 554 [3 Cal.Rptr.3d 145]; People v. Boyette (2003) ‘6 Respondent’s Brief designates this as their Argument XVI. 40 29 Cal.4" 381, 434 [127 Cal.Rptr.2d 544]; and People v. Mincey (1992) 2 Cal.4" 408, 446 [6 Cal.Rptr.2d 822]. Notably, none ofthese authorities involve instances where the prosecutor knew or should have known the facts being asserted were false. (bid.) In respondent’s efforts to dispel the clear prejudice that flowed from the prosecutor’s false factual assertions, respondentrelies solely upon the length ofthe trial, arguing that the prosecutor’s remarks were in comparisonrelatively brief and insignificant. (RB at p. 430.) They may have beenbrief, but they certainly were notinsignificant. Appellant was 19 years old at the time ofthe offenses. (106RT 13912.) Ofthe four employees ofthe Wheeler Avenue house, he wastheleast likely one ofthe staff to have been present at the houseat the time ofthe shooting.’” Appellant’s short-term employment and low status in the organization was detailed in his Opening Brief at pages 125 through 131. Briefly summarized, he wasby far the youngestofthe jointly-tried defendants; he had only joined the organization in February 1988, six months before the homicides; his status was so low that he was not even included in the prosecution’s organizational chart for the organization; and his immediate supervisor described appellant’s relationship to the organization as a person who “wasn’t shit;” he was stupid. He had never been arrested during any of the numerousbusts ofthe organization’s salesoutlets; his "7 The Wheeler Avenue house was normally staffed as follows: ° Williams on the 7:00 a.m. to 3:00 p.m. shift, ° Lamont Gillon on the 3:00 p.m. to 11:00 p.m. shift, e Appellant Wheeler on the 11:00 p.m. to 7:00 a.m. shift, and ° Anthony Arceneaux covered for the others when they were off. (85RT 9959-9960, 9965-9966, 86RT 10160-10161, 96RT 12130-12132, 12138-12139, 12141, 12145-12146, 12240.) Detective Vojtecky testified that on the day ofthe homicides, Mr. Arceneaux was scheduled to work the 3:00 p.m. to 11:00 p.m.shift. (89RT 10753, 10761.) 4) name was notassociated with the title to or utilities for any of those outlets; and the telephonetraffic attributed to him was de minimis comparedto that of his codefendants. Respondentdoesnot refute any ofthese facts. This defense supported the inference that such a bit player would not have been entrusted to participate in these multiple murders. The prosecutor’s false innuendo went to the heart of this defense. The defense was premised on the fact that appellant had earlier been in juvenile custody and thus he could not have been a memberofBryant’s organization until his release in November 1987. (106RT 13914-13917.) The prosecutor implied that the defense was contrived and could have been readily substantiated if evidence of his juvenile incarceration existed. Thetrial court compoundedthe error by refusing each of the reasonable solutions proffered by defense counsel.’® Mr. Davidson’s successful effort to undermine appellant’s defense so infected the trial with unfairness as to make Appellant Wheeler’s resulting convictions a denial of due process (Donnelly v. DeChristoforo, supra, 416 U.S. 637, 643; Darden v. Wainwright (1986) 477 U.S. 168, 181 [91 L.Ed.2d 144, 106 S.Ct. 2464]) and a violation of appellant’s constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. Appellant’s convictions must be reversed. 8 Defense counsel requested that the court alternatively declare a mistrial as to Appellant Wheeler, advise the jury that Appellant Wheeler had been in custody during the period in question, or permit the defense to introduce the evidentiary support. (124RT 16691-16696.) 42 ranmeeeESENOIIERS 8 TES RI GAS re BEE GONE aR a GIRS EEN AEEEDREEENESeOBFMIASMvzM SengmcoS VI. THE PROSECUTION WAS IMPROPERLY PERMITTED TO DEVELOP ARMSTRONG’S BLACKMAIL OF THE BRYANTS AND THEREBY THE PROSECUTION’S THEORYFORTHE MOTIVE FOR THE HOMICIDESBY DEPRIVING APPELLANTSOF THEIR CONSTITUTIONAL RIGHT TO CONFRONT THEIR ACCUSER”’ ”° Asreflected in the Statement of the Facts of appellants’ and respondent’s briefs, half of the prosecution’s case was crafted to establish a motive for the homicides. That story largely centered upon law enforcement’s account ofwhat they learned from Andre Armstrong during his in-custody 1983 interrogation. Respondent does not contest the contention that Armstrong’s statement was hearsay and violated Appellant’s right to confrontation under Crawfordv. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354]. Rather, respondentlimits its response to an argumentthat other evidence established the motive for the crimes, and therefore the admission ofArmstrong’s statement was harmless. (RB at pp. 290-293.) To the contrary, an examination ofthe evidence relied upon by respondent demonstrates that absent the taped statement of Armstrong, there was no admissible evidence for a motive for the crimes, a theme that dominated muchofthe trial. (See Appellant Wheeler’s Opening Brief at pp. 6-40.) 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. (RB at p. 291.) However, even if such a debt was equivalent to what the prosecution garnered from Armstrong’s inadmissible interview, such statements to Scott and Smith were themselves inadmissible hearsay. 19 20 Respondent’s Brief designates this as their Argument VIII, D. This response to Respondent’s Brief draws substantially from the efforts on behalf ofAppellant Smith, in the latter’s Reply Brief, ArgumentV. 43 Thefact that there was no objection to the statements of Scott and Smith is ofno 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 Armstrong statements to Detective Harley werelitigated at great length with the trial court ultimately ruling they could be admitted. (73RT 7973-7979.) The Armstrong statements were admitted prior to the admission ofthe statements madeto Scott and Smith. Thus, prior to the admission ofthe Scott and Smith statements, the damage had been donein that Armstrong’sbeliefthat 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, supra,\17 Cal.4th 800, 820; People v. Arias, supra, 13 Cal. 4th 92, 159.) As such, the issue is not waived. Respondentis in error whenit 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 moneyas a former employee. They do not convey the animosity and disdain that Armstrong held toward the Bryants norhis intention to “squeeze them” as was apparent from the content of Detective Harley’s interview of Armstrong. (40CT3 10512.) Thus, their statements do not establish the motive for the crime. In a related vein, respondentcites the evidence that Bryant sent money to Armstrong and Armstrong’s family and arranged for people to visit Armstrong in prison, paying their expenses, as “other evidence” ofmotive for the crimes. (RB 9 omernnerSitaramMMeA HT Sten hire MRNA ek rae eae eRRanareeceRebatesmentect exci at p. 291.) However, this evidence was merely consistent with the prosecution’s theory at trial that when Bryant family employees were arrested, the Bryants routinely took care ofthem and their families. For example, when employees David Hodnett and Alonzo Smith were in custodyas a result of their activities on behalf ofthe Bryant family, Bryant arranged to send moneyto their wives, Tonia BucknerandIris Brock. (87RT 10448-104450, 104-10465, 89RT 10907-10909, 113RT 15182-15189.) Once again, this evidence adds little to nothing to a theory © for the motive. Finally, Respondent points to the Bryant’s statement 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” ofmotive. In addition to the fact that this statement does nothing to establish a motive for the crimes, it was also a hearsay statement admissible only against Bryant, as an admission. In fact, at the time this statement was admitted, the jury was instructed to considerit only in relation to Bryant. (89RT 10913.) Likewise, in the instructions at the end ofthe trial, the jury was instructed that admissions by one defendant could only be considered against the defendant making the admission. (122RT 16398.) Therefore, this statement may not be considered against Appellant Wheeler in determining whether there was other evidence ofmotive for the crimes. Asa result ofthe foregoing, without Armstrong’s inadmissible statement, it is clear there was no admissible evidence ofthe motive for the crimes. The motive providedthe prosecution’s link to Appellant Bryant which in turn provided the prosecution’s link to Appellant Wheeler, as the prosecution’s purported protégé of Bryant. The motive played a majorrole in the trial below, as evidenced by the predominantrole in played in Mr. Davidson’s opening argumentto the jury. (RT 16430L-M,O, 16431, 16446, 16456.) Without this evidence ofmotive, the reason or reasons for the homicides becomes an anomaly. Thelikelihood ofAppellant 45 Bryant’s presenceand participation is substantially lessened. With the weakening of this latter link, comes even the greater attenuation of the likelihood of Appellant Wheeler’s presence and participation. On this record, the prosecution cannot demonstrate that this error was harmless beyond a reasonable doubt (Chapmanv. California, supra, 386 U.S. 18) and Appellant Wheeler’s convictions must be reversed (Crawford, supra.) VII. THE TRIAL COURT INSTRUCTIONS IMPROPERLY ALLOWED THE JURY TO FIND GUILT BASED UPON MOTIVE ALONE”! Respondent begins by arguing that Appellants Wheeler and Bryant waived this claim by not objecting to the instruction below. (RB at p. 446.) However, an appellate court has the statutory authority to review anyJury instruction even though no objection was madethereto in the lower court, if the substantial rights of the defendant were affected thereby. (§ 1259, People v. Toro (1989) 47 Cal.3d 966, 977 [254 Cal.Rptr. 811].) In any event, California courts often examine constitutional issues raised for the first time on appeal, especially when the asserted error fundamentally affects the validity ofthe judgment, important issues ofpublic policy are at issue (Hale v. Morgan, supra, 22 Cal.3d 388, 395), or when the error may have adversely affected the defendant’sright to a fair trial (Peoplev. Hill, supra, 17 Cal.4" 800, 843, fn. 8), all factors here. There are many other reasons that a waiver should not be foundin this case, among them thosedetailed at pages 5 through 6, above, and incorporated herein. Otherwise, appellant relies upon his argument from the Opening Brief and has nothing further to add onthis issue. Respondent’s Brief designates this as their Argument XX. 46 RAMONESRCTSAieTHME Areasinsns-tnts brian ates ettsteht i VIII. THE TRIAL COURT IMPROPERLY REFUSED TO ORDER THE JURY TO RECONSIDER THEIR VERDICT WHEN IT BECAME CLEAR THAT THEY HAD NOT UNDERSTOOD THEIR INSTRUCTIONS2 After the jury had returned their guilty verdicts against appellants, but prior to reaching any decision regarding CodefendantSettle, the jury submitted seven questions to the court that in them demonstrated they did not understand crucial legal principles relating to the potential accomplice status of Williams and the concept ofreasonable doubt as those concepts related to Appellant Wheeler, and reflected that they had mistaken the law andtheir role in determining appellant’s guilt or innocence. Twice during the court’s interchange with the jury regarding their questions, counsel for Appellant Smith moved to reopen the deliberations on the five charged counts since the jury had demonstrated that they misunderstood the law andthe instructions that had been provided. Yet, the trial court without further discussion immediately rejected both requests. (126RT 1710Se, 17105cc.) This waserror. Respondent begins by arguing that Appellants Wheeler and Bryant waived this claim by not objecting or joining Appellant Smith’s request. (RB at p. 384, 389.) In light of the court’s immediate response to counsel for Appellant Smith,it is clear that any further effort on the part of Appellant Wheeler would have been futile. (People v. Williams, supra, 16 Cal.4th 153, 255; People v. Whitt, supra, 51 Cal.3d 620, 655, fn. 27; People v. Sandoval, supra, 87 Cal.App.4th 1425, 1433, fn. 1.) In any event, California courts often examine constitutional issues raised for the first time on appeal, especially when the enforcementofa penal statute is involved (here section 116174),the asserted error fundamentally affects the validity 22 23 Respondent’s Brief designates this as their Argument XI, E. This response to Respondent’s Brief draws substantially from the efforts on behalf of Appellant Smith, in the latter’s Reply Brief, ArgumentI, E. 24 Section 1161 provides: 47 ofthe judgment, important issues ofpublic policy are at issue (Hale v. Morgan; supra, 22 Cal.3d 388, 395), or when the error may have adversely affected the defendant’s right to a fair trial (People v. Hill, supra, 17 Cal.4™ 800, 843, fn. 8), all factors here. There are many other reasons that a waiver should not be foundin this case, among them thosedetailed at pages 5 through 6, above, and incorporated herein. Asexplained in Appellant Wheeler’s Opening Brief (pp. 263-264), section 1161 provides that whenthere is a verdict of conviction, in whichit appears that the jury has mistaken the law, the court may explain the law and direct the jury to reconsidertheir verdict. Respondent suggests that the word “may”in section 1161 makesthe decisionofthetrial court discretionary, and reversible only if there was an abuseofdiscretion. (RB at pp. 389-390.) Even ifrespondent’s position is true, here, the trial court did abuse its 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 broughtto trial is he automatically an accomplice?” (53CT 15439, emphasis added.) The trial court determined that this question addressed either Williams or Settle’s role in the crimes. (RB at p. 386.) Not so. The jurors’ question cannotbe directed to Settle, because Settle was broughtto trial, and Whenthere is a verdict ofconviction, in which it appears to the Court that the jury have mistaken the law, the Court may explain the reason for that opinion and direct the jury to reconsidertheir verdict, and if, after the reconsideration, they return the same verdict, it must be entered; but whenthereis a verdict of acquittal, the Court cannot require the jury to reconsiderit. Ifthe jury render a verdict whichis neither general nor special, the Court may direct them to reconsiderit, and it cannot be recorded until it is rendered in some form from whichit can be clearly understood thatthe intent of the jury is either to render a general verdict or to find the facts specially and to leave the judgment to the Court. 48 Williams was not. To reachits conclusionthat the jurors’ question applied to either Williamsor Settle, the trial court had to ignorethe critical portion ofthe jurors’ question that limited its inquiry to the person(s) who were charged but not broughtto trial. Thetrial court’s effort to broaden the scope ofthejurors’ question wasin clear conflict with the evidence and wasan abuseofits discretion. Collectively the questions raised by the jury indicated a pervasive concern and lack ofunderstanding of accomplice-related law. For example,the jurors’ asked the court: “Can there be aiding and abetting after the crime was committed?” (53CT 15440.) This jury question makes obviousthat the jury did not understand whether Williams could be deemed an accompliceifthe only act he performed was after the murder,i.e., backing the car into the garage or acting as a “scout,” that is, checking to see if anyone on thestreet noticed the noise. Thetrial court failed to recognize that the jurors’ questions and confusion related to appellants’ case, as well as Settle’s case, because as noted by respondent, the court believed the jury was merely having a dispute as to whether there wassufficient corroboration of evidence against Settle. (RB at p. 388.) The court’s beliefwas unfounded for a number ofreasons. The content ofthe jurors’ questions were equally applicable to the resolution ofAppellant Wheeler’s criminalliability. No evidence was provided that Settle acted as an accomplice; he waseither present and a shooter or he was not. And, in regard to the jury’s fourth question inquiring whether there can be aiding and abetting after the crime was committed, there was no evidencethat Settle’s participation occurred only after the crime was committed, although that was the prosecution’s theory for Williams’ involvement. After raising the question of Williams’ accomplice status based on his actions after the murder, the court correctly explained to the jury that Williams could be an accomplice if he agreed to the act in question before the crime, in 49 orderto facilitate the crime. (126RT 1710S5I -17105J.) It is apparent from their question that prior to this answer one or more members ofthejury did not understand this concept. Unfortunately, the jury did not ask andthetrial court did not clear up the jury’s confusion about accomplicestatus until after appellant’s verdicts were returned. Thus, when deliberating as to Appellant Wheeler’s guilt, one or more members of the jury were operating under an ignorance of the law 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 | accomplice status based on the erroneous ground that Williams’ contribution to the murders took place after one or more ofthe murders even though he was a party to the murders before their execution. However, based on the court’s responseto the jurors’ question submitted after appellant’s verdicts were returned, had the jury considered this response during their deliberations of appellant’s culpability, it is likely that one or more jurors would have concluded that Williams was an accomplice and his testimony was not adequately corroborated and thereby would have voted to acquit appellant. Whendeliberating appellant’s fate, if the jury, based onits failure to understand the law, thought Williams was not an accomplice, corroboration would not have been necessary and the jury could have reachedits verdicts premised on Williams’ testimony alone. Further definition and instruction from the court in determining accomplice status changed the scope ofthe deliberative process during their deliberations on Settle’s fate. Unlike the deliberations in appellant’s case, the jury finally understood that it could deem Williams an accomplice based on his acts before the murders when Williams received (and accepted) instructions to scope out the area and movethe car. With this new understanding, the jury deadlockedasto Settle’s guilt. 50 gsae Meeeateatinepanies omeerene pny IE REMOM at tNeg bk cei eet Sr a EipiaceRetONDabies oS It was crucial that the jury understand all aspects determinative of whether Williams was an accomplice whendeliberating appellant’s guilt. Because appellant’s jury did not have its understanding of accomplice liability cleared up until after returning a verdict against appellant, the jury could have convicted appellant based on the testimony of Williams 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 understand 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 questions about the role of reasonable doubtin the determination ofguilt and corroboration of accomplice testimony,” again, an area at the heart of appellant’s defense. Thus, during appellant’s deliberations the jury operated under confusion over these fundamental principles. (53CT 154411, 126RT 17105M.) Respondent’s attempt to characterize these jury questions as relating only to corroboration is completely without support. Both ofthese questions clearly involve confusion regarding the meaning androle of reasonable doubt. For the jury to proceed with deliberations against Appellant Wheeler not understanding these fundamental principles required by the Due Process Clause in itself requires reversal of appellant’s convictions. Respondent remarks that the jury’s question regarding reasonable doubt was notindicative of a general misunderstanding ofthe law, but only 25 The two questions (six and seven) that the jury raised were: © A defendant cannot be guilty based upon the testimony of an accomplice 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? (53CT 15441, 126RT 17105N.) 51 demonstrated that one juror had doubts as to the guilt of Settle. First, questions six and sevenare not innately specific to Settle; their content equally encompassed resolution of Appellant Wheeler’s criminal liability. Second, evenifthe misunderstanding involveda single juror, it does nothing to ameliorate the injustice suffered by Appellant Wheeler that occurred whenthat single memberof his jury wasnot clear as to the concept of reasonable doubt whenthat juror decided appellant’s fate. Both the federal andthe state constitutions guarantee that — a defendantis entitled to be tried by twelve, not eleven, impartial and unprejudiced jurors. Thus, a “conviction cannotstand if even a single juror has been improperly influenced.” (People v. Nesler (1997) 16 Cal.4th 561, 578 [66 Cal.Rptr.2d 454].) When,as in this case, the jury questioned the meaning ofcrucial principles oflaw, section 11387° imposesonthetrial court “‘a ‘mandatory’ duty to clear up any instructional confusion expressed by the jury.” (People v. Huggins (2006) 38 Cal.4th 175, 261 [41 Cal.Rptr.3d 593].) Respondentfurther contends that section 1161 is limited to situations where the verdict itself demonstrates the jury may have mistaken the law. (RB atp. 390.) Whenthere is a good reasonto believe that the jury did not understand important and fundamental aspects ofthe law,as is clear from the jurors’ inquiries in this case, justice demandsthat the curative action of section 1161 not be so limited. Appellant has suffered a fundamental injustice by being convicted of murder and subsequently sentenced to death by a jury whose 12 members did notall 6 Section 1138 provides: | After the jury have retired for deliberation, if there be any disagreement between them as to the testimony,or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendantor his counsel, or after they have been called. 52 aaneaea understand the fundamental concept ofreasonable doubt until a few days after rendering a guilty verdict against him. All courts are invested with inherent powers to do whatis needed to achieve justice. Thus, under Code of Civil Procedure section 128, subdivision (a)(8) a court is given the power “to amend andcontrol its process and orders so as to make them conform to law andjustice.” Subdivision (5) ofthat section gives a court the power“to control in furtherance ofjustice... a// ... persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” Such all inclusive languageof“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 ofjustice.’ [Citations.]” (Walker v. Superior Court (1991) 53 Cal.3d 257, 266 [279 Cal.Rptr. 576].) In the normal course of events, the verdict may be the only place where one would see a reflection ofthe jury’s confusion or misunderstanding ofthe law. 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 returned was because Juror 77 had medical problems and had to be excused after some verdicts had been reached. This entire procedure was doneover the objection of the defense. (125RT 16895, 16905, 16926-16927, 16928-16929, 16930-16931, 16938-16939-16944.) Hadit not been for the chance event ofJuror No. 77 needing medical aid, the deliberations might have continued until verdicts were reachedastoall 53 defendants. Had that happened,the jury would not have returned the verdict as to Appellant Wheeler until after its misunderstanding and confusion over the principles of accomplice status and reasonable doubt had been further defined and corrected by the court. Based onthe tenor ofthe questions,it is very likely that the jury would have reconsidered its decision as to Appellant Wheeler. Respondent contends that the result urged by appellant “would permit reopening deliberations upon a finding that the jurors’ reasons for voting guilty were incorrect,”a result that would be in conflict with settled law. (RB at p. 390, italics in original.) Respondent attempts to recast appellant’s argument. Appellant is not seeking to delve into the reasons why the jury voted the wayit did. Attrial, in making this request, the defense only sought to make sure that the jury deliberated under a correct understanding ofthe law. As long as the jury correctly understood the law, which it was obligated to apply, appellants were not seeking to determine the reasons for the jurors’ ultimate decision. Respondentfurther contends that“there is nothing in the verdicts ...that would indicate that the jurors had misunderstood the law....” and that appellant “impermissibly speculate[s]” that the juror’s reasoningwas incorrect. (RB atp. 390,italics in original.) It is true that there is nothing in the verdicts themselves. However, appellantis not “speculating” that the jurors’ reasoningis incorrect. Rather, from the clear tenor of the questions involved there 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 answerto the question or understand the concepts involved in the answer requested. Respondentcontinuesbystating that there was nothing demonstrating that the jury misapplied the reasonable doubt or accomplice instructions when deliberating the verdict of the three appealing defendants, but that the questions were an attempt by the jury to break the deadlock as to codefendantSettle. (RB at 54 p. 390.) Again, the questions the jury raised were questions as to the law; the law that applied equally to all defendants. If the jury was unclear as to the law regarding the definition of an accomplice, the application of this definition would apply to appellant’s case as well as to Settle’s case. Becauseappellant 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 undersection 1161 deprived appellant of a state right ofreal substance, thereby violating appellant’s right to trial by jury and due process of law. Prosecution pursued on a juror orjurors’ lack ofunderstanding ofthe reasonable doubt standard and the very principles upon which the prosecution’s case of guilt was constructedso infected the trial with unfairness as to makethe resulting conviction the result ofthe denial ofdue process, and deprived the sentencing determination ofthe reliability the Eighth Amendmentrequires. This erroris “structural”as it defies harmless error analysis, and thus is subject to automatic reversal. (See, e.g., Sullivan v. Louisiana (1993) 508 U.S. 275 [124 L.Ed.2d 182, 113 S.Ct. 2078] [defective reasonable-doubt instruction]; Tumey v. Ohio (1927) 273 U.S. 510 [71 L.Ed. 749, 47 S.Ct. 437] [biased trial judge]; Gideon v. Wainwright (1963) 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792] [complete denial of counsel]; Vasquez v. Hillery (1986) 474 U.S. 254 [88 L.Ed.2d 598, 106 S.Ct. 617] [racial discrimination in selection of grand jury]; McKaskle v. Wiggins (1984) 465 U.S. 168 [79 L.Ed.2d 122, 104 S.Ct. 944] [denial of self-representation at trial]; Waller v. Georgia (1984) 467 U.S. 39 [81 L.Ed.2d 31, 104 §.Ct. 2210] [denial of public trial].) The U.S. Supreme Court explained that these cases contain a “defect affecting the framework within which the trial proceeds, rather than simply an errorin the trial processitself.” (Arizonav. Fulminante, supra, 499 U.S. 279, 310.) Such errors “infect the entire trial process,” (Brecht v. Abrahamson (1993) 507 U.S. 619, 630 [123 L.Ed.2d 353, 113 S.Ct. 1710]), 55 and “necessarily render a trial fundamentally unfair.” (Rose v. Clark (1986) 478 U.S. 570, 577 (92 L.Ed.2d 460, 106 S.Ct. 3101].) Put another way, these errors deprive defendants of“basic protections” without which “a criminal trial cannotreliably serveits function as a vehicle for determination of guilt or innocence . . . and no criminal punishment may be regarded as fundamentally fair.” (Jd. at pp. 577- 578.) Accordingly, reversal ofAppellant Wheeler’s convictions and death sentence is required. IX. THE CUMULATIVE AND INTER-RELATED GUILT PHASE ERRORS UNDERMINED THE FUNDAMENTAL FAIRNESS OF APPELLANT’S TRIAL IN VIOLATION OF THEFIFTH,SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS, MANDATING REVERSAL Respondenthas not provided any responseto this argument and appellant relies upon his argument from the Opening Brief and has nothing further to add on this issue. X. THE USE OF SIX UNADJUDICATED OFFENSESAS EVIDENCEIN AGGRAVATION VIOLATED APPELLANT’S EIGHTH AMENDMENT AND DUE PROCESS RIGHTS” In a one paragraph responseto this argument, Respondentarguesthat this issue is waived by the absence of any record below of an objection on this ground. (RB at p. 515.) There are many reasons that a waiver should not be foundin this case, among them those detailed at pages 5 through 6, above, and incorporated herein. Respondentoffers that appellant has not provided any reason for this Court to depart from its prior rulings on the issue in People v. Young (2005) 34 Cal.4" 1149, 1207-1208 [24 Cal.Rptr.3d 112] and People v. Williams, supra, 16 Cal.4" 27 Respondent’s Brief designates this as their Argument XXV. 56 153, 236.) (RB at p. 515.) Yet, respondent does not discuss, let alone take issue with, the two pagesofauthorities from other states and federal jurisdictions that support the conclusion that the use of inadmissible evidence ofunadjudicated crimesin the penalty phase of a defendant’strial is inherently flawed and does not comport with the Eighth and Fourteenth Amendments’ mandate of accuracy and reliability. (Appellant Wheeler’s Opening Brief, at pp. 277-278.) | Respondent doesnot dispute, let alone contest, that appellant was prejudiced by the introduction ofthe six unadjudicated crimesas factors in aggravation. | Appellant’s death sentence should be vacated. XI. THE TRIAL COURT’S DENIAL OF DEFENSE REQUESTED APPLICABLE AND ESSENTIAL JURY INSTRUCTIONS COUPLED WITH OTHER ERRONEOUSAND INADEQUATEINSTRUCTIONS, RENDERED APPELLANT’S DEATH SENTENCE UNCONSTITUTIONAL A. THE TRIAL COURT ERREDIN INSTRUCTING THE JURY OVER DEFENSE OBJECTION THAT SYMPATHY FOR APPELLANT’S FAMILY COULD NOT BE CONSIDERED AS A FACTORIN MITIGATION” Appellant relies upon his argument from the Opening Brief and has nothing further to add on thisissue. B. CALJIC 8.88 AS GIVEN IS IMPERMISSIBLY VAGUE AND AMBIGUOUS” Appellant relies upon his argument from the Opening Briefand has nothing further to add on this issue. 8 Respondent’s Brief designates this as their Argument XXIX,D,first aragraph. 4 Respondent’s Brief designates this as their Argument XXIX,A,at pages 538-542. 57 C. THE COURT IMPROPERLY DENIED FROM JURY CONSIDERATION THAT NO MITIGATION Is NECESSARY TO REJECT ASENTENCE OF DEATH” Appellant relies upon his argument from the Opening Brief and has nothing further to add onthis issue. D. THE REFUSAL OF THE DEFENSE REQUEST THAT THE JURYBE INSTRUCTED THAT A SINGLE MITIGATING FACTOR MAY OUTWEIGH MULTIPLE AGGRAVATING FACTORS IMPERMISSIBLY CONVEYED TO THE JURY THAT MULTIPLE FACTORSIN MITIGATION WERE REQUIRED TO AVOID A DEATH VERDICT”! Appellant relies upon his argument from the Opening Brief and has nothing further to add onthis issue. E. THE COURT IMPROPERLY DENIED FROM JURY CONSIDERATION AS MITIGATION Appellantrelies upon his argument from the Opening Brief and has nothing further to add onthis issue. F. THE COURT IMPROPERLY DENIED FROM JURY CONSIDERATION THAT THEY MUST PRESUME THAT THE ELECTED SENTENCE WOULD BE CARRIED Out? Appellant relies upon his argument from the Opening Brief and has nothing further to add on this issue. 0 Respondent’s Brief designates this as their Argument XXIX,A,at pages 542-544; and B, at page 552-553. 31 Respondent’s Brief designates this as their Argument XXIX,A,at pages 542-544; and B,at page 553. 2 Respondent’s Brief designates this as their Argument XXIX,B,at page 553. 33 553. Respondent’s Brief designates this as their Argument XXIX,B, at page 58 RingettetARARkiRSENSHee RRs EROARH XII. CALIFORNIA’S DEATH PENALTY STATUTE, AS INTERPRETED BY THIS COURT AND APPLIED AT APPELLANT’S TRIAL, VIOLATES THE UNITED STATES CONSTITUTION A. THE DEATH PENALTY STATUTEIS INVALID BECAUSEIT FAILS TO NARROW ELIGIBILITY FOR THE DEATH PENALTY** Appellant relies upon his argument from the Opening Brief and has nothing further to add on this issue. B. THE DEATH PENALTY STATUTE IS INVALID AS APPLIED BECAUSE IT ALLOWS ARBITRARY AND CAPRICIOUS IMPOSITION OF DEATHIN VIOLATION OF THE UNITED STATES CONSTITUTION?» Appellant relies upon his argument from the Opening Brief and has nothing further to add onthis issue. C. THE DEATH PENALTY STATUTE UNCONSTITUTIONALLY PERMITS UNBOUNDED PROSECUTORIAL DISCRETION Respondenthas not provided any response to this argument and appellant relies upon his argument from the Opening Brief and has nothing further to add on this issue. 34 Respondent’s Brief designates this as their Argument XXXV,A,at pages 616-617. 38 Respondent’s Brief designates this as their Argument XXXV,B,at pages 617-618. 59 givesceptsomminiacmensiete ~ D. The Death Penalty Statute Contains No Safeguards to Avoid Arbitrary and Capricious Sentencing and Deprives Defendants ofthe Right to a Jury Trial on Each Factual Determination Prerequisite to a Sentence of Death; it Therefore Violates the United States Constitution”® E. The California Sentencing Scheme Violates the Equal Protection Clause ofthe Federal Constitution by Denying Procedural Safeguards to Capital Defendants which Are Afforded to Non-capital Defendants” Short of International Norms of Humanity and Decency and as a Result Violates the United States Constitution™ XIII. THE VIOLATIONS OF STATE AND FEDERAL LAW ARTICULATED ABOVE LIKEWISE CONSTITUTE VIOLATIONS OF INTERNATIONAL LAW, AND APPELLANT’S CONVICTIONS AND PENALTY MUSTBESET ASIDE” Appellant relies upon his argument from the Opening Brief and has nothing further to add onthis issue. XIV. THE CUMULATIVE EFFECT OF THE NUMEROUS ERRORS WHICH OCCURRED DURING THE GUILT AND PENALTY PHASES OF TRIAL COMPELS REVERSAL OF THE DEATH SENTENCE EVENIF NO SINGLE ISSUE, STANDING ALONE, WOULD DO So* Appellant relies upon his argument from the Opening Brief and has nothing further to add onthis issue. %6 Respondent’s Brief designates Appellant Wheeler’s Parts / through 5 as their Argument XXXV,C, 1, at pp. 618-620; Part 6, as their Argument XXXV,C, 2, at p. 620; Part 7, as their Argument XXXV,C,3, at p. 621; Part 8, as their Argument XXXV,C,4, at p. 621; Part 9, as their Argument XXXV,C,S, at pp. 622-623; Part 6, as their Argument XXXV,C,6, at pp. 623-624; and Part /0, as their Argument XXIX, A, at p. 543. 7 Respondent’s Brief designates this as their Argument XXXV,D. 38 Respondent’s Brief designates this as their Argument XXXV,E. °° Respondent’s Brief designates this as their Argument XXXV,E. *0 Respondent’s Brief designates this as their Argument XXXVI. 60 sptASAOREEDSStasheepleRC oe XV. APPELLANT WHEELER JOINS THOSE ARGUMENTS OF COAPPELLANTS THAT MAY BENEFIT HIM Appellant was tried and convicted with Appellants Stanley Bryant and Donald Franklin Smith. Their appeals have beenjoinedin this direct appeal. Appellant Wheeler hereby joins in those arguments of his coappellants that may benefit him. (California Rules of Court, Rule 13; People v. Stone (1981) 117 Cal.App.3d 15, 19, fn. 5 [172 Cal.Rptr. 445]; People v. Smith (1970) 4 Cal.App.3d 41, 44 [84 Cal.Rptr. 229].) CONCLUSION For the foregoing reasons, appellant’s convictions and death sentence must be reversed. Dated April 19, 2007 Respectfully sbmitted, Ltt Conrad Petermann Attorney for Appellant SO : / MAA j, 61 CONRAD PETERMANN 323 East Matilija Street, Suite 110, PMB 142 Ojai, CA 93023 CASE NUMBER: 8049596 DECLARATION OF SERVICE I, undersigned, say: I am a citizen of the United States, a resident of Ventura County, over 18 years of age, not a party to this action and with the above business address. On the date executed below, I served APPELLANT LEROY WHEELER’S REPLY BRIEFbydepositing a copy thereofin a sealed envelope, postage thereon fully prepaid, in the United States Mail] at Ojai, California. Said copies were addressedto the parties as follows: DepartmentofJustice Attorney General's Office Mr. John Philipsborn 300 South Spring Street Attorney at Law Los Angeles, CA 90012 507 Polk Street Suite 350 glerk ofthe Superior San Francisco, CA 94102 ourt County of Los Angeles Mr. Leroy Wheeler For delivery tothe Hon. J-83401, 2-Eb-81 Charles E. Horan, Judge San Quentin State Prison 210 West Temple Street San Quentin, CA 94974 Second Floor, Room M3 Los Angeles, CA 90012 L. A. District Attorney Mr. Douglas Sortino pepuly District Attorney 210 West Temple Street Los Angeles, CA 90012 Mr. William McKinney Attorney at Law 3250 Wilshire Boulevard Suite 1110 Los Angeles, CA 90010 . Supervisin 22 Ms.Hattie E. Harris Attorney at Law 880 WestFirst Street Suite 309 Los Angeles, CA 90012- 2444 Mr. David Goodwin Attorney at Law P.O. Box 93579 Los Angeles, CA 90093- 0579 State Public Defender Ms. Kathleen M. Scheidel DPD Main Street, Tenth F1. San Francisco, CA 94105 I declare under penalty ofperjury that the foregoingis true and correct. Executed on April 21, 2007, at Ojai, California. ef. aan ts get Lo hae / oo lb beer 4, Conrad Petermann detteaanvane eget! nnneeeee