PEOPLE v. BRYANTAppellant, Stanley Bryant, Opening BriefCal.December 16, 2004COPY osaness C2Sm ckNe.A7LIT) — GUIPPEMIE COURT COPY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, SUPREME COURT FILED Wa STANLEY BRYANT, LEROY WHEELER, DEC 1 6 2004 AND DONALD FRANKLIN SMITH Frederick K. Ohirich Clerk DEPUTY Defendants and Appellants. m e m e m e m e APPELLANT’S OPENING BRIEF On Automatic Appeal from a Judgement of Death Rendered in the State of California, Los Angeles County (HONORABLE CHARLESE,. HORAN, JUDGE,ofthe Superior Court) MICHAEL J. HERSEK State Public Defender KATHLEEN M. SCHEIDEL Bar No. 141290 Assistant State Public Defender 221 Main Street, Tenth Floor San Francisco, California 94105 Telephone: (415) 904-5600 Attorneys for Appellant Bryant DEATH PENALTY “S s TABLE OF CONTENTS Page STATEMENTOF APPEALABILITY ..... cobb ecb cece eee ees 1 INTRODUCTION 1.0.00... . 0ceeeee e eens l STATEMENT OF THE CASE ......... 0.02000 2 STATEMENTOF FACTS .... 0.0...eceee eae 6 A. Guilt Phase - The Prosecution’s CaseIn Chief ...............-... 6 l. Crime Scene Evidence And Coroner’s Testimony ........ 6 2. The 1982 Shootings Of Ken Gentry And Reynard Goldman By Andre Armstrong ............... 12 a.- The Ken Gentry Killing ................0...0.. 12 b. The Reynard Goldman Shooting ............... 14 C. The Prosecution And Conviction Of Andre Armstrong For The Shootings Of Ken Gentry And Reynard Goldman .......... 16 3, The 1983 Taped Statement Of Andre Armstrong Regarding His Criminal Activities, Including The Shootings Of Ken Gentry And Reynard Goldman ...:... 17 4. Evidence Relating To Narcotic Trafficking By . ~ “The Family” .. 0.0... cececee eens 20 5. Armstrong’s Incarceration And His Cnminal Activities With James Brown After His Release From Prison in 1988 2.0... eeeeee eee 26 6. Testimony Of James Williams ................0 0000. 35 TABLE OF CONTENTS (CONT’D) Page Post-Homicide Events ........... 0.0. c ceca eee eee 45 Evidence Limited To Specific Defendants.............. 51 a. Evidence Introduced Against Codefendant Settle Only 2.0...2.eee 52 b. Evidence Admitted Against Appellant Only ...... 53 L. Statements Of Ladell Player ............. 53 ii. Alonzo Smith’s Conversation With Appellant In The County Jail............. 55 ii. Statements of George Smith ............. 55 iv. Evidence Regarding The Attacks On Keith Curry —- The Car Bombing .......... 56 c. Evidence Admitted Against Appellant and Coappellant Smith Only .................0...0. 56 d. Evidence Admitted Against Coappellant Wheeler Only .........2. 0.000000 cee eee eee-.. 58 The Defense Cases .......... 0.0 cece eee eee eee 59 1, Coappellant Smith ..................0...206. 59 2. Coappellant Wheeler .................-2000.05 59 3. Codefendant Settle ............... 0.00 cee eeee 61 4. Appellant Bryant .......... 0.0.00. 0 eee eee eee 63 il TABLE OF CONTENTS(CONT’D) Page 5. Testimony Of Codefendant Settle .............. 69 C. The Prosecution’s Rebuttal ..... 20.0.2... 20.eee 71 D. The Defense Rebuttal ...... 0.0.0.0... 0. ce eee cee1.2. 73 E. The Penalty Phase ........- 000s eee cece eee teen teen ees 73 1, The Prosecution’s Case In Aggravation Decne eee eee 73 a. Against Coappellant Wheeler. .Lecce ene ee eee 73 b. Against Coappellant Smith .................... 74 C. Against Appellant ....... Lee. . Lecce ee eee 74 2. The Defense Cases In Mitigation .................0.. 75 a. Presentation Regarding Coappellant Wheeler ..... 75 b. Presentation Regarding Appellant .............. 78 C. Presentation Regarding Coappellant Smith ....... 79 ARGUMENT........ 0.000. Love eseseeteeeevteeereerenens 81 I. © THE LADA’S OFFICE ABANDONEDITS ROLE AS A DISINTERESTED PROSECUTORIN THIS CASE,AS IT SUFFERED FROM A DISQUALIFYING CONFLICT OF INTEREST 2.0.0...eccen eeeceeeee 81 A. IntroductionSE81 B. Proceedings Below ........... 2.00.00 eee eee eens . . 82 iil TABLE OF CONTENTS(CONT’D) Page C. The LADA’s Office AbandonedIts Role As An Impartial Prosecutor In This Case; It Also Suffered From A Conflict Of Interest That Such ThatIts Prosecution Of Appellant Denied Appellant His Rights To A Fair Trial, Due Process of Law, To Present A Defense, To Be Present At His Capital Trial, To Confrontation, To The Effective Assistance Of Counsel And To A Reliable Death Judgment In Violation Of The Fifth, Sixth, Seventh, Eighth and Fourteenth Amendments To The United States Constitution And Parallel Provisions Of The California Constitution 2.2.0... 0.0.0... 0c cee eee ee eee 107 Il. THE TRIAL COURT ERRONEOUSLY AND PREJUDICIALLY PERMITTED A BIASED AND CONFLICTED INVESTIGATING OFFICER TO SIT AT THE PROSECUTION’S TABLE...... 121 A. Proceedings Below ........... 0... cece eee eee eee 121 B, The Trial Court’s Prejudicial Denial Of The Motion To Recuse Investigating Officer Detective Vojtecky - Requires Reversal Of Appellant’s Conviction And Death Judgment .............. 00.020 cee eee eee ee 124 C. Respondent Must Be Judicially Estopped From Opposing This Claim ........... 0.0.0.2 e eee eee eee 128 Ill. THE TRIAL COURT’S FAILURE TO SEVER APPELLANT’S CASE FROM THAT OF HIS CODEFENDANTS REQUIRES REVERSAL 2.0.0...eeeeee eens 131 A. The Relevant Law Regarding Severance.............. 131 B. The Trial Court’s Failure To Sever Appellant’s Case From That Of Codefendant Settle Requires Reversal .... 134 IV TABLE OF CONTENTS(CONT’D) Page 1. Procedural History ofAppellant’s Efforts to Sever His Case From That Of Codefendant Settle...0.eeeeens 134 2. Appellant Was Denied A Fair Trial And Due Process Of Law By The Trial Court’s Failure To Sever The Case Of Pro Per Codefendant Settle From Appellant’s Capital Tnal .......... 138 a. The Trial Court AbusedIts Discretion In Denying Appellant’s Severance Motions .. 139 1. Evidence Before The Trial Court Showed That CodefendantSettle’s Defense Was Antagonistic to _ Appellant’s Defense ............. 139 ll. It Is Reasonably Probable That Appellant Would Have Received A MoreFavorable Result In A Trial Separate From That Of Codefendant Settle... eee eee eee 148 Ob. If this Court Determines That Severance Was Not Warranted At the Time Appellant’s Pretrial Motions Were made, ‘Reversal Is Nonetheless Required Because The Joinder Of CodefendantSettle’s Case To Appellant’s Case Resulted In A Gross Unfairness To Appellant Such That He Was Denied Due Process Of Law ............ 149 C. The Trial Court’s Failure To Sever Appellant’s Case From That Of Coappellants Wheeler And Smith Requires Reversal ......... 00.0. c cece cece eens 150 IV. TABLE OF CONTENTS(CONT’D) D.- Conclusion ......... 0.00... c eee eens THE TRIAL COURT’S FAILURE TO CONTROL THE CONDUCT OF THE TRIAL DENIED APPELLANT A FAIR TRIAL AND DUE PROCESS OF LAW ............ A. Pretrial Proceedings ............ 02.0. c eee eee eee B. The Relevant Law:.......... Lecce eect ee eeeees C. The Trial Court Failed.To Protect Appellant’s Constitutional Rights In Failing To Give Appropriate Admonishments To The Jury | After Codefendant Settle Committed Misconduct Prejudicial To Appellant’s Case ...............00. D. The Trial Court Failed To Protect Appellant’s Constitutional Rights When It Allowed Codefendant Settle To Manipulate The Order Of Evidence To Appellant’s Detriment .............. 0.00.0 e eee THE IMPROPER USE OF A REACT BELT RESTRAINT ON APPELLANT DURING THE COURSEOF HIS CAPITAL TRIAL REQUIRES REVERSAL OF HIS CONVICTION AND DEATH JUDGMENT ...... eens A. Proceedings Below .......eee eee eee eee B. The Trial Court Erred in Ordering Appellant To Wear A REACTBelt During Appellant’s Trial, Including ‘During Appellant’s Testimony Before The Jury, In The Absence Of Any Record Showing OfA “Manifest Need” For The Use Of Physical Restraints ... V1 Page .. 155 .. 187 .. 157 .. 160 .. 163 .. 164 .. 175 .. 175 181 VI. VIL TABLE OF CONTENTS(CONT’D) C. Under Any Standard, Appellant Was Prejudiced by Being Forced To Wear A REACTBelt Restraint During Trial In The Absence Of A “Manifest Need” For Such Restraint ............ 0... 0c ee eee eee eee l. Reversal Is Required Under Arizona v. F:ulminante And Riggins v. Nevada ...........0020 000 ees 2. Reversal Is Required Under The Chapman Standard ........... 0.0... cee eee 3. Reversal Is Required Under The Watson Standard ....... 0... cc eee ee cee eee ees D. In the Alternative, Should This Court Hold The _ Trial Court Properly Determined The Existence OfA “Manifest Need” For The Use Of Restraints, Appellant Was Deprived Of His Constitutional Right To The Use Of The Least Restrictive Alternative . EXTENSIVE SECURITY PRECAUTIONS EMPLOYED THROUGHOUTTHE TRIAL IMPROPERLY PREJUDICED APPELLANT .... 0.0... ceeeeette eens A. Proceedings Below .......... 00.0. c cece eee eee B. Security Precautions Taken Created The Same Aura Of Guilt And Violence Over The Trial As Would Displaying Appellant To The Jury Shackled .......... THE TRIAL COURT PERMITTED THE PROSECUTION TO INFLAME THE JURY BY PRESENTING IRRELEVANT AND PREJUDICIAL EVIDENCE OF BAD CHARACTER AND CRIMINAL PROPENSITY .... A. Legal Standards ....................,.beeseae vil 192 . 193 . 195 . 198 198 . 202 . 202 . 207 211 . 213 TABLE OF CONTENTS (CONT’D) Page B. Evidence Of Other Alleged Crimes Was Inadmissible under Evidence Code Sections 350, 352 and 1101 ...... 219 1. The Bribe Of Rhonda Miller ......... Lecce 219 a. Proceedings Below ............--2-000: 219 b. The Evidence RelatingTo The Bribe Of Rhonda Miller Was Inadmissible ........ 220 2. The Attack On Francine Smith ................ 221 a. Proceedings Below .................-- 221 b. The Evidence Relating To The Attack On Francine Smith Was Inadmissible ........ 222 3. Evidence Relating To Narcotic Sales in 1985 .And To Appellant’s 1986 Conviction For Conspiracy To Distribute Narcotics ............ 223 a. Proceedings Below ................... 223 b. The Evidence Relating To Narcotic Sales ~ In 1985 And To Appellant’s 1986 Conviction For Conspiracy To Distribute Narcotics Was Inadmissible ............ 231 4. Testimony And Statements Of William “Amp” Johnson, Lawrence Walton And Ladell Player ... 233 a. Proceedings Below ................... 233 1. Taped Statement And Testimony Of William “Amp”Johnson ....... 233 Vill TABLE OF CONTENTS (CONT’D) Page il. Testimony And Statements Of Lawrence Walton ............... 237 iii. Testimony And Statements Of Ladell Player................... 241 b. The Testimony And Statements of Johnson, Walton Were Inadmissible ...... 245 5. The Attacks On Keith Curry.................. 246 a. Proceedings Below .................-. 246 b. The Evidence Relating To The Attacks On Keith Curry Was Inadmissible........ 252 6. In This Case, Other Crimes Evidence Was Inadmissible On The Issue Of Intent ........... 253 D. The Admission Of Bad Character Evidence Violated Appellant’s Constitutional Rights ................... 254 E. The Use Of Bad Character Evidence WasPrejudicial ... 255 F. Conclusion .....ccccccccccccececcecececvee.lla. 258 VUI. THE TRIAL COURT’S ERRONEOUS OVERRULING OF APPELLANT’S CLAIM OF MARITAL PRIVILEGE RESULTEDIN THE ADMISSION OF EXTREMELY PREJUDICIAL EVIDENCE REGARDING ATTACKS ON KEITH CURRY 2.0.00 ccc cccecccceeceeecveeuenvenes 259 A. Proceedings Below ............ 02. c eee eee eens 259 B. Legal Standards .........eeeeeeesCo eeeeeeeees 263 1x TABLE OF CONTENTS (CONT’D) Page C. Appellant Had A Right To Assert His Marital Communications Privilege To Preclude The Testimony Of Tannis Curry Relating To The Alleged Admission Of Appellant ................... 266 D. The Erroneous Admission Of The Testimony Of Tannis Curry Requires Reversal Of Appellant’s Conviction And Death Judgment .................... 269 IX. THE ERRONEOUS ADMISSION OF PREJUDICIAL HEARSAY EVIDENCE REQUIRES REVERSAL .......... 274 A. General Principles of Relevant Law ...........0.000. 274 B. Erroneously Admitted Testimonial Hearsay ........... 277 1. The Tape-Recorded Police Interrogation Of Andre Armstrong ................-..-000- 277 2. Statements Of Winifred Fisher During Police . Interrogation Relating To The Investigation Of The Ken Gentry Homicide ................ 283 3. Statements Admitted Pursuant To California v. Green When The Witness Denies Making All Or Part Of The Statement At Trial ............0.......0008. 284 C. Other Erroneous Rulings On Hearsay Evidence ........ 285 1. Prior Statements of Benny Ward Were Not Inconsistent With His Trial Testimony.......... 285 2. Statements Of Ken Gentry Contained In ~ BennyWard’s Prior Statements Were Inadmissible Hearsay .......... Lees Leeeaee 287 XL. Xli. TABLE OF CONTENTS(CONT'D) Page 3. Prior Statement Of William “Amp” Johnson Regarding His Belief In Appellant’s Guilt Was Inadmissible Hearsay .............0.0005 290 D. ‘Prejudice ....... beeen eee eee eee 292 THE TRIAL COURT ERRONEOUSLY ADMITTED _ OPINION TESTIMONY THAT INVADED THE - PROVINCE OF THE JURY .........0. 0.00000 -00 2005eee 294 A. Proceedings Below .........:......eee eee eee 294 B. Detective Dumelle’s Opinion As To Who WasIn Charge OfNarcotic Operations While Jeff Bryant WasIncarcerated Was Improper AndPrejudicial ....... 295 THE TRIAL COURT PREJUDICIALLY ERRED BY ADMITTING IRRELEVANT, INFLAMMATORY, GRUESOME, AND CUMULATIVE PHOTOGRAPHS OF THE VICTIMS' BODIES .......ce cece eee teen eee 300 A. Proceedings Below ...........2-.0 cece eee een eee 300 B. The Relevant Law .......... 0... cece eee eee ene 303 C. Application Of The Law To The Facts Of This Case .... 307 D. Prejudice 2.0...eeene nee 309 APPELLANT WASDENIED A FAIR AND IMPARTIAL TRIAL BY THE TRIAL COURT’S SUA SPONTE CROSS- EXAMINATION OF APPELLANT WHICH UNDERMINED APPELLANT’S CREDIBILITY .................2 000005. 312 xi TABLE OF CONTENTS(CONT’D) Page XIII. THE TRIAL COURT’S ERROR IN DENYING APPELLANT’S MOTION TO PRODUCE JAMES WILLIAMS AS A DEFENSE WITNESS AT APPELLANT’S SUPPRESSION HEARING AND ITS FAILURE TO SUPPRESS THE EVIDENCE SEIZED DURING UNCONSTITUTIONAL SEARCHES OF THE WHEELER AVENUE AND JUDD STREET RESIDENCES REQUIRES REVERSAL OF APPELLANT’S CONVICTION AND DEATH SENTENCE ........ 0... 0c eee eee eee 316 A. Proceedings Below .............-...4:Lecce eee eee 316 B. Trial Testimony Regarding The Search And Seizure Of The Wheeler House ........... 0.000.000 eee eee 319 C. The Trial Court Erred In Denying Appellant’s Motion To Compel The Production Of James Williams For The Suppression Hearing And In Denying Appellant’s Motions Suppress Evidence Seized At The Wheeler Avenue And Judd Street Houses .................0.. 321 1. The Prosecution Conceded Appellant’s Standing As To The Wheeler House;In the Alternative, The Prosecution Should Have Been Estopped From Contesting Standing As To That Location ....... 321 2. Even If Standing Was Not Conceded And The Prosecution Not Estopped From Contesting Standing, The Trial Court Unconstitutionally Precluded Appellant From Carrying His Burden Of Proof Regarding His Reasonable Expectation Of Privacy In The That House ...... 324 xii TABLE OF CONTENTS(CONT’D) Page Appellant Had An Actual, Subjective Expectation Of Privacy At the Wheeler House, And The Warrantless Search Of That House Was Not Within Any Exception To The Fourth Amendment’s Warrant Requirement; All Evidence Seized Therein Should Have Been Suppressed ......... cee eee eee eee 329 a. Appellant’s Expectationof Privacy In The Wheeler House .............0..0.005. 329 b. The Search Was Not Within the Emergency Exception To The Warrant Requirement .......... 0.00. eee ee eee 332 C. The “Plain View” Doctrine Does Not Apply Because Law Enforcement Were Illegally In The Wheeler House At The Time The Search and Seizure Was . . Conducted .......... 00.0. cece ee eee 336 The Search Warrant Issued For Appellant’s Home WasIssued Without Probable Cause, WasBased OnStale Information And Was Unconstitutionally Overbroad; The Evidence Illegally Seized From Appellant’s Home Should Have Been Suppressed ................ 337 a. TheSearch Warrant Lacked Probable Cause ............Coe eceeee 337 b. The Information In The Affidavit Is Too “Stale” To Provide The Requisite Probable Cause 2.6...eee eee 339 Xi TABLE OF CONTENTS(CONT’D) Page C. The Search Warrant Was Unconstitutionally Overbroad 1... 0... eee eee eee 340 D. As A Result Of The Fourth AmendmentViolations : In This Case, Considered Singularly Or Cumulatively, Appellant’s Conviction And Judgment Of Death Must Be Reversed . 0.0.0... cece eect een eens 342 XIV. JAMES WILLIAMS WAS AN ACCOMPLICEAS A MATTER OF LAW AND THE FAILURE OF THE TRIAL COURT TO SO INSTRUCT REQUIRES REVERSAL; FURTHER, THE TRIAL COURT ERRED PREJUDICIALLY WHEN IT REFUSED TO ORDER THE JURY TO RECONSIDER THEIR VERDICTS AGAINST APPELLANT WHEN IT BECAME CLEAR THAT THEY HAD NOT UNDERSTOOD THE INSTRUCTIONS RELATING TO ACCOMPLICE TESTIMONY ............. 344 A. The Facts And Procedural History...............0.. 344 B. Accomplice Testimony Must Be Viewed With Distrust . 360 C, James Williams Was An Accomplice As A Matter Of Law .... 22.eeeeee 364 D. There Was Insufficient Corroborating Evidence That Appellant Was Involved In The Homicides ........... 369 1. General Principles Of Appellate Review ....... 369 2. The Testimony OfAn Accomplice Must Be Corroborated ....... 2.2... cee eee ee eee 371 3. The Evidence That Appellant Participated In The Homicides WasInsufficient As A Matter Of Law ... 0...eeeeens 373 X1V TABLE OF CONTENTS(CONT’D) Page 4. Appellant’s Convictions Must Be Reversed...... 375 XV. THE TRIAL COURT PREJUDICIALLY ERRED IN DENYING APPELLANT’S REQUEST FOR A PRETRIAL HEARING ON THE ADMISSIBILITY OF OTHER CRIMES EVIDENCE; IN ADDITION, THE INSTRUCTIONS PREJUDICIALLY FAILED TO PROPERLY LIMIT THE JURY’S CONSIDERATION OF OTHER CRIMES EVIDENCE............00000eeeeee 377 A. The Trial Court Erred In Denying Appellant’s Motion For An Evidentiary Hearing On The Admissibility Of Other Crimes Evidence.............. 00.00.0000. 377 B. The Trial Court Erred In Denying Appellant’s Request For A Modified CALJIC No. 2.50 Instruction Requiring The Jury To Find Preliminary Facts Prior To Consideration Of OtherCrimes Evidence ............. 382 C. The Trial Court Erred In Giving CALJIC No. 2.50 Because It Allowed The Jury To Consider Other Crimes Evidence For Improper Purposes ........ 384 D. As Given, CALJIC Nos. 2.50 and 2.50.1 Unconstitutionally | Lessened The Prosecution’s Burden of Proof .......... 388 E. The Multiple Failures Of the Instructions To Properly XVI. Limit The Jury’s Consideration Of Other Crimes Evidence Prejudiced Appellant And Requires Reversal Of Appellant’s Conviction ................. 390 THE INSTRUCTIONS IMPERMISSIBLY UNDERMINED AND DILUTED THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT.................... 392 XV XVII. TABLE OF CONTENTS (CONT’D) XVi Page A. The Instructions On Circumstantial Evidence Undermined The Requirement Of Proof Beyond A Reasonable Doubt (CALJIC Nos. 2.90, 2.01, And 2.02) 2...ceceeens 393 B. OtherInstructions Also Vitiated The Reasonable Doubt Standard (CALJIC Nos. 1.00, 2.21.1, 2.21.2, 2.22, 2.27, 2.50, 2.50.1, 2.51 And 8.20) .............. 397 C. The Court Should Reconsider Its Prior Rulings Upholding The Defective Instructions ............... 405 D. Reversal Is Required 00.0.0... 0 cece cece eens 408 THE TRIAL COURT ERRONEOUSLY DIRECTED THE JURY TO FOCUS ON ALLEGED ACTS OF APPELLANTAS EVIDENCE OF HIS CONSCIOUSNESS OF GUILT 2...eeenee eens All A. The Consciousness Of Guilt Instructions Improperly Duplicated The Circumstantial Evidence Instruction .... 414 B. The Consciousness Of Guilt Instructions Were Unfairly Partisan And Argumentative ................... ...- 414 C. CALIJIC Nos. 2.05, 2.06 2.52 And The Special Instruction On Consciousness Of Guilt Each Embody An Irrational Permissive Inference ........... 418 D. The Giving Of The Pinpoint Instructions On Consciousness Of Guilt Was Not Harmless Beyond A Reasonable Doubt ........5.........000. 420 XVII. XIX, TABLE OF CONTENTS(CONT’D) Page THE TRIAL COURT COMMITTED AN INSTRUCTIONAL ERROR WHICH UNFAIRLY, UNCONSTITUTIONALLY, AND PREJUDICIALLY BOLSTERED THE CREDIBILITY OF NUMEROUS PROSECUTION WITNESSES WHO TESTIFIED AGAINST APPELLANT ............. 000.0000 0 00422 A. Introduction ..... 0.0.0... 0. eee eee eee ee 422 B. CALJIC No. 2.13 2.0...eee423 C. The Errors In Instruction Were Prejudicial ...... 427 THE TRIAL COURT’S ERRONEOUS RULINGS DURING GUILT PHASE DELIBERATIONS RELATING TO THE DISCHARGEOF A JUROR AND THE TAKING OF A PARTIAL VERDICT REQUIRES REVERSAL OF APPELLANT’S CONVICTIONS AND SENTENCE.............000- 429 A. Proceedings Below ..............0202 eee eee 429 B. The Trial Court Erred In Taking The Verdicts From The Jury Before The Deliberative Process Was Complete.............0 000 e cece ee eee 434 C. Appellant Was Deprived Of His Right To A Unanimous Verdict By 12 Jurors On Counts 3 And 4 Because One Of The Jurors Who Rendered That Verdict Suffered From A Disabling Medical Condition For Which The Trial Court Found Good Cause For Excusal .......... 2.00020 eee eee 437 XVii E, TABLE OF CONTENTS(CONT’D) Page The Recording Of Partial Verdicts On Counts 3And 4 Prior To The Substitution Of A Deliberating Juror Requires Reversal Of Appellant’s Convictions On Counts 1, 2 And 5, As Well As The Jury’s Special Circumstance Finding And Death Sentence ........... 44] Conclusion .... 2... cece cece eens 449 XX. THE TRIAL COURT’S FAILURE TO CONDUCT INDIVIDUAL SEQUESTERED DEATH QUALIFICATION VOIR DIRE, AND ITS UNREASONABLE AND UNEQUAL APPLICATION OF CALIFORNIA LAW GOVERNING JUROR VOIR DIRE, VIOLATED APPELLANT’S RIGHTS UNDERTHE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS, AND HIS STATUTORY RIGHT UNDER CODE OF CIVIL PROCEDURE SECTION 223 TO INDIVIDUAL VOIR DIRE WHERE GROUP VOIR DIRE IS NOT PRACTICABLE ... 0... 0... eee eee eee .. 451 A. A Voir Dire Procedure That Does Not Allow Individual Sequestered Voir Dire On Death-Qualifying Issues Violates A Capital Defendant’s Constitutional Rights To Due Process, Trial By An Impartial Jury, . Effective Assistance of Counsel, And A Reliable Sentencing Determination .................2-200000- 452 The Superior Court Erred In Denying Appellant’s Request For Individual Sequestered Voir ............. 454 The Trial Court’s Unreasonable And Unequal Application Of The Law Governing Juror Voir Dire Requires Reversal Of Appellant’s Death Sentence ....... Decne ee eee e eee eee 458 XVI TABLE OF CONTENTS(CONT’D) XXI. THE TRIAL COURT’S UNLAWFUL EXCLUSION OF THREE PROSPECTIVE JURORS FOR CAUSE REQUIRES REVERSAL OF APPELLANT’S CONVICTION AND DEATH SENTENCE ......... 0.000 ccc eee cee eee 461 A. The Trial Court Erroneously Sustained The Prosecution’s Cause Challenge To Prospective Juror Number 56, Despite Her Unequivocal Promise To Follow The Law In Determining Sentence In This Case 6.0... 00... o cece cece eee 461 1. 2. The Voir Dire Of Prospective Juror Number 56 .. Because The Voir Dire Of Prospective Juror Number 56 Established That Her Position On The Death Penalty Would Neither Prevent Nor Substantially Impair Her Ability To Follow The Court’s Instructions, Apply The Law To The Facts, Or Impose A Sentence Of Death, The Trial Court Committed Reversible Error Discharging Her For Cause ................. The Trial Court Erroneously Excused Prospective Juror Number 52, Who Was Equivocal About Whether His Attitudes About The Death Penalty Would Effect His Penalty Phase Deliberations ......... 473 1. 2. Voir Dire Of Prospective Juror Number 52 ..... A Prospective Juror In A Capital Case May Not Be Excused For Cause Based On Opposition To The Death Penalty Unless The Voir Dire Affirmatively Establishes The Juror Will Not Follow The Law Or Consider Kix Page 462 . 465 . 473 . Death As An Option ............. 0.000000 475 XXII. TABLE OF CONTENTS(CONT’D) 3. Prospective Juror Number 52 Was Not Substantially Impaired Under Adams/Witt ...... 482 Because The Voir Dire Of Prospective Juror Number 204 Established That Her Position On The Death Penalty Would Neither Prevent Nor Substantially Impair Her Ability To Follow The Court’s Instructions, Apply The Law To The Facts, Or Impose A Sentence Of Death, The Trial CourtCommitted Reversible Error _ Discharging Her For Cause ............. 0000 eee eee 484 1. The Voir Dire of Prospective Juror Number 204 .. 484 2. Prospective Juror Number 204 Was Not Substantially Impaired Under Adams/Witt ....... 485 THE TRIAL COURT VIOLATED APPELLANT’S SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS, AND COMMITTED REVERSIBLE ERROR, BY APPLYING A MORE LENIENT DEATH- QUALIFICATION STANDARD TO PROSECUTION THAN DEFENSE CHALLENGES TO PROSPECTIVE JURORS 2.00... cee eee eee Leen eee eee 487 A. Introduction .......... 0... eee eee ee eee 487 B. The Excusal of “Pro-Life” Jurors .............. 489 C, The Refusal to Excuse “Pro-Death” Jurors ...... 489 1. Prospective Juror Number 82 ........... 489 2. Prospective Juror Number 80 ........... 490 XXIII. XXIV. TABLE OF CONTENTS(CONT’D) Page D. ‘The Court Treated “Pro-Life” and “Pro- Death” Jurors Disparately in Ruling on Challenges for Cause ................-00000- 492 THE TRIAL COURT ERRED IN ALLOWING THE JURY TO CONSIDER IMPROPER AGGRAVATING CIRCUMSTANCES..........- 0.2 cee eee ee eee eee 494 A. The Trial Court Erred In Refusing To Strike The Evidence Presented In Aggravation Against Appellant ....... 2.0... 2 cece eee eee 494 The Trial Court’s Instructions Erroneously Directed The Jury That Appellant Committed Prior Criminal Acts ......eee eeee eee 499 The Trial Court’s ErroneousInstruction Allowed The Jury To Consider Improperly TheCircumstances Underlying Appellant’s Prior Conviction ........ 503 THE TRIAL COURT ERRED BY REFUSING SEVERAL DEFENSE PENALTY PHASE A. _ INSTRUCTIONS AND BY GIVING ITS OWN ~~ INCORRECT ANTI-SYMPATHY INSTRUCTIONS.. . 505 The Trial Court Erred By Rejecting Appellant’s Requests To Instruct The Jury That The Absence OfA Mitigating Factor Could Not Be Considered To Be An Aggravating Factor And That The Aggravating Factors Are Limited To Those Specified In The Instructions ................. 506 The Trial Court Erred In Refusing Appellant’s Special Instruction Regarding The Scope and Proof Of Mitigation ................ wees 510 XXi TABLE OF CONTENTS(CONT’D) Page The Trial Court Erred By Refusing Appellant’s Special Requested Instruction That Sympathy Alone Is Sufficient To Reject Death As A Penalty ...... 513 The Trial Court Erred By Failing To Instruct The Jury That It Could Return A Verdict Of Life Imprisonment Without The Possibility Of Parole EvenIf It Failed To Specifically Find The Presence Of Any Mitigating Factors 20...eeeeens 515 The Trial Court Erred By Refusing To Instruct On Lingering Doubt .............. 00.02 eee eee 517 The Trial Court Erred In Failing To Grant Appellant’s Request To Strike The Non-Unanimity Provision of CALJIC 8.87; In The Absence OfA Separate Instruction Highlighting The Non-Unanimity Requirement For Finding Mitigating Circumstances, The Inclusion Of That Paragraph Rendered The’ Instruction Partisan And Deprived Appellant Of His Constitutional Rights ...............ne 523 The Trial Court Erred In Refusing To Instruct That Aggravating Factors Are Limited To Those. Enumerated And That Appellant’s Background May Be Considered Only In Mitigation ............. 525 The Trial Court Erred In Refusing Appellant’s Requested Sympathy Instructions AndIn Instructing, Over Defense Objection, That Sympathy For Appellant’s Family Could Not Be Considered A Factor In Mitigation ................0..2005. 527 The Denial Of All Of The Above Requested Instructions Combined To Deny Appellant A Fair And Reliable Penalty Determination...... 533 XXV. XXVI. TABLE OF CONTENTS (CONT’D) Page THE FAILURE TO PROVIDE INTERCASE PROPORTIONALITY REVIEW VIOLATES APPELLANT’S CONSTITUTIONAL RIGHTS ....... 535 A. The Lack Of Intercase Proportionality Review Violates The Eighth Amendment Protection Against The Arbitrary And Capricious Imposition Of The Death Penalty .............ee 535 THE CALIFORNIA DEATH PENALTY STATUTE AND INSTRUCTIONS ARE UNCONSTITUTIONAL BECAUSETHEYFAIL TO SET OUT THE APPROPRIATE BURDEN OF PROOF .............. 539 A. The Statute And Instructions Unconstitutionally Fail To Assign To The State The Burden Of Proving Beyond A Reasonable Doubt The Existence OfAn Aggravating Factor, That The Aggravating Factors Outweigh The Mitigating Factors, And That Death Is The Appropriate Penalty 2.0.2.0... ceecee eens 540 The State and Federal Constitution Require That The Jurors Be Instructed That They May Impose a Sentence of Death Only If They Are Persuaded Beyond A Reasonable Doubt That The Aggravating Factors Outweigh the Mitigating Factors And That Death Is The Appropriate Penalty ............. 553 1. Factual Determinations ................ 553 2. Imposition Of Life Or Death ........... 554 The Sixth, Eighth, And Fourteenth Amendments Require That The State Bear Some Burden Of Persuasion At The Penalty Phase .............. 559 Xxill XXVII. Page D. The Instructions Violated The Sixth, Eighth And Fourteenth Amendments To The United States Constitution By Failing To Require Juror Unanimity On Aggravating Factors ....... 563 | E. The Instructions Violated the Sixth, Eighth and Fourteenth Amendments by Failing to Inform the Jury Regarding the Standard of Proof and Lack ofNeed for Unanimity as to Mitigating Circumstances ...............Lees 569 F. The Penalty Jury Should Also Be Instructed on the Presumption of Life .......... 571 G. Conclusion ......... eee ee eee eee 572 THE INSTRUCTIONS DEFINING THE SCOPE OF THE JURY’S SENTENCING DISCRETION AND THE NATURE OF ITS DELIBERATIVE PROCESS VIOLATED APPELLANT CONSTITUTIONAL RIGHTS ..............-..2... 573 A. The Instructions Caused The Jury’s Penalty Choice To Turn On An Impermissibly Vague And Ambiguous Standard That Failed To Provide Adequate Guidance And Direction............. 574 B. The Instructions Failed To Inform The Jurors That TABLE OF CONTENTS(CONT’D) The Central Determination Is Whether the Death Penalty Is The Appropriate Punishment, Not Simply An Authorized Penalty, For Appellant ....... XXIV ... 977 TABLE OF CONTENTS (CONT’D) Page C. The Instructions Failed To Inform The Jurors That If They Determined That Mitigation Outweighed Aggravation, They Were Required To Return A Sentence of Life Without The Possibility Of Parole ................2.00006. 580 D. The Instructions Failed To Inform The Jurors That Appellant Did Not Have To Persuade Them | The Death Penalty Was Inappropriate ........... 584 E, Conclusion ..............264- Lecce eens 585 XXVIII. THE INSTRUCTIONS ABOUT THE MITIGATING AND AGGRAVATING FACTORSIN PENAL CODE SECTION 190.3, AND THE APPLICATION OF THESE SENTENCING FACTORS, RENDER APPELLANT’S DEATH SENTENCE UNCONSTITUTIONAL ........ 00.0... 00.000 e eee 586 A. The Instruction On Penal Code Section 190.3, Subdivision (a) And Application Of That Sentencing Factor Resulted In The Arbitrary And Capricious Imposition Of The Death Penalty..... 587 B. The Instruction On Penal Code Section 190.3, Subdivision (b) And Application Of That Sentencing Factor Violated Appellant’s. Constitutional Rights To Due Process, Equal Protection, Trial By Jury And A Reliable Penalty . 594 Determination 1. Introduction .......... 0... ce eee eee eee 594 2. The Use of Unadjudicated Criminal Activity As Aggravation Renders Appellant’s Death Sentence Unconstitutional ........ 596 XXV TABLE OF CONTENTS(CONT’D) Page 3. The Failure To Require A UnanimousJury Finding On The Unadjudicated Acts Of Violence Denied Appellant’s Sixth Amendment Right To A Jury Trial And Requires Reversal Of His Death Sentence . 597 4. Absent A Requirement Of Jury Unanimity On The Unadjudicated Acts Of Violence, The Instructions On Penal Code Section 190.3, Subdivision (b) Allowed Jurors To Impose The Death Penalty On Appellant Based On Unreliable Factual Findings That Were Never Deliberated, Debated Or Discussed....... 599 The Failure To Delete Inapplicable Sentencing Factors Violated Appellant’s Constitutional Rights 2.0.2... cece cee eee‘2... 602 Failing To Instruct That Statutory Mitigating Factors Are Relevant Solely As Mitigators Precluded The Fair, Reliable And Evenhanded Application Of The Death Penalty ............. 604 Restrictive Adjectives Usedin the List of Potential Mitigating Factors Impermissibly Impeded the Jurors’ Consideration of Mitigation ............ 605 The Failure To Require The Jury To Base A. Death Sentence On Written Findings Regarding The Aggravating Factors Violated Appellant’s Constitutional Rights To Meaningful Appellate Review And Equal Protection Of The Law ...... 605. XXV1 XXIX, H. TABLE OF CONTENTS (CONT’D) Page Even If The Absence Of The Previously Addressed Procedural Safeguards Does Not Render California’s Death Penalty Scheme Constitutionally Inadequate To Ensure Reliable Capital Sentencing, Denying Them To Capital Defendants Like Appellant Violates Equal Protection ........... 608 Conclusion ............- 0c eee eee ee eee ee eee 610 THE TRIAL COURT ERRED PREJUDICIALLY BY REPEATEDLY INFORMING THE JURY THAT THE COST OF THE INSTANT TRIAL WAS “ASTRONOMICAL” .. 0.0.0.0... ccc eee eee 611 A. The Trial Court’s References To The High Cost Of Trial cee eet eee e een teen eens 611 B. The Relevant Law... 02.2.0... 02.2 eee eee eee 612 C. . The Trial Court’s Error In Informing The Jury Of The High Cost Of The Instant Trial Was Prejudicial... 2.0... eee eee eee ees 615 THE TRIAL COURT ERRONEOUSLY EXCLUDED APPELLANT AND HIS COUNSEL FROM TRIAL PROCEEDINGS; REVERSAL IS REQUIRED ........ 617 A. The Applicable Law ...... Lecce ete e eee eee 617 B. The Absence Of Appellant And His Counsel During In Camera Proceedings Relating To His Motion To Recuse The LADA’s Office And During ExParte Proceedings Between The Trial Court And TheJury, As Well As Appellant’s Absence During Numerous Other Trial Proceedings Requires Reversal ...... 621 XXV1l Federal Law ......... 0... cee eee eee ences 626 D. Appellant’s Waiver Of His Right To Presence Was Invalid Under State Law And The Federal Due Process Clause .........0 ccc eececseeeeeces 632 XXXI. APPELLANT’S DEATH SENTENCE VIOLATES INTERNATIONAL LAW ....... 0... ee ee eee ee 636 A. International Law ..........-ceceeeeeeeeeeee 637 B. The Eighth Amendment .............5....... 638 XXXII. REVERSAL IS REQUIRED BASED ON THE CUMULATIVE EFFECT OF ERRORS .............. 641 XXXIII. IF THE CONVICTION PURSUANT TO ANY COUNT IS REVERSED OR THE FINDING AS TO ANY SPECIAL CIRCUMSTANCEIS VACATED, THE PENALTY OF DEATH MUST BE REVERSED AND THE CASE REMANDED FOR A NEW PENALTY PHASE TRIAL ............ 644 XXXIV. THE ENTIRE JUDGMENT MUST BE REVERSED BECAUSE APPELLANT HAS BEEN DENIED A COMPLETE AND ACCURATE RECORD ON APPEAL, IN VIOLATION OF HIS CONSTITUTIONAL AND STATUTORY RIGHTS.... 646 CONCLUSION 2.0.0...0.cee ee eee eens 656 CERTIFICATE OF COUNSEL ....... 0... cee ee eee 657 | TABLE OF CONTENTS(CONT’D) C. Appellant’s Waiver Of His Right To Presence At Numerous Other Proceedings Was Invalid Under XXVIIl Page TABLE OF AUTHORITIES Pages FEDERAL CASES | Adamsv. Texas (1980) 448 ULS. 382cceee eens passim Addington v. Texas . (1979) 441 US. 41820eeeeens 554, 556 Allen v. United States (1896) 164 U.S. 492 20ceeeee 602, 612 . Apodaca v. Oregon oo, (1972) 406. U.S. 404 2... eee eee eee eden eee tees tees 597 Apprendi v. New Jersey (2000) 530 U.S. 466 2...ccceen eens passim Arizona v. Fulminante (1991) 499 U.S. 279 oocecee een ees passim Atkins v. Virginia (2002) 536 ULS. 304 20keee255, 273, 637, 640 Baldwin v. Blackburn (Sth Cir. 1981) 653 F.2d 94206.400 Ballard v. Estelle (9th Cir. 1991) 937 F.2d 453 20.eee376 Ballew v. Georgia (1978) 435 U.S. 22320eeee 564, 597, 601 XXIX TABLE OF AUTHORITIES Pages Barclay v. Florida (1976) 463 U.S.939 0.0... eee eee. bbb e bce e eet eeeneees 535 Beam v. Paskett (9th Cir. 1993)3 F.3d 1301 ................cece eee eee eee 155 Beazley v. Johnson (Sth Cir. 2001) 242 F.3d 248 20...cceee eee 638 Beck v. Alabama (1980) 447 ULS. 625 00kceecnn nee passim Beisler v. Commissioner (9th Cir. 1987) 814 F.2d 1304 ...........eet eee eens 633 Bell v. Burson (1971) 402 US. 535 21cncenn eee 379 Bellici v. United States (D.C. Cir. 1950) 184 F.2d39 2...ene626 Berg v. Morris : (E.D.Cal. 1980) 483 F.Supp. 179.0...eeeees 328 Berger v. United States (1935) 295 U.S. 78 0.ccctte e eee 108, 122, 124 Blakely v. Washington (2004)US.(124 S.Ct. 2531] 2.eee passim Blystone v. Pennsylvania (1990) 494 US. 2990.6eeeeen ees 578 Boyde v. California (1990) 494 U.S.370 0...ceeen eens passim XXX TABLE OF AUTHORITIES Pages Brady v. Maryland (1963) 373 US. 83... eeeeect eee ence eee eee eee nnee 11 Brady v. United States (1970) 397 U.S. 742 .........cece ee cece eee e eee eee eens 633 Brecht v. Abrahamson (1993) 507 U.S. 6192.eeeeens 119, 484, 493 . Britt v. North Carolina (1971) 404 U.S. 226 2.0ceceene eee 646, 652 Brown vy. Louisiana (1980) 447.U.S. 323 20.eee ee wen e ence nee passim Bruno v. Rushen (9th Cir. 1983) 721 F.2d 1193 2...eens 164 Bruton v. United States (1968) 391 US. 123eeeeee eee ees 141 Burch v. Louisiana (1978) 441 U.S. 130...eennen nes 597 Burks v. United States (1978) 437 U.S.1ccccence tees 376 Bustamante v. Eyman (9th Cir. 1972) 456 F.2d 269 2...ceeee 618 Cage v. Louisiana (1990) 498 U.S. 39 oocceee 370, 392, 397, 410 Caldwell v. Mississippi (1985) 472 US. 320...cecteee 600, 643 XXX1 TABLE OF AUTHORITIES Pages California v. Brown (1987) 479 U.S. 538 .......... detect eee eee eee 153, 531, 540, 604 California v. Green (1970) 399 U.S. 149occete eee tenes 284. California v. Ramos (1983) 463 US. 992 20.cnetn ene eee454 Campbell v. Wood ~ (Oth Cir. 1994) 18 F.3d 662 2.0...eeeee 618, 628 Carella v. California (1989) 491 U.S. 263 2...eeeeee 394, 409, 501 Carter v. Kentucky (1981) 450 ULS. 288 2... eee eeeence ee eee 521 Chambers v. Mississippi (1973) 410 ULS. 284 20keee ee eee 169, 276, 235, 379 Chapmanv. California (1967) 386 U.S. 18 2.ceceeeseens passim Coffin v. United States (1985) 156 U.S. 432 0cecetenes 164 Coolv. United States (1972) . 409 US. 100 2...ccceee ee eee eens 583 Coolidge v. New Hampshire (1971) 403 U.S. 443 20eeeee 330, 336, 341 CooperIndustries, Inc. v. Leatherman Tool Group, Inc. (2001) 532 ULS. 424 00cceee eee tence 551 _ ~ XXXil TABLE OF AUTHORITIES Pages Cooperv. Fitzharris (9th Cir. 1987) 586 F.2d 1325 1.eee 174, 641 Correll v. Stewart (9th Cir. 1998) 137 F.3d 1404 2...ceeee ee 129 Crane v. Kentucky (1986) 476 U.S. 683 2.0.ceeeen e ence ene 182 Crawford v. Washington | (2004) SUS. [124 S.Ct. 1354] 00eeeee . passim Darden v. Wainwright (1986) 477 U.S. 168... 0.20...cece eee eee e teen e eens 118 Davis v. Alaska (1974) 415 U.S. 3082.ccc cette eet e eee eees 274 Delo v. Lashley (1983) 507 U.S. 272.0... eee cece ee cee enn eee e ee enes 571 Diaz v. United States . (1912) 223 U.S. 442 000ccc ccc ccc ett e teens627 Dobbs v. Zant . (1993) 506 U.S. 357 21.cesrebees 647 Donnelly v. DeChristoforo (1974) 416 U.S. 637 2.ceee 118, 174, 641, 642 Draper v. Washington (1963) 372 U.S. 487 200ccc ccc cece nent teen ees 646 Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734 2...eee 182, 185, 186, 189 XXXIt TABLE OF AUTHORITIES Pages Duncan v. Louisiana (1968) 391 U.S. 145 20ceene nes 434, 465 Dyas v. Poole (9th Cir. 2002) 309 F.3d 586 2.0... cece ee 182, 197, 207 Dyer v. Calderon (9th Cir. 1998) 151 F.3d970 ...... 0.0.0... 008e“Lc eee ee eees 458 Eddings v. Oklahoma (1982) 455 U.S. 104 20cenceenn eee passim Entsminger v. Iowa (1967) 386 U.S. 748 2... ee eee eeresees 646 Estelle v. McGuire (1991) 502 U.S. 62 00cccnce nee passim Evitts v. Lucey (1985) 469 U.S. 387 20cccenn n ene eneae 583 Faretta v. California (1975) 422 U.S. 806 0...cece et ene , 157, 182, 618 Ferrier v. Duckworth (7th Cir. 1990) 902 F.2d 545 2...ceeee 306 Fetterley v. Paskett | (9th Cir. 1993) 997 F.2d 1295 2.0...cee 500, 522 Ford v. Wainwright (1986) 477 U.S. 399 0.ceceete nee 604, 634 Francis v. Franklin . (1985) 471 U.S. 307 2.ceeeens 395, 400, 407, 501 XXXIV TABLE OF AUTHORITIES Pages Franks v. Delaware (1978) 438 U.S. 15400cccence ene eee 337 Free v. Peters (7th Cir. 1993) 12 F.3d 700 2...ete584 Frolova v. U.S.S.R. (7th Cir. 1985) 761 F.2d 370 ............2000. Sec eee cece e eens 637 Furman vy. Georgia (1972) 408 U.S. 238 00.ceceeens 480, 537, 575 Gardnerv. Florida (1977) 430 U.S. 349ooceeeee eens passim Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812 2.0...ce eee 401, 404, 408, 409 Gideon v. Wainwright (1963) 372 U.S.335 20.cece eee eects passim Gilmore v. Taylor . (1993) 508 U.S. 33300ncne ence nees 371 Go-Bart Importing Co. v. United States. (1931) 282 ULS. 34420ceceeens 340 Godfrey v. Georgia (1980) 446 ULS. 420 2.ceeaee 510, 577 Gonzalez v. Pliler (9th Cir. 2003) 341 F.3d 897 20...ccceee passim Gray v. Mississippi (1987) 481 U.S. 64820tenes passim XXXV TABLE OF AUTHORITIES Pages Green v. Bock Laundry Machine Co. : (1989) 490 U.S. 504 20keceeneee 416, 525 Green v. Georgia (1979) 442 U.S.95......Fe326, 600 Greer v. Miller (1987) 483 US. 756 2.cececee n eens 641 Gregg v. Georgia (1976) 428 U.S. 1530.eee536, 576, 605, 647 Griffin v. United States (1991) 502 U.S. 46...ccceee eee eees 564 Grigsby v. Mabry (8th Cir. 1985) 758 F.2d 226 22...eeeees 465 Grisby v. Blodgett (9th Cir. 1997) 130 F.3d 365 2...eeeeee ..... 134 Hall y. Wainwright (11th Cir. 1984) 733 F.2d 766 2.0.0...eee628 Hardy v. United States (1964) 375 U.S. 277.000... 0.000. Lecce eee eee Ledeen aee 646, 654 Harmelin v. Michigan (1991) 501 U.S. 9572ccee een eee 567, 607 Harris v. Pulley (9th Cir. 1982) 692 F.2d 1189 2...eee536 Harris v. Wood ~ (9th Cir. 1995) 64 F.3d 1432 22eee641 XXXVI _ TABLE OF AUTHORITIES Pages Hawkins v. Comparet-Cassani (9th Cir.2001) 251 F.3d 1230 22... eee eee eee ee 183, 188 Hegler v. Borg (9th Cir. 1995) 50 F.3d 1472 2...cceens .... 619 Helfand v. Gerson (9th Cir. 1997) 105 F.3d 530 2...ceeeens 129 Herring v. New York . (1975) 422 U.S. 853 00.ceceneeeens .... 617 Hewitt v. Helms (1983) 459 U.S. 46020cceeeeee eens 634 Hicks v. Miranda . (1975) 422 U.S. 332 20.cccece e eee nnes 342 Hicks v. Oklahoma (1980) 447 U.S. 3432cene ene passim Hildwin v. Florida (1989) 490 U.S. 638 2...ceceeee en nes 564, 565 Hilton v. Guyot (1895) IS9US.U3ccccece eee 639, 640 Hitchcock v. Dugger (1987) 481 U.S. 3932.cenceteen eens 643 Hoffa v. United States (1966) 385 U.S. 293 20cnceen eee 322, 331 Holbrook v. Flynn (1985) 475 U.S. 560...ecccteens 200, 207° XXXVil TABLE OF AUTHORITIES Pages Holt v. Virginia (1965) 381 US. 1312etenes 378, 379 Hopt v. Utah (1884) 110 U.S. 57400centtenn eee 627° Illinois v. Allen (1970) 397 US. 3372cnees passim Illinois v. Gates . (1983) 462 US. 21320cee337, 338 In re Murchison (1955) 349 U.S.133 0...eeceeeee eens 124 In re Oliver (1948) 333 US. 257 ooceeett e eens 380 In re Winship (1970) 317 U.S. 35820eeeeee eee passim Irvin v. Dowd (1961) 366 US. 717 2... eee.ecb teen eee eee eee nes 465 Jackson v. Virginia (1979) 433 U.S. 307 2.ceeee ee .. passim Jammalv. Van De Kamp (9th Cir. 1991) 926 F.2d918 0s.eeeee 134, 306 Jecker, Torre & Co. v. Montgomery (1855) 59 U.S. 110...cette640 Jenkins v. United States (1965) 380 U.S. 445ooccceee eens 613 XXXVI TABLE OF AUTHORITIES Pages Johnson v. Louisiana (1972) 406 U.S. 356 ............cect nen een n eee 597, 601, 602 Johnson v. Mississippi (1988) 486 U.S. 578 2.ceeeee ne nes passim Johnson v. Zerbst ~ (1938) 304 U.S. 458 20eee eee Lecceeee eee es 633 Katz v. United States (1967) 389 U.S. 347 .......eee cee cece een teen een n eens 329 Kennedy v. Cardwell (6th Cir.1973) 487 F.2d101 20.eeeee 184 Kennedy v. Lockyer a (9th Cir. 2004) 379 F.3d 1041 ooeee646 Kentucky v. Stincer — (1987) 482 U.S. 7302.ceeen ete nen enee 618 Killian v. Poole (9th Cir. 2002) 282 F.3d 1204 2.0...eecee ee 642 Kyles v. Whitley (1995) 514US. 419 00cccnnn eens 630 LaLonde v. County ofRiverside (9th Cir.2000) 204 F.3d 947 2...eeeee 334 Lashley v. Armountrout (8th Cir. 1992) 957 F.2d 1495 2...cnt569 Leary v. United States (1969) 395 US.6 0...ceceeee n ene e eens 418 XXX1X TABLE OF AUTHORITIES Pages Lindsay v. Normet . (1972) 405 U.S. 56...cence nes 414, 416, 525 Lockett v. Ohio (1978) 438 U.S. 586........... beeen eee nee e eee e ees passim ~ Lockhart v. McCree (1986) 476 U.S. 162 22.ceeeee 465, 466, 468, 481 Lowenfield v. Phelps (1988) 484 U.S. 231occeee nee nes 529 Madera v. Risley (9th Cir. 1989) 885 F.2d 646 ........eee beeen eesne 652 Mapp v. Ohio (1961) 367 U.S. 643 2.cecteens 321, 336, 340 Marron v. UnitedStates (1927) 275 U.S. 192 LoLcence een neces 340 Marsh v. Cupp (9th Cir. 1976) 536 F.2d 1287 2.0...eeeee 613 . Matthews v. Eldridge (1976) 424 U.S. 319 0.ccccence nets 555 Maynard v. Cartwright (1988) 486 U.S. 356.2...ceceeens 575, 588, 594 McDowell v. Calderon (1997) 130 F.3d 83320.enen neee 385 McKaskle v. Wiggins (1984) 465 U.S. 168 «0...cece eee eee LY, 193 xl TABLE OF AUTHORITIES Pages McKenzie v. Day (9th Cir. 1995) 57 F.3d 1461 0...eeeee 638 McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 2...cee255,272 McKoy v. North Carolina (1990) 494 ULS. 433 00cccence nene 565, 570 Michelson v. United States (1948) 335 U.S. 4692.ceeteen nee 214, 223 Miller v. United States (1870) 78 U.S. 26820.eeen nees 639 Mills v. Maryland (1988) 486 US. 367 20kccceen eee eee passim Mincey v. Arizona (1978) 437 US. 3850cnte ene nees 332 Minnesota v Carter (1998) 525 US. 83 2.ceesete n eee e cence ees 330 Monge v. California (1998) 524 US. 721 0.ceenes passim Morgan v. Bunnell (9th Cir.1994) 24 F.3d 49 2.cccee eens 185 Morganv. Illinois (1992) 504 ULS. 7192.cecetne aee passim Mullaneyv. Wilbur (1975) 421 US. 6842.ceeeeeeee ee eae 396 xli TABLE OF AUTHORITIES Pages Murray v. Giarratano (1989) 492 U.S. Loececeene eee 437, 450 Murray's Lessee (1855) 59 US. 272 2.cccect teen nnees 564 Murtishaw v. Woodford (9th Cir. 2001) 255 F.3d 926 2.0...eeceeeens 577 Myers v. Ylst (9th Cir. 1990) 897 F.2d 417 2.0...eee562, 596, 607 Near v. Cunningham (4th Cir. 1963) 313 F.2d 929 20...eee627 Neder v. United States (1999) 527 U.S. Leccceee e ene eee 193 New York v. Burger (1987) 482 US. 6912.neeee eens 321 | Nguyen v. United States (2003) 539 U.S. 69 ......Lecce eeeeeeeet nee 450 Nix v. Williams — (1984) 467 U.S. 431oneeee 617 Ohio v. Roberts (1980) 448 US. 560.eee275 Osband v. Woodford (2002) 290 F.3d 1036... 0.eeeeee tee 651 xlii TABLE OF AUTHORITIES Pages Parkerv. Dugger (1991) 498 US. 308 2.ceceent n eens 647 Parker v. Gladden (1966) 385 U.S. 363 2...eenn eensLees 182 Patterson v. New York (1977) 432 U.S.19700ccce ene n een e nes 388 Payne v. Tennessee . (1991) 501 US. 808 2.ccccence eee 529, 530 Payton v. New York (1980) 445 U.S. 573...eeen e ee ees 330 Penry v. Lynaugh / (1989) 492 U.S. 302...eeeeee 153, 255, 273, 505 Phelps v. United States (Sth Cir. 1958) 252 F.2d 49 2...cece nes 361 Plyler v. Doe (1982) 457 US. 2022.ceceene een ees 583 Pointer v. Texas (1965) 380 U.S. 400 0.ccceee 274, 617, 618 Polizzi v. United States (9th Cir. 1976) 550 F.2d 1133 2...eeebeeen eee 618 Powell v. Alabama (1932) 287 U.S. 45 2.20... eee.dene cece eee e eee nes 380 Presnell v. Georgia . (1978) 439 US. 14........0...0..0004.bce e nce e eee teens 554 xli TABLE OF AUTHORITIES Pages Proffitt v. Florida (1976) 428 U.S. 242 0nes535, 536, 562 Proffitt v. Wainwright (11th Cir. 1982) 685 F.2d 1227 2.ccteens 628 Pulley v. Harris (1984) 465 U.S.37 2.ccceens 536, 537, 538 Rakasv. Illinois . (1978) 439 ULS. 128 2.cccecence eee 322 Rawlings v. Kentucky (1979) 448 U.S. 98.22.22... ste ence eeere322 Reagan v. United States (1895) IST US. 301 2.eeeeee 416, 525, 581 Reece v. Georgia (1955) 350 U.S. 85 21keeesect e ee eee eee 378 Rice v. Wood (9th Cir. 1996) 77 F.3d 1138 2...ceee eee 619 Richardson v. United States (1999) 526 U.S. 813 20.ecte eens 567 Riggins v. Nevada . (1992) 504 U.S. 127 2...eens 182, 193 Ring v. Arizona (2002) 536 U.S. 584...cccteens passim Rissetto v. Plumbers and Steamfitters Local 343 (9th Cir. 1996) 94 F.3d 597 2...eee129 xliv TABLE OFAUTHORITIES Pages Rock v. Arkansas (1987) 483 U.S. 4400eens 169, 182, 325, 326 Rockwell International Corp. v. Hanford Atomic Metal T;rades Council (9th Cir. 1988) 851 F.2d 1208 2.0.0... ee eee ».. 129 Rosales-Lopez v. United States (1981) 451 U.S. 18200cecetenes454 Rose v. Clark (1986) 478 U.S. 570 2.cccee nent ne eenee 119 Rossv. Oklahoma (1988) A8T7 US. 81occee eee 277, 487, 488, 493 Rushen v. Spain (1983) 464 U.S.1140ccceen ees 622 Russell v. Rolfs (9th Cir. 1990) 893 F.2d 1033 0...cece teen eens 129 Sabariego v. Maverick , (1888) 124 U.S. 261 .....0........0.... beeen en eee ee ee ee eeees 639 Sandstrom v. Montana (1979) 442 U.S. 510 0.cceens passim Santosky v. Kramer (1982) 455 U.S. 74500eeenee 555, 556, 557 Sawyer v. Whitley (1992) 505 U.S. 333 00cccete cece eens 588 Schad v. Arizona (1991) 501 ULS. 624 20ccccece nee aes 564 xlv TABLE OF AUTHORITIES Pages Sgro v. United States (1932) 287 USS. 206 eeeeeeeens 339, 340 Silvav.Woodford (9th Cir. 2002) 279 F.3d 825 2...cceeeeee 644 Silvermanv. United States (1961) 365 U.S. 5050.ceceee eee eens 336 Silverthorne Lumber Co. v. United States (1920) 251 U.S. 385 20.eeeee e321 Simmons v. United States . (1968) 390 U.S.3770.cence cent e ee eeeee 322 Skinner v. Oklahoma (1942) 316 U.S. 535 2.ceceeen eee nee e nes 609° Skipperv. South Carolina . (1989) 476 US. 1...eee eee Lecce ence eee ees 511, 643 Smith v. Campbell . (M.D. Tenn. 1991) 781 F.Supp. 521 0.0... eee eee eee 171 Smith v. Murray (1986) 477 U.S. 527 .......Lecce n cece eee e eden eet eeees . 565 Snyder v. Massachusetts (1934) 291 US.970.eens275, 618, 628 South Carolina v. Gathers (1989) 490 US. 805 Loceceeee tenes 529 Spain v. Rushen (9th Cir. 1989) 883 F.2d 712 0...eeeees passim xlvi TABLE OF AUTHORITIES Pages Speiser v. Randall (1958) 357 U.S. 513 0.eeeee beeen ences 554, 555 Stanford v. Kentucky (1989) 492 U.S. 361 2...eee637, 638 Stewart v. Corbin (9th Cir. 1988) 850 F.2d 492 2.0... 2. eee eee.eee e eee 210. Stringer v. Black (1992) 503 US. 222 0.cceeeeens 577 Sullivan v. Louisiana (1993) 508 U.S. 275 Loceeee e een eee passim Sullivan v. United States . (9th Cir. 1969) 414 F.2d 71 2.0...ccceens 613 Sumner v. Shuman (1987) 483 ULS. 66.0...ceceeee eeae 529 Tennard v. Dretke . (2004)US. [124S8.Ct. 2562]...eee 512 Thompson v. Louisiana (1984) 469 U.S.17..........etc ent ene een e eee eees 336 Thompson v. Oklahoma (1988) 487 U.S. 81560eeeeee 638, 640 Townsend v. Sain (1963) 373 U.S. 293 2.ceecent nen eees 606 Trop v. Dulles (1958) 356 US. 862.cccteen e eens 609, 639 xlvii TABLE OF AUTHORITIES Pages Truax v. Corrigan (1921) 257 ULS. 312 2.ccccece eee eens 380 Tuilaepa v. California (1994) 512 U.S. 967 0.ccceee 537, 549, 588, 605 Turner v. Murray - (1986) 476 U.S. 28 00... eee eee ccc e ene e eee eeeees passim Ulster County Court v. Allen (1979) 442 ULS. 140Jocccncwe. 418, 419 United States ex rel. Free v. Peters (N.D. TL 1992) 806 F.Supp. 705 ..............eee eee eee eeeeee 584 United States v. Blecker (4th Cir. 1981) 657 F.2d 629 2...cee61 United States v. Blum (8th Cir. 1995) 65 F.3d 1436 2.0...eens 171 United States v. Cervantes (9th Cir. 2000) 219 F.3d 882 2.0...eeneee 333 United States v. Curbelo (2003) 343 F.3d 273 0...ccceen cent e een eens 450 United States v. Duarte-Acero (11th Cir. 2000) 208 F.3d 1282 .......eee eee eee eee eee ees 638 United States v. Durham (N.D. Fla. 2002) 219 F.Supp.2d 1234 2.0.0... eee eee ee 183 United States v. Durham (11th Cir.2002) 287 F.301297 2...eee 183, 184 xlvill TABLE OF AUTHORITIES Pages United States v. Gagnon (1985) 470 U.S. 52221cecetenes 618 UnitedStates v. Gallagher (9th Cir. 1996) 99 F.3d 329 oo.eeens 171 United States v. Gaudin (1995) 515 U.S. 5062.eeeeenseee 434 United States v. Goodwin (Sth Cir. 1980) 625 F.2d 693 2...eeee eee 1... 327 United States v. Hall (Sth Cir. 1976) 525 F.2d 1254 0...cece407 United States v. Hammond . (Sth Cir. 1979) 598 F.2d 1008 .... 0... eee eeeeee eee 327 United States v. Hayward (D.C. Cir. 1969) 420 F.2d 142 .. 0...eeeeee eee eee 502 United States v. Henricksen (Sth Cir. 1977) 564 F.2d.197 2...ceeeens 328 United States v. Issacs (9th Cir.1983) 708 F.2d 1365 2.00...cece 322, 323 United States v. Joelson (9th Cir. 1993) TF.3d 174 .. ooleeeeee eee 169 United States v. Larson . (8th Cir. 1979) 596 F.2d 759 2.0... ee.ecb eee eects eeeeeee 170 United States v. Lesina (9th Cir. 1987) 833 F.2d 156 2...cee583 xlix TABLE OF AUTHORITIES Pages United States v. MacCloskey (4th Cir. 1982) 682 F.2d 468 ...0.ceeeee 327 United States v. Mitchell (9th Cir. 1999) 172 F.3d 1104 wo.eceee 398 - United States v. Nordic Village, Inc. (1992) 503 ULS. 302ccceee c eee 633 United States v. Peterson (1st Cir. 2000) 233 F.3d 101 2...ceeene 170, 173 United States v. Pino-Noriega (9th Cir. 1999) 189 F.3d1089 0...ccees 169 United States v. Roberts (9th Cir. 1980) 618 F.2d530 .oleeee ees 299 United States v. Salvucci (1980) 448 ULS. 830ccteen ene nee 322 United States v. Santana (Ist Cir. 1999) 175 F.3d57 0...ceeeens 170 United States v. Scheffer (1998) 523 U.S. 303 2.ceeee e eens 326 United States v. Seawell . (9th Cir. 1977) 550 F.2d 1159 2.ceeee 613 United States v. Selva (Sth Cir. 1977) 559 F.2d 1303 2.eeee 652, 653, 655 United States v. Shaibu (9th Cir.1990) 920 F.2d 1423 0.teene 331 TABLE OF AUTHORITIES Pages United States v. Smith (D.C.Cir.1973) AT8 F.2d976...eee327 United States v. Smyth (Sth Cir. 1977) 556 F.2d 1179... 2.200.000...eee eee cece eee 614 United States v. Stewart (1994) 20 F.3d 911 2...eens 171 United States v. Tarazon , (9th Cir.1993) 989 F.2d 1045 .......0... acc e eee eee e ee eee 333, 334 United States v. Thetford (Sth Cir. 1982) 676 F.2d 170 2...ccee eee ee ee 170 United States v. Thomas (6th Cir. 1973) 488 F.2d 334 ........... beeen cece eee ees 328 United States v. Thompson (9th Cir. 1987) 827 F.2d 1254 2.cceee.. 617 United States v. Trutenko . (7th Cir. 1973) 490 F.2d 678 0.0.0... eeeLeee eee eeeeeenes 614 United States v. Vega (5th Cir. 2000) 221 F.3d 789 2.0...eceee... 330 United States v.Wade (1967) 388 U.S. 218 22.0... 00000. eke eee eee ence ee eee ee eees 617 United States v. Walker (Sth Cir. 1985) 772 F.2d 1172 .eens 170 li TABLE OF AUTHORITIES Pages United States v. Wallace (9th Cir. 1988) 848 F.2d 1464 .. 0...cee642 Vasquez v. Hillery (1986) 474 US. 2540cectnes 119, 193 Victor v. Nebraska (1994) SIIUS.Locccece Dee 392. Vitek v. Jones (1980) 445 U.S. 48020ccceens 437, 449 Wade v. United States (D.C. Cir. 1971) 441 F.2d 1046 20.cccee 623 Wainwright v. Witt (1985) 469 U.S. 412 ceceeee passim Waller v. Georgia (1984) 467 U.S. 39 20cccete een e nes 119 Walton v. Arizona (1990) 497 U.S. 639 2.cceens 542, 598 Wardius v. Oregon (1973) 412 U.S. 470 ccece nee passim Washington v. Texas (1967) 388 U.S. 14.0...0...Lecce eee ee passim Webb v. Texas (1972) 409 U.S. 952.eectene eens 326 Iii TABLE OF AUTHORITIES Pages Wiggins v. Smith (2003) 539 U.S.510 0.0kcceeen eee nes 499 Williams v. Florida (1970) 399 US. 78 oone een SIT Williamson v. United States (1994) 512 US. 594ceeence aes 361 Witherspoonv.Illinois (1968) 391 U.S. 510...eeeeee 452, 465, 466. 487 Witt v. Wainwright (1985) 470 U.S. 1039 20ceceene e ene eee 465 Wong Sun v. United States (1963) 371 U.S. 471occcette tenes 336 - Woodson v. North Carolina (1976) 428 ULS. 280 2.ce eeeeee eee eee passim Zafiro v. United States (1993) 506 U.S. 534.....cece n eee nee eee e ene e eens 134 Zant v. Stephens (1983) 462 U.S. 862 2.2.nee passim Zemina v. Solem (D.S.D. 1977) 438 F.Supp.455eeeens 583 hu TABLE OF AUTHORITIES Pages. STATE CASES Aday v. Superior Court (1961) 55 Cal.2d 789 2...eeeees B42 Aguilar v. Lerner | (2004) 32 Cal.4th 974 20... eee eee Lene eee eee eee 129, 130 Alexanderv. Superior Court (1973) 9 Cal.3d 387 2...ceceeee ee 339 Alford v. State (Fla. 1975) 307 So.2d 433 20... eeeeeeeee SBT Arnold v. State (Ga. 1976) 224 S.E.2d 386...... 00... eee ee ee 575, 576, 577 Belton v. Superior Court (1993) 19 Cal.App.4th 1279 2...ceeene 132 Bickel v. City ofPiedmont (1997) 16 Cal.4th 1040 2...eeeeeeeee'.. 631 Brewerv. State (Ind. 1980) 417 N.E.2d 889 ... 0...eceee ees 537 Buzgheia v. Leasco Sierra Grove — (1997) 60 CalApp.4th 374 20...ceeeee 407 Calderon v. Superior Court a (2001) 87 Cal.App.4th 9330 2...kceee ees 132 Catchpole v. Brannon (1995) 36 Cal.App.4th 237 2.2... eeectens 314 liv TABLE OF AUTHORITIES Pages City and County ofSan Franciscov. Farrell — (1982) 32 Cal.3d 47 oo...ceceeee 633 Collins v. State (Ark. 1977) 548 S.W.2d 106 20...eee538 Committee v. Moore (Mass.App.Ct. 2001) 751 N.E.2d 901 ........ 02... eee eee 171, 172 Commonwealth v. O'Neal (Mass. 1975) 327 N.E.2d 662 2.02... ccc eee ee eee es 609 Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1168 2.0.2.2... 00. 453, 455, 56, 459 Covino v. Governing Board (1977) 76 Cal.App.3d 314 2.0...eeetenes 631 Deukmejian v. Superior Court _ (1980) 110 Cal.App.3d 427 2...eecteens 114 Dix v. Superior Court (1991) 53 Cal.3d 442 20...eeeeee eee eee 107 | Dunn v. State (Tex.Crim.App. 1987) 733 S.W.2d 212 ......... 0.020000 2005. 652, 653 Estate ofMartin (1915) 170 Cal. 657 2.cccence eens 415 Garden Grove SchoolDistrict v. Hendler (1965) 63 Cal.2d 141...eens614 lv TABLE OF AUTHORITIES Pages Gibson v. Superior Court . (1982) 135 Cal.App.3d 774 20...cette etna 207 Gray v. State (Miss. 1985) 472 S0.2d 409 20...ccceee 478 Hall v. Harker (1999) 69 Cal.App.4th 836 0.2...0eeeee ee 315 Hart v. Wielt (1970) 4 Cal.App.3d 224 2...eeeeee beens 615 Hemler v. Superior Court (1975) 44 Cal.App.3d 430 ... 0.0... 0.0.0.2. eee e 340 Hernandez v. Paicius (2003) 109 Cal.App.4th 452 2...cccee eee es 315 Hicks v. Board ofSupervisors (1977) 69 Cal.App.3d 228 2.0... . cee eee eee cece eee ees 107 Hovey v. Superior Court . (1980) 28 Cal.3d 1 oo...ccceee tenes .. passim In re Baraka H. . (1992) 6 Cal.App.4th 1044 20...eeecteeee 329 In re Horton . (1991) 54 Cal.3d 8 0... ceeen ees 650 In re Marquez (1992) 1 Cal.4th584 2.ceceent ees 643 In re Richard W. . (1979) 91 Cal.App.3d 960 2.0... eeeeeeeee 312 lvi TABLE OF AUTHORITIES Pages In re RoderickS. (1981) 125 Cal.App.3d 48 2.0.2...cccene nes 647 In re Steven B. (1979) 25 Cal. 3d 1 ooceeee eee eee ees 646 Inre Sturm (1974) 11 Cal.3d 258 2.0ceeeee ees 606 Inre William F. (1974) 11 Cal.3d 249 oceee eens 379 In re Winchester (1960) 53 Cal.2d 528 0.0...eee eee Lecce cece cence 124 Izazaga vy. Superior Court (1991) 54 Cal.3d 356 20.2... eee. Lecce ete nee ee 582 Jackson v. County ofLos Angeles (1997) 60 Cal.App.4th 171 20... eeeeee eee eee 128 Jurcoane vy. Superior Court oO (2001) 93 Cal.App.4th 886 02.0.0...eeeeee 263, 268 Koo v. Rubio's Restaurants, Inc. (2003) 109 Cal.App.4th 719 oo...eccee nent 128 Lewis v. Superior Court (1997) 53 Cal.App.4th 1277 10...eects 114 lvii TABLE OF AUTHORITIES Pages March v. Municipal Court . (1972) 7 Cal.3d 422 00.eens 646 Payne v. Superior Court (1976) 17 Cal.3d 908 02...ceceeee ne nes 379 People ex rel. Department ofPublic Works v. Graziadio (1964) 231 Cal.App.2d 525 0...ceeens 614 People ex rel. Younger v. Superior Court (1978) 86 Cal.App.3d 180 2.0...keeeee eens 107 People v. Adrian (1982) 135 CalApp.3d 335 20...cee505 People v. Aikens (1988) 207 Cal.App.3d 209 2.0.2... eeeeee 442, 443, 447 People v. Ainsworth (1988) 45 Cal.3d 984 2...ceceete nee 618 People v. Albertson . (1944) 23 Cal.2d 550 2...eeeetnias 389 People v. Alcalde (1944) 24 Cal.2d 177 2...ceceete nes 278 People v. Alcala (1984) 36 Cal.3d 604 2...ccctenes 218 People v. Allen (1986) 42 Cal.3d 1222 0...eeeeee 513, 546, 613 People v. Allison (1989) 48 Cal.3d 879 20...eeeeens 396, 589, 592 Iviti TABLE OF AUTHORITIES Pages People v. Alvarez (1975) 44 CalApp.3d 375 2...cecetenet nee 218 People v. Alvarez (1996) 14 Cal.4th 155 oo.ceeeee 214, 223, 651 People v. Ames (1975) 52 Cal.App.3d 389 2.0...keeeee ene 447 People v. Andrews (1989) 49 Cal.3d 200 0... eeeeeeeee eens 615 People v. Anderson (2001) 25 Cal.4th 543 2.ceeene eens passim People v. Antick (1975) 15 Cal.3d 79 0...ceeeee e ene 217 People v. Apalatequi (1978) 82 CalApp.3d 970 0.0... eee cee ee eee eens 647 People v. Aranda (1965) 63 Cal.2d 518 0...ccccette eens 141 People v. Arends | (1957) 155 Cal.App.2d 496 ... 00...eeeeee 162 People v. Arias (1996) 13 Cal.4th 92 .0.286, 572 People v. Armstead (2002) 102 Cal-App.4th 784 2...ccc cette eens 379 People v. Ashmus (1991) 54 Cal.3d932 2.0.cccee eens 467, 593 lix TABLEOF AUTHORITIES Pages People v. Bacigalupo = (1991) 1 Cal.4th 103 2.eee564, 565 People v. Bacigalupo (1993) 6 Cal.4th 457 oocccce een eens 579 People v. Balcom (1994) 7 Cal.4th 414 20ceeees 216, 387 People v. Barnes (1986) 42 Cal.3d 284 2...ceeneeee 370 People v. Barquera , (1957) 154 CalApp.2d 5130 2...ceenes 626 People v. Barraza (1979) 23 Cal.3d 675 0...ceceeen een eee 612 People v. Barton (1978) 21 Cal.3d 513 2...ccccece eee eae 646 People v. Bassett (1968) 69 Cal.2d 122 2...eeeete eens 370 People v. Bean . (1988) 46 Cal.3d 919 ....... cence cece e tenn ences 217, 592, 593 People v. Beeler (1995) 9 Cal.4th 953 2eeeee eens 440, 527 People v. Beeman (1984) 35 Cal.3d 547 o.ooeeeee 364, 365 People v. Belton . (1979) 23 Cal.3d 516 2.0...cccete eee 371 Ix TABLE OF AUTHORITIES Pages People v. Bemore (2000) 22 Cal.4th 809 .......ect e cee eee been ence eens 533 People v. Berryman (1994) 6 Cal.4th 1048 00...eeeeeeeee ee ee J O19 People v. Bohmer (1975) 46 Cal.App.3d 185 0.0... eeececeeee 368 People v. Box (2000) 23 Cal.4th 1153 2...ectenes 455 People v. Boyd (1985) 38 Cal.3d 762 2.0... eeeceeee eens 154, 497 People v. Boyette (2002) 29 Cal.4th 381 0...eeeeee ee eens 531 People v. Bradford (1997) 15 Cal.4th 1229 2.0.0.2... ...0..85.eeeLace eee eens 337 People v. Bradley . (1989) 132 CaLApp.737 2.0... eeecent enees 333 People v. Braxton (2002) 103 CalApp.4th 471 ...............2.02.. cece tenes 379 People v. Breaux (1991) 1 Cal.4th 281 ........ Lecce eee eee ee eee eee 113, 523, 576 People v. Brown (1985) 40 Cal.3d 512 2...cenees passim People v. Brown (1988) 46 Cal.3d 432 0.0.eeens 522 xi TABLE OF AUTHORITIES Pages People v. Brown (2003) 31 Cal.4th 518 2.0.0... 2... eee,ence cee eee eee eens 289 People v. Brownell (IIL. 1980) 404. N.E.2d 181 2...eeeeens 537 People v. Bull (Ill. 1998) 705 N.E.2d 824 0...cece eeeees 636 | People v. Bunyard (1988) 45 Cal.3d 1189 0...eeens 372 People v. Burnett (1967) 251 Cal.App.2d 6510 0.eeecee eens 187 People v. Burns (1952) 109 Cal.App.2d 524 2.0...Lecee eee 304 People v. Burwell (1955) 44 Cal.2d16 ......Lee cece ee ete cece eee eee 187 . People v. Cahill (1993) 5 Cal.4th 478 2...ees460 People v. Cain (1995) 10 Cal4th 1 oo.eeeeee 521, 592, 593 People v. Carpenter (1999) 21 Cal.4th 1016 2...ceee eens 603 People v. Carpenter (1997) 15 Cal.4th 312 2.eeeeee 309, 390 People v. Carrera (1989) 49 Cal.3d 291 2...eeeLees 154, 589, 591 Ixii TABLE OF AUTHORITIES Pages People v. Carter (1957) 48 Cal.2d 737 0...ecceeeens 162 People v. Carter (1973) 34 Cal.App.3d 748 2.0...eeeene eens 267 People v. Cash (2002) 28 Cal.4th 703 2...eeceeeee eens 460 People v. Castillo (1997) 16 Cal.4th 1009 2...ceceeee ees 399 People v. Castro (1985) 38 Cab.3d 301 2...eee eeeeee e eens 418 People v. Catlin (2001) 26 Cal.4th 81 2.0... eeeeeeee 214, 216, 651 People v. Ceniceros (1994) 26 Cal.App.4th 266 0.0.2... eeccc ee eens 177 People v. Chadd a, ~ (1981) 28 Cah.3d 739 2.ceenee 631, 647 People v. Champion (1995) 9 Cal.4th 879 20ceceeee 577 People v. Chavez . (1980) 26 Cal.3d 334 2...kecccteen e eens 379 People v. Choi © (2000) 80 Cal.App.4th 476 2...cccene teenies 114 People v. Clapp . (1944) 24 Cal.2d 835 20.cnc nee e neces 372, 374 [xu TABLE OF AUTHORITIES Pages People v. Cleveland (2001) 25 Cal.4th 466 2.0...eee439 People v. Coddington (2000) 23 Cal.4th 529 2...eee213, 589, 592 People v. Coffman _ (2004) 34 Cal4th 1 oo.ceeees 133, 148 People v. Coleman . (1988) 46 Cal.3d 749 0.cccee eens 487 People v. Collier (IIL. App. 2002) 738 N.E.2d 267 2...eeeee eee 171 People v. Collins . (1976) 17 Cal.3d 687 2...ceeee eens passim People v. Compton (1971) 6 Cal.3d 55 0...ceceeee e enn', 439 People v. Condley (1977) 69 Cal.App.3d 999 oo ccccceee eee eee 177 People v. Conner (1983) 34 Cal.3d 141 ........0...0000.. eee eee .. 112,117,118 People v. Cook (1978) 22 Cal.3d 67 0...eeenee ees 337 People v. Cooks (1983) 141 Cal.App.3d 224 20...ceee ees 163 xiv TABLE OF AUTHORITIES Pages People v. Cooper (1991) 53 Cal.3d 771 20... ccc ccc eee eeeLecce eee ee 512 People v. Costello (1943) 21 Cal.2d 760 2...cece581 People v. Cox (1991) 53 Cal.3d 618 2...ceepassim People v. Crawford (1982) 131 CaLApp.3d 591 2.0.0...eeeee ee . 599 People v. Crew (2003) 31 Cal.4th 822 2...eeeeneae 221 People v. Crittenden (1994) 9 Cal4th 8300.405, 406 People v. Cudjo (1993) 6 Cal.4th 585 0.cettenee 540 People v. Cummings . (1993) 4 Cal.4th 1233 .....cece ete n eee eee e eens 651 People v. Cunningham . (2001) 25 Cal.4th 926 2.0.centeee 467 _ People v. Dailey (1960) 179 Cal.App.2d 482 2.0...cen... 364 People v. Davenport (1985) 41 Cal.3d 247 20ccccence nneee 505 People v. Decliner (1985) 163 Cal.App.3d 284 2...cette599 ixv TABLE OF AUTHORITIES Pages People v. Dees (1990) 221 Cal.App.3d 588 2.2.0.2... 2 eeeeee 322, 323 People v. Delamora (1996) 48 Cal.App.4th 1850 2...ceeens 439 People v. Deletto (1983) 147 CalApp.3d 458 20.0... eee eee eeeeee ee eee 389 People v. Dell (1991) 232 Cal.App.3d 232 2.0.0... eeeceee438 People v. DeSantis (1992) 2 Cal.4th 1198 2...ceeeens 518 People v. Dewberry (1959) 51 Cal.2d 548 0...eeeene ene 399 People v. Diaz (1951) 105 Cal.App.2d 690 ...........cence eee 427, 627, 628, 629 People v. Dominguez (2004) Cal4th eeec eens 291 People v. Dorsey (1975) 46 Cal.App.3d 706 .... 0... eeecc ee eee 264, 269 People v. Duncan (1991) 53 Cal.3d 955 oooeeeeens passim People v. Duran (1976) 16 Cal.3d 282 2...ceteens passim People v. Durham (1969) 70 Cal.2d 171 2...ceceeee ees 215 lxvi TABLE OF AUTHORITIES Pages People v. Dyer (1988) 45 Cal.3d 26 0.0...eeeeee pce e eee ees 154 People v. Easley (1983) 34 Cal.3d 858 20...ccceee eee 511 People v. Edelbacher . (1989) 47 Cal.3d 983 2.0...ceeeee nes 507, 12, 577, 604 People v. Edwards (1991) 54 Cal.3d 787 .......keene eee eee bees 530, 532, 589, 593 People v. Elder (1969) 274 Cal.App.2d 381 .........cece cnet eee e nen ene 215 People v. Ervin (2000) 22 Cal.4th 48 2.00.eeeence 141 People v. Estep (1996) 42 Cal.App.4th 733 .....cece eee eee eee e ee eeee 406 People v. Eubanks (1996) 14 Cal.4th 580 2.2.0... eee eee eee eeeLecce eee eeee 108 People v. Ewoldt (1994) 7 Cal.4th-380 .................Lecce ences 214, 216, 248, 253 People v. Fairbank (1997) 16 Cal.4th 1223 2...ene es 540, 544 People v. Falconer. . (1988) 201 Cal.App.3d 1540 ...............eee cece eee eees 372 People v. Farmer (1989) 47 Cal.3d 888 2.0...cntneeee 276 Ixvii TABLE OF AUTHORITIES Pages People v. Farnam (2002) 28 Cal.4th 107 2.0...eceeeee 536, 545 People v. Farris (1977) 66 Cal.App.3d 376 20... ccc ccc cee eee nees 438 People v. Fauber (1992) 2 Cal.4th 792 2.1cccteen eens passim People v. Feagley (1975) 14 Cal.3d 338 2.0...eeeee 437, 449, 555 People v. Ferraez (2003) 112 Cal.App.4th 925 2...eeece es 296 People v. Fields (1983) 35 Cal.3d 329 2...cece eee ee ee 444, 445 People v. Fierro (1991) 1 Cal.4th 173octeee nee 299 People v. Figueroa (1986) 41 Cal.3d 714 66...cee501 People v. Floyd (1970) 1 Cal.3d 694 2...ceeene eens 479 People v. Frank (1985) 38 Cal.3d 711 2...eeeee eens 337, 341 People v. Franklin (1976) 56 CalApp.3d 18 .....eeeeee 625 People v. Freeman (1994) 8 Cal.4th 450 2...eeeeeeeee 650 lxviii TABLE OF AUTHORITIES Pages People v. Frierson (1991) 53 Cal.3d 730 20...cette neces 479, 480 People v. Fudge (1994) 7 Cal4th 1075 2.cenceeens 442 People v. Gainer (1977) 19 Cal.3d 835 0.0... eeeeneete eee . 612 People v. Garcia (1995) 41 Cal.App.4th 1832 2.0...eeeeee 390 People v. Gardeley (1996) 4 Cal.4th 605 2...eeeeae 296, 297 People v. Ghent (1987) 43 Cal.3d 739 2...nnnnets passim People v. Glenn (1991) 229 Cal.App.3d 1461 ......ace t eee eet e cere te eenes583 People v. Gloria (1975) 47 Cal.App.3d 1 oo...cecece ete eas 647 People v. Gonzales (1990) 51 Cal.3d 1179 .......ect e tn teen teen e teens 396 People v. Green (1971) 3 Cal.3d 981 20...ceceete e ee eeees 286 People v. Griffin (2004) 33 Cal.4th 536 ...............0.. Loken eee e eee e eee 551, 557 People v. Griffin (1950) 98 CaLApp.2d 1 oo...ecccc ete eens 368 Lxix TABLE OF AUTHORITIES Pages People v. Guerrero (1976) 16 Cal.3d719 2...ccceee eens 218 People v. Guiton (1993) 4 Cal4th 1116 2...ceenes 604 People v. Guiuan (1998) 18 Cal4th 558oeeeeLees 360 People v. Gurule (2002) 28 Cal.4th 557 2.ccceens 233, 603 People v. Gutierrez (2000) 78 Cal.App.4th 170 2.0...eeeeee. 289 People v. Guzman (1988) 45:°Cal.3d.915 2...nes467 People v. Hamilton (1989) 48 Cal.3d 1142 0.0.ccceects 604 People v. Hamilton (1963) 60 Cal.2d 105 ..........ccc eee eee teen ene eens 643 People v. Hardy (1992) 2 Cal.4th 86 20...0.eee eee, 133, 139, 141, 526 People v. Harrington (1871) 42 Cal. 165 00.cccees 177, 181 People v. Haskett (1982) 30 Cal.3d 841 2...cccLecce eee 511 People v. Haston (1968) 69 Cal.2d 233 .eee 218 Ixx TABLE OF AUTHORITIES Pages People v. Hatchett (1944) 63 Cal.App.2d 144 2...eeeeee 416 People v. Hawthorne (1992) 4 Cal.4th 43 ....... Lc cee eee c eee eee ee eee nes passim People v. Hayes (1999) 21] Cal4th 1211 2...eeeens 466 People v. Hayes (1990) 52 Cal.3d 577 2.0...eeeeee 559, 584, 607, 643 People v. Heard (2003) 31 Cal.4th 946 2...eeeeee 467, 468 People v. Hefner (1981) 127 Cal.App.3d 88 20... eeeeetee 389 People v. Hensling (1962) 205 Cal.App.2d 34 2...eeeences 368 People v. Hernandez (1991) 235 Cal.App.3d 674 2...eccee eee eee 113 People v. Hernandez. (1974) 43 CalApp.3d 581 2.2... 02.tees339 People v.Hernandez (1988) 47 Cal.3d 315 00.cette eee 370 People v. Hill (1992) 3 Cal.4th 959 oocee160, 642 People v. Hillery (1967) 65 Cal.2d 795 21.cecenen nee 187 Ixxi TABLE OF AUTHORITIES Pages People v. Hillhouse . (2002) 27 Cal.4th 469...cccee ee es 638 People v. Hines (1997) 15 Cal4th 997 20ceceeee 310 People v. Hogue (1991) 228 Cal_App.3d 1500 .........eee n eee eee teen neces 389 People v. Holt (1984) 37 Cal.3d 436 2...eceee eee 643 People v. Hoover (1974) 12 Cal.3d 875 20.ceeeens 368 People v. Howard (1992) 1 Cal.4th 1132 2...eeeeee 648 People v. Huber (1986) 181 Cal.App.3d 601 2.2.2... eee eee eee 216, 253 People v. Hughes (2002) 27 Cal.4th 287 .....ecccccec eee e en ees 216 People v. Hughey _ (1987) 194 Cal.App.3d 1383 ...... bee eee ee eee ee ees 289 People v. Isenor (1971) 17 CalApp.3d 324 2...Lees132 People v. Jackson (1980) 28 Cal.3d 264 2...eccece eee 622 People v. Jackson (1996) 13 Cal.4th 1164 2...eeeeee eens 632 Ixxil TABLE OF AUTHORITIES Pages People v. James (1976) 56 Cal.App.3d 876 .......ee ec eee eee e eee 413 People v. Jennings (1991) 53 Cal.3d 334 ...... Lene eee ee eee eet e nee e eee 406 People v. Johnson (1980) 26 Cal.3d 557 ..........000.. weet eenstte ee tenes 369, 497 People v. Johnson (1993) 6 Cal4th 1 oo.eeeee 439, 516, 602 People v. Johnson (1989) 47 Cal.3d 1194... 0eee.Lene eee ee ee ees 133 People v. Johnson . (1991) 233 Cal.App.3d 425 ...............00... seen eee 260, 262, 267 People v. Johnson (1992) 3 Cal.4th 1183 2.eeeee eens 286 People v. Jones (1981) 125 Cal.App.3d 298 0... cece cece cece cece nee e nee e ees 647 People v. Kainzrants (1996) 45 Cal.App.4th 1068 2.0.0... ceeeee, 407 People v. Kaurish (1990) 52 Cal.3d 648 2...ceeeee 468, 521 People v. Keenan (1988) 46 Cal.3d 478 200ceceeens 132 xxii TABLE OF AUTHORITIES Pages People v. Keener (1983) 148 CalApp.3d 73 2... 0ceceteens 333 People v. Kelley. (1980) 113 Cal.App.3d 1005 2.0...cece 581 People v. Killebrew (2003) 103 Cal.App.4th 644 ............ Le eee eens 296, 297, 298 People v. Kimball (1936) 5 Cal.2d 608 2...cette ene eee 187 _ People v. Kipp (1998) 18 Cal.4th 349 22.2.2...Lecce eee neeLecce 215,217 | People v. Kraft (2000) 23 Cal.4th 978 ...............0..eeLene 505 People v. Lavergne (1971) 4 Cal.3d 735 .......2....... Lecce eee eee ee eee eens 215 People v. Lee (1987) 43 Cal.3d 666 2... eeeeee eee eee eee... 400 Peoplev. Lepe (1985) 164 Cal.App.3d 685 2.0...0ceee 114 People v. Lewis (1963) 22 CalApp.2d 136 2.0...eeeeee 368 People v. Lewis (2001) 26 Cal.4th 334 2...ceeee 383, 414, 524 People v. Lewis (1952) 113 Cal.App.2d 468 . 00. eee eee cece eee eee ee 365 Ixxiv TABLE OF AUTHORITIES Pages — People v. Lines (1997) 15 Cal.4th 997 2...ceeteens 598 People v. Linkenauger (1995) 32 Cal.App.4th 1603 2.0... eeeeeeee 388 People v. Livaditis (1992) 2 Cal.4th 759 2.ceete eee 276 People v. Loomis (1938) 27 Cal.App.2d 236 2.0... ceeeeeeee ees 187 People v. Lopez (1984) 155 CaLApp.3d 813 0.0... 2eeeteens 113 People v. Love (1960) 53 Cal.2d 843 20...eeeene 303 People v. Lyons (1956) 47 Cal.2d 311 0...eeeeeeeden eee 124 People v. Malone (1947) 82 Cal.App.2d 54 2...beeen371 People v. Mar (2002) 28 Cal.4th 1201 22.00.02... eee eee 183, 184, 185, 187 People v. Marsh (1985) 175 CalApp.3d 987 0.0...eeeee 303 People v. Marshall . (1996) 13 Cal.4th 799 22...ccceee 376, 383, 439 People v. Martin (1986) 42 Cal.3d 437 00.cccect e eens 606 Ixxv TABLE OF AUTHORITIES Pages People v. Martin . (1954) 128 Cal.App.2d 724 oo.ceceees 379 People v. Martinez (1982) 132 Cal.App.3d 119 ........ 0.0.0.2 eee eee eee e 374 People v. Massie (1967) 66 Cal.2d 899 1...eee ee 132, 134, 139, 141 ' People v. Mata _ (1955) 33 Cal.App.2d 18 2.2...eeeeee 423, 438, 581 People v. McRae . (1947) 31 Cal.2d 184 2...ceceneces 363 People v. Medina (1995) 11 Cal.4th 694 2.20.eeeene 217, 567 People v. Memro (1985) 38 Cal.3d 658 0...ceeene nee 370 People v. Mendoza (2000) 24 Cal.4th 130 2.0...eee 133, 149, 150, 151 People v. Merritt (1993) 19 Cal-App.4th 1573 2.2...ee eee 122, 126, 127 People v. Mesa (1975) 14 Cal.3d 466 2.ccceen eae 339 People v. Mickey (1991) 54 Cal.3d 612 20...ceetenes 505 Ixxvi TABLE OF AUTHORITIES Pages People v. Miller . (1990) 50 Cal.3d 954 ......Deen eee ee teen eee eens 200 People v. Milner (1988) 45 Cal.3d 227 0...cccnee ee 577 People v. Mincey (1992) 2 Cal.4th 408 .. 0.eceeeens 415 People v. Miranda (1987) 44 Cal.3d 57 ......ence tence tee eee ene e ene nes 369 People v. Miron (1989) 210 CalApp.3d 580 2.0...eeeeee Leena 295 People v. Mitchell (1969) 1 CalApp.3d 35 2.1...eteteen ee 156 People v. Montiel (1993) 5 Cal.4th 877 ......cece nec e eee eee ee eee es 603 People v. Montoya (1994) 7 Cal.4th 1027 2...cenceeee 385 People v. Moore (1954) 43 Cal.2d 517 2...eee eee 423, 581, 582, 583 People v. Morris (1991) 53 Cal.3d 152 0...eecece 154, 521 People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193 00... ccc ccc eects 107 People v. Murphy (1963) 59 Cal.2d 818 ...........beeen e eee en ene eee teen eens 215 Ixxvil TABLE OF AUTHORITIES Pages People v. Murtishaw (1989) 48 Cal.3d 1001 0...ceceees 390 People v. Nakahara (2003) 30 Cal.4th 705 2...ceceene nes 415 People v. Navarette. (2003) 30 Cal.4th 458... eeeeee eee eee 308 People v. Nieto Benitez . (1992) 4 Cal.4th 91 o.oo.eeebeeen eee 415 People v. Noguera (1992) 4 Cal4th 599 ooceceeee 405 People v. Nottingham (1985) 172 Cal.App.3d 484 2.00...eeeee eee 218 People v. O'Bryan . (1913) 165 Cal. 55 22.ccceeeee eens 459 People v. Ochoa . (2001) 26 Cal.4th 398 oo.eeeee eee 414, 524 People v. Ochoa (1994) 6 Cal.4th 1199 22.ceeeee 370 People v. Ochoa (1998) 19 Cal.4th 3532cce eee 530, 533 People v. Olivas (1976) 17 Cal.3d 236 0.0...eeeesene eeees 609 People v. Osband (1996) 13 Cal.4th 622 2...cceee eee 519 - Ixxviii TABLE OF AUTHORITIES Pages People v. Otis (1959) 174 Cal.App.2d 119 2...eeeeee 368 People v. Paulson (1990) 216 Cal.App.3d 1480 2.0...eeeeeeee 321 People v. Pearch (1991) 229 Cal.App.3d 1282 ........eee cece ee eee eee eee ees 289 People v. Perkins (2003) 109 Cal.App.4th 1562 2.0...eeeees 314 People v. Petro (1936) 13 Cal.App.2d 245 2.0...eeeeee 368 People v. Phillips (1985) 41 Cal.3d 29 2...ccteen ee 497, 592 People v. Pierce (1979) 24 Cal.3d 199 2... eee eee eee Leck n eee eee ees 309 People v. Pinholster . (1992) 1 Cal.4th 86521.Lees 530 People v. Pitts (1990) 223 Cal.App.3d 606 .... 0.0... cece eee ee 386, 613, 614 People v. Poggi (1988) 45 Cal.3d 306 2...ccccece net e eens .. 288 People v. Poulin (1972) 27 Cal.App.3d 54 ...... eee eee enter eens 215 People v. Prettyman (1996) 14 Cal.4th 248 200cecetenes 365 Ixxix TABLE OF AUTHORITIES Pages People v. Prieto (2003) 30 Cal.4th 226 2...cette passim People v. Ramey (1976) 16 Cal.3d 263 ..... Leen eee ene cent nen eee eens 333 People v. Ramirez (1979) 25 Cal.3d 260 2.0... eee ee eeeste eee aee 380 People v. Ramos (1997) 15 Cal.4th 1133 2...eeee eee 154, 275 People v. Rice (1976) 59 Cal.App.3d 998 .........2.0..022005- Lee eee eee 423, 581 People v. Riel (2000) 22 Cal.4th 1153 2...ceceeee 405 People v. Rigney (1961) 55 Cal.2d 236 2...eeetenes 314 People v. Rincon-Pineda (1975) 14 Cal.3d 864 2...eeeeee cen e eee 505 People v. Rivera (1985) 41 Cal.3d 388 2...eeeeee eee 217 | People v. Rivers (1993) 20 CalApp.4th 1040 2.0...eeeee 401 People v. Robertson (1982) 33 Cal.3d 21 2...eceeee eee 497 People v. Robinson (1964) 61 Cal.2d 373 ..........ccc ence eee e eee eens 364 Ixxx TABLE OF AUTHORITIES Pages People v. Robles . (1970) 2 Cal.3d 205 2...cccteens 169 People v. Roder (1983) 33 Cal.3d 491 20...eeeeee 392, 395, 407, 410 People v. Rodriguez (1977) 68 CalApp.3d 874 oo.eee216 People v. Roman | (1991) 227 CalApp.3d 674 2.0...eeeeee eee 321 People v. Roybal (1998) 19 Cal.4th 4812cece eee 288 People v. Ruiz (1998) 62 Cal.App.4th 234 2...eeeees 232 People v. Ruscoe (1976) 54 CalApp.3d 1005 2.0... eeeeeeeee 371 People v. Saddler (1979) 24 Cal.3d 671 22...eeeeens 386 People v. Salas (1975) 51 CalApp.3d 151 22.0.2... eeeeee 399, 401, 406 People v. Sam . (1969) 71 Cal.2d 194 2...ene286, 592 People v. Sanchez (1997) 58 Cal.App.4th 1435 2..... 232 People v. Sanders (1995) 11 Cal.4th 475 2... 2...cence eens 414, 505, 512 IXxXxi TABLE OF AUTHORITIES Pages People v. Sarazzawski (1945) 27 Cal.2d 7 oocccnt e nent e nes 654 People v. Scheid (1997) 16 Cal.4th ] oo.eeeene en nes 306 People v. Sears (1970) 2 Cal.3d 180 2...ccccee eee 505, 511 People v. Seaton ' (2001) 26 Cal.4th 598 ..........eeeeee eens 650 People v. Sergill (1982) 138 Cal.App.3d 34 0...eeeeects 295 People v. Serrato (1965) 238 CalApp.2d 112 22...ceeees 647 People v. Shaw (1941) 17 Cal.2d 778 2...ceceeee eens 372 People v. Simon (1986) 184 Cal.App.3d 125.0... cee cee eee eee e cece ee ees 382, 383, 389 People v. Slocum (1975) 52 Cal.App.3d 867 ... 00.0.2ceceteens 160 People v. Smith (1976) 17 Cal.3d 845 2...eccece eee ee,. 338 People v. Smithey (1999) 20 Cal.4th 936 0... eecece teens 213, 530 People v. Snow (2003) 30 Cal.4th 43 2...eeeeeeee 545, 548 IXxxii TABLE OF AUTHORITIES Pages People v. Solis. (1993) 20 Cal.App.4th 264 0.0... ceceeens 365 People v. Stabler (1962) 202 Cal.App.2d 862 ...............5. Lecce elec ences 187 People v. Stanley . (1995) 10 Cal.4th 764 2 oe... ee eee ee eee cece cece ee eee D4] People v. Staten (2000) 24 Cal.4th 434 2...ceceeens 306 People v. Stewart (2004) 33 Cal.4th 425 20...eeeee 407, 468, 469 People v. Sully — C1991) 53 Cal.3d 1195 2...eeeene eee eee 217 People v. Superior Court - (1967) 67 Cal.2d 929 1...cenceeee 447 People v. Superior Court (Alvarez) . (1997) 14 Cal.4th 968 2.2...ceeeee 455, 456 People y. Superior Court (Greer) (1977) 19 Cal.3d 255 1.0.0... 2.2 eeebcc e eee e eens 107 People v. Superior Court (Mitchell) | (1993) 5 Cal.4th 1229 2.0...cette eens 559 People vy. Swearington (1977) 71 CalApp.3d 935 0.0... ccccece eens 386 People v. Szeto (1981) 29 Cal.3d 20 2...nte nen eens 372 xxx TABLE OF AUTHORITIES Pages People v. Talle (1952) 111 Cal.App.2d 650 2.0...cece nn ees 124 People v. Tatman (1993) 20 CalApp.4th boo...eens366, 369 © People v. Taylor (1990) 52 Cal.3d 719 2...neecee nes 564 People v. Taylor (2002) 26 Cal.4th 1155 2.ceeene ee 598 People v. Terry (1964) 61 Cal.2d 137 20.ceceeee 518, 522 People v. Terry (1970) 2 Cal.3d 362 2...eeceecece eee eens 365 People v. Tewksbury . (1976) 15 Cal.3d 953 2.0ccccece tne es 363 People v. Thomas . (1990) 218 Cal.App.3d 1477 0...ccceee eens 442 People v. Thomas (1992) 2 Cal.4th 489 .2.cceens 163 People v. Thomas (1997) 19 Cal.3d 630 ..............eeet tenet eeeee 555 People v. Thompkins (1987) 195 Cal.App.3d 244 2.0...eecteee 521 People v. Thompson (1980) 27 Cal.3d 303 2.0... eee eee eeeeee eee eee 215, 370 IxxxiIv TABLE OF AUTHORITIES Pages People v. Thompson (1988) 45 Cal.3d 86 22...eeeeens 522 People v. Thornton (1974) 11 Cal.3d 738 2...ccteens 216 People v. Torres (1995) 33 Cal.App.4th 37 2.0.0... eee.ee291 People v. Tuilaepa . (1992) 4 Cal.4th 569 2...ceeeee 504, 650 People v. Turner (1984) 37 Cal.3d 302 2...ceeee eee 133 People v. Turner (1990) 50 Cal.3d 668 ...........cece eee eee eee eee ene ee 403 People v. Valdez (1997) 58 Cal.App.4th 494 22.eeee296 People v. Valerio (1970) 13 Cal.App.3d 912 2...eeeee 366 People v. Vanegas (2004) 115 Cal.App.4th 592 2...eeeee 501 People v. Vasquez (2004) 122 Cal.App.4th 1027 2.2...ceeeee 114 People v. Vasquez (1972) 29 Cal.App.3d 81...eeeteens 365 People v. Visciotti (1992) 2 Cal4th 1... 0... eeeeee eee e eee eee n eee 632 Ixxxv TABLE OF AUTHORITIES Pages People v, Waidla (2000) 22 Cal.4th 690 2...cetteees 453 People v. Watson (1956) 46 Cal.2d 818 2...cee eee 192, 198, 388, 633 People v. Weaver (2001) 26 Cal.4th 876 2.0...ieeeeee 632 People v. Wein (1977) 69 Cal.App.3d 79 20... eeecee eee nes 216 People v. Westlake (1899) 124 Cal. 452 20.cecenent eens 407 People v. Wheeler (1973) 32 Cal.App.3d 455 2.0...eeeeee eee 139, 566 People v. Whitt (1990) 51 Cal.3d 620.1... 2 eee eee eeecee cece eee 622 People v. Williams (1969) 71 Cal.2d 614 Loleccee eee 405 People v. Williams . (1997) 6 Cal.4th 153 2.eeeeee beeen eee 233 People v. Williams (1971) 22 Cal.App.3d 34 22...teens 641 People v. Willoughby (1985) 164 Cal.App.3d 1054 2...eecee216 People v. Wilson (1996) 3 Cal.4th 926 2.0...ces406, 408 1xxxvi TABLE OF AUTHORITIES Pages People v. Wright (1990) 52 Cal.3d 367 2...eceee eens 497, 622 People v. Wright (1988) 45 Cal.3d 1126 2...cccence 414 People v. Yarber | (1979) 90 Cal.App.3d 895: 2...eeetenes 365 People v. Ybarra — (1991) 233 Cal.App.3d 1353 20...eeeee been ees 330 People v. Zapien (1993) 4 Cal.4th 929 2...eee eee 126, 366, 367, 376 Price v.Superior Court: (2001) 25 Cal.4th 1046 2.0...ceeeee ee 213 Roberts v. City ofPalmdale (1993) 5 Cal.4th 363 2... ceeceeeee eens 265 Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917 .........eee eaecece eee eens 128 Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460 2...ceeees .... 288 Skelton v. Superior Court (1969) 1 Cal.3d 144 .........Beettenets 338 State v. Bobo (Tenn. 1987) 727 S.W.2d 945 2...cccnee 596 IXXXVIL TABLE OF AUTHORITIES Pages State v. Braswell (N.C. 1985) 324 S.E.2d 241 0.centeee 630 State v. Corsaro (1987) 107 N.J. 339 22.eeeeae 445, 446, 448 State v. Damon (N.J. Super. A.D. 1996) 669 A.2d 860 2.0.0... cee eee 195 State v. Dewey (1998) 93 Wash. App. 50... 0... eeeeee ee tee 218 State v. Dixon (Fla. 1973) 283 So.2d 1 oo...ceceeens 537 State v. Huff (1989) 381 S.E.2d 635 2...tenes 630 State v. Kelly (N.C. 1887) 2S.E. 185 2...eeee eens 630 State v. Majors (Kan. 1958) 323 P.2d 917. ........... ween tee eee wee eens 614 | State v. McCormick (Ind. 1979) 397 N.E.2d 276 2...ceee eee 596 State v. Mitchell (S.D. 1992) 491 N.W.2d 4380.0.171 Statev. Paylor (1883) 89 N.C. 539 o.oo.eeeene Leen eee 630 IXxxviii TABLE OF AUTHORITIES Pages State v. Pierre (Utah 1977) 572 P.2d 1338 2...eee 537, 544 State v. Rizzo (2003) 266 Conn. 171 1...ectte eens 558 State v. Simants (Neb. 1977) 250 N.W.2d 881 2.0...eeeeeebees 537 State v. White (Del. 1978) 395 A.2d 1082 2...eceee eens 608 Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155 ...... beeen ence cee nent e nen e eee 297 Trujillo v. Superior Court - (1983) 148 Cal.App.3d 368 2.0.0...cece eee eee 113 Wells Fargo Bank v. Superior Court (2000) 22 Cal.4th 201 2...eeeteens 265° Westbrook v. Milahy (1970) 2 Cal.3d 765 ..........0....eben eee eee eee ences 609 Williams v. Superior Court (1984) 36 Cal.3d 441 oo.cccne een eens 132 Younger v. Superior Court (1978) 77 Cal.App.3d 892 0.0...cceee eee ee 107, 114, 116 IXxxix TABLE OF AUTHORITIES pages -FEDERAL STATUTES U.S. Const., Amends. Accent nee een en ens 340 Sccee eee eens passim Ol neee passim Tice ccc cee cet eet eens passim Beeee eee eee eee ee passim 14 eee eee eee eee eee passim Cal. Const. art §§ 1...eeeeee eee passim |n Lecce eee passim 3ccceee eee n eee 34 axeeeeens passim 16 Loe ccceceects passim passim 24cette ene tence eens 57 Cal. Const. art XII § 6 ........-..0......0.. Lecce nee eee eees 458 Gov. Code, §§ 12550 2.eeeee eee 107 26500 2. cece ccc een eee eens 107 STATUTES 42 Pa. Cons. Stat. Ann. § 9711(c)(1)(iii) (1982) ........... 537, 544, 566 42 Pa. Cons. Stat. Ann. § 9711(h)(3)(i11) (1993) ........... 537, 544, 566 42 Pa. Cons. Stat. Ann. § 9711(c)(1)(iv) (1982) ........... 537, 544, 566 Ala. Code § 13A-5-45(e) (1975) «2.2.2... cee eee eee 537, 543, 544, 566 Ala. Code § 13A-5-53(b)(3) (1982) ............0.. . . 537, 543, 544, 566 Ala. Code §§ 13A-5-46(f), 47(d) (1982) ............ 537, 543, 544, 566 Ala. Stat. Ann. § 921.141(3) (West 1985) .. 00.0.2... 537, 543, 544, 566 Ariz. Rev. Stat. Ann. § 13-703(d) (1989) ................ 537, 544, 566 XC TABLE OF AUTHORITIES pages Ariz. Rev. Stat. Ann. § 13-703(c) (1989) ...............0005. 537, 566 Ariz. Rev. Stat., § 13-703.01(E) (2002) .................. 537, 544, 566 Ark. Code Ann. § 5-4-603 (Michie 1987) ................ 537, 544, 566 Ark. Code Ann. § 5-4-603(a) (Michie 1993) .............. 537, 544, 566 Ark. Code Ann. § 5-4-603(a)(3) (Michie 1991) ........... 537, 544, 566 Cal. Evid. Code, §§ 32 0...ccccece eens 86 210 Loic eee eee eee 213, 253, 310, 612 350 Lecceeect eens 213,219 352eeeLee eee e eee es passim 402 Loccece eee 249, 378 C passim 452 Lee eee cence eee aee 83, 104 453 Llc ccc ee eet eee eens 83, 104 86 102 Lecceeee tees 291, 295 X296 285 0k162 50 295 BOL Lecceeee eee 296 beeen eee n ene eens 296 B05 Llceect ene eeeee 296 911 wc... eee.eee eeees Lecce ences 263, 265 oD263, 267, 269, 272 970 eeeteenseee ences 264 980 Loe eee eee Levees eeeeees passim O81 LLceeeee eee eens 264, 268 O85 Llc ccc eee teenies 264, 267 1040 2.ceeeens 90 L101 Lo. enn passim 1200 2... eeeeeeLeen eens ...274 1230 Lolcece een een eee 278 1235 Leeneee 285, 291 1250 Loecctect ete eee 278 1350 Loeeteen en eee 278 xcl pages 1520 Loecccene teens 561 Cal. Civil Code, § 3513 ............cece nen ene eens 631 Cal. Code of Civil Proc. §§ 170.1 sub. (a)(6)(A) .. 0.2.2.0... 106 _ 170.3 sub. (b)(4) .. 02. ee eee. 106 223 Lccece nee passim Cal. Pen. Code, §§ 31 2...cccens 364 32ccceee ene e nent eens 3 182 subd.(1) ........... Lee cece eee ee ees 366 187(a) occce bee teens 3 190.2Loccet ees540, 547 190.3 Loccee tenes passim 190.4 22... ec eeerere 561 192 (a)(3) 2.eeeeee ees 3 664 26ccccee teens 2-3 686 ...... 2. eee.Lecce cee e cece eee eens 620 686.1 2.eeees .... 620 688 oo.eee 181 Sh620 Ok(2)620 1043 (D)1) 2...cee eee 620 1089 Loleeeeee eee passim 1093 Leneeee 161, 162 1094 Loceee eee eees 162, 521 1096 o ccence en eee 408 1098 Leeene ee eens 131 L111 Lo.eeeeee passim 1127 ..... cece tenn eee te bene eeeeenees 521 1158 (a)...eeeeee eens 566 1160 ............ ecb ect e ee eect eee ees 435 1Co358 o 437, 449 1164 Lo.eee eee eee 435, 437, 449 L170 (C)cece607 TABLE OF AUTHORITIES xcll TABLE OF AUTHORITIES pages 1192.7 (c)Q1) . 0.eeeeee eee 3 1239, subd. (b) .. 0... eee cee eee 1 1424 Loteene passim e285ceceeeens 340 1538.5Loeeens 3 Cal. Stds. Jud. Admin. § 5 oo...eeeeee 505 Colo. Rev. Stat. Ann. § 16-11-103(d) (West 1992) ..... $37, 543, 544, 566 Conn. Gen. Stat. Ann. § 53a-46a(e) (West 1985) ...... $37, 543, 544, 566 Conn: Gen.Stat. Ann. §:53a-46b(b)(3) (West 1993) .... 537, 543, 544, 566 Conn. Gen. Stat. Ann. § 53a-46a(c) (West 1985). ...... $37, 543, 544, 566 Del. Code Ann.tit. 11, § 4209(d)(1)(a) (1992) ....... ..... 537, 543, 566 Del. Code Ann.tit. 11, § 4209(g)(2) (1992) .............. 537, 543, 566 Fam. Code, 300 ......ceeee eee eeee 265 O265 Ga. Code Ann. § 17.110.1C(2) (Michie 1988) ............ 537, 543, 566 Ga. Code Ann. § 17-10-30(c) (Harrison 1990) ............ 537, 543, 566 Ga. Code Ann. § 19.2-264.4(D) (Michie 1990) ............ 537, 543, 566 Ga. Code Ann.§ 19.2-264.4(C) (Michie 1990) ............ 537, 543, 566 Ga. Code Ann. § 17-10-35(c)(3) (Harrison 1990) .......... 537, 543, 566 Ga. Code Crim. Proc. Ann.art. 905.3 (West 1984) ......... 537, 543, 566 Ga. Code Crim. Proc. Ann.art. 905.9.1(1)(c) (West 1984) .. . 537, 543, 566 Ga. Code Crim. Proc. Ann.art. 905.6 (West 1993): ......... 537, 543, 566 Ga. Stat. Ann., § 27-2537(C 0.0... ec eeecceeeeee ee. 537, 543, 566 Idaho Code, § 19-2515(3)(b) (2003) ................0.-. 537, 543, 566 Idaho Code § 19-2515(e) (1987) .. 0... cece eee eee eee 537, 543, 566 Idaho Code § 19-2515(g) (1993) ... 2.2... eee eee eee 537, 543, 566 Idaho Code § 19-2827(c)(3) (1987) .. 0... cee eee eee eee 537, 543, 566 Ml. Ann. Stat. ch. 38, para. 9-1(f) (Smith-Hurd 1992) ....... 537, 543, 566 Ill. Ann.Stat. ch. 38, para. 9-1(g) (Smith-Hurd 1992) ...... 537, 543, 566 Ind. Code Ann. § 35-50-2-9(a), (e) (West 1992) ........... 537, 543, 566 Ky. Rev. Stat. Ann. § 532.025(3) (Michie 1992) ........... 537, 543, 566 Ky. Rev. Stat. Ann. § 532.075(3) (Michie 1985) ........... 537, 543, 566 Louisiana Criminal Codesection 14:89:1................. 537, 543, 566 Md. Ann. Codeart. 27, § 413(d), (f), (g) (1957) .. 22.6.0... 537, 543, 566 XCili TABLE OF AUTHORITIES - pages Md. Ann. Codeart. 27, § 413(i) (1993) .................. 537, 543, 566 Miss. Code Ann. § 99-19-103 (1992) ..............0005. 537, 543, 544 Miss. Code Ann. § 99-19-105(3)(c) (1993) ............0.. 537, 543, 544 Mont. Code Ann. § 46-18-306 (1993) ..............0000. 537, 543, 544 Mont. Code Ann.§ 46-18-310(3) (1993)... 2.0... eee ee ee. 537, 543, 544 N.H. Rev. Stat. Ann. § 630:5(IV) (1992)... .........0.0.. 537, 543,544 © N.M.Stat. Ann. § 31-20A-4(c)(4) (Michie 1990) .......... 537, 543, 544 N.M.Stat. Ann. § 31-20A-3 (Michie 1990) .............. 537, 543, 544 Neb.Rev.Stat., § 29-2520(4)(f) (2002) .............. ... 537, 543, 544 Neb. Rev.Stat. § 29-2522 (1989) ... 0... cece cece ee 537, 543, 544 Nev. Rev. Stat. Ann. § 175.554(3) (Michie 1992).......... 537, 543, 544 Nev. Rev. Stat. Ann. § 177.055(d) (Michie 1992)......... 537, 544, 566 Ohio Rev. Code Ann. § 2929.05(A) (Baldwin 1992) ...... . 537, 544, 566 Ohio Rev. Code § 2929.04 (Page's 1993) ................ 537, 544, 566 Okla. Stat. Ann.tit. 21, § 701.11 (West 1993) ............ 537, 544, 566 S.C. Code Ann. § 16-3-25(C)(3) (Law. Co-op. 1985) ...... . 537, 544, 566 - $.C, Code Ann.§ 16-3-20(C) (Law. Co-op. 1992) ......... 537, 544, 566 S.D. Codified Laws Ann. § 23A-27A-12(3) (1988) ........ 537, 544, 566 S.D. Codified Laws Ann. § 23A-27A-5 (1988) ............ 537, 544, 566 Tenn. Code Ann. § 39-13-204(g) (1993) ..............0.. 537, 544, 566 Tenn. Code Ann. § 39-13-204(f) (1991) ............0.08. 537, 544, 566 Texas Pen. Code §§ 22.07 ... 0.0...eee 537, 544, 566 42.07 Loc ccc cee eee 537, 544, 566 Wash. Rev. Code Ann. § 10.95.060(4) (West 1990). ....... 537, 544, 566 Wash. Rev. Code Ann. § 10.95.060 (West 1990) .......... 537, 544, 566 Wash.Rev. Code Ann.§ 10.95.130(2)(b) (West 1990) ..... 537, 544, 566 Wyo. Stat. § 6-2-102(e) (1988)... 02. eee ee eee 537, 544, 566 JURY INSTRUCTIONS CALJIC Nos. 1.00...cccee eens 397, 398 2.00 occcee een eee eens 414 2.0L ..cccce eee e ee ee es 393, 398, 406, 414 2.02 eens 393, 406, 414 XCIV TABLE OF AUTHORITIES pages 2.03 2c cece eects 399, 411, 417 2.04 occeee n ens 413 2.05 Loc eeeeee 411, 413, 414, 418 2.06 . occ c ccc cece eens 411, 413, 414, 418 2.13 LL eee eee Lecce eee eee eee passim 221ceceeens Leeeeeees 406 2.21. Leeeceeee 397, 401, 403 22Dcceee eee nee 397, 402, 406 2.27 Lecce eee eens 397, 403, 406 2.50 Lecceeee eee eens .. passim 2.50.1 Lice ccc cee eee eens passim 22ceeeens 412, 414, 418, 421 2 Leceects passim 2.90 Loe ec c ee eeee ee ee 1... 393, 406, 408 3.00 eeece ee tenes1... 351 3.01 0.0... eeeSete d cece eet teen eeeees 351 3.02 . 2. eee eee Lecce eee eee eee e eres 352 351 a353, 355, 496 353, 355 BABeee eee eee 353, 355, 372, 373 351 353, 355 3.19eee353, 355 8.20 oo eee eee eee eee eenseee 397 8.80 ..... Lene c enn ence tect n bene neee 518 B.85(d)occeee eee passim apassim 8.88 ...... Lecce eee eee eee een ees passim L751 oeccc eee ee 433, 434, 441, 449 COURT RULES Cal. Rules of Court, Rule Nos. 34.1 (a)(1)((C) ... 2.ee 648 | Se648 XCV TABLE OF AUTHORITIES pages 39.51 (Db)... cee eee eee eee 649 7710 2)561 TEXT AND OTHER AUTHORITIES Accomplices in Federal Court: A Case For Increased Evidentiary Standards (1990) 100 Yale L.J. 785 ............ 363 7 B.E. Witkin, Summary of California Law (9th ed. 1988 & Supp. 1998) §94.........0.. 2 eee 633 Cal. Law Revision Com. com., West’s Ann. Cal. Evid. Code (2004 ed.) foll. § 981 ................. 253, 268 Carter, Maintaining Systemic Integrity in Capital Cases: The Use ofCourt-Appointed Counsel to Present Mitigating Evidence When the Defendant Advocates Death (1987) 55 Tenn.L.Rev. 95.) 2...eetee nen ences 631 Corrigan, On Prosecutorial Ethics (1986) 13 Hastings Const. L.Q.537 ... 0... eeeee ees 108 Eisenberg & Wells, Deadly Confusion: Juror Instructions in Capital Cases (1993) 79 Cornell L. Rev. 1 .................-. 570 GOLDSTEIN, The State and the Accused: Balance ofAdvantage in Criminal Procedure (1960) 69 YALEL.J. 1149 ............. 582 Heydon, The Corroboration ofAccomplices (Eng. ed. 1973) Crim.L.Rev. 264,266; 54 Colum.L.Rev. 219 ................. 363 XCVL TABLE OF AUTHORITIES pages Kirchmeier, Let’s Make a Deal: Waiving the Eighth Amendment By Selecting a Cruel and UnusualPunishment (2000) 32 Conn.L.Rev. 615 20.2...eceee 630 1 McCormick on Evidence (4th ed. 1992) § 190............... 216, 413 McDermott, Substitution ofAlternate Jurors During Deliberations and Implications on the Rights ofLitigants: The Reginald | Denny Trial (1994) 35 B.C. L. Rev. 847... 0... eee eee eae 443 Quigley, Human Rights Defenses in U.S. Courts (1998) 20 Hum. Rts. Q.555 2.ceecee 637 Riesenfeld & Abbot (1991) The Scope ofthe U.S. Senate Control Over the Conclusion and Operation of Treaties, 68 Chi.-Kent L. Rev. 571 2.0... ee eee eee eeene 637 Stevenson, The Ultimate Authority on the Ultimate Punishment: The Requisite Role ofthe Jury in Capital Sentencing (2003) 54 AlaL. Rev. 1091 .......... 0.002.202.2020eee 550 The-Allen Charge: Recurring Problems and Recent Developments (1972) 47 N.Y.U.L.Rev. 296 2...eeeeee 613 The Presumption ofLife: A Starting Pointfor Due Process Analysis ofCapital Sentencing (1984) 94 Yale L.J. 351 ......... 571 Xcvii TABLE OF AUTHORITIES pages Witkin, California Evidence, Presentation at Trial 3, supra, § 78 0.cccces 162, 163, 364, 372 1 Witkin, Cal. Evid. 4th (2000) Circum Evid, § 88 ..............0.. 253 2 Witkin, Cal. Procedure (4" ed. 1997) Courts, §50 et seq. 2.2... eeeeee eee eee eee 314° 6 Witkin & Epstein, Cal. Crim. Law (2d ed. 1989) Trial, § 2875 2.cencenen n eens 438 7 Witkin, Cal. Procedure (4ed. 1997) Trial, §254 etseq. 2.0...eeees tenes 314 XCViil No. $049596 (L.A. Co. Sup. Ct. No. A711739) IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, V. STANLEY BRYANT, LEROY WHEELER, AND DONALD FRANKLIN SMITH Defendants and Appellants. APPELLANT’S OPENING BRIEF STATEMENT OF APPEALABILITY This is an automatic appeal from a verdict and judgmentof death. (Pen. Code, § 1239, subd. (b).) | INTRODUCTION In the six years this case was pendingpriorto trial, over a half dozen defendants were added to or subtracted from this case; charges of conspiracy to distribute narcotics for sale were added and severed,the entire Los Angeles County District Attorney’s office was recused from prosecuting the case and then reinstated when the Court of Appeal reversed the trial court’s recusal order. The myriad issues of error argued herein stem in large part from prosecutorial overzealousness. In its efforts to secure a capital conviction against appellant, the prosecution sought to fabricate evidence that appellant wasa shooter, and then, when it became clear that this tainted evidence would not be admitted attrial, the prosecution successfully sought to introduce irrelevant and prejudicial - evidence, amounting figuratively to “throwing in everything but the kitchen sink.” The trial court not only erroneously acquiesced to the prosecution’s demands, but it imposed security measures so severethat appellant was enveloped in an aura of guilt from the start of trial to its conclusion. In the end, appellant was convicted by the testimonyof two men whoparticipated , in the homicides and whofalsely cast blame on appellant in.a successful effort to save themselves. Such a conviction and death sentence cannot stand. STATEMENT OF THE CASE By amendedinformation dated December 21, 1994, appellant and _ codefendants Jon Settle, LeRoy Wheeler and Donald Smith were charged | with four counts of first degree murder (Pen. Code, §187, subd. (a) [counts 1 through 4]) and one count of attempted murder.’ (Pen. Code, § 664/187, ' In the six years from the date of the homicides to thefiling of this amendedinformation, a plethora of informations were filed against appellant and various other one-time codefendants in this case. (See, e.g., CT 3-13, 1682-1691, 2307-2318, 4744-4756, 4780-4788, 4789-4798, 4799-4816, 4846-4858, 4885-4897, 4911-4923, 4924-4930, 4944-4945, 4946-4954, 5102-5113, 5127-5139.) Since well over 100 witnesses testified in the instanttrial, and since the instant record contains transcripts from several different preliminary hearings, appellant believes it would assist the court to list those who wereat one time codefendantsin this case. Theoriginal information charged appellant, coappellant Wheeler, Levi Slack, James Williams, Tannis Bryant Curry (appellant’s ex-wife) and Anthony Arceneaux with four counts of murder and one count of attempted (continued...) subd. (a) [count 5].) A multiple murderspecial circumstance wasalso alleged as to counts 1-4. (Pen. Code, § 192, subd. (a)(3).) It was further | alleged that counts 1-4 were serious felonies within the meaning of Penal Code section 1192.7, subdivision (c)(1).? (1 SUPP CT 832-835.) Appellant pled not guilty and denied the charges. (CT 5721, 5734.) Appellant’s Penal Code section 1538.5 motions to suppress were denied by anearlier trial court on August3, 1992. (CT 10749-10750.) '(...continued) murder; Antonio Johnson was also named as a defendant and was charged with being an accessory after the fact (Pen. Code, § 32). (CT 3-13.) Eventually, the Settle brothers Andrew, William and Jon were added as defendants in this case, as was coappellant Smith; only codefendantSettle and coappellant Smith were capitally charged. Other one-time non-capital codefendants included Lamont Gillon, Provine McCloria and Nash Newbill. The cases of the non-capital defendants were severed from the capitally charged defendants on August 3, 1992. (CT 10749-10750.) * Appellant was not formally arraigned on this Amended Information. In his first arraignment in the superior court in March, 1989, he pled not guilty to the murder and attempted murder charges, and denied the special circumstance allegation referenced above. As previously noted, in the following years, numerous amended informations werefiled, containing additional charges and additional codefendants. On December 21, 1994, the tnal court ruled appellant didnot have to re-arraigned on the charges in the Amended Information. (/bid.) > “CT”refers to the Clerk’s Transcript on Appeal, i.e., the original 59 volumes of CT provided to appellant and “SUPP CT”refers to one of eight Clerk’s Supplements, some which contain multiple volumes. For example,the first set of supplemental CT contains 24 volumes,andis designated “1 SUPP CT”herein. The rest of the supplements are designated 2 SUPP CT through 8 SUPP CTrespectively. 3 _ On November 10, 1994, Settle’s request for self-representation was granted. (CT 13756, 13743-13744; RT 6071-6088.)* Thereafter appellant’s counsel moved to sever appellant’s case from that of his codefendants. (CT 14157-14159, 14263.) Several times duringtrial, appellants counsel unsuccessfully renewed appellant’s motion to sever his case from that of codefendant Settle. (RT 6342-6343, 6379-6382, 7837-7838, 14675-14676, 15471-15472, 15543, 16634-16635.)° . On January 24, 1995,the trial court, on its own motion and over appellant’s objection, ordered that all defendants wear a stun belt throughoutthe trial proceedings. (CT 14396-14397; RT 6200-6202, 6344- 6377.) | | Jury selection began on January 25, 1995; the jury was sworn on February2, 1995. (CT 14398, 14429.) The jury began deliberations on May 11, 1995. (CT 15206.) On May17, 1995, over defense objection, the court took a partial verdict from the jury prior to the discharge of a | deliberating juror because of a medical condition; the jury found appellant guilty of first degree murder on counts 3 and 4. (CT 15280-15281.) Following the verdict on that same date, the juror was excused over defense objection and replaced by an alternate juror. (Jbid.) Another juror was excused, over defense objection, during guilt phase deliberations on May 23, 1995. (CT 15290.) | On June 8, 1995,the jury returned verdicts, dated May24 and May 25, of guilt as to appellant on counts 1, 2 and 5 and found the multiple * “RT” refers to the Reporter’s Transcript on Appeal. “RCRT” refers to the Record Correction Reporter’s Transcript on Appeal, which is paginated separately. > These motionsto severare not reflected in the CT. 4 - murder special circumstance true. (CT 15248-15281, 15409-15437.) Coappellant Wheeler was also found guilty as charged, and the multiple murderspecial circumstance was found true. (/bid.) Coappellant Smith was found guilty of second degree murder on counts | and 2 and with _regard to count5, there wasno finding of premeditation; he was otherwise found guilty as charged, and the multiple murder special circumstance finding was found true. (Ibid.) The jury continued deliberationsrelating to codefendantSettle’s guilt until June 14, 1995, when the court found the jury hopelessly deadlocked and declared a mistrial as to all counts relating to codefendant Settle. (CT 15570-15571.)° The penalty phase began on June 21, 1995. (CT 15601-15602.) Jury deliberations began on July 7, 1995. (CT 15778.) On July 14, 1995, the jury returned a verdict of death as to coappellant Wheeler. (CT 15793- 15794.) On July 24, 1995,the jury retuned a verdict sentencing appellant and coappellant Smith to death. (CT 15857-15659.) On August 8, 1995, appellant filed a motion for a new trial. (CT 15884-15900.) On October 19, 1995, the trial court considered appellant’s motion for a newtrial and the automatic motion for modification of sentence and denied both motions. The trial court sentenced appellant to death on counts 1-4, imposed andstayed a life sentence on count 5 and . imposed and stayed a restitution fine of $50,000. | On the People's motion, © On January 9, 1996, Jon Settle pled guilty to four counts of voluntary manslaughter and one count of attempted murder. Settle admitted a use allegation under section 12022.5. (CT 16171.) On January 31, 1996, Settle was sentencedto state prison for a term of 21 year, 4 months. (CT 16179, 16233; 1 SUPP CT 7108; 4 SUPP CT 143.) 5 all remaining severed counts were dismissedin theinterests ofjustice. Coappellants Wheeler and Smith were also sentenced to death on the same date. (CT 16128-16139, 16235-16254.) | _ STATEMENT OF FACTS A. Guilt Phase - The Prosecution’s Case In Chief | 1. | Crime Scene Evidence And Coroner’s Testimony After some shots werefired at about 5 p.m. on August 28, 1988, neighbors of 11442 Wheeler Avenue (“the Wheeler house’) in Lake View Terrace saw tall, thin, young Black man with very short hair run from the Wheeler house toward a small red car parked on the street; he waswearing gloves and carrying a shotgun. (RT 8435-8445, 8467, 8475, 8500-8504; 11847-11852.) He started shooting from the sidewalk into the passenger seat of the car. (RT 8438-8439, 8444-8445.) After he stopped shooting, he _ ran to the driver’s door, attempted unsuccessfully to open it, shot out the window,pulled up the lock, got into the car and drove away. (RT 8445.) Neighbors also saw a white El Camino with a burgundy top parked on thestreet at aboutthe time of, or shortly after, the shooting. They saw a heavy Black manin his forties get out of the car, go into the house, come out with some packages underhis arm, put them inthe car, and drive off in the same direction as the red car. (RT 8447-8448, 8507-8508A.) | Neighbors further saw what was alternately described as a an older blue, green or blue-green car coming out of the garage of the Wheeler house. Oneof the neighborstestified that the car came out of the garage headlights first, and had two peoplein the front seats and two people seemingly propped up against each otherin the rear seats. (RT 8450, 8493, 8508A-8510A, 8512A, 8513, 11852-11855, 11893-11894, 14898.) The green car drove in the opposite direction of the red car. (RT 8512, 11852- 11855, 11893-11894.) | One neighbor reportedthat, as the red car drove by her house, she got a good lookat the driver; in court, this neighbor first identified the driver of the red car from a set of photographs, selecting a photograph of coappellant Wheeler as thedriver; however, she then pointed to appellant as that person.’ (RT 11863, 11865-11867, 11893.) The other neighbors did not identify any of the defendants as being the persons they saw. (RT 8467, 8513.) Noneof the neighbors saw anyoneelse in the yard at the house, nor did they see anyone backinginto the driveway or walking from the garage area of the house downthe street. (RT 8481-8282, 8528.) _ Sometime after 5:00 p.m., residents in the area of 11311 Osborne Street in Lake View Terrace found two children and a womanin the back seat of a red car, covered with shattered glass and blood. (RT 8567-8571.) The boy was seat-belted into the passenger side back seat, and the girl was seat-belted in behind the driver. The woman wasonthe floor. (RT 8572.) Whenone of the neighbors screamed, the boy woke up and started crying. The boy was taken from the car alive but bleeding from cutsand scratches, but the females in the car were dead. (RT 8573-8585.) ' Los Angeles Police Department (“LAPD”’) Officer Lynn Blees and his partner werethefirst police officers to respond to the scene of the shootingat 11442 Wheeler, arriving at about 5:10 p.m. (RT 8532-8533.) ’ This same neighborsaid that after the homicides, while the neighbors were milling about outside, a boy pointed her out to a man by the name of Provine McCloria. (RT 11871-11874, 11910-11911, 11940- 11941.) He found shattered glass in the street where a neighborsaid the red car had been (RT 8535) and a large pool of blood on the walkway going up to the front door of the house. (RT 8537.) He also saw what appeared to be someone’sscalp on the metal grating of the front door. (RT8538.) He walked through the outer steel door and tried to enter the inner front door, but it was locked; Officer Blees and his partner then secured the scene pending the arrival of detectives. (RT 8539, 8542.) _ While Officer Blees was waiting at the Wheeler house, he was notified of the crime scene at 11311 Osborne Street. (RT 8542.) His was the first unit there as well, arriving at about 6:00 p.m. He found a red | Toyota Camry with the right rear window blown out; a dead Black female . adult and a dead child were in the car. (RT 8543.) The injured boy had been taken to the hospital. (RT 8546.) Officer Blees directed a unit that arrived to secure the scene. (RT 8546.) . Later inspection of the Wheeler house by LAPD Detective James Vojtecky revealed bloody shoe printsand drag marks in blood from the front door, through the houseand on to the garage floor; a partial shoe print in the garage appearedto reflect the word “Reebok.” (RT 8599, 8501-8603, 14901, 14947.) Two 12 gauge double aught buck magnum shotgun shell casings were foundin the living room on the carpet near the entryway. (RT 8621-8622.) A live round of the same type of shell was found onthe living room floor between the sofa and the couch, and anotherlive round was found on top of the oven in the kitchen. (RT 8622-8623.) An expended 12 gauge casing was found in a trash can in the kitchen, as was a .45 expended shell casing. (RT 8624.) Shot fragments were found in the garage and in the front door area; Detective Vojtecky opinedthat the shot fragments - foundin the garage had come from the same shotthat caused a hole in one _ of the front doors. (RT 8619-8621, 8624-8625.) Double aught buck pellets were also foundin linen closet in the hallway, and Detective Vojtecky opined that a shotgun had been discharged inside the bathroom while someonewassitting on the commode;the pellets then wentthrough the showerdoorinto the linen closet. (RT 8625.) A partial bloody shoe print was found nearthe entryway ofthe kitchen. (RT 8659.) A piece of paper with the name “Tommy”and a phone number was found on a worktable in the living room. (RT 8750-8753.) An identification card and other. personalitems inthe name of Anthony Arceneaux were foundin a desk in one of the bedrooms. (RT 8762-8763.) All the doors and windowsto the Wheeler house were padlocked, with the doors locked from the outside. The only exits were the front door, which consisted ofa series of three locked doors, and the garage door. (RT 8613-8614.) No clothing and only a few dishes were found in the house; there was no foodin the cabinets, and the refrigerator was fairly empty. (RT 8655.) A safe in one of the bedrooms was open and empty. (RT 8600, 8755.) The only paper currency found in the residence were two counterfeit bills in a desk drawer. (RT 8754-8755.) No narcotics were recovered from the Wheeler house. (RT 8755.) On September 1, 1988, two bodies, later identified as Andre Armstrong and James Brown,a.k.a. Tommy Hull,® were found in Lopez Canyon,aboutfive miles from the Wheeler scene. (RT8712, 8740-8741.) § Brown was an escaped convict from Missouri who went by a numberofmonikers. (RT 11572-11574.) Some witnessesattrial testified regarding their dealings with “Tommy Hull.” One witness testified Brown had anotheralias, “Kenneth Wilbon.” (RT 10499-10501.) For the sake of clarity, however, James Brownwill be referred to by his true name herein. 9 Armstrong had his California Department of Correction (“CDC”) identification card andan address book containing, inter alia, the address and phone numberofthe Wheeler house and the names of others later associated with this case, including the name “Stan.” (RT 8746.) An address book wasalso found on Brown’s body, and it contained the address and phone numberof the Wheeler house as well as appellant’s name and hometelephone phone number. (RT 8749-8750, 8754.) Three damaged copperjacketed .38 or .357 caliber rounds were found on the rear floorboard and rear seat of the Camry. (RT 8674.) Fingerprints found on the Camry belonged to Armstrong and Brown. (RT 13310-13311.) James Ribe, M.D. was the Deputy Medical Examiner (“DME”) employed by the Los Angeles County Coroner’s Office who conducted the autopsies of the victims in this case. (RT 8278-8282.) Dr. Ribe determined that the child victim, Chemise English, died from a close-range gunshot wound to the neck (RT 8288) from a large caliber handgun (RT 8299) and that her mother, Loretha Anderson died from multiple shotgun wounds, also shot from close range. (RT 8304.) Anderson also had four handgun wounds to her body. (RT 8304.) Andre Armstrong also died from multiple shotgun wounds, one being a contact or near-contact woundto his head. (RT 8340-8341.) James Brownalso suffered multiple shotgun wounds, one whichblew off a four by five inch part of his scalp. (RT 835 1-8356.) Dr. Ribe further opined that Brown’s shotguns wounds, though serious, were not immediately fatal, and that Brown waskilled by one of two gunshot ~ wounds, of undetermined caliber, to his torso. (RT 8356-8357, 8369-8372.) The scalp specimen found at the scene of the homicides was consistent with the wound in Brown’s head, but not a definite match. (RT 8365-8368.) 10 The bodiesofall three adults showed levels of blood alcohol ranging from _ .03 (Anderson) to .12 (Brown). (RT 8374-8377.) On cross examination, Dr.Ribe admitted that, after meeting with prosecutors of this case prior to codefendantSettle’s grand jury proceedings in 1991, he changedhis testimony from that at the preliminary hearing in this case, downwardly revising his estimates of distances from which some shots were fired and revising upwardly the caliber of the bullet evidenced by the wound to Chemise;he further testified that he had discovered two gunshot woundsto Brownthat he had not seen did not see earlier? (RT 8378-8387, 8407-8411.) On re-direct examination, Dr. Ribe denied that the district attorneys working on the case told him that he should change his opinions aboutcertain details; he said his opinion changedasthe result of reviewing the evidence several times at the request of prosecutors. (RT 8304.) Dr. Ribe added that his lack of experienceat the timeof the homicides, when he had been a DMEforonly three months, as opposed to his experience level at the timeofthis trial, with five years and thousands more autopsies performed,also playeda rolein his revisions,as did the adverse conditions under which the autopsies were performed in 1988. (RT 8403-8404, 9226.) | * In In re Salazar (2003) 3 Cal.Rptr. 262, 264 review granted November25, 2003, No. $119066, the Court of Appeal granted petitioner’s petition based on a violation ofBrady v. Maryland (1963) 373 U.S. 83, 87 committed by the Los Angeles County District Attorney’s office. In that case, the prosecution had “Ribe boxes” containing transcripts and/or autopsy reports from numerousothercases,like Salazar’s, in which Dr. Ribe changedhis opinion;notall of the materials were disclosed to the defense. (3 Cal.Rptr. at pp. 270-276.) The appellate court found that the materials not disclosed were relevant to Dr. Ribe’s credibility, which was material to Salazar’s defense. (3 Cal.Rptr. at pp. 277-278.) 1] 2. The 1982 Shootings Of Ken Gentry And Reynard Goldman By Andre Armstrong The following evidence was admitted for the limited purpose of supporting the prosecution’s theory that there was a connection between Armstrong and Ken Gentry and one or more of the defendants, as well for the purposeofestablishing motive, premeditation and intent in connection with the crimes charged in this case. (RT 8786-8787.) . | a. The Ken Gentry Killing On May 27, 1982, Ken Gentry was found shot to death in the parking lot of the Pierce Street Apartments in Pacoima. (RT 8785-8804. ) Soon after that homicide, two men, Michael Flowers and Winifred Fisher, informed homicide detectives that they and Ken Gentry had purchased bunk cocaine from John Roscoe(“Ross”) Bryant and thentried to get their money back from his sibling, Jeff Bryant.’° WhenJeff Bryant refused, the three vandalized Ross’s van, but were caught in the act by appellant; the three ran off. Shortly after that event, Ken Gentry waskilled. Witness accounts of - the Gentry homicide differed with respect to whether appellant and Jeff | Bryant were at the scene prior to or after the shooting, and whether appellant nodded or pointed in the direction of Gentry before a man driving a Volkswagen Beetle (“VW”) pulled in the parking lot and shot him.!' (RT '® Both Bryants are appellant’s brothers. '' At the instanttrial, several of the witnesses denied makingearlier statements regarding the Ken Gentry homicide; their prior statements, as well as a 1982 statement of a witness who was deceasedat the time ofthe instant trial, were then introduced through the testimony of the law enforcement officers who had taken the statements from the witnesses or by playing a surreptitious recording of the statementto the jury. 12 8828-8863, 8902-8903, 8958, 8985-8999, 9045-9060, 9009-9034, 9148- 9167, 9369-9371; 3 SUPP CT 10581-10600.) Rhonda Miller, one of the residents in the apartment complex attached to the parking lot where Gentry was shot identified Armstrong as the shooter in a police line-up two days after the homicide. (RT 9073, 9090-9094.) A few days after the line-up, two womenMiller did not know personally, Tannis and Rolo, cameto her apartment; she thoughtthat Rolo was Jeff Bryant’s girlfriend, and she found outlater that Tannis was appellant’s girlfriend.’ (RT 9094-9098.) Rolo offered Miller money, saying it was from Jeff, but Miller did not take it. (RT 9099-9102.) Sometimelater, the father of Miller’s children, Alvin Brown, who had been in jail, showedup at her apartment; she was afraid of Brown, who had beaten herup in the past; he called her namesandtold herto take the | moneythat had been offered to her, and she relented. (RT 9100-9103.) When Miller testified at Armstrong’s preliminary hearing, she testified that Armstrong wasnotthe man she had seen in the VW. (RT 9104-9105.) The parties stipulated that on June 6, 1982, Florence Bryant, the mother of appellant and Jeff, bailed out Alvin Brown using a property of 13031 LouvreStreet in Pacoimato secure his bail, and that she did not know who Alvin Brown was when she did so. (RT 9144-9145.) . Ken Gentry’s stepsister, Sofinia Newsome, lived at the Pierce Street apartments. Prior to the shooting, Gentry had told Newsome about the bad dope deal and the subsequent vandalizing of Ross Bryant’s van; sometime '2 Appellant and Tannis Babineaux eventually married. Duringtheir marriage she went by the name Tannis Bryant. After appellant and Tannis divorced, Tannis remarried and was knownatthe time the homicides as well as the time of the instanttrial as Tannis Curry. 13 after being so informed, but before the shooting, Newsome saw appellant at the Pierce Street apartments. (RT 9167-9170A.) b. The Reynard Goldman Shooting The following evidence was admitted for the limited purpose of showing intent and motive of the defendants regarding the instant homicides, (RT 9226.) Reynard Goldmanfirst became addicted to cocaine when he was about 23 years old. (RT 9244.) After Goldmanstarted using cocaine, his friend and co-worker at Lockheed, John Allen, introduced himto Jeff Bryant, and Goldmanstarted buying cocaine from him at a house on Lourve Street. (RT 9246-9248.) Jeff Bryant sometimes gave cocaine to Goldman on credit, and at one point in the spring of 1982 Goldman owed Jeff about $50. (RT 9250-9251.) Jeff Bryant drove by while Goldman wasata: -friend’s house and asked when Goldman was going to pay; Goldmantold Jeff he would bringit by Jeffs house the following Thursday. (RT 9251.) Goldmanwentto Jeff’s housethe following Thursdayto pay, but no one was home. (RT 9252.) Goldmannext saw Jeff a few weekslater. They got into a confrontation about the money and each madethreats to the other. (RT 9252-9253.) On April 23, 1982, about a week after the confrontation, Goldman was walking from his houseto his car to go to work at about 6:30 a.m. whenhe wasshot several times by Armstrong, whohadbeensitting outside of Goldman’s house, smoking marijuana. (RT 9253-9259, 9284-9285.) After the shooting but before the Armstrong’s preliminary hearing, Jeff Bryant’s girlfriend, Rochelle, also known as Rolo, drove up to Goldman’s house. (RT 9261, 9294.) She offered to pay Goldman $5000 not to go to court, but Goldman refused to take the money. (RT 9261-9262, 14 9299.) Goldman further testified that he knew Rhonda Miller, and she told him in court in July, 1982, that she received a car and moneyfor not testifying about the Gentry shooting. (RT 9262-9263, 9295.) After he was shot, Goldman bought drugs from the same people he had bought from before. (RT 9266.) He sometimes found out where drugs could be bought from people in Neighborhood Billiards on Van Nuys Boulevard. (RT 9266-9267, 9297.) Goldman saw codefendantSettle in the pool hall a couple of times, and he bought drugs from codefendant Settle at Settle’s house a couple of times. (RT 9267-9268, 9279-9280.) A dayprior to his testimonyin the instantcase, Goldman wasvisited by Kenny Reaux andJohnny Fisher (the brother of Winifred), whom he — knew from growing up in the neighborhood, and whotried to discourage him from testifying. (RT 9263-9265.) Neither told Goldman not to testify, however, and neither offered him money in exchangefor his silence. (RT 9307.) . On June 22, 1982, Detective Tucker interviewed JohnEric Allen in connection with the Goldman shooting. (RT 9337-9339.) Allen told Tuckerthat, prior to the Goldman shooting, appellant approached Allen in Fillmore Park and hold him that if Goldman did not pay appellant’s brother $50, his brother was goingto get violent.'? (RT 9340.) 3 Allen told one of the prosecutors that he would nottestify in the instant case because he “liked living.” Attrial, Allen denied makingthat statement anddenied telling Officer Tucker aboutthe threat in Fillmore Park. (RT 9228-9233, 9337-9339, 9348-9350.) 15 c. The Prosecution And Conviction Of Andre Armstrong For The Shootings Of Ken Gentry And Reynard Goldman On June 15, 1982, Armstrong was arrestedfor the Gentry shooting _after leaving the residence of Wilbert Babineaux, Sr.'* while driving away from that home on a motorcycle that police had previously seen appellant driving. (RT 9324-9330.) Armstrong had $13 on his personat the time of his arrest. (RT 9335.) When hewasarrested, Armstrong wasliving in his 1970 Cadillac parked in a parking lot under a building. (RT 8813-8814.) Live ammunition found in the Cadillac were of the same type, caliber and brand as casings found atthe scene of the Gentry homicide. (RT 9358.) A VW that had been reported stolen, and that matched the description of one driven by the man whoshot Gentry was found in the same parking lot, with its ignition removed. (RT 9354-9355.) The Gentry homicide and the Goldman shooting were charged concurrently in the same prosecution. (RT 9337.) Three people were originally charged as defendants: Jeff Bryant, Armstrong and appellant. (RT 9337.) In the instanttrial, the parties stipulated that appellant and Jeff Bryantwerearrested for the Gentry homicide on June 18, 1982, and that the preliminary hearing of against the three defendants began on July 21, 1982. (RT 9144.) The charges against appellant and Jeff Bryant were dismissed prior to trial. (RT 9344.) The parties stipulated that on May 20, 1983, Armstrong was convicted of the first degree murder of Gentry and that on May 23, 1983, Armstrong was convicted of assault with a deadly weapon on Goldman. (RT 9386.) It was further stipulated that Armstrong was: sentencedto state 4 This is Tannis’s father. 16 prison; his convictions were reversed on appeal; he then pled guilty to the voluntary manslaughter of Ken Gentryand wasparoled from Folsom Prison on July 16, 1988'° into the custody of St. Louis law enforcement;andthat he wasreleased from custody in St. Louis on July 21, 1988. (RT 9387- 9390.) . 3. The 1983 Taped Statement Of AndreArmstrong Regarding His Criminal] Activities, Including The Shootings Of Ken Gentry And Reynard Goldman The jury heard audiotaped recording of a taped statement made by Andre Armstrong on July 6, 1983, to LAPD Detective Kevin Harley, who had been assigned to investigate the homicide of Ken Gentry’s father, Charles Gentry, which occurred in North Hollywood on July 3, 1983. (RT 9405-9407.) Detective Harley went to Chino State Prison to interview Armstrong to determine whetherthe twokillings were connected.'® (RT 9407-9408.) Armstrong did not provide Detective Harley with any information regarding the Charles Gentry homicide, but he did talk about his role, and that of appellant and Jeff Bryant, in the Ken Gentry homicide. (RT 9413.) Part of the interview with Armstrong was surreptitiously tape recorded, and that tape was played to the jury. (RT 9413-9417.) According to Armstrong’s taped statement, in 1982,he left St. Louis for southern California, and he met up with Wilbert Babineaux, Sr., with whom Armstrong had workedtransporting drugs from the time that Armstrong was about 12 years old. Babineaux wasn’t a big player, but '5 The record erroneously reflects Armstrong’s release occurredin 1989. '® The prosecution representedin the instanttrial that the Charles and Ken Gentry killings were unrelated to each other. (RT 9411.) 17 rather a middle-man for some people in Inglewood. (3 SUPP CT 10474, 10530-10535.) Babineaux’s son, Wilbert Babineuax, Jr. (“Booby”) introduced Armstrong to the Bryants, who, through Booby, offered Armstrong $45,000 to kill Ken Gentry, Winifred “Foots” Fisher and Michael Flowers. (3 SUPP CT 10478, 10485-10486.) Appellant gave "Armstrong $15,000 in cash, that is, 750 twenty dollarbills, immediately following the Ken Gentry shooting. (3 SUPP CT 10528-10529.) The Bryants also paid Armstrong $2,000 to shoot Reynard Goldman, whom they said owed them moneyfrom the purchase of cocaine. (3 SUPP CT 10475- 10477, 10529.) Armstrong did the shootings because he was desperate, hungry and sleeping in his car. (3 SUPP CT 10475, 10522.) According to Armstrong’s taped statement, the Bryants were too scared to do the shootings themselves, that “that’s just not their game.” (3 SUPP CT 10477-10478.) Armstrong would have killed Ken Gentry for nothing, as a favor to the Babineaux family, but the Bryants wanted to make it a business deal. (3 SUPP CT 10530.) In retrospect, Armstrong believed he should not havekilled Ken Gentry for $15,000 becausehe probably could have gotten $20,000 from Gentry’s father for notkilling him. Atthe time of the Ken Gentry shooting, Armstrong did not know that the Bryants were “lightweights” and that he probably could have gotten $15,000 from them byjust threatening them. (RT 3 SUPP CT 10479, 10488, 10511- 10512, 10543.) Appellant did not point Ken Gentry out to him on the day he shot Gentry; rather, Armstrong had a photograph of Gentry. (3 SUPP CT 10495-10496.) | Armstrong did not know anything about the Charles Genitry’s death. However, he was sure that the Charles and Ken Gentry killings were unrelated and that the Bryants had nothing to do with the former. 18 Armstrong believed Charles Gentry probably was shot over a woman. (3 SUPP CT 10482, 10506-10509, 10516-10517.) Before the Ken Gentry shooting, all Armstrong knew about the Bryants wasthat they sold cocaine. (3 SUPP CT10485.) Armstrong held a grudge against the Bryants for letting him go to trial and get a 28-year sentence when they had told him not to worry about anything because they would take care of the witnesses, that is, pay them off. (3 SUPP CT 10493-10494, 10510, 10519-10520.) Armstrong admitted to police that he had committed about seven homicides. (3 SUPP CT 10492.) Armstrong believed that his way of - thinking was normalto him, because he grew up in an environment whereit was“kill or be killed,” but that to a psychiatrist he was a mental case. (3 SUPP CT 105000.) Armstrong believed that the Bryants owedit to him to take care of his wife and child and that they would have to do so because he was“holdin’ threats on them,”that is, any day he could tell on the Bryants and could have any one of them killed. (3 SUPP CT 10505-10506, 10518- 10519.) It was Armstrong’sintention to bring his people out to California to “squeeze” the Bryants. (3 SUPP CT 10512-10513.) If his appeal was successful, it was “gonna be messy in Pacoima,” meaning that Armstrong was going to take care of the people whotestified against him concerning the Ken Gentry homicide. (3 SUPP CT 10525.) 19 4. Evidence Relating To Narcotic Trafficking By “The Family””’ Numerousnarcotics detectives from the LAPD and the Los Angeles County Sheriff’s Office (““LASO”), as well as current or past drug dealers,"* testified regarding the sale of cocaine in the Pacoima/Lakeview Terrace area in the mid 1980s. Thegist of their testimony was that Jeff Bryant ran a narcotics trafficking organization of over 100 members knownas“the Family” using well-fortified homesto sell his cocaine. Some ofthe homes were used as “count houses,”that is, where people paid for the drugs they wanted after being electronically buzzed into a sally port created by two metal doors; after payment was received and counted, the buyers were - directed to another location where they could pick up the cocaine. In the locations where the cocaine was kept, hot cooking oil was also on handto enable quick destruction of the drugs if necessary. Reported members of the Family included Jeff Bryant, appellant and their brothers Ross and Eli '7 Appellant.uses the term “the Family”to refer to the alleged drug sales organization referred to at trial. In so doing, appellant maintains his role in the sale of narcotics and the make-up of“the Family” is as appellant testified to at trial. '8 Manyofthe current or former drug dealers had made statements to police at various timespriorto the instant trial regarding the sale of cocaine in the San Gabriel Valley in the 1980s, and some of those statements were surreptitiously recorded. Whencalled to testify about those statements in this trial, most denied making someorall of the earlier statements. The content of the earlier statements was then introducedeither through the testimony ofthe officers who took the statements or by playing the tapes for the jury; in manyofthe prior statements the speakers expressed a reluctancetotestify in this case. 20 Bryant,'® coappellant Smith (a.k.a. “Duke”), Edie Barber, Antonio Johnson,”’ Nash “Newt” Newbill, codefendant Settle and his brothers William, Frank and Andrew Settle, William “Amp” Johnson, Darrell . Blaylock, William “Binky” Blaylock, Ladell Player, Billy Fields, Haywood Kemp, Alonzo Douglas Smith, George Smith, Kenny Reaux, Lawrence Walton, Danny Miles, coappellant Wheeler, Lamont Gillon, Provine “Ben” McCloria, and James “Jay”or “Jay Baby” Williams. Some of the homes used in the sale of narcotics were 11442 Wheeler Avenue, 13031 and 13037 Louvre Street, 10731 and 10743 De Haven,”! 12719 Judd Street,” 13239 DesmondStreet, 12707 Dronfield Street, 11236 Adelphia Street, 11649 Fenton Street, 11943Carl Street, and 11516 Vanport Ave.” “Family” drugs were distributed using Neighborhood Billiards, a poolhall owned in part by appellant; public areas such as HansenDam andFillmore Park were also used for drug sales and distribution. (RT 6-7, 93 11, 9536-9538, 9539- — 9555, 9582-9596, 9604-9621, 9628-9706, 9717-9720, 9794, 981 1-9812, 9835, 9873, 9882, 9916-9917, 9945-9955, 9983-9986, 9993-10010, 10054- 10078, 10219-10220; 10235-10291, 10538-10593, 10681-10684, 10688- '° During the time period in issue, Eli Bryant was employed by LASOas a deputy sheriff, assigned to the Men’s Central Jail. (RT 9583, 9599.) 20 It was reported that Antonio Johnson drove a white E] Camino with a burgundy top. (RT 10583.) 21 These were the homesofEli and Jeff Bryant, respectively. (RT 9583.) | *? This wasappellant’s homeat the timeof his arrest in 1988. (RT 4158-4159.) This was the only house owned by appellant. (RT 15279.) > Codefendant Settle owned this house. (RT 10661-10662.) 21 10712, 10792-10841, 10883-10888; 11219-11223; 3 SUPP CT 10468- 10472, 10601-10617.) As a result of a 1985 narcotics investigation, Jeff Bryant pled guilty to operating a house (11442 Wheeler Avenue) where narcotics were dealt and selling or transporting cocaine, and appellant pled guilty to conspiracy | to sell or transport cocaine. (RT 9730.) The overt acts admitted during appellant’s plea included that he: “recruited Kenny Reaux” to work in the rock house that he and Jeff Bryant were running;” offered Reaux $200 per eight hour shift for selling cocaine at 11442 Wheeler Avenue; Reaux had 137 grams of cocaine in his possession at 11442 Wheeler Avenue on March 22, 1985, while working for appellant; and Reaux attempted to destroy the cocaine by putting it into a crock pot containing hot cooking oil. (RT 9730.) Evidence of the various defendants’ roles in narcotics sales during specific periods oftimeprior to the homicides was presented. The evidence of coappellant’s Smith’s role was largely limited to a prior arrest. He was arrested on September 29, 1987, after a high speed car chase through the San Fernando Valley. (RT 10099-10115, 10122-10128.) During the chase, coappellant Smith threw plastic baggies, a white powdery substance and bits of paper from a notebook or address book out the window. (RT 10105, 10124-10125.) A .357 magnum and 18 baggies containing what appeared to be cocaine were found in the passenger compartmentofthecar;the total weight of the substance in the baggies was 271 grams, or about a quarter of akilo. (RT 10112-10114, 10126-10128) Coappellant Smith was under the influence of cocaine at the time of his arrest. (RT 10119, 10124.) With regard to appellant, Alonzo Smith bought cocaine from appellant beginning in 1986, but that he sold the drugs locally as his own 22 boss. (RT 10884-10889.) In 1987, William Anthony “Amp” Johnson sold narcotics for appellant and Jeff Bryant. (RT 9993.) In 1988, Ladell Player negotiated paymentfor cocaine in nine-ounce quantities through appellant, and he paid for those drugs at the Wheeler house. (RT 10234-10237, 10239-10243.) Hayward Kempdistributed cocaine to the Midwest, and he generally obtained the drugs from Ladell Player or Billy Fields; however, in 1988, a -kilo of cocaine was delivered to him by codefendant Settle. (RT 10054- 10065.) oe . According to an unrecorded statement by Lawrence Walton to a police detective, the Bryant Family was made upofthe Bryant and Settle brothers, and appellant was the boss.** (RT 10689, 10691, 10696, 10716- 10717.) Walton sold drugs at roving locations at FillmorePark and Hansen Dam,and when he ran out of drugs Antonio Johnson, Frank Settle or William Settle would replenish his supply. (RT 10584, 10691-10692.) According to statements by George Smith to a police detective, appellant hired Smith to work for the Family in 1986, and appellant and his brother Ross would circle Fillmore Park to keep the competition away. (RT 11214-11217.) When Smith wasarrested in 1987 with a pound of cocaine, appellant got a lawyer for him and Smith had to work to pay appellant back. However,at trial Smith testified that he borrowed the moneyfor a lawyer from Eddie Barber; (RT 10811, 10834, 10865, 10867-10868, 11217- 11218.) According to Smith’s prior statement, in 1988 appellant ran the ** Attrial, Walton deniedor did notrecall making the prior statements. (RT 10550-10566.) 23 operations from the street, but the overall head was Jeff Bryant, who was in custody. (RT 11222.) | _ Regarding codefendantSettle, Smith said that codefendantSettle, whom Smith described as “big time” in the Family, had sold him narcotics on three occasions. (RT 11221, 11255.) While living on thestreets, Rhonda Miller sold drugs and met codefendantSettle through a friend. (RT 9106.) She stayed with her friend at a fortified house on Vanport. (RT . 9106-9108.) Miller became worried that the people at the Vanport house were stealing drugs, and she did not wantto be implicated. She called the number on the kitchen counter for a man named Johnny. (RT 9109-9110.) _ Aman answered the phone andshetold him that people werestealing drugs; Johnny, whom sheidentified as codefendant Settle, later showed up at the house and made everyone leave. (RT 9111-9116.) Miller did not know forcertain that drugs were being sold at the Vanport house. She never bought drugs from codefendantSettle, and after codefendantSettle made them leave that house, she heard that drugs were nolonger being sold there. (RT 9120-9125, 9137-9141.) | On September 19, 1991, Detective Vojtecky interviewed Una Distad.2> (RT 9768-9769.) According to Detective Vojtecky, Distad told him that she was a drug user. She wasintroduced to codefendantSettle by a man named Mickey, who suggested that she have sex with codefendant Settle in exchange for drugs. Distad ended up living with codefendant Settle at the Corcoran Street address for several months. (RT 9770.) She said that Mickey workedat the Vanport houseselling drugs. (RT 9770- 5 Una Distad testified at trial and disputed she made the statement attributed to her by Detective Vojtecky. (RT 9739-9755.) 24 9771.) Codefendant Settle supplied Distad with drugs. On about 20 occasions, he gavehereither an oil or tennis cansfilled with drugsto bring to the Vanport house, and she was paid $1,000-1,500 for each delivery. (RT 9772.) During an interview in the DA’soffice prior to her testimony, Distad told Detective Vojtecky that she did not wantto testify because she had children and that “you can have anybodykilled for $600.” (RT 9768- 9769.) After her testimony, Detective Vojtecky escorted Distad out of the building and she told him that she was sorry she was “an asshole”but they could “prosecute him without me.” (RT 9768.) On February 11, 1988, LAPD Detective David Lambert served a search warrant on a Best Western motel on Sepulveda Boulevard and found codefendant Settle and William Settle in adjoining rooms. (RT 9866-9868.) Evidence seized from William’s car included approximately $3000 found in a briefcase, bound in a fashion commonlyused bythe “Family.” (RT 9868- 9869.) Evidence seized from Una Distad’s car included a small digital scale, two beakers and someziploc baggies. (RT 9869-9871.) No contraband was found in codefendant Settle’s vehicle; codefendantSettle was arrested butreleased prior to booking. (RT 9871, 9932.) Detective Lambert opinedthat at the time of the homicides, codefendant Settle ran the Vanport housefor the “Family.” (RT 9946.) Walton, Player and George Smith also reported that: coappellant Wheelerstarted working for the Family in 1988; appellant treated Wheeler like a brother; and coappellant Wheeler drove a white Audi that he used to transport up to 18 ouncesofrock cocaine at a time, and was armed with a .357 magnum and an Uzi. (RT 10241, 10253, 10259-10260, 10308, 10588- 10589, 10690-10691, 10704, 11219-11220.) 25 5. Armstrong’s Incarceration And His Criminal Activities With James Brown After His Release From Prison In 1988 Francine Smith went to school with the Bryants. (RT 9446-9447.) Jeff Bryant asked her to write to Andre Armstrong while Armstrong wasin Folsom State Prison, and she did so; she also visited him in the county jail a few times.”© (RT 9447-9448, 9463-9464.) Armstrong never told Francine Smith why he wasin prison, and he neversaid that anyone owed him money;hedid tell her that Jeff Bryant would take care of him upon he release from prison. (RT 9453-9457, 9463.) While incarcerated in Folsom prison from 1983 through 1985, Andre Armstrong was sent $1,050 from appellant and $55 from Francine Smith.”” (RT 9475-9489.) In 1988, Angela Armstrong,the sister of Andre Armstrong, received two Western Union moneytransfers, one for $2000 and another for $100, 6 In 1986,appellant paid her $300 to cover her expensesto visit Armstrong while he was in Folsom; instead, Francine used the money to buy drugs from a house on LouvreStreet. (RT 9448-9449.) Later that year she tried to buy drugs at the Louvre Street house with a $10 bill she attempted to alter to look like a $100 bill; she was caught and verbally reprimanded. (RT 9449-9450.) In December, 1986, she was beaten on the head, neck and chest with a billy club with a chain in the middle by someoneshe didn’t know. (RT 9450-9451.) Appellant was standing far away in the parking lot while the beating was occurring. (RT 9451.) After the beating ceased, Francine went to the party and cleaned up. (RT 9452.) She saw appellant about a day or twoafter that, and he told her that she was lucky to be alive, and that they if they hadn’t knownher so well, she’d be dead. (RT 9452-9453, 9462.) Francine said that she never saw appellant with any cocaine and that she never bought anything from him. (RT 9463.) *7 Coincidentally, during this same periodoftime, coappellant Smith, who wasnotrelated to Francine Smith, was approved to correspond with Armstrong. (RT 9588.) 26 from appellant while her brother wasstill in the penitentiary in California. (RT 10517-10525.) Before she received the money,her brother told her that appellant was going to send it and that she was to use the money to pay the bills for his collect telephone calls to her from prison. (RT 10528.) She sent $1000 to Armstrong at Folsom prison, and James Brown picked up the rest of the money. (RT 10528-10530.) MonaScott Walker met Armstrong in 1988 while he was in prison _ and she wasvisiting another inmate. (RT 9492-9493.) Armstrong would write and call her collect. (RT 9493-9495.) At one point the telephonebills becamea problem for her, and she asked Armstrong to stop calling. He told her that a friend owed him and that he would make arrangements for her to get moneyfor her phonebill. (RT 9495.) Armstrong then instructed her to call a phone number and ask for appellant; when shedid so, she was instructed to go to a house on Judd Street for the pick-up. (RT 9495-9496.) Appellant answered the door, invited her in, and gave her about $400 in small bills, contained in a brown bag. (RT 9497-9499.) Later, Walker also received about $2,500 from appellant for traveling to visit Armstrong in prison. (RT 9500-9502.) Armstrong told Walker that he had a close personalfriend from St. Louise named James Brown. (RT 9504-9505.) At Armstrong’s instructions, Walker twice drove Brown from Laurel Canyon to Marina Del Rey. (RT 9506-9507.) Later James Brown called Walker from up north and said he wasliving up there with his girlfriend Loretha and her kids. (RT 9508.) On August 1, 1988, Armstrong called Walker and told her that he had been released from prison and was up north with Brown and that they would be moving back to the San Fernando Valley. (RT 9508.) 27 Armstrong arrived at Walker’s house around August 27th or 28th. (RT 9509-9510.) He said he was with Brown, Loretha and the kids, and | that they were going to find a motel room. (RT 9510.) Walker met the people who were with Armstrong the next dayat lunch; they were in a Ryder moving van. (RT 9511.) Armstrong he told Walker that he was in prison for killing a child molester and that it was murderfor hire. (RT 9514.) | The last time Walker spoke to Armstrong, he sounded anxious and frustrated, as if there was something he wantedto tell her but did not. (RT 9515.) He told‘her he was a “fall guy” for appellant. (RT 9516.) He said that appellant owed him and that appellant had only so muchtime to | produce. (RT 9515.) Shortly after that phone call, Walker learned that Armstrong had been killed. (RT 9518.) | In the summerof 1988, Armstrong’s mother, Delores Armstrong Brown,wasliving in St. Louis. She saw her son once or twice that summer after he had been released from custody. (RT 10511-10512.) ‘Armstrong was staying in St. Louis with his sister, Deborah Marshall. (RT 10513.) In a August 15, 1991 interview, Armstrong Browntold Detective Vojtecky ~ that just before the homicides, Armstrong told her that people in Los Angeles owed him a lot of money and that once he collected the money he was goingto pay for the family house. (RT 10723-10724.) Armstrong’s sister, Deborah Marshall, saw her brother forthe last time in Juneor July of 1988, after he had been released from custodyin St. Louis, Missouri. (RT 10471-10473.) He stayed with her for a few weeks before leaving for California. (RT 10473.) Marshall twice picked up money,totaling $600, wired to him in her name from Antonio Johnson via Western Union. (RT 10465-10467, 10476.) 28 Valerie Wilbon was an ex-girlfriend of James Brown,and after she and Brown broke up, she remained in telephone contact with him through 1988. (RT 10499-10501, 10502-10503.) On March 5, 1988, she received $500 via Western Union from appellant. (RT 10459-10460, 10504.) She wassurprised because Brown hadsaid that he (Brown) was going to send her money, and she did not know appellant. (RT 10505.) Shirley Owens met Brownandhis girlfriend, Janine King,in St. Louis through her son Carmett in March, 1988. (RT 11497-11499.) King asked Owensto pick up some money forher at a Western Union;she said she could not do it herself because she had no identification. (RT 11499.) Owensagreed, and picked up money wired from appellant on several occasions. Owensalso identified her son Carmett’s signature on a receipt showingthat he had picked up $500 wired from appellant.** (RT 11504.) Carmett grew up in St. Louis and wasfriends with Andre Armstrong. (RT 11503.) | | In 1988, at appellant’s request, Alonzo Douglas Smith (norelation to the other Smiths heretofore mentioned) delivered nine ounces of cocaine, which he received from AndrewSettle, to James Brown’s peopleinSt. Louis; some of the drugs were robbed from him uponhisarrival. (RT 10889-10895.) Smith called appellant and told him of the robbery. Appellant was understanding, arranged for Smith to be picked up, and wired him several hundred dollars. (RT 10895-10898.) Smith stayed in St. Louis and sold the remainderof the narcotics, sending the proceeds to appellant. (RT 10899-10901.) When Smith returned to Los Angelesat 8 Carmett Owens was deceased at the timeof the instanttrial. (RT 11504.) 29 James Brown’s request, Smith delivered abouta half kilo of cocaine, thathe received from Andrew Settle, to Brown in Monterey. (RT 10901-10903.) Smith told appellant that he thought that Brown’s people might haveset Smith up to be robbed in St. Louis. (RT 10904.) After Smith wasarrested in March, 1988, on a parole hold, appellant sent money to Smith’s ex-wife, Tonia Buckner Smith. (RT 10906-10908.) Smith had met Brown through appellant, who did not introduce Brownas a Family member.” (RT 10908- 10909.) . Valerie Mitchell met and dated James Brown in March, 1988, while she was living in Marina, California. At the time, Brown wasliving in the Six Pence Inn motel in the same town,and helater moved to an apartment on CarmelStreet. (RT 11366-11369, 11378.) A few weeksafter Mitchell met Brown and after he returned from trip to LosAngeles, she learned that he was dealing narcotics. (RT 11369-11370.) Brown gaveher the names of Drew and Stan, along with phone numbers, for herto contact in the event Brownwas arrested. (RT 11372-11373.) Lavonne Cowles Webb, who worked at the Six Pence Inn, was introduced to Brown in March 1988, by co-worker Rodney Wiley. (RT 11379-11381.) She knew that Brown wasinvolvedin illegal activities, dealing cocaine. (RT 11382-11383.) She signed a lease for an apartmentin Salinas along with Brown, who used Rodney Wiley’s name. (RT 11387.) Rodney Wiley, whoa maintenance manat the Six PenceInn in February and March, 1988, had met James Brown in St. Louis in February, _ Alonzo Smith alsotestified that he had a conversation with appellant in the county jail in 1988; the content of this conversation.is discussedlater in the Statement of Facts; the evidence was admitted solely against appellant. 30 1988. (RT 11429-11430.) Brownlived at the Six Pence Inn for a few weeks before moving another location. Since Browndid notdrive, Wiley occasionally drove Brown aroundthe area, including severaltrips to a Western Union office, in Webb’s car, and Brown paid Wiley in cash or with cocaine. (RT 11430-11432.) Wiley allowed Brownto use Wiley’s name when Brownrented an apartment in Salinas with Lavonne Cowles; Brown lived at that apartment before he moved to Los Angeles in August, 1988. (RT 11434-11435.) Shortly before Brown moved, Wiley saw Brownwith a man that had just gotten out of prison and who drove a red Toyota; Brown asked Wiley if he wanted to go-to Los Angeles with them, but Wiley declined. (RT 11435-11439.) - Albert L. Owens wasa soldier in the Army, stationed at Fort Ord in early 1988, and met Brownat a fellow soldier’s apartment. (RET 11464- 11465.) Owens agreed to drive Brown to Los Angeles; just before theyleft, Brown made a phonecall and said, “Stan, we’re on our way now.” (RT 11467.) At Brown’s direction, Owens drove to an apartment building on Laurel Canyon and Saticoy. After they were let into an apartment by a young woman, Brown made another phonecall, saying, “Stan, we’re down here now.” (RT 11469-11470.) About a half hour later, Andrew Settle delivered nine ounces ofcocaine, for which Brown paid him $4500. (RT 11471-11475.) Owens and Brown returned to Marina; Brown paid Owens for the trip in cocaine, gas and food. (RT 11475.) Owens made three more drug-runningtrips to Los Angeles with Brown. (RT 11476-479.) Owens then made aboutfourtrips to Los Angeles by himself, and two trips with a man named “Drew” whom Brown introduced as his brother. Each time, Owens paged “Stan,” and Andrew Settle delivered the drugs. (RT 11479-11483, 11508-11518, 11518-11524.) 31 Owens met Armstrongin July, 1988, at Brown’s apartmentin Salinas. (RT 11529.) Armstrong was upset because he thought Brown was supposedto wait until Armstrong got out of prison before setting up operations; | Armstrong said that Brown was going aboutit wrong, dealing on a small level. (RT 11530.) Armstrong thought they should deal in bulk and move back to Los Angeles, but not be under “Stan’s” control there. (RT 11531.) Days before Brownwaskilled, Owensdelivered a red Toyota owned by a friend to Brown. (RT 11531-11533.) Loretha Anderson’s brother, Stanley Anderson,testified that Loretha ‘and her children Chemise and Carlos English lived with Brownin an apartment inSalinas. (RT 11451-11454.) Loretha and the children, along with Brown, moved to the San Fernando Valley on a Fridayat the end of August, 1988. Stanley Anderson rented a U-haul-for them, with money given to him by Brown,and he helped them moveall of their belongings out of the apartmentandinto the truck. (RT 11454-11456.) His sister was killed the Sunday afternoon following the Friday that she moved to Southern California. (RT 1 1462.) Andrew Greer, whotestified under grant of immunity from prosecution (RT 11649), wasin prison in Missouri with both Armstrong and Brown. (RT 11568-11571.) Brown escaped from a prison hospital in late 1987. (RT 11572, 11574.) Greer was released from custody and in April, 1988, he moved to Marina after Brown, whowasliving there at that time, gave him a busticket and then set him up with an apartment. (RT 11574-11578.) Albert Owenspicked up Greerat the busstation. | (RT 11579.) Greer later made several trips with Owens and another man to Los Angeles, where they delivered money in exchange for powdercocaine, which they in turn brought back to Brown; Brown did business with “Stan” 32 and Andrew Settle. (RT 11581-11599.) Greer several times picked up money wiredby appellant and Antonio Johnson to Brown in northern California. (RT 11600-11602.) Armstrong was around for a few weeks before he waskilled; Tannis cameto visit Armstrong in northern California, driving a greenJeep. (RT 11604-11607, 11608.) Armstrong told Greer that appellant owed Armstrong some moneyfor a hit Armstrong did for him, and Armstrong said he was going to get his money. (RT 11607.) Armstrong was not happy with the operation Brownhadset up,stating that Brown had “fucked up a lot of money.” (RT 11609.) Brown had madearrangements through appellant for an apartment on Laurel Canyon in Los Angeles. (RT 11610.) Armstrong went to Los Angeles with Tannis. Greer, Elaine Webb (another girlfriend of Armstrong), Brown, Loretha and the children followed in a U-haul and Toyota. (RT 11608-11615.) In the early moming hours they arrived at an apartment where Armstrong wasstaying, and he instructed them to go to a hotel. (RT 11614-11616.) The next morning, Greer went with Brown, Loretha and the children toa pool hall. (RT 11616-11617.) Greer waited outside alone while the rest wentinto the pool hall. (RT 11619.) The apartment they were supposed to move into was dirty, and Armstrong said he wanted money from “Stan”to cleanit up. (RT 11619-11620.) While waiting outside, Greer saw a man in a white Audipull up, get out and talk to Brown, who got some marijuana from him. (RT 11621.) Greer did not go in the pool hall because it was dark and he saw pistols on the bar area. (RT 11622.) At about 11 a.m. the next day, Armstrong and Brownpicked up Greer. After briefly stopping by Mona Scott Walker’s place, they wentto Tannis’s house on Tobias, where they smoked some marijuana. (RT 11623- 33 11626.) While they were at Tannis’s apartment, Armstrong received a phonecall in response to a page he had made. (RT 11629-1 1630.) When | _Armstrong got off the phone,he said that they were supposed to meet “Stan” at about 4:30 p.m. and pick up some money, about $500, for the cleaning supplies. (RT 11630.) Armstrong also then told Tannis to go back in the room andgetthe pistol “in case the dudestarted tripping overit.” (RT 11631.) Tannis went in the room,and returned,putting a pistol in her purse. (RT 11631.) As they were leaving,Armstrong told Greer to ride with Tannis, but Greer would notdoit because he was not involved with her, and because he risked violating parole if they were pulled over with a gun in the car. (RT 11631.) Tannis drove her Jeep, and Greer rode with Brown and Armstrong in the Toyota. They all rode over to Tannis’s aunt’s house, and Tannis and Armstrong got out and talked. (RT 11633.) The three men got back into the Toyota, and Armstrong said Tannis would follow in the Jeep, but she turned around and went back into the house. (RT 11633.) Greer was concerned because Tannis did not follow with the guns. (RT 11634.) Brown and Armstrong told Greer that everything was cool, but Greer insisted they take him back to Laurel Canyon. (RT 11634.) When they dropped off Greer, Loretha said the kids were hungry, and Brownhad her and the kids getinto the car, saying he’d take them to get somethingto eat. (RT 11635.) Loretha and the kids got into the back seat of the Toyota, leaving the apartment with Brownat about 4-4:30 p.m. (RT 11636.) Greer did not see them alive again. (RT 11641.) 34 6. Testimony Of James Williams James Williams (“Williams”), also known as “Jay”or “Jay Baby,” testified under grant of immunity from prosecution.*® Williams became a memberof the Family in about April 1988, when his best friend, Lamont Gillon, introduced him to Nute (Nash Newbill), who hired Williams to work at the pool hall. (RT 12109-12110, 12115-12118.) When Williams joined _ the organization appellant wasthe boss. (RT 121 10-1211 1.) Williams had first met coappellant Wheeler, whom he also knew as "Slimm," when they were in seventh grade. (RT 12111-12112.) Coappellant Wheeler was a member of the Family when Williams joined. (RT 121 12.) Williams also recognized coappellant Smith, although he did not know appellant’s last name in August of 1988; he had seen Smith on two or three occasions. (RT 12113-12114.) He had not met codefendant Settle prior to August 28, although he had heard codefendant Settle's name mentioned. (RT 12114.) Williams'first job at the pool hall was directing drug buyers to spots where they could pick up drugs. (RT 12120.) Later, Newbill promoted Williams and Williams’s friend Lamont Gillon to the count house on Wheeler Avenue, where he worked until August 28, 1988; Anthony “Ant Man” Arceneaux and coappellant Wheeler were also workingthereat that time. (RT 12115-12118, 12132.) ‘Williams worked the 7:00a.m. to 3:00 p-m. shift; Gillon worked from 3:00 p.m. to 11 p.m., and coappellant Wheeler worked from 11:00 p.m. to 7:00 am. (RT 12131, 12137-12138.) Each worked for three weeks and then had a week off. (RT 12137-12138.) Arceneaux took the shift of the person who wasoff. (RT 9965-9966, *° At the time ofappellant’s trial, Williams was in custody in another stateon drugtrafficking charges. (RT 12109.) 35 12138-12139.) An older model orange Toyota Corolla "company car" was used by employees of the Wheeler houseas transportation between the pool hall and the Wheeler house during shift changes. (RT 12177, 12179.) | The Wheeler house was only used for large-quantity sales of nine ounces of cocaine or more. (RT 12151-12152, 12158-12159.) The customers buying at Wheeler were not directedto another location, as were purchasers of small amounts of drugs whopaid at other houses;rather, after the buyers paid at the Wheeler house, drugs would be delivered to them. (RT 12154-12155.) Williams described the procedure for purchasing cocaine as follows: a buyer would go to the count house on Wheeler Avenue; Williams would count the money; Williams would make a telephonecall to find out where to direct the buyer; he would then tell the customer where the delivery would occur; Williams would later receive a . call saying the buyer had received the goods; and Williams would make a written note of the competed purchase and includehis initials in the notation. (RT 12130-12131, 12141, 12149, 12158.) | _ Tuesdays were the paydays, and Williams would get his money from the safe; other people would come by the house for their moneyas well. (RT 12228-12230.) On twoor three occasions, coappellant Smith came and picked up money. Williams did not know what coappellant Smith did in the organization. (RT12230.) People who handledin the narcotics made more than the $500 per week that Williamsandthe other people in the count housemade. (RT 12231.) Coappellant Smith made $1,000 per week. (RT 12231.) Appellant frequented the Wheeler house,usually arriving on Sundays at around 2:00 p.m.; appellant’s barber would also comebyat that time to cut appellant’s hair. (RT 12148.) About a month after Williams 36 started working at the Wheeler house, the procedure for answering the door was changed. Appellant gave Williamsa silver .45, instructing him that he was to be armed when he answered the door. (RT 12235-12236.) About three weeks prior to August 28th, Williams attended a meeting at the pool hall that appellant ran, telling everyonethat the following changes were going to be madeto avoid police detection: the pool hall was going to be closed, and the locations of the money and drug houseswerealso to be changed to Fenton and Adelphia, respectively; the money at the Fenton house was not to exceed $1000; the newjob for those like Williams | employed at the Wheeler house would beto pick up the money from the Fenton house; people also would be required to work ninety-minute shifts at the poolhall in order to keep it open 24-7 for a couple of weeks to make sure that all the customers got newsof the new system. (RT 12243-12246.) A schedule of these work shifts was found at the Wheeler Avenue house. (RT 10713, 10758, 12244-12245.) | On Sunday morning, August 28, 1988, coappellant Wheeler picked up Williamsat the poolhall in coappellant’s Wheeler’s white Audi, because something was wrong with the companycar, and he droppedoff Williams at the Wheelerhouse. Williams entered through the garage door, which had been opened remotely from Wheeler’s car; he then used a key passed on to him from Wheeler to open the steel door between the garage and the kitchen. (RT 12179-12180, 12283, 12422.) Williams walked through the house to see if anyone wasthere, and finding no one, sat down to watch television. (RT 12284.) At about 2:00 p.m., appellant called from his blue Hyundai; Williams let appellant into the house by opening the garage door. (RT 12285-12287.) Appellant sat down on the couch and made some small talk with Williams 37 before taking a portable telephoneinto one of the bedrooms, while Williams ‘remainedin the living room (RT 12287-12288.) The telephone rang while appellant was in the bedroom, but Williams could not recall how many timesorif he (Williams) answeredit. (RT 12289.) At some point appellant returned to the living room and asked Williamsto page Anthony Arceneaux, who was dueto arrive at the Wheeler houseat 3:00 p.m.to workfora vacationing Lamont Gillon, and tell him not to come to work. (RT 12289-12290.) Coappellant Wheeler arrived at the Wheeler house sometime after appellant; it wasnot normal for coappellant Wheeler to be at that house on a Sunday afternoon, but it was not out of the ordinary. (RT 12292.) Coappellant Wheeler was not carrying anythingin his hands when he arrived, (RT 12293.) Appellanthad picked upthe .45 from the table when he arrived. (RT 12293.) Next coappellant Smith, not carrying anything, arrived at the Wheeler house; it was unusual for him to be there on a Sunday afternoon. (RT 12294.) Coappellant Smith also wentinto a back | room ofthe house. (RT 12300.) Appellant carried the money counting and adding machines into the garage, and retumed carrying what appeared to be a heavygreen duffel bag, which appellant took into the back of the house; coappellant Wheeler went with appellant. (RT 12294-12295.) At some point appellant returned to the living room andsaid, ‘“Where’s Johnny,he’s late.” (RT 12301.) CodefendantSettle, who Williams had neverseen at that house before, arrived last and went into the back of the house as well. (RT 12302.) While the four men were in the back of the house, Williams heard a gun go off; appellant cameinto the living room and asked Williams if he had heard it, and whether he thought the neighbors had heard it. (RT 12304.) Williams said that the house next - 38 door wascloser to the back room than the front of the house; appellant then returned to the back room. (RT 12305.) Codefendant Settle cameinto the living room, knelt on the floor and cocked a shotgun; he did not say | anything and then returned to the back of the house. (RT 12305-12307.) Williams, who denied knowing what was going to occur in the Wheeler housethat day, said that he did not ask what was happening becauseit was noneofhis business. (RT 12290, 12302, 12307.) Next, coappellants Bryant, Smith and Wheeler cameinto the living room. (RT 12307.) Coappellant Wheeler asked appellant if he was going to “tell Jay;” Williams saw a pistol in Wheeler’s waist. (RT 12308; 12311.) Appellant told Williamsthat they were expecting company andtold Williams that he wanted him to do the following: stand in the kitchen near the buzzer; when the men walked up,yell out that they were there; someone: else would let the men in the house; wait for appellant to tell Williams tolet . appellant out of the house using the buzzerin the kitchen; once Williams could see that appellant wasall the way out of the house, Williams wasto release the buzzer; after releasing the buzzer, Williams was to exit through the garage, walk to the end of the driveway, where there would be a green car with a key in it; Williams wasto back that car into the garage’); Williams was then to walk downthe driveway, makea left, walk to the bus stop and take a busto the pool hall; while he was walking to the bus, Williams was to look around to see who was watching. (RT 12309-123 12, 12319-12321.) 3! Appellant’s instructions to Williams about what to do with the green car changed a few timesbefore settling on the plan to backit into the garage; appellant seemed confused about what to do. (RT 12313-12318.) 39 Atthat point, Williams knew that something was going to happen, and he wished he was not there. (RT 12321.) Williams believed he was in too deep to get out of the situation. (RT 12322.) Williams heard appellant and coappellant Wheeler talking about going to the 7-11, and he saw coappellant Wheeler and Smith put on workmen’s gloves. (RT 12324, ~ 12329.) As Williams looked out the front window, someoneelse shouted that the people had arrived. (RT 12328.) Williamsfirst saw the men on the walkwayto the front door; one wastaller than the other, and one of them had longerhair. (RT 12331- 12332.) The two men walkedto the front door, and Williams heard someone let them in. (RT 12332.) Williams heard sounds as if someone had entered the house and heard someone say “What’s happening, how are you doing.” (RT 12333-12334.) Appellant said he was going to get some groceries, although groceries were never kept at that house. (RT 12334.) Appellant told Williams to buzz him out (RT 12334), and Williams pushed the button until he saw the door open and appellant come out of the house. (RT 12335.) Williams then released the buzzer; as he did that, he saw | appellant stumblea little and keep walking. (RT 12335.) Williamsthen started walking out of the house through the garage; as he was walking, he heard one gunshot, a scream, and then two gunshots. (RT 12336-12337.) The blue Hyundai wasin the garage; as Williams was walking out of the garage, he almost ran into Wheeler, who was holding a shotgun, at the point where the gate met the garage. (RT 12338-12339.) At the end of the driveway, Williams madea rightto the green car while coappellant Wheeler madea left. (RT 12340.) Williams entered the green — car, which had a key inits ignition, and backedthe car into the garage. (RT 12341.) While he was in the green car, he heard coappellant Wheeleryell, 40 “A bitch is in the car. Get out of the car, bitch.” (RT 12342.) After that, Williams remembers only glass breaking; he didnot recall hearing any shots. (RT 12342.) | After backing the car into the garage, Williams saw appellant standing next to the Hyundai; appellant said “All right, Jay” which Williams took to mean see youlater. (RT 12344.) He also saw coappellant Wheeler pull up in front of the drivewayin a red car; they looked at each other, and coappellant Wheeler drove off to Williams’ right. (RT 12347-12349.) The green car wasbig and did not look anything like the blue Hyundai. (RT 12345.) | | | While walking to the bus stop, Williams again saw coappellant Wheeler in the red car at an intersection along the way; coappellant Wheeler pulled over at the corner, looked at Williams again, and drove away. (RT 12352.) Atlittle later, appellant passed by Williamsin the blue Hyundai. (RT 12353.) Before he arrived at the bus stop, Williams also saw coappellant Smith and codefendantSettle drive by in the green car. (RT 12355-12356.) Williams took the bus to the pool hall as instructed. (RT 12364.) Arceneaux wasthere when Williams arrived, and the twotalked, although Williams claimed not to recall what they talked about. (RT 12364-12365.) A short time after Williamsarrived at the pool hall, appellant called and asked Williams whohesawlooking around, and Williams told appellant who he noticed. (RT 12365.) Appellant then told Williams not to go to the Wheeler house ever again, that Williams’ description had been given to police and that Williams was not to send anyone to the Wheeler house or talk about what had happened. (RT 12366.) Williams then went home, and returned to the poolhall either that night or the next night for his 90 minute 41 shift; no one showedup to relieve him, and he stayed there the entire night. (RT 12366.) Oneor two nights after the shootings, William Settle came to Williams’ apartment and told Williamsthat it was “going to be hot,” so it wasnot a good idea for Williams to remain in the neighborhood. (RT 12367.) William Settle also told Williams that Williams had been identified at the scene of the shootings. (RT 12368.) William Settle made arrangements to pay Williams the $2000 owed to him for the month he had just completed; Williams made arrangementsto fly to Pennsylvania. (RT 12368-12369.) At William Settle’s direction, Williams sent LamontGillon to retrieve the money from William Settle at a store at Osborne and Laurel Canyon. (RT 12369.) Williams wastold to get in touch with William Settle if Williams needed more money. (RT 12370.) Provine McCloria took Williamsto the airport. (RT 12370.) - When Williams ran out of money in Pennsylvania, he called Gillon and got a phone numberto call; using that, Williams made arrangementsto pick up $500 at a Western Union, using a code word given to him by William Settle. (RT 12371-12372.) At the time of his arrest in Pennsylvania, Williams wasin the process of obtaining another $500 in the same fashion. (RT 12373.) Williams agreed to speak with Pennsylvania law enforcementbecause they told him he was underarrest for six homicides in Los Angeles; Williams knew they had the wrong man because he did not kill anyone. (RT 12373-12374.) | On October 5, 1988, Williams was arrested in Pennsylvania, where he had been dealing crack cocaine. (RT 12373, 12397, 12531-12532, 12775-12776.) After being informed that he was wanted for a multiple homicide in California, he agreed to talk to local law enforcement because 42 he believed that, because of his resemblance to coappellant Wheeler, it was possible he had been identified as the shooter. (RT 12373, 12397-12398, 12412-12414.) The possibility of Williams facing the death penalty was discussed” (RT 12457), and that is why he agreedto speak with police officers; he knew that witnesses are often given leniency. (RT 12373- 12374, 12695-12696, 12778.) He also testified that he did not think he would have been given leniency if he had been one of the shooters. (RT 12552.) He then implicated coappellants Bryant, Wheeler, Smith and codefendantSettle. (RT 12374, 12780-12781.) Williams and his entire family were placed in the witness protection program; Williams denied that he was given moneyto relocate. (RT 12385- 12386.) He got ajob whilein the program, stole some moneyonthatJob and forged his boss’s signature. (RT 12386.) He was also convicted on federal charges of possession of narcotics and possession of an offensive firearm, for which he wasin custody duringhis trial testimony. (RT 12387.) ~ Oncross examination, Williams denied receiving word before the shooting that men were comingoverto kill the group andtake overthe organization. (RT 12411-12412.) Healso did notrecalltelling Pennsylvania police that coappellant Wheeler looked like him, so he might have been misidentified as the shooter. (RT 12409, 12415.) Before leaving for Los Angeles, Williams talked to McCloria, Gillon and Williams’ girlfriend Julie Potts regarding the homicides. (RT 12416.) Williams did notrecall telling Potts that “dumb ass Anthony”left his identification. (RT 2 Williamstestified in 1988 that he would lie to save himself from the death penalty. (RT 12457-12461.) 43 12418.) Williams denied telling Potts that he (Williams), Ant Man and two outside hit people wereat the Wheeler housethat day. (RT 12445.) Williams oncetestified that he would lie to avoid the gas chamber, but denied that he was lying at trial. (RT 12459-12461.) Williams bought shoes before he wentto the airport, but denied that he made the bloody shoe print found at the Wheeler house; he deniedbeing involved in the shooting and believed hewasset up to take the blamefor the deaths. (RT 12526- 12530, 12680-12681, 12705-12708.) | | On cross-examination Williams further admitted that he did not know codefendant Settle before the shootings, that he only saw him for a few seconds onthe day of the shooting, and that he previously could not distinguish between photographs of codefendantSettle and his brother, Frank Settle. (RT 12463-12478.) All parties but coappellant Smith stipulated that the registered ownerof the gray truck parked outside of the Wheeler house was the wife of Frank Settle. (RT 12489.) Williams testified that the initials ‘“FRK”from the beeperlist found in the kitchen of the Wheeler house stood for Frank, but Williams did not know Frank Settle. (RT 12492.) When looking at a set of photographs, that contained photographsof both Jon and Frank Settle, for the purposeofidentifying the personhe saw in the Wheeler house with a shotgun, Williamsdid not believe he was mistaken in selecting codefendant Settle as opposed to Frank Settle. (RT 12493-12494.) Williamsfailed to identify William Settle from a set of photographs, even though he knew him, but denied that it was because he wastrying to protect him. (RT 12521, 12524.) Williamsalso denied that Arceneaux was present at the Wheeler house on the 28th and that Williams waslying to protect him. (RT 12561-12562.) In his October statement to Pennsylvania police Williamssaid Jeff Bryant was the head of the organization that Williams worked for. (RT 12799, 12810.) In his October statement to Detective Vojtecky, Williams said they were not using the company car anymore because it needed | brakes. (RT 15056-15057.) 7. Post-Homicide Events | Appellant visited his brother Jeff Bryant in prison on August 25 and 29, 1988. Appellant attempted to visit his brother again in early September of that year but was denied the visit. (RT 12839.) | On September 2, 1988, Antonio Johnson and appellants. Bryant and Wheeler went to an auto dealer and traded a blue 1988 Hyundai in for a 1988 Toyota Corolla. (RT 12845-12850, 12853-12855, 12867.) Johnson executed the sales documents. (RT 12864. The Hyundai was subsequently examined by a criminalist who, applying a chemical in the trunk and on the floorboards, detected a presumptively positive result for blood on the floorboard betweenthe driver’s pedals. (RT 12872-12881.) The test did not determineif it was human blood and the chemicalusedalsoreacts to plant material. (RT 12878-12879.) On September 26, 1988, Detective Robert Saurman wasassigned to the Foothill Gang Unit; while interviewing a witness, the name Slimm came up and the witness gave Detective Saurman Slimm’s pager number; Detective Saurman paged Slimm, and coappellant Wheeler answered the page and wentto the police station at Detective Saurman’s request. After determining that Slimm wasliving with Tania Givens, Detective Saurman and Detective Lambert went to Givens’ apartment at 13950 Foothill Blvd., #202, where Givens consented to a search of the premises. They found a loaded .357 magnum, ammunition, some notebooks, a photo album, 45 calendar book with the name “$limm”written on it, newspaperarticles aboutthe instant homicides, and $8560 in the apartment. (RT 11012- 11039.) Photographs foundin the calendar book showed Slimm wearing a paper crown and holding a lot of cash; photographs and phone numbersof other reputed Family members and addresses of Family drug houses were also found in the book. Slimm’s beeper number was found ona list in the Wheeler house. (RT 11188-11202, 12008-12011.) At the time ofthe search,the utility bills to Slimm’s apartment were in the name of Vericillia Reese, an employee of NeighborhoodBilliards. (RT 11048-11059.) Paperwork relating to a white Audi and a bank statement, both in coappellant Wheeler’s name, andcellular phone pamphlets were foundin a search of coappellant Wheeler’s grandmother’s house. (RT 11060-11066.) A search of coappellant Wheeler’s Audi produced business cards, beepers and utility bills in the names of Keith Chatters and Vericillia Reese. (RT 11124-11131.) Cellular phone records showed that someone used coappellant Wheeler’s phone and placed a one minute phonecallto the Wheeler house on August 28, 1988, at 3:05 p.m. (RT 11089-11090, 11138- 11140.) In the early morning hours of September 29, 1988, law enforcement served search warrants on various properties associated with the Family business. Lawrence Walton was found in 11649 Fenton Avenue,along with $1417 in cash and a .38 caliber handgun. (RT 9694-9699.) Thirty six one-gram bags of cocaine were recoveredfrom 11236 Adelphia Street. (RT 9783-9800.) It was believed that drug buyers would gofirst to the Fenton location and pay money; in return they were given a slip of paper with a numberonit that corresponded to the quantity of drugs paid for. (RT 9801- 46 9802.) The buyer would then go to the Adelphia location, turn in the slip of | paper, and receive the drugs. (RT 9802.) Also on September29, 1989, appellant’s home at 12719 JuddStreet wassearched and appellant arrested; $719, keys, various kinds of ammunition and a .45 caliber handgun, as well as various papers purportedly relating to the narcotics organization, were seized. (RT 12908- 12916; 12925-12928.) Codefendant Settle’s house at 12483 Ralston Street was also . searched on that date; a gun safe containing various firearms, walkie talkies and a tap trapper, automotive repair equipment, as well as various paperwork and jewelry, were seized. (RT 12986-12971.) Codefendant Settle never returned to live in his home. He was a fugitive from the date his arrest warrant issued in October, 1988, until he was arrested on August 1991,while living under an assumed name. (RT 13954-13649, 13660- 13681.) Further, Antonio Johnson was homeduring the search of 13037 Louvre Street when it was searched simultaneously with the others. Included in the items seized were a sales slip and keys for a new Toyota Corolla. (RT 10766-10771.) At the same time, Nash Newbill was at home during the search of 13031 Louvre Street; paperwork includingutility bills, Western Unionreceipts and driver's license were amongthe items seized. (RT 10774-10780.) | On October 14, 1988, Detective Lambert served a search warrant on a fortified house at 11943 Carl Street. (RT 9806, 9814-9815.) He found an adding machine, money counter and a notebook containing entries from June | through August 27 of an unspecified year, which Detective Lambert said was 1988. (RT 9816-9817, 9834.) Detective Lambert also described 47 how other evidence found at Carl Street, such as beakers and baking soda, were used to make rock cocaine. (RT 9836-9840.) Detective Lambert opined that the notebook contained financial records relating to rock cocaine sales and distribution that had been transported from the Wheeler houseto Carl Street after the homicides on August 28, 1988. (RT 9819- 9820.) The amount of revenues during those three monthsas reflected in the notebook was over one million dollars. (RT 9819.) Detective Lambert said that money wasretainedat sales locations such as Fenton for only a short period of time before being moved to a moresecurelocation, andthat at the time of the homicides that more secure location was the “count house” at 11442 Wheeler Avenue. (RT 9823.) Detective Lambert also found vehicle documents relating to a Toyota Corolla and aHyundai, which were both observed at the Wheeler house. (RT 9840.) Bills and receipts in the names of Eddie Barber, Stan (last name unknown) and William Settle were also located in the Carl Street house. (RT 9841-9842, 9861-9865) Detective Lambert furthertestified that initials found on paperwork seized at Carl Street related to coappellant Wheeler, Antonio Johnson, William and Frank Settle, and various other men he believed to be members of the Bryant organization, as well as various other locations he believed to be associated with the organization. (RT 9825-9831, 9843-9846, 10138- 10168.) An entry on one of the documents indicated that appellant withdrew $1000 from the count house. (RT 9830.) The Carl house was owned by JamesSettle, Junior, whowasthe father of Jon, William, Andrew and Frank. (RT 9835.) On August 3, 1988, one deed showedthat ownership of the Carl house was transferred to Kenneth Bankhead and Jamia Bryant, whois the daughter of Jeff Bryant, but Detective Lambert believed that deed to be fraudulent. (RT 9923-9924, 10183-10185.) 48 A handwriting expert opined that the handwnting on the note found on Brown’s body bearing the Wheeler Avenue address belongedto appellant, and that the handwriting on the piece of paper foundat the Wheeler house with the name “Tommy” was Brown’s; another expert opined that these two papers wereoriginally one piece of paper. (RT 11815-11820, 13036-13042, 13272-13274.) - The prosecution’s ballistics expert examined various shells foundat the scene of the Wheeler house and opined that the expended shotgun shell casings found there were expelled from three different shotguns and that another shell was cycled, but notfired through, a fourth shotgun; he also opined that a .45 shell casing foundin the trash can in the Wheeler house wasfired from the .45 Colt automatic handgun later recovered during the search of appellant’s home. (RT 13162-13177.) The bullets found in the Camry, however, were definitely not fired from the handgun found in appellant’s home. (RT 13192-13193.) The fingerprints of appellant, coappellant Wheeler, James Williams, Anthony Arceneaux, Nash Newbill, William Settle and Antonio Johnson were found on walls and itemsin the Wheeler house. (RT 13258-13287.) | It was stipulated that the stationary bicycle found in the Wheeler house had been purchased byappellant on April 2, 1988 (RT 12033-12034) and junk mail addressed to Jeff Bryant was found there.*? (RT 8696, 8750.) It wasalso stipulated that the company car was found parked near 11442 | Wheeler Avenue on August 28, 1988, after the instant homicides. (RT 14373.) * Theparties stipulated that appellant’s brother Jeff Bryant wasin DonovanState Prison at the time of the homicides. (RT 8750.) 49 Telephone records showeda high volumeofcalls from appellant’s hometo coappellant Smith’s home form January 1988 through September 1988, when both were arrested. (RT 13456-13459, People’s Exh. 199.) The last telephone call before the homicides between their residences was on August 27, 1988, and the next call was on September 12, 1988. (RT 13462-13466.) There were no recorded outgoing telephone calls from appellant’s home between 10:41 a.m. on August 28, 1988, and September 9, 1988; however, the records did not record local calls. (RT 13462-13466, 13505.) Telephone records also showed that calls were made between coappellant Smith’s home and both the Wheeler houseand the Carl Street location. (RT 13469-13474, 13489-13492.) Calls were also made between coappellant Smith’s home and locations where Armstrong wasstaying, as well as between appellant’s home and homes of Armstrong’s relatives. (RT 13480-13481, 13484-13486, 13486-13489.) Records further showed cellular telephone calls from coappellant Wheeler’s girlfriend’s cell phone to appellant’s home, Neighborhood Billiards and to the Wheeler house; a call using her phone was madeto the Wheeler house at 3:05 p.m. on August 28, 1988. (RT 13474-13480.) Finally, telephone calls from 11313 OxnardStreet, Apartment 313. .. _ were summarized. Detective Lambert testified that this was a “safe house” in the name of Andrew Settle. In the 16 hours following 5:55 p.m. on August 28, 1988, about 90 calls made from that location, includingsix calls to coappellant Smith’s father-in-law’s home,six to coappellant Wheeler’s apartment, three to Antonio Johnson’s homeand twoeachto the homes of codefendant Settle, Eddie Barber and Anthony Arceneaux. (RT 13492- 13498.) 50 The prosecution did not produce the telephone records of Williams, Gillon or McCloria. (RT 13506-13507.) | 8. Evidence Limited To Specific Defendants During the course of the guilt phase, there were several instances whenthe jury was instructed that certain testimonywas admissible against a specific defendant only. In most of these instances, the trial court attempted to restrict the jury’s use of such evidenceto the applicable defendantas the evidence waspresented to the jury, as well as at the end of the guilt phase of the trial.** ** Amongthe jury instructions given at the end ofthe guilt phase, the jury wastold: Several times during the trial, evidence was admitted against one or more of the defendants, and not admitted against the others. § At the time this evidence as admitted you were admonishedthat it could not be considered by you against the other defendants. § Do not consider such evidence against the other defendants. Evidence has been received of a statement made bya defendantafter his arrest. { At the time the evidence ofthis statement was received you weretold that it could not be considered by you against the other defendants. §] Do not consider the evidence of such statement against the other defendants. Certain evidence was admitted for a limited purpose. { At the time this evidence was admitted you were admonished that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. § Do not consider such evidence for any purpose exceptthe limited purpose for which it was admitted. (RT 16386-16387; CT 15473-15475.) 51 a. Evidence Introduced Against Codefendant Settle Only When Armstrong was released from prison faster than expected, Reynard Goldmanrecalled people teasing codefendantSettleabout Armstrong’s release and about Armstrong making demands. Codefendant Settle said that Armstrong wouldn’t be around too much longer, or somethingto thateffect.*° (RT 9269, 9276-9279.) About two weeks after Goldman heard codefendantSettle make that remark, Goldman read that two bodies had been found in Lopez Canyon. (RT 9283.) San Fernando Police Detective George Hughleytestified regarding the arrest of codefendantSettle. (RT 13660, 13682-13683.) In August 1991, Detective Hughley was in a narcotics enforcementtask force that encompassed from South Central Los Angeles to Ventura and Kern Counties and that focused on the “Family.” (RT 13660-13661.) After arrest, codefendant Settle was informed that a search warrant was going to be executed where he had been staying, and he was asked whoelse was there. (RT 13667.) Codefendant Settle replied, “I’m the one who didit. I’m the one you want. They didn’t do nothing.”(RT 13668, 13671, 13676-13677.) *° The jurors receiveda limiting instruction that the statement by codefendantSettle that Armstrong would notbe around much longer was admissible only against codefendantSettle.. (RT 9282.) *° The trial court limited this testimony to codefendantSettle after the testimony had been completed. (RT 13682-13683.) 52 b. Evidence Admitted Against Appellant Only i. Statements Of Ladell Player Deputy District Attorney (“DDA”) Janice Maurizi testified that she waspresent for interviews of Ladell Player on February 6 and 8, 1991.°” (RT 10368, 10373.) During that interview, Player said that heand Billy Fields went to court in the San Fernando Valley two or three daysafter the instant homicides, where Player saw and talked to appellant. Playertold appellant that he had gone by the Wheeler house after the homicides, described what he had seen, and asked what had happened. Appellant told him that “we had little problem, but we took care ofit.” (RT 10370- 103071.) Appellant told Player he was in court because of a problem he washaving with his wife, Tannis. (RT 10371.) DDA Maurizi found a minute order indicating that appellant was in court for somesort of domestic violencesituation.*® (RT 10372.) | | According to Player, appellant also said that if anyone “messed with” appellant, appellant would “shake their hand, smile at them, let them *7 DDA Maurizi furthertestified that both interview were tape __ recorded (RT 10369); however, those tapes were not played for the jury nor admitted into-evidence. In addition, the record reflects different dates for the interviews; the record alternatively lists February 26 and 28 asthe dates of the interviews. (See, e.g., RT 10228, 10376.) *8 Player’s interview as recounted by DDA Maurizi contained other statements that were presumably admissible against all defendants. Player said that in 1988 he had been going to the Wheeler house weekly for five months, where he paid money to Jay Williams, Johnson, codefendantSettle, Gillon and coappellant Wheeler. (RT 10369-10370; 10373.) Player also told her that codefendant Settle and his brothers were high up in the organization and in charge of large shipments involving large amounts of money. (RT 10372.) Player added that codefendant Settle was a “gun nut” and was always armed. (RT 10373, 10382.) 53 think that everything was OK,and then he would have them killed because he couldn’t have people going behindhis back.””? (RT 10375-10376.) Brent McCleve,an out-of-state law enforcementofficer, was present in a monitoring room for a December 28, 1994 videotaped interview of Player by DDA McCormick. (RT 10484-10487.) A videotape of part of the interview was played for the jury, and the jury was provided with a transcript of that portion ofthe interview.” (RT 10486-10492; 3 SUPP CT 10546.) In this interview, Player denied making the above the statements attributed to him in 1991. Playersaid he had a bad drug habitat that time * In the instanttrial, Ladell Player denied making several of the statements attributed to him during the 1991 interviews. Following these denials, and the defense request for a limiting instruction, the trial court gave the jury the following twoinstructions: [A]t this point the answers of the witness having to do with thelast couple of questions indicate no statement was made, but if you do hear any evidence by way of impeachmentthat would tend to give a contrary answer, you are instructed that the statement of Stanley Bryant or anything alongthe lines just suggested by the DAis limited to Mr. Bryant only and to be considered only as to Mr. Stanley Bryant and not as to any of the other three defendants in the case. (RT 10258.) *° The record is not entirely clear as to whether the entire tape was played,or if there was an edited portion, or whetherthe transcription ofthe interview contained in People’s exhibit 216 reflects the portion that was played. The court further noted that something was mixedin on the second portion of the tape that should not have been. Thetrialcourt instructed the prosecution to edit tape before it was received into evidence. (RT 10495-- 10496.) These ambiguities were the subject of settlement requests, which were deniedin thetrial court, and whichis the subject matter of a settlement request pending in this Court. (See appellant Bryant’s Motionto Vacate Certification or, in the Alternative, to Correct, Augmentand Settle the Record, filed September 13, 2002 in the instant case.) 54 and probably would havesaid just about anythingto get back out on the streets; he further expressed his reluctanceto testify for the prosecution. (3 SUPP CT 10546-10570.) ii. Alonzo Smith’s Conversation With Appellant In The County Jail At somepoint after appellant’s arrest, Alonzo Smith had a conversation in the county jail with appellant regarding Brown’s death. (RT 10911.) Alonzo Smith told appellant that he did not trust Brown and that he believed Brown scammed; appellant said that Brown got killed. (RT 10911, 10914-10915.) Alonzo Smith denied that, in response to his own statement that it was too bad that Brown died, appellant said “he had to go.” Rather, Alonzo Smith testified that appellant said “yes” to Smith’s expression of regret regarding Brown’s death and that appellant didnottalk abouthis case.*' (RT 10916, 10980-10981.) iii. Statements Of George Smith According to Detective Hernandez, George Smith told him that appellant said that if George Smith crossed appellant or the Family, George Smith would be in bad shape.” (RT 11216.) *' DDA McCormick informed the court that Alonzo Smith had reported to both he and Detective Vojtecky that appellant’s reply had been, “Yeah, Tommy, he had to go.” (RT 10914.) Neither DDA McCormick nor Detective Vojtecky testified in that regard, however. “ George Smith testified that he had never spoken with appellant and hadnot told Detective Hernandez otherwise. (RT 10802.) 55 iv. Evidence Regarding The Attacks On Keith Curry — The Car Bombing” In 1985, Keith Curry was having an affair with appellant’s then- estranged wife, Tannis. (RT 11316-11318, 13080-13082.) Upon leaving Tannis’ apartment after spending the night with her, Curry was injured when a pipe bomb exploded in his car. | (RT 11318-11319, 11786-11790.) A customerat a hair salon heard Tannistell her hairdresser that her ex- husband admitted to placing the bomb under Curry’s car, and that he told her he would do it again until Curry was dead.“ (RT 13095-13099.) However, appellant’s former wife, Tannis Curry, testified and denied that appellant admitted responsibility for the incident or that she talked aboutit while getting her hair done. (RT 13082-13083.) c. Evidence Admitted Against Appellant And Coappellant Smith Only Twoyears later, Curry, who was then married to Tannis, was shot - upon leaving Tannis’s mother’s house. (RT 11320-11324.) Coappellant Smith had flagged down Curry and pulled up alongside Curry’s car; the two were making small talk when two shots were fired from coappellant Smith’s car. (RT 11324.) Curry was shotin the neck and paralyzed. (RT 11325.) Curry had beendealing drugsat the time he was shot and had spent *? It was stipulated that coappellant Smith was not in Los Angeles County when Keith Curry’s car was bombed. (RT 13656-13657.) “ The customer, Gwen Derby,testified that when she went home, she told her husband whatshe overheard (RT 13104); her husbandtestified that she told him of the conversation three weeksafter it took place. (RT 15107-15108.) *S Curry was then coappellant Smith’s brother-in-law, since coappellant Smith was married to Tannis’ sister, Elaine. 56 most of the time between 1985 and 1987 in jail on drug charges. (RT 11326-11328.) Curry had never spoken with or met appellant, and did not know whoappellant was until Tannis told him that appellant had a brother named Jeff; Curry had heard of Jeff Bryant. (RT 11329-11330.) | Coappellant Smith was arrested for the shooting of Keith Curry; he wasbailed out ofjail after a numberofpeople put up their houses as collateral, including Smith’s father and mother-in-law and codefendant Settle. (RT 11399-1 1405. 11415-1 1416.) Appellant’s name waslisted as a reference on coappellant Smith’s bail papers. (RT 11402.) All parties stipulated that: Keith Curry was shot at 9:05 p.m. on September 28, 1987; | coappellant Smith wasarrested five hours later at 2:00 a.m. on September 29, 1987, by CHP officers; CHP officers recovered a revolver that contained nolive rounds, only one expended bullet casing and no others; a revolver does not automatically eject expended bullet casings after a bullet is fired; coappellant Smith was not inLos Angeles county atthe time of the Keith Curry car bombing. (RT.13655-13657.) It was also stipulated to by all parties except appellant that coappellant Smith shot Keith Curry on September 28, 1987. (RT 13658-13660.) Pierre Marshall met with appellant in a Burger King restaurant to work out a problemthat was rumoredto exist in part because Marshall had dated Jeff Bryant’s wife, Rolo, a couple of years prior. (RT 11748-11751, 11753, 11768, 11780, 11784.) Marshall had told Keith Curry that it wasn’t smart to publically talk about Curry’s relationship with Tannis, and shortly thereafter, Curry was “blown up.” (RT 11777-11779.) Marshall denied that appellant had said that he was responsible for the Keith Curry shooting or that appellant had mimicked a paralyzed person in describing what had happened to Keith Curry. (RT 11752-11754.) Marshall testified that he 57 had lied in his previous statement Detective Vojtecky in an attempt to get consideration in a pending criminal case and that the term “the Family” as used in Pacoima met a group of people who were selling drugs, and not the Black Guerilla Family. (RT 11754-11777, 11781.) | In a 1992 interview, Pierre Marshall toldDetective Vojtecky about a" the meeting Marshall had with appellant in the Burger King restaurant. Marshall told him that, during that meeting, appellant had laughed while mimicking a paralyzed person and asked Marshall, “Remember how that nigger got paralyzed?” (RT 11791-1 1793, 11804-1 1805.) Marshall further told Detective Vojtecky that “the Family” meant the Black Guerrilla Family (“BGF”) but that the locals took it to mean the Bryants in Lake View Terrace. (RT 11801.) d. Evidence Admitted Against Coappellant Wheeler Only On September 25, 1988, Detective Vojtecky interviewed coappellant Wheeler; the interview was surreptitiously tape-recorded. (RT 8243-8244, 13535-13536.) After the interview, coappellant Wheeler was placed in an interview room with his girlfriend, Tavia Givens; their conversation was also surreptitiously tape-recorded. (RT 11016, 11041, 13536.) Both tape- recordings were played for the jury. (RT 13537-13538; 3 SUPP CT 10621- 10660.) Coappellant Wheeler told Detective Vojtecky that: coappellant Wheeler’s girlfriend drove a red Jeep; he once had beento the Wheeler house, which was ownedbyhis friend Nash; he did not know an | organization called the Family (RT 13551) and did notsell drugs. (3 SUPP CT 10623-10624, 10638, 10654.) During his conversation with Givens, coappellant Wheeler could be heard inquiring of her, in a whisper, whether 58 the police found $7000 in cash he had hidden the apartment, and counseling her not to talk to the police. (RT 15961, 3 SUPP CT 10656.) | B. The Defense Cases 1. Coappellant Smith Coappellant Smith rested without presenting any evidenceinhis defense. (RT 13911.) 2. Coappellant Wheeler Coappellant Wheeler testified in his own defense. In 1988, he began working for a drug organization run by Jeff Bryant, and hewas part of a sub-group of that organization that was run by Eddie Barber. (RT 13918-13919.) Other sub-groups were run by TedEdmonds,James Williams, Billy Fields, William Settle and Levi Slack. (RT 13919-13920.) When Barber hired him, coappellant Wheeler was given an apartment in Sylmar, and eventually he started working at the Wheeler house, which was run by Williams, at Barber’s direction. (RT 13927-13931.) Williams’s people included Lamont Gillon, Provine McCloria, Anthony Arceneaux and a few others. (RT 13932.) Williams wasalso an enforcer for the organization. (RT 13933.) Coappellant Wheeler said he sometimesvisited Jeff Bryant in prison and delivered him messages from Barber. (RT 13938.) All coappellant Wheeler knew about appellant was that appellant handled bail. (RT 13939.) Thefirst time coappellant Wheeler saw codefendant Settle was in court on this case, but coappellant Wheeler did know Andrewand William Settle; William Settle had a lot of control over the organization’s money. (RT 13939-13940.) On August 28, 1988, coappellant Wheeler worked at the Wheeler house until 7:00 a.m. At the end ofhis shift, he drove the companycarto the pool hall to pick up Williams, who then dropped coappellant Wheeler 59 off at Wheeler’s apartment. (RT 13941.) Coappellant Wheeler then drove his car, a white Audi, to work at the pool hall until 10:30 a.m. (RT 13942.) After his shift at the pool hall, coappellant Wheeler drove back to his apartment and picked up his girlfriend, and they proceededto drive to Los _Angeles. (RT 13942.) At about 3 p.m. that day, coappellant Wheeler was beeped by the count house, and he returned the call using his cellular phone. (RT 13944.) Codefendant Wheeler talked to Williams, who told him notto come to work. (RT 13945.) That night Williams called again and again told Wheelernotto go to work that night. (RT 13945.) | Codefendant Wheeler heard about the homicidesfor the first time the next day when he wasat Donovan State Penitentiary visiting Jeff Bryant _ _ and ran into appellant, who asked coappellant Wheeler what had happened at the count house; coappellant Wheeler told appellant that he didn’t know, and appellant told him he had heard on the newsthat there was a shooting there. (RT 13958-13959.) When coappellant Wheeler returned to Los Angeles, he bought a newspaperto read about the homicides; he kept the article for no reason, but later told Williams that he would send thearticle to him. (RT 13959.) If coappellant Wheeler had been involved in the homicides, he would never have goneto visit Jeff Bryant because it would have jeopardizedJeff, and coappellant Wheeler probably would not be living at the timeofthe trial if he had done that. (RT 13960.) Coappellant Wheeler went on a vacation the week of September 29, 1988, and when he returned he began workingat the Carl Street location. (RT 13962-13964.) Uponhis return, coappellant Wheeler was beeped by someofficers and he agreed to see them. Hethen called appellant to set up bail. (RT 13966, 13968.) He allowed officers to search his apartment, and when he learned he would be arrested, he contacted his girlfriend, his grandmother, 60 and Barber. (RT 13968.) Coappellant Wheeler lied to the police about being at the Wheeler house because he was not supposed tobe in the area as a condition of parole. (RT 13969.) He denied being the shooter, and said other people in the organization had his height and build. (RT 13972- 13974, 14021.) Whenhefirst was arrested, coappellant Wheeler thoughtit wasfor dealing drugs; coappellant Wheeler knew that Williams and not he had committed the murders. (RT 14064-14065.) Tavia Givens Wheeler also testified. She had been married to coappellant Wheeler from September, 1989 through June, 1992, and had known him since December, 1987. (RT 14333.) While she did notrecall specifically what she and coappellant Wheeler did on Sunday, August 28, 1988, she believes she spent-it with him in Los Angeles because they did they same thing every Sunday,that is, they went to Los Angelesto visit their families. (RT 14345-14347.) When coappellant Wheeler was arrested on September 25, 1988, she knew nothing about the homicides; although she had suspected he was a drug dealer, she never questioned him about how he made his living. (RT 14348, 143 66-14368.) The only friends of coappellant Wheeler that she knew were men named Michael and Vincent, as well as Eddie Barber. (RT 14340-14344.) She never saw anyof the defendants at the apartment she and coappellant Wheeler shared, nor had she ever met Jeff Bryant. (RT 14344, 14348.) 3. CodefendantSettle Withouttestifying himself, Settle presented evidence that: he was an auto mechanic bytrade, rather than a drug dealer (RT 14527-14543; 14698- 14704); his brother, Frank Settle, owned property on Carl Street, which was lived in as opposed to being a rock house (RT 14573-14591); William Settle appeared before the jury for purposes of identification only (RT 61 14609); codefendant Settle owned the Vanport house and in 1987 rentedit to Floyd Renard Tillman and William Settle; both those men sold drugs out of the house without codefendant Settle’s knowledge for a couple of months before the operation was shut down (RT 14626-14628); codefendant Settle rented out his Vanport property from June 1988, through September 1989, and there was no drug dealing going onthere during that period of time (RT 14611-14624); codefendant Settle worked on repairing cars at his home on the weekends (RT 14631, 14680-14683); codefendant Settle was gone on his honeymoon when his house on Ralston Street was searched and damaged andthat they did not return to the house because he wife was afraid for codefendant Settle’s safety; he and his wife and daughter stayed _at her mother’s or inan apartment until codefendant Settle’s arrest (RT 14626-14648-14649, 14810-14815); during codefendant Settle’s arrest, a police officer was holding a machine gun in one hand and wascarrying codefendantSettle’s daughter in the other when codefendantSettle said, “Tm the one you want.” (RT 14816-14818.) | Frank Settle testified for his brother, codefendant Settle that: Frank had been employed before losing his job because of his addiction to and use of cocaine; after he lost his job, he restored cars and sold them; he once owned a 1960 Impala; his father James Settle owned the Carl Street house; Frank Settle did some upkeep of the Carl Street house andlet his nieces swim in the pool; he was arrested at Hansen Dam with less than a half gram of cocaine in his pocket; in 1988 he weighed 110 pounds due to drug use; he never sold drugs but sometimes acted as a go-between; in People’s Exhibit Number 117, he was depicted in photograph number 7 and codefendant Settle was depicted in photograph number8; he knew appellant and knew of coappellant Smith; Frank ownedthe truck, which was 62 registered to his wife, that was found parkedin front of the Wheeler house; just before the summerof 1988, Frank lent the truck to Nash Newbill, who told Frank that ithad broken down, and never returned it; Frank denied that he or anyof this brothers sold drugs; Frank knew that appellant had worked for Lockheed and then hadstarted a business,i.e., a pool hall; and appellant tried to discourage Frank from using drugs. (RT 14724-14751.) 4. Appellant Bryant Karen Flowerstestified that she had been Ken Gentry’s girlfriend at the time he waskilled, but that she had been dating Armstrong as recently as a few monthspriorto the time that Armstrong killed Gentry in 1982. (RT 15024-15026.) Flowers next saw Armstrong in 1988, when she believed he was following her; concerned for her safety and that of her child, she called LAPD on August 14, 1988 and asked if Armstrong had been released. (RT 15027-15031, 15044-15045.) A police officer conducted a field interview of Andre Armstrong at Hansen Dam on August 14, 1988; Tannis Curry was with Armstrongatthat time. (RT 14856- 14861, 14864; RT 15066-15070.) Detective Vojtecky testified that he did nothing to verify whether appellant was in court on the date of his alleged conversation with Ladell Player. (RT 14873.) The defense also presented court documents that reflect that appellant was not present in court on the date in question. (RT 15142-15148.) Detective Vojtecky made contacts in Missouri to assist Andrew Greer with his legal problems there. (RT 14889-14890-14961.) In addition, Detective Vojtecky knew that George Smith had a pending narcotics case but did not offer him any consideration for his testimony in this case; however, Detective Vojtecky did not know if George Smith worked out a deal with the detective handling George Smith’s 63 narcotics case in return for George Smith’s testimonyin this case. (RT 14879.) According to George Smith, appellant was knownas “Peanut Head.” (RT 14882-14885.) George’s Smith attorney in 1992, Michael Morse,testified that he represented George Smith ona charge of cocaine sales from a 1991 arrest. (RT 15003-15004.) The case, whichsetfortrial in April 1992, was continued at Morse’s request because detective Ray Hernandez informed Morse that George Smith was a witness in a murder -case, and Hernandez wanted time to contact the LADA’s office regarding ' the possibility of working out a favorable disposition to George Smith’s case. (RT 15005.) Morse doesnotrecall talking to Hernandezafter that; George Smith wentto trial a week later and was acquitted. (RT 15005- 15006.) DDA Eduards Abele, once a prosecutorin the instant case, became the prosecutor on that case a few days before the trial. (RT 15006.) Morse did not know why George Smith would deny having a pending case or why Hernandez would denytryingto help him. (RT 15013.) - Detective Vojtecky could not recall whether the “company car” was parked across from the Wheeler house whenhefirst arrived on thescene, and did notrecall that he so testified at the grand jury proceeding; he had that car impoundedtwo weeksafter the shootings. (RT 14892-14896.) According to Detective Vojtecky, at the time of codefendantSettle’s grand jury hearing in 1991, Williams said that in 1988, Williams carried a .45 automatic that he borrowed from Gillon’s cousin. (RT 14896-14897.) On October 7, 1988, Detective Vojtecky interviewed Williamsin Pennsylvania, and Williamssaid, contrary to his trial testimony,that: on August 28, 1988, Gillon was to take the 3 p.m. shift at the Wheeler house; he did not see the bag appellant brought into the house; he did not see Brown and Armstrong walking upto the front door; he learned about the 64 homicide case through newspapers and through someof the other people involved; and that he owned a pair of Reebok shoes, but was not wearing them on August 28, 1988. (RT 14949, 15047-15053.) Detective Vojtecky also testified that Provine McCloria lived on Wheeler Place a cul-de-sac off of Wheeler Avenue. (RT 15055-15056.) William Duncan, Senior Investigator for the Los Angeles County District Attorney’s Office, testified that on January 25, 1993, he interviewed Williams along with DDAs McCormickand Bill Seki; Investigator Duncan discussed Williams’ immunitystatus with him andalso discussed the events of August 28, 1988. (RT 14906-14908.) Accordingto Investigator Duncan’s report, Williarns paged Arceneaux that day, and when Arceneaux called the count house, Arceneaux wastold to stay at the pool hall. (RT 14908-14912.) Williams also reported that Slimm arrived at the Wheeler house in a burgundy Jeep with personalized licenseplates that read “TAVIA.” (RT 14913.) Based on what Williamshad seen and heard,he believed someone was goingto die. (RT 14914.) Williams did not walk away because he had planned to cooperate until he could safely get himself out of the house. (RT 14914.) According to Investigator Duncan’s report of Williams’ statements, appellant slipped before Williams heardthe first gunshot; Williams went to the pool hall and told Arceneaux neverto go back to the Wheeler house; Williams talked to appellant later that night and later received money from appellant to leave town. (RT 14915.) Investigator Duncan wrote a report regarding the February 1991 interview of Williams, and in April revised the report at DDA McCormick’s instruction. (RT 14916-14918.) After talking to McCormick,Investigator Duncan changedthe report to omit the reference to Williams’s belief that someone was going to die. (RT 14919.) The revised report also had 65 Williams attributing ownership of the Wheeler house to appellant. (RT 14922.) Investigator Duncan could notrecall if the line in the revised report stating that Williams had no intention to participate in any murder .- was a change from thefirst report. (RT 14923.) Appellant testified in his own defense. Hestarted selling cocaine for his brother Jeff Bryant in February, 1982. Priortothat, appellant had been employed at Lockheed. (RT 15158-15159.) Hefirst met Armstrong in 1981, at thehome ofhis future in-laws, the Babineaux family, and he saw Armstrong there from time to time. (RT 15160-15161.) Appellant was arrested for the murder of Ken Gentry in June of 1982. (RT 15159.) Appellant did not know Gentry at the time he was arrested for Gentry’s killing, and. he denied participating in that killing or giving any money to Armstrong to commit that crime. (RT 15162.) On the bus returning from their preliminary hearing on the Gentry murder charges, ' Armstrong told appellant that Armstrong had shot Gentry in the head one day at the Pierce Street apartments because of crazy looks Gentry had given him at Hansen Dam. (RT 15163.) In the same conversation, Armstrong said that he had been with Karen Flowers and that he thought that Gentry was going to do something to him as aresult, so he got to Gentry first. (RT 15163.) Charges againstappellant and Jeff Bryant relating to the Gentry homicide were dismissed in March of 1983 and were not refiled. (RT 15159.) . Appellant also denied that he knew that Tannis and Rolo had attempted to bribe Rhonda Miller and Reynard Goldman, denied that he had told Goldman’sfriend that if Goldman did not pay the $50 he owedit would get violent, and denied that he knew who vandalized his brother John’s van. (RT 15257-15259.) 66 Appellant denied any involvementin the March 1986 car bombing of Keith Curry, and he was never charged with that crime. (RT 15164.) Appellantsaid that in December of 1985, while he wasstill married to Tannis, she told him that she and Curry were dating. In January of 1986, Tannis told appellant that she was moving out and that she was planning to continue herrelationship with Curry. (RT 15164.) Appellant also denied telling Tannis that he was involved in the car bombing. (RT 15165.) Appellant further denied speaking with Pierre Marshall about Keith Curry; | he said that he met with Marshall at the Burger King,but that they had discussed only how to prevent problems between Marshall and Jeff Bryant. (RT 15168.) - Appellant began working for his brother Jeff Bryant’s cocaine sales ‘business in February of 1982, because he was not making enough moneyat Lockheed to support his newborn daughter. (RT 15162, 15165, 15267- 15268.) He remained involved in drug sales until his arrest for the instant homicides, but no one worked for him. Appellant denied that he was in any way involved in the killings. (RT 15176, 15263-15264.) From 1982 through 1985, appellant made $500 a weekfor hisrole in narcotics sales, paid to him by Jeff; whatever money appellant sent to people wasJeff's money which wassent at Jeff's request. (RT 15191- 15204.) William Settle took over Jeff Bryant’s drug organization in 1985, after Jeff's arrest, in large part because appellant did not know how to run the business. (RT 15174-15176.) In 1988, William Settle remained a major drug dealer, and he paid appellant $1500 a month to use the pool hall for his operation. (RT 15170.) William Settle ran the Wheeler houseat the time of the homicides. Although appellant knew James Williams, appellant did not know what 67 Williams did with William Settle because appellant was neverat the Wheeler house at the same time as Williams; appellant only went there in the evenings to count money. (RT 15222-15223, 15333.) Appellant believed that Williams, Gillon, Arceneaux and coappellant Wheeler worked at the Wheeler house. (RT 15331.) Appellant often contacted William — Settle at 11313 Oxnard, Apartment 313; William Settle stayed there quite a bit. (RT 15305-15306.) William Settle had appellant buy the exercise bicycle for the Wheeler house. (RT 15350.) William Settle arranged for the meeting regarding the 90 minute schedule, and he directed appellant to . report to the Carl Street house after the homicides. (RT 15408-15409.) It was possible that appellant wrote down the Wheeler house address for James Brown months before August 28, 1988, but appellant did not make arrangement to meet with Armstrong and Brownonthe date ofthe homicides. (RT 15206.) Appellant was at home mostof that day and did not recall seeing anyone he knew. (RT 15446-15447.) | Appellant denied that he drove a blue Hyundai, saying that was Antonio Johnson’scar; he did not recall taking that car in to a dealership with Johnson, (RT 15223, 15356-15357.) Appellant flew tovisit Jeff Bryantin prisonafter the killings to létJeff know what was going on; Jeff said that he had warned appellant not to deal with William Settle’s business, but appellant did 50because he needed the money. (RT 15223-15225.) A few days after the homicides, appellant had a court date in San Fernandothathe did notattend; he denied having a conversationinside a courtroom with Ladell Player. (RT 15167.) | | Appellant said that he helped Alonzo Smith obtain cocaine from William Settle to sell in St. Louis. (RT 15381-15382.) Brown sent money from sales in Monterey to appellant to hold for Brown, because Brown 68 trusted appellant; this was the same moneythatappellant sent to Alonzo Smith in St. Louis. (RT 15384-15385.) The money appellantsentto Armstrong was money Armstrong negotiated in a deal with Jeff Bryant to sell drugs in the county jail; the money appellant sent to Brown was Armstrong’s money sent at Armstrong’s request. (RT 15336-15339.) Appellant did not know George Smith. (RT 15263.) Appellant did not ask Francine Smith to visit Armstrong; rather, she met Armstrong while on anothervisit in the county jail. Armstronglater had appellant send her moneyso that she could visit Armstrong in prison. (RT 15358-15359.) Appellant denied arranging foror witnessing the beating of Francine Smith. (RT 15360-15361.) 5. Testimony Of CodefendantSettle CodefendantSettle was allowedto testify afterall parties hadrested, over appellant’s objection. (RT15472-15473, 15531.) According to codefendantSettle, he was an automobile mechanic bytrade, but his brother William Settle paid codefendant Settle $100 a dayto sell drugs outofthe Vanport house in 1986, after codefendant Settle wasinjured on the mechanic’s job. (RT 15531-15536.) Codefendant Settle quit the business after the search by Detective Lambert and the police at the hotel, and instead rented his house to Clara Marshall, and no drugs were again sold there. (Ibid.) A car that he had purchased while he was in the drug business was repossessed on August 15, 1988, because he no longer had incomefrom narcotic sales. (Ibid.) Codefendant Settle denied that he ever worked for the Bryants (RT 15620-15622), but that he knew his brother William worked for one of the Bryants and that his brother Frank cooked the cocaine for appellant. (RT 15692.) Codefendant Settle’s brother Frank 69 was involved in drugs, owned expensive houses and drove a Jaguar. (RT 15545.) Accordingto codefendantSettle, he returned to working oncarsat his Ralston residence and was at home on August 28, 1988, when he received a call from appellant at about 3 p.m.. Appellant said he needed some brakes put on a Toyota right away and asked how longit would take to complete the job. (RT 15537-15539, 15553.) After learning that it would take one totwo hours, appellant asked codefendantSettle what kind of cars codefendantSettle had. (RT15539.) Ultimately appellant agreed to buy a green 1970 Bonneville for $900; Frank Settle arrived at codefendant Settle’s house in the “company” Toyota at about 3:15 p.m. andleft in the Bonneville. (RT 15539, 15553, 15569, 15615-15616.) CodefendantSettle fixed the brakes on the Toyota in about an hour. (RT 15539.) About an hour and a half later, Frank and coappellant Wheeler later returned in a red Jeep; they gave codefendantSettle the $900 for the Bonneville, and Frank drove off in the Toyota. (RT 15540-15541, 15553, 15556-15558, 15615-15616.) Codefendant Settle had never beento the | Wheeler house. (RT 15541.) After the homicides, codefendantSettle’s life did not change. He . _ | was.still fixing cars, and he got married and went on his honeymoon. (RT 15545.) Upon his return, he found his house boarded up. His brother Ken Settle, a lawyer at that time, told him that the police had been looking for weapons. (RT 15545-15546, 15556, 15575.) Codefendant Settle and his wife and daughter went to live with his mother-in-law and then rented an apartment. (RT 15547.) He kept in touch with his brother Ken aboutthe arrests for the homicides, and checked to see if there was a warrant outfor codefendantSettle’s arrest, but found none. (RT 15547-15548.) 70 CodefendantSettle did not go to the authorities because he was | afraid of being in jail without bail for years, and his family advised him not to get involved. He said he had neverbeenin jail, but his brothers were involved in drugs. (RT 15548-15550.) His brother Frank said that the Bonneville Frank had picked from codefendant Settle was the samecarthat was used in the homicides. Codefendant Settle believed that Frank was not involved in the homicides; Frank said he (Frank) had moved the machines out of the Wheeler house prior to the homicides. (RT 15578-15581, 15589- 15590.) CodefendantSettle admitted that he owned guns and carried a pistol in his car. (RT 15651-15652.) After his arrest on the instant offenses, codefendant Settle was on suicide watch for several days. (RT 15709.) C. The Prosecution’s Rebuttal Detective Saurmantestified that coappellant’s Wheeler’s girlfriend told him that Wheeler owned a second handgunin addition to the one found in their apartment, but that it was gone. (RT 15959-15960.) Detective Vojtecky testified that Williams did not appear to own items of value and never requested protection from William Settle, only from appellant. (RT 15757, 15767-15771.) Detective Walter Hamptontestified that in 1992, Renard Tillman said that he used to live with codefendant Settle and that Settle used to buy his dope from the Bryants. (RT 15806-15807.) Tillman also said that coappellant Wheeler wasinvolved in the Family organization, which was run by Jeff Bryant and that appellant wasup in the hierarchy. (RT 15807- 15816.) Los Angeles County Court Commissioner David Stephenstestified that, regarding the docket entry.he made on appellant’s court file on August 71 30, 1988: the entry reflected only that counsel had the authority to appear without the defendant; however, he never made an inquiry was to whether appellant was present in court on that date; and he did not know whether appellant was there or not. (RT 15476-15486.) David Harris, a narcotic user, testified that on April 27, 1987, he made a controlled purchase from codefendantSettle at the Vanport house. (RT 16042-16047.) Detective Lambert testified that he did not assist George Smith in getting Smith’s cocaine case dismissed; rather, the case was dismissed to protect the identity of the informer. (RT 15909-15920.) Thestreet value of the cocainein that case was $60,000 to $80,000. (RT 15915.) Detective Vojtecky testified that he and DDA Janice Maurizi*® interviewed codefendant Settle soon after his arrest. (RT 16052-16054, 16110-16111.) An audiotape of a portion of the interview, People’s Exhibit 217, was played for the jury. (/bid.) The jury heard codefendant Settle’s repeated refusal to provide the address of his residences during the previous 15 years, saying only that he had been “in transit” during those years.*” (People’s Exh. 217.) Detective Vojtecky also testified that, on the day of the homicides, he double-parked next to the “company car” and that it looked as if it had been parked there for weeks because the windshield was dirty and there was trash underneath the car. (RT 15773-15774.) “© DDA Maurizi was removed from prosecutingthis case as a result of a successful defense motion to recuse the Los Angeles District Attorney’s office (later reversed on appeal). (See ArgumentI, post.) ‘7 Thetrial court further limited the use of codefendantSettle’s asit bore on his credibility only, and not for the truth of the matter asserted. (RT 16053-16054.) 72 D. The Defense Rebuttal Recalled by the defense, Frank Settle refuted codefendant Settle’s - account of Frank’s activities of August 28, 1988. (RT 15841-15843.) He also denied being involved in the sale of narcotics. (RT 15844-15856.) The court took judicial notice that on October 5, 1988, a complaint wasfiled against Williams and others charging him and the other individuals with the four homicides in this case; on November 21, 1988, a formal grant of immunity from those charges was issued and on November 30, 1988, the charges against Williams were dismissed. (RT 16093-16095.) A tape of the October7, 1988 interview of Williams by Detective Vojtecky in Pennsylvania wasplayed to the jury.** (RT 16086-16092.) E. The Penalty Phase 1. The Prosecution’s Case In Aggravation a. Against Coappellant Wheeler The prosecution presented evidence that Wheeler, while in the county jail pending the outcomeofthe instant case: assaulted an inmate with a shank (RT 17213-17243, 17260-17299); battered two other inmates _ on twoseparate occasions (RT 17366-17372; 17404-17433); battered and threatened to sexually assault another (RT 17322-178353); and possessed a Shank. (RT 17366-17382.) Theprosecution also presented evidence that coappellant Wheeler attacked another ward with achair while in custody in the California Youth Authority. (RT 17250-17258, 17299-17300, 17306- 17371.) The prosecution further presented evidence that, while coappellant _ “ The jury wasnot providedtranscripts of the tape, but weretold that if they wanted to rehear the tape during deliberation a transcript would be ready for them. The tape is Wheeler’s Exhibit 8. (RT 16086-16092.) The transcript is Wheeler’s Exhibit 8A. (4 SUPP CT 24-142.) 73 Wheeler wasout of custody, he: brandished a gun and heldit to a man’s head during a confrontation (RT 17384-17403.) It was stipulated that coappellant Wheeler was in custody in CYA from March 14, 1985 , to October 27, 1987 for attempted robbery andthat he pled guilty to possession of a shank while in jail pending this case. (RT 17299-17300.) b. Against Coappellant Smith The prosecutionpresented evidence that coappellant Smith, while in the county jail pending the outcome ofthe instant case, assaulted an inmate with a shank (RT 17452-17484) and, on two separate occasions, possessed a shank. (RT 17490-17499, 17527-17540.) The prosecution also presented evidencethat, prior to the instant crimes, coappellant Smith had been convicted of a burglary and an assault with intent to commit great bodily injury. (RT 17500-17510, 17572-17581.) c. Against Appellant Walter Comptontestified that appellant told him that Ken Gentry waskilled over a drug dispute and because he had broken into Ross Bryant’s van and stolen a tape; appellant told him who had killed Gentry, but Compton could not recall the name of that person. (RT 17586-17587.) Comptontestified that appellant told Compton he wanted Sophinia Newsome, a woman whowasspeakingto police about the Ken Gentry homicide, killed. Jeff Bryant gave Compton a gun and a getaway car and said he would pay Compton $10,000 if he carried out that plan. (RT 17587- 17590.) Compton ultimately backed out of the plan and instead had himself arrested for possessing the handgun. (RT 17591-17593.) David Hodnett testified that he shot Clarence Johnson in 1985 for personal reasons and denied that appellant paid him to do so. (RT 17619- 74 17625.) Detective Vojtecky testified that he arrested Hodnett for the Johnson shooting; that Hodnett told him that Jeff Bryant had hired him to shoot Johnson; andthat appellant also was involved. (RT 17679- 17681.) Hodnett pled guilty shooting Johnson, who survived, and while in prison Hodnett received thousandsof dollars from appellant. (RT 17633-17634, 17683.) . Detective Vojtecky further testified that, the day after Alonzo Smith testified in this case, Hodnett contacted Detective Vojtecky and asked Detective Vojtecky to tell Alonzo Smith that Hodnett would not kill him (A Smith) “due to love for his family,” but that if he is not locked down in prison, he should carry two knives because he is a dead man. Hodnett also said to tell Alonzo Smith not to ever approachHodnett onthe street because they don't know each other anymore. (RT 17685-17686.) 2. The Defense Cases In Mitigation The appellants were jointly tried by the same jury. The presentations follow in the sameorder in which they were presented tothe jury on behalf of each appellant. a. Presentation Regarding Coappellant Wheeler A counselor who knew coappellant Wheeler while coappellant Wheeler was incarcerated in the CYAtestified that: Wheeler’s mother becameill with cancer while he was incarcerated, which made coappellant Wheeler sad and discouraged; coappellant Wheeler had no gangaffiliation, which caused coappellant Wheeler some problems among gang members; coappellant Wheeler did well in school; and coappellant Wheeler had four minor offenses while in CYA. (RT 17696-17706.) | 75 One of Wheeler’s maternal aunts testified that Wheeler’s mother was a drug user who died in 1988, and that Wheeler’s father abandoned him when coappellant Wheeler was about four years old; she asked the jurors to spare him. (RT 17717-17726.) Another maternalaunttestified that Wheeler, the oldest of four, his mother and his siblings moved arounda lot and were often evicted; that Wheeler’s motherfailed to provide necessities such as shelter and food; that Wheeler’s father was not around and there werea lot of other men in and out of Wheeler’s life; that coappellant Wheeler was a smart, industrious child who had a paper route and an job at the YMCAcleaning up towels. (RT 17730-17738.) A paternal aunt of Wheeler’s testified that: she knew Wheeler’s motherto have taken “reds” and to have smoked marijuana while she was pregnant with Wheeler; there was a dispute as to who was Wheeler’s father; the relationship between Wheeler’s parents was not good-- his mother “partied”all the time, and his father “would just leave;” she (the aunt) had been arrested for shoplifting and was a recovering narcotics user who found Godin jail, and she believed that coappellant Wheeler could do the same. (RT 17769-17778.) The father of Wheeler’s half sisters testified that: he knew — ‘coappellant Wheeler from1977 to 1984, while he was with Wheeler’s mother; he had a gambling problem, engagedinillegal activities and beat coappellant Wheeler and Wheeler’s brother; and he was anegative role model for Wheeler. (RT 17744-17752.) Wheeler’s half sister and his grandmothertestified to their love for coappellant Wheeler and asked the jurors to spare his life. (RT 17757-17768.) Wheeler’s brothertestified that: he did not knowtheir biological father while growing up; they moved arounda lot; their stepfather beat both 76 of them, but coappellant Wheeler received the majority of the beatings; during the beatings, the stepfather would force them to stand naked in front _ of him and he would beat with tree branches until he becametootiredto» continue; during the beatings their mother wasin the other room, but did nothing; coappellant Wheeler left home when coappellant Wheeler was 14 years old; he did not know what coappellant Wheeler did for money, but coappellant Wheeler said he would help him and bought him thing; when he asked coappellant Wheeler how he made his money, coappellant Wheeler told him he worked at UCLA; coappellant Wheeler warnedhis brother not to hang around people involvedin drugs; he (the brother) had no felony convictions and was working; coappellant Wheeler did not have an older brother to turn to for protection. (RT 17784-17802.) | Wheeler’s fathertestified that: he was 19 years old when coappellant Wheeler was born; Wheeler’s mother was a runaway whenthey. met; he left the home when coappellant Wheeler was two years old because he (the father) was too violent, and he left his son’s life altogether when coappellant Wheeler was six years old because Wheeler’s mother asked him to stop seeing his son; coappellant Wheeler saw his father severely beat his mother; and he asked the jurors to give coappellant Wheeler a chance because he had never been present for Wheeler. (RT 17803-17814.) Clinical psychologist Adrienne Davis discussed the risk factors that were present in Wheeler’s formative years, including: he had a teenage mother who used drugs; his family was unstable; he was abandonedbyhis | biological father; and his step-father’s presence had a very negative affect. (RT 17846-17871.) Dr. Davis opined that when coappellant Wheeler was a teenager, he was looking for male role models to protect him and he found them when he methis codefendants. (RT 17871-17875.) 77 b. Presentation Regarding Appellant RoyPlayertestified that: he was 60 years old and he had known appellant since appellant wasa little boy; he got to know appellant because they played golf at the same course; appellant was good with numbers and kept score in his head; when Player*? was not doing well financially, appellant gave Player’s 11-year-old son a birthday present; appellant picked appellant’s daughter up every day after school, and appellant communicated very well with her and spent time with her; if someone in the community died and there was not.enough moneyforthe burial, appellant would raise money andgiveof himself; appellant raised moneyfor the local Little | League; Player wasnot afraid of appellant and that other people in the community loved appellant; he believed appellant to be a good person who did not deserveto die, and believed that if appellant went to jail he would help people just like he helped Player. (RT 17992-18000.) Donald Keytestified that he met appellant on the golf course, considered appellant a friend and believed that appellant should get the lesser punishment. (RT 18061-18065.) ‘Suzanne Bogebergtestified that: she was a teacher and licensed family-child therapist whowas contacted by appellant during his divorce because he was concerned about his daughter, Eneeka, who he thought needed counseling; appellant impressed her because he wasa caring, loving, warm anda nice person; she worked with appellant and his daughter and gave appellant some support and suggestions for getting through the divorce. (RT 18009-18011.) *” This and all subsequent references are to Roy Player. 78 Appellant’s sister, Wanda Proctor, testified that: she and appellant have four other siblings, Shelia, John Ross, Jeff and Eli; their motheris still living; appellant was very close to his daughter Eneeka andpriorto his arrest spenta lot of time with her and wasa stabilizing influence in ‘Eneeka’s life; Eneekastill takes her problems to appellant and visits him as much as she can; appellant helped Proctor raise her son by encouraging him to stay in school andstay out of trouble; appellant asks her about their relatives and she gives him reports; she talks about the Word of God with appellant and believes that he has made somespiritual progress since his arrest; appellant has always been honest, but not perfect; she does not believe he deserves to die because he has a daughterto raise and brothers and sisters and a mother; she did not believe appellant arranged to have four people killed; she loved appellant and does not want him to die. (RT 18019-18028.) Appellant’s former mother-in-law and Eneeka’s grandmother, Dessie Babineaux,alsotestified about appellant’s good relationship with his daughter. (RT 18040-18047.) Appellant’s mother, Florence Bryant, testified that she was 74 years old, and she authenticated one of appellant’s school report cards, his elementary school diploma and a photograph of appellant playing baseball when he was a boy. (RT 18264-18265.) She furthertestified that appellant’s father died in 1978. (RT 18265.) c. Presentation Regarding Coappellant Smith Clinical psychologist Donald Hoaglandtestified that: he conducted a neurocognitive assessment of coappellant Smith; coappellant Smith has a below averageIQ, is dyslexic, has memory deficits and suffered from attention deficit hyperactivity disorder (“ADHD”) as a child; psychological 79 testing of coappellant Smith indicated that he was vulnerable to psychotic deterioration, is chronically anxious and depressed,is introverted, withdrawn, emotionally detached and feels inadequate; coappellant Smith often used drugs or alcohol to alleviate his emotional pain, whichis often — converted into back pain and headaches. (RT 1813 1 18156.) Coappellant Smith’s sister, Donnette,testified that: their father often tortured coappellant Smith with extension cords and belts while coappellant Smith was naked; coappellant Smith often witnessed his father molesting her; their mother did nothing to stop their father’s violence; their mother wasnot affectionate; Donnette had no positive memories of their childhood with their parents. (RT 18312-18332.) I I 80 ARGUMENT I THE LADA’S OFFICE ABANDONEDITS ROLE AS A DISINTERESTED PROSECUTORIN THIS CASE,AS IT. _ SUFFERED FROM A DISQUALIFYING CONFLICT OF INTEREST A. Introduction Afterthe leadtrial prosecuting attorney declared her belief that the Los Angeles County District Attorney’s (““LADA’s”) office had been infiltrated by membersa criminal organization known asthe “Family,” of which the defendants were alleged to be members, the defense moved to recuse the LADA’s office from prosecuting the case at trial. After holding six in camera hearings from which the defense was excluded, on December 17, 1992, the Honorable J.D. Smith, Judge, then assigned to preside over the trial of this case, denied the motion to recuse. | Shortly after that denial, the prosecution disclosed allegations by a _ trial deputy previously assigned to this case that, in 1991, he had witnessed the lead investigator on the case tamper with a key prosecution witness in the presenceof the lead prosecuting attorney. After briefing and testimony relating to the allegations of witness tampering and discovery violations attendant thereto, on January 22, 1993, Judge Smith granted the defense motion to recuse the entire LADA’s office. (RT 4816-4820.) That ruling was appealed by the Attorney General’s (“AG’s’) office, and reversed by the Court of Appeal (“CCA”) in 1994. (See, e.g., CT 3090-3121.) The CCA adopted the AG’s argumentthat the grant of:recusal had been based solely on the discovery violation which cameto light after the denial ofthe “first” recusal motion;it therefore declined to consider any of the proceedings attendant to that “first” recusal motion, andit ruled that the $1 trial court erroneously recused the entire office because of a minor discovery violation. (CT 3117-3119 and 6 SUPP CT 2-17.) The record demonstrates that the LADA’s office abandonedits role as an impartial prosecutor in this case, andit establishes the existence of a conflict of interest that affected the ability of the prosecutor, includingtrial deputies through the top levels of the managementand the District Attorney (“DA”) himself, to act impartially in prosecuting appellant’s case, and that the prosecution of appellant by the LADA’s office denied him fairtrial, due processof law, and therights to present a defense,to be presentathis capital trial, to confrontation, to the effective assistance of counsel and to a reliable judgmentof death. (U.S. Const., Amends. V, VI, VII, VIII and XIV; Cal. Const. art. I, §§ 1, 7, 15 and 17.) Therecordrelatingto this issue is lengthy and complex. A detailed discussion ofthe proceedings below is a prerequisite to discussion of the merit of appellant’s claim. B. Proceedings Below On October 5, 1992,the trial court granted the defensemotion to sever count VII of the amended information, which chargedall four capital defendants with conspiringto sell narcotics. (RT 4250; CT 4817-4835, 11224-11225.)°” The prosecutionfiled a writ in the CCA challenging the ~° Then-remaining non-capital defendants Tannis Curry, Antonio Johnson, Nash Newbill, Andrew Settle and Lamont Gillon were formally severed from thetrial of capital defendants Bryant, Wheeler, Smith and Jon Settle on August 3, 1992. (RT 4105.) Those non-capital cases were set to trail the capital trial; however, the non-capital defendants nonetheless were parties to the recusal motions. (See, e.g., RT 4435.) By the fall of 1992, three. one-time co-defendants, Anthony Arceneaux, Provine McCloria and William Settle, had pled to non-capital charges. (CT 11223, fn. 3.) 82 a d severanceofthat count.*' (CT 11219-11252.) In that filing, verified by the lead prosecutor, DDA Janice Maurizi, it was alleged the defendants “had (and continue to have) people inside most of the major organizations including LAPD, LADA,Franchise Tax Board, Department of Motor Vehicles, Pacific Telephone,etc., allegedly all the way up to congressmen and judges.[. . .] Members of the Bryant Family penetrated key law enforcement agencies to obtain confidential information.” (RT 4290; CT 11278.) Days after the writ wasfiled, as reported in the Los Angeles Times, a spokeswoman for the LADA’s office, DDA Sandi Gibbons, confirmed that prosecutors and support staff within the LADA’soffice were being investigated to determineif information had been supplied to the defendants. (CT 11281.) However,District Attorney (“DA”) Ira Reiner was quoted as saying that the LADA’s office was not investigating whether there had been leaks of confidential information. (Ibid:) | On October 13, 1992, counsel for appellant Wheeler filed a motion for recusal of the LADA’soffice, which appellant joined. (RT 4281; CT 11263-11281.) The defense argued that, given thefacts set forth in thewrit and based on the contradictory statements of the LADA’s spokesperson and DAReiner, there existed a conflict of interest that “will prejudice the office of the District Attorney against the defendant[s] and impair the prosecutor’s ability to impartially perform his function”and thereby deprive the defendants, inter alia, of their right to fair trial; in addition, the defense argued that no discovery had been provided regarding any alleged conspiracy between members of the Bryant organization and employees of ‘1 Pursuant to Evidence Codesections 452 and 453, appellant has requested this Court take judicial notice of the contents of the Second Appellate District Court of Appeal case file number B070501. 83 the LADA’s office. (CT 11264, 11268-11275.) Ata pretrial hearing on the samedate, the trial court found good cause to continuethe trial past day 10 in order to investigate the allegations and ordered the prosecution to respond to the defense motion, finding that if someorall of the allegations weretrue he believed he would grant the defense motion to recuse. The trial court also ordered a representative of the Attorney General’s office to be presentatthe next court date. (RT 4285, 4297.) On November2, 1992, the court held a status conference on the recusal motion; a representative from the AG’s office, Deputy Attorney General (“DAG”) Tricia Bigelow, appeared along with the otherparties. (RT 4311-4313, 4324.) The LADA’soffice that morning hadfiled a pleading entitled “Status of Discovery Re: Recusal Motion.” (CT 11328- 11347.) At the status conference DDA Maurizi presented the trial court with a three-inch-thick binder containing discovery previously provided by the prosecution that supported the allegations that the Bryant organization had membersinside the police department, the LADA’soffice, the Department of Motor Vehicles (“DMV”), etc.” (RT 4318-4322.) DDA Maurizi stated that the LADA’s office of Internal Affairs wasinvestigating whether the organization “had people” in the LADA’s office, but that DA Reiner would not know ofsuch “low-level investigations.” (RT 4315- °° This binderis not part of the record on appeal. Appellant in record correction requested that the binder be augmented into the record. (5 SUPP CT 74,lines 5-7.) The request to augment was denied bythetrial court and remains pending before this Court. (See Motion to Vacate Certification or, in the Alternative, to Correct, Augment and Settle the Recordat p. 72, filed September 13, 2002, in this Court by appellant Bryant; see also Argument XXXIV,post, incorporated by reference herein.) 84 4316.) As evidence of the alleged infiltration, DDA Maurizistated that the outstanding arrest warrant charging codefendant Settle with four counts of murder was removed from a computer and hadto be reentered on four separate occasions; she argued, however, thatit did not take a high level of infiltration to access that computer. (RT 4216-4317.) She also cited in one of the first batches of discovery provided to the defense a newspaperarticle that reported Jeff Bryant had an agent in the DMVand an informantin other agencies, including the LADA’soffice. (RT 4319.) Shefurther argued that discovery from other witnessesreferred to the organization’s people working in the LADA’s Van Nuysoffice and described the organization’s bribing of police officers from the Los Angeles County Police Department’s(“LAPD’s”) Foothill Division. (RT 4320-4321.) DDA Maurizi informed the court that Lieutenant Al Tomich ofthe LADA's Bureau of Investigation and Richard Hecht, Director of LADA’s Office of Branch and Area Operations, laid out in detail in their declarations attached to prosecution’s moving papers the extent of the internal investigations, and argued that the status of ongoing investigations, as well as the status of previous investigations, are not relevant to discovery. (RT 4317.) DDA Maurizi informed the court that that the prosecution would not introduce any of the evidenceofthe infiltration documented in the binder given to the court, in part in an effort to comply with the court's request to simplify the case. (RT 4323.) She requested the court to take the matter off calendar, conditioned on any in camera hearings the court might wish to . conduct, and added that Tomich and Hecht were available that same date. (RT 4323, 4318.) The defense countered that the prosecution’s pleading showed there was information not being disclosed to the defense: Hecht's declaration 85 reflected that DDA Maurizi had told him that a confidential informant implicated another employee of the LADA’soffice as being connected to the “Family,” that that employeestill worked for the LADA’s office, and that an ongoing investigation was proceeding. (RT 4328- 4329.) The defense argued that the conflict existed in that the prosecution was withholding evidence which formedthebasis of the recusal motion. (RT 4329.) DDA Maurizi argued that evidence of an ongoing investigation and formerinvestigations that resulted in the termination of persons from the LADA’soffice wasprivileged and not relevant: As to the informant who led to the ongoing investigation, the DDA Maurizi stated the prosecution had not disclosed that informant, neverintended to use the informant, and that nothing in the informant's statement was Brady material, so it was not discoverable. (RT 4329-4330.) DDAMaurizi stated that Hecht and Tomich were ready to go into chambers and inform the court of the outcomeofthe investigations. DDA Maurizi was informed by the AG’s office that two former LADA employees had been prosecuted by the AG’s office: one pled guilty to sections 32 and 502,i.e., accessory after the fact and dissemination of confidential information; the second employee wasinvestigated for involvementin the criminal conspiracy and was diverted on drug charges. (RT 4330.) Both had been terminated from the LADA’soffice for some time. (RT 4330.) DDA Maurizi argued that nothing about those files was in any wayrelevantto this case, that the defendants were in a far better position to know to whatextent their operatives had used the information, and that it was the People who were victimized. (RT 4330.) DDA Maurizi argued that an in camera review would convincethe court that there was no legal precedent for turning overthe information. (RT 4330.) 86 DAGBigelow informedthe court that the AG’s office was opposed to recusal and desired to file a pleading on the matter, but needed a determination of what information wasprivileged before that pleading could be filed. (RT 4331.) The court said it intended to thoroughly review the materials, including the notebook provided by DDA Maurizi, before ruling on the motion. (RT 4332-4333.) Thecourt scheduled incamera hearings on the motion, but said that it believed most of the information would not be privileged. (RT 4337.) Two in camera hearings, from which the defense was excluded, were held prior to the next scheduled court date.** (RT 4343; CT 11643.) | | On November6, 1992, the AG’s office filed a motion opposing recusal of the LADA’soffice, arguing: (1) there was insufficientproofof a criminal conspiracy between members of the organization and the LADA’s office, or, if such a conspiracy existed, there was insufficient proofthat such a tie between the LADA’s office and the organization would deprive _ defendants of a fair trial; and (2) precedent dictated that recusalofthe entire LADA’s office was inappropriate. (CT 11593-11642.) ~On November9, 1992, the LADA’s office filed a Memorandum of Points and Authorities in Opposition to Motion for Recusalofthe office of the District Attorney, arguing: (1) the decision by the LADA’soffice not to present any evidenceofinfiltration by the organization into state and °? While appellant has requested that the recordof all in camera proceedings and documents relating to the recusal motion be unsealed and providedto the defense, the Court has not ruled on appellant’s request to date. (See Motion to Vacate Certification or, in the Alternative, to Correct, Augmentand Settle the Record at pp. 76-77, filed September 13, 2002 in this Court by appellant Bryant; see also Argument XXXIV,post.) 87 federal agenciesat trial rendered the recusal motion moot; (2) no conflict existed because the LADA’s internalinvestigation of the organization’s infiltration of its ranks would not cause the DA’soffice to treat the defendants differently; and (3) the AG’s office would prosecute misconduct by LADA employees. (RT 11647-11707.) On November 10, 1992, counsel for appellant Wheeler filed a responseto the opposition to his motion to recuse the LADA’soffice. He argued that since there existed no evidenceofreferral to the AG’soffice for prosecution ofLADA employeesalleged to be unindicted co-conspirators, the LADA’s office was therefore attempting to shield its employees from prosecution. (CT 11712-11726.) On November10, 1992, the trial court'held a hearing at which the defense and representatives ofboth the LADA’s and AG’soffices were present. (RT 4340-4342.) The court expressed concern about the ongoing internal investigations being conducted within the LADA’s office, and said that if information cameto the court that there was an ongoing investigation involving a person in the LADA’soffice that affected the Bryant case, the court would have to allow that information to be discovered by the defense or take that into consideration in relation to the recusal motion. (RT 4356.) The court on its own motion conducted an examination of DA Reiner and DDAGibbons; counsel were not permitted to examine the witnesses, but were permitted to approach and inform the court of questions they would like asked, (RT 4359-4360.) | DAReinertestified that there was a difference between an internal inquiry into wrongdoing and a formalinvestigation,and that at the time he _ wasinterviewed for the newspaperarticle there was no formal investigation ongoing, only inquiries relating to the infiltration of the LADA’s office by 88 2 *+ ~@ *~ *@ * ~ e ¢ $ @ é@ ea e e the Bryant Family; he addedthat his office.opened a formal investigation of the alleged infiltration 10 days after the article appeared. (RT 4363-4373.) DDA Gibbonstestified that she based herbelief that an investigation was ongoing on the facts alleged in the prosecution’s writ relating to the severance of the drug conspiracy count as well as on her experience of how things workedin heroffice; she thought it inconceivable, given the allegations, that an investigation would not be ongoing. (RT 4375-4378.) | Detective James Vojtecky, the investigating officer in the instant case,testified that: he interviewed an informant on September 15, 1992; he then conducted an internal LAPD investigation based on information provided bythe informant; he next set up a meeting with the LADA’s Bureau of Investigation (“BOI”) andthe informant on October 20, 1992. (RT 4389-4391.) Detective Vojtecky did not knowat that point whetherthe LADA’s office had opened:an investigation. (RT 4392.) . Thetrial court saidit believed the LADA’s investigation was incomplete, and instructed the LADA’soffice to continueits investigation of the cases it had investigated but did not refer to the AG’s office, . presumablyso that the court could make its final determination of the recusal and related discovery motions.” (RT 4405-4406.) The hearing was continued to November24, 1992. (RT 4410.) On November18, 1992, a “Motion for Evidentiary Hearing” was filed on behalf of codefendant Tannis Curry, which argued that an evidentiary hearing was necessary to create a record and establish through ** The court’s instruction is somewhat vague;it might make more sense in the context of discussions in the sealed in camera hearings, transcripts of which have not been provided to appellant. 89 admissible evidence that DDA Maurizi’s comments to the press were erroneous; appellant joined this request. (RT 4428; CT 11972-11986.) On November19, 1992, appellant filed “Points and Authorities Re: Evidence Code 1040 Motion and Recusal.” (CT 11898-11967.) Appellant argued that his federal constitutionalrights to a fair trial, to due process of law, to present a defense, to confrontation and to the effective assistance of counsel were violated by the LADA’s office misrepresentations regarding the alleged infiltration and byits failure to provide discovery relating to those charges; appellant further argued the "remedy" proposed by the LADA’soffice of not introducing such evidenceattrial was only a cover-up. In support of this claim, he further argued that: the issue facing - the court was what remedies were appropriate to correct the LADA's deceit; the information sought by the defense about the alleged infiltration of various agencies by the Family was not privileged, and wasrelevant both to the recusal motion andto his ability to present a defense; there existed an actual conflict in the LADA’s office arising from its ongoing investigation _ of whether its own employees were associated with the crimesit was prosecuting in appellant’s case; and, according to various statements of the DA, as manyas five employees had been or were then being investigated aboutthe alleged infiltration. Appellant requested that an evidentiary . hearing on the issue be held and that the LADA and law enforcement turn overall documents relevantto this issue to the court. He further argued that, if the allegationsofinfiltration were untrue, DDA Maurizi had a personal stake in the outcomeofthe proceeding byvirtue of herlie to the CCA andas evidenced by the dissemination of false information designed to taint the jury pool. (Zbid.) 90 * ~ @ * ~ » + ~ @ e e e é é e Several more in camera hearings were held from which the defense was excluded. At least one, on November 24, 1992, was held at the LADA’s request after it represented to the court that new information acquired the prior evening needed to be discussed. (RT 4418-4420.) After that in camera hearing the court said the information revealed wascritical to the defense, but had just cometo light. (RT 4422.) The court explained that the information applied to all defendants, so the court found good cause to continue the matter as to all defendants; the court said it would rule on what wasto be disclosed to the defense, and expected counsel to be ready for trial in the event it did not grant the recusal motion. (RT 4423.) With . regard to the defense motion for evidentiary hearing, the court said it would determine if DDA Maurizi’s statements to the press were relevantto recusal. (RT 4428.) Prior to the next hearing on the recusal motion, at least two more in camera proceedings from which the defense was excluded were held.*> (RT 4434-1 through 4434-58.) All parties were present at the December 17, 1992, hearing on the motions. (RT 4435-4437.) The court said it believed the investigation was complete and solicited argument from counsel. Counsel for one defendant said it was difficult to argue facts known only to the prosecution and the court, and asked if any additional evidence would be madeavailable to the °° ‘The record seemsto reflect that two in camera hearings were held on November 24, 1992. The court stated there were about 115 pages of in cameratranscripts from about five hearings. (RT 4437.) Judging from the record available to appellant, there appear to have been six in camera hearings held over the course of the following five days: November 16, 20, 24 (2 hearings), December 14 and 16, 1992. (CT 11643-11646; RT 4413-1 - 4413-10, 4415-1 - 4415-18, 4420-1 - 4420-19, 4434-1 - 4434-58.) 91 defense. (RT 4439.) Appellant’s counsel argued that the court should not reach a decision based on information supplied by the prosecution in camera because the prosecution’s credibility was in doubt; counsel then provided the court with specific examplesof misrepresentations the prosecution madeto both the trial court and the CCA. (RT 4439-4451; see also CT 11258-11262.) . The DDA and the DAG both arguedessentially that: there was no evidence Ira Reiner abandonedhis role as prosecutor; the issue was moot because Reiner wasno longerthe LADA®;there wasnolie to taint the jury pool; and the LADA would not introduce any evidenceofinfiltration at — trial. (RT 4460-4464, 4473.) Thetrial court said that in 39 years in the criminaljustice field it had never heard of such a case involving the upper echelon ofdistrict attorneys. _ It found that “everyone in the top echelon of the office has been involved.” (RT 4475.) In response to questioning from the court, DAG Bigelow argued that recusal of the entire LADA’s office was not required;rather, precedent allowedthe office to continue to prosecute the case if different DDAswere assigned to the case. (RT 4475-4476.) Thetrial court then denied the motion to recuse. (RT 4480.) The court informed appellant’s counsel that it did not read all the material relating to the misrepresentations of the LADA’s office, but said thatit knew the contents of those materials and was leaning toward recusal based on appellant’s showing and because, since this was a death penalty case, the defendants wereentitled to “as much evidence as they can.” (RT 4478- °€ Gil Garcetti replaced Ira Reiner as the LADA on December7, 1992. (RT 4463.) 92 e 6 ¢ a * ~ * 6 a ) e e e e é $ @ € @ 4479.) However, the court could not find any support in the case law for a ruling “that the failure to give the discovery or the misrepresentations, if there were any, are groundsfor recusal.” (RT 4479.) The court found nothing in the in camera proceedingsto substantiate allegations that the LADA’soffice wasinfiltrated by the Bryant organization; it further found that someof the informants were non-exonerating and determinedthat a privilege attached to some ofthe informants. (RT 4480-4481.) Thetrial court then lectured counsel at some length regarding the importance of integrity to the criminal justice system. (RT 4482-4485.) On December 22, 1992,at the first court hearing following the denial of the defense motion to recuse the LADA’s office, Head Deputy District Attorney Harry B. Sondheim appeared and requested an in camera hearing on a discovery issue; he informed the court that a DDA had written notes regarding an interview with a prosecution witness, and he asked the court to determine whetherthe notes were discoverable or privileged under the work-product doctrine. (RT 4543-4545.) Sondheim said he had additional information to discuss ex parte, but did not believe it would impact on the recusal motion. (RT 4546.) The court replied that if the information related to the recusal motion “the sanctions would be just awesome,” and asked if the information was known to members ofthe office during the recusal hearings. (RT 4547, 4552.) Sondheim answered that he learned ofit after the hearings because it takes time for tapes to be transcribed and for meetings to be held. (RT 4553.) The court indicatedits discomfort with holding more in camera hearings, and said that it found the decision to deny the recusal motion a “tough one”in light of the discovery issues involved. (RT 4556.) The court then denied the prosecution’s request for an in camera hearing. Trial counsel for Wheeler then fileda 93 subpoena duces tecum (“SDT’’) for the documents to which Sondheim referred, and the court set a hearing on the SDT for January 5, 1993. (RT 4560-4561.) Without deciding the issue, the court indicatedits belief that the documents were discoverable. (RT 4561.) The prosecution mailed the documents to the defense on December 22, 1992. (1 SUPP CT 756.) The documents were: (1) a transcript of an interview conducted on December16, 1992, by a LADAinvestigatorof a trial deputy, DDA Eduards Abele, who had been previously assignedto the instant case; and (2) an original, unredacted copy of four pages of notes DDA Abele wrote immediately after an interview on January 28, 1991, of prosecution percipient witness Rosa Hernandez that had not previously been provided to the defense. (1 SUPP CT 756.) Both the transcript and notes reflect, inter alia, DDA Abele’s belief that DDA Maurizi and Detective Vojtecky improperly influenced Hernandez, who was 14 years old at the time of the homicides, to change her testimony to support the prosecution’s case. (1 SUPP CT 769-803.) The transcript further reflects DDA Abele’s beliefs that: DDA Maurizi had become “obsessed” with the case to the extent that it affected her judgment; there was insufficient evidence.to prosecute at least one, and possibly as manyasthree of the defendants; . DDAAbele had been discouraged by a supervisor from reporting his concerns to superiors in the LADA’s office; he had additional concerns not discussed in the interview notes aboutthe basic fairness of the case. (1 SUPP CT 757-758.) On December24, 1992, newly elected DA Gil Garcetti notified defense counsel that DDA Maurizi was being withdrawnfrom all involvementin the prosecution of the instant case becauseof her status as a potential witness. (1 SUPP CT 680, 756-757.) 94 e c e e * ~ + @ * ~ @ s e * ~ e 6 @ e e Several defendants, including appellant, then filed recusal motions. (CT 3097-3098; 1 SUPP CT 653-720, 754-803, 805-815.) Appellant’s motion wasentitled “Motion for Reconsideration of Recusal Motion (New Facts and Changed Circumstances).” (1 SUPP CT 754.) All defendants eventually joined the motions, and the arguments for recusal were addressed | jointly.*” (See, e.g., 1 SUPP CT 234-485.) Those argumentsfor recusal included: (1) new evidence, improperly withheld from court and counsel, wasrelevant and material to the court’s earlier inquiry regarding the existence of a conflict of interest, and that therefore the court should reconsiderits denial of the defense motion to recuse the LADA’soffice; (2) the evidenceestablished a conflict sufficient to require recusal because two prosecutors would be adversarial witnessesat trial, putting the prosecution in the untenable position of impeaching one prosecutor’s credibility while ‘supporting the other’s; (3) recusal was required understate statutory and decisional law authorizing such when a reasonable probability exists that the prosecuting agencyis not exercising its discretion in an even-handed manner; (4) recusal was necessary in order to ensure appellant’s rights understate and federal law to fair trial and due process of law; (5) the LADA’soffice suppressed evidence pertinent to the impeachment ofa major prosecution witness; (6) the LADA’s office suppressed evidence critical to the determination of the recusal motion denied bythetrial court on December 17, 1992; (7) members of the LADA’s office were guilty of suborning perjury and witness tampering; (8) the criminal conspiracyto suppress material evidence by members of the LADA’s office demonstrated °? Co-appellant Smith was granted permission to join in the recusal motions after the motion wasgranted bythetrial court. (RT 4829-4830; CT 12296.) 95 a personal interest in the outcomeof the case; and (9) evidence showed the prosecutingtrial deputy harbored personal animus toward the defendants. (1 SUPP CT 234-485, 653-720, 754-803, 805-815 [citations omitted].) On January 5, 1993, Sondheim informed the court that the subject matter of the SDT had been subsequently provided to the defense. (RT 4600.) The court noted the several recusal motionsfiled as a result, andit set the matter for hearing on January 12, 1993, stating that it saw “somereal problems” with the case. (RT 4600-4601.) On January 11, 1993, the AG’s office, still representing the LADA’s Office, filed its opposition to the recusal motions, in which it argued essentially that no wrongdoing occurred,or, in the alternative, that remedies __ other than the recusal of the entire LADA’soffice existed, including the recusal of the DDAsand the LAPD investigating officer involvedin the allegations of misconduct. (1 SUPP CT 234-281.) In support of the argument that no wrongdoing had occurred, the AG’s pleading contained declarations from numerous members of the LADA’s office, showing that many membersofthe office, from deputy district attorneys on up through the ranks of managementin two different administrations, had knowledge of and had been involved in determining what to do about DDA Abele’s allegations. ({bid.) The January 12, 1993, hearing on the motions was continued to allow the defense time to review the oppositionfiling. (RT 4625.) The hearing on the recusal motions washeld on January 22, 1993. (RT 4646- 4825.) DDAShellie Samuelstestified that: she had known DDAAbele _ since 1987; she recalled him telling her of some problemshe had with an interview of a prosecution witness; that from the Fall of 1990 through January 1991, he repeatedly expressed his dissatisfaction with his role in the 96 e o e e e e e e e s e e e e * ~ % * ~ » s fe r * ~ @ e e @ @ e instant case, in that he did not feel he was being given enough responsibility in the case; DDA Abele nevertold her he was discouraged from pursuing his complaint regarding the witness interview; the investigating officer, Detective Vojtecky, told her he believed DDA Abele wasa liar. (RT 4657- 4673.) Over DAG Bigelow’s objection, Hecht, then the LADA’s Directorof Branch and Area Operations, Region 1, was called by the defense. (RT 4674-4675.) Hechttestified that: on February 1, 1991, he met with DDA Maurizi and Detective Vojtecky regarding DDA Abele’s concerns regarding the interview of Rosa Hernandez; they discussed both the sanitized and unsanitized version ofDDA Abele’s notes, along with Detective Vojtecky’s written comments on those notes; they did not discuss any discovery issues at that time, except to note that DDA Maurizi told Hecht she wastold by a memberof the LADAethics committee to disclose to the defense a copy ofthe notes sans work product; Detective Vojtecky wasvery angry and told Hecht that DDA Abele madethe allegations because he waseither immature or being paid off by someone; Hecht did not investigate Detective Vojtecky’s allegations regarding DDA Abele being paid off because he did not believe those allegations; his notes from the meeting with DDA Maurizi and Detective Vojtecky reflect that DDA Maurizi told him that Rosa Hernandez was the only witness who put a gun in appellant’s hands;his notes also reflect Detective Vojtecky’s concern with security, given that a warrant had been taken out of the computer - system several times; Hecht did not turn over his notes regarding his meeting with DDA Maurizi and Detective Vojteckyto the trial court prior to its denial of the recusal motion on December 16, 1992; Hecht never spoke to DDA Abele regarding DDA Abele’s concernsabout the 97 Hernandezinterview; the decision to remove DDA Abele from the case was made by Chief Deputy DA Greg Thompsonwithout Hecht’s input; Hecht was a witness in the in camera hearing held in chambers regarding the | allegationsof infiltration of the LADA’soffice by the defendants; Hecht believed DDA Abele would be called by the defense at tral, if defense counsel was in any way competent; and Hechtintentionally did not speak with DDA Abele, whom he did not know very well, because he did not wantto be putin a position of being accused of tampering with a defense witness(i.e., DDA Abele). (RT 4674-4723.) After a lunch break, the court noted that it had received a declaration from Detective Vojtecky; DAG Bigelow said she had notreceived that declaration and did not file it. (RT 4725, 4732.) DDA Abele wasthen called by the defense. (RT 4726.) Shortly after his testimony began,the trial court interrupted the examination and determined that none of the parties had received copies of Detective Vojtecky’s declaration, whereupon a short recess was taken to allow the parties to review the declaration. (RT 4731-4733.) Upon returning to court DAG Bigelow objected to the admission of the declaration on the ground thatit related only to the _ propriety of the Hernandez interview and notto the issue of recusal. (RT 4733-4734.) Thetrial court ruled it would consider the declaration as relevant to DDA Abele’s testimony. (RT 4734.) . After another short recess to allow DDA Abele to read Detective Vojtecky’s declaration, DAG Bigelow movedto recuse Detective Vojtecky from acting as the investigating officer on this case on the groundsthat he (1) had demonstrated his inability to work with impartiality, (2) disagreed with the new administration's recent recommendation regarding dismissals, and (3) appeared to be directing the prosecution. (RT 4740.) Thetrial court 98 e @ w s * @ * e 6 @ e 6 @ e e deferred judgmenton that request, and expressed uncertainty as to whether it had the authority for such an order. (Jbid.) Detective Vojtecky;s declaration asserted underoath, inter alia, that: he considered DDA Abele’s version of the January 28, 1991, Hernandez interview to be a “series of lies;” soon after that interview, Detective Vojtecky, DDA Maurizi and Hecht met with Chief Deputy DA Greg Thompson, who asked Detective Vojtecky if he believed DDA Abele could have been “dirty” or “paid off;” when Detective Vojtecky answeredthat he did not know, Thompsontold him that DDA Abele wouldbetakenoff the | case; the LADA’soffice had recently“resurrected” the “DDA Abele incident” by interviewing DDA Abele; Detective Vojtecky listened to the tape of that interview while reviewingits transcript, and “verif[ied] that he [DDA Abele] was morestupid and confused today than he had been almost two years ago;” Detective Vojtecky believed that he and DDA Maurizi should have been formally interviewed as well as DDA Abele; Detective Vojtecky remained aware of “CONNECTIONS?”still existing between the criminal organization and the DA’soffice; Detective Vojtecky disagreed with determinations made by a “group of speed readers” in the new administration that dismissal of murder charges was warranted with regard to two defendants; based on his conversations with one of Tannis Curry’s attorneys, Detective Vojtecky wassure that the attorney had knowledge of information contained in a confidential memorandum prepared by a memberof the prosecution team;.Detective Vojtecky had objected to information contained in the memorandum for security reasons; his objections“fell on deaf ears” and possibly endangered a material witness; *8See ArgumentII,post. 99 as a result of recent LADAactions, Detective Vojtecky decided to lock down his originalfiles and to preclude access to members of the LADA’s office; hereceived the support of his supervisor in that action; and he suggested to his supervisors on December18, 1992, that the LAPD separate itself from the LADA’soffice. (1 SUPP CT 576-580.) At the hearing, DDA Abele continued his testimony by describing the reasons for his ethical concerns over the way the Hernandez interview were conducted. (RT 4742.) On several occasions Hernandez wantedto review her preliminary hearing testimony, but Detective Vojtecky discouraged her from doing so. (RT 4743-4744.) Hernandez wasasked to describe the gunsshe saw at the time of the shooting. (RT 4745.) Initially, Hernandezsaid,consistent with her prior testimony, that she saw only two guns, both in the possession of the man she saw comeout of the house, run to the red car, and shootinto it. (RT 4745.) At some point during the interview, Hernandez expressed uncertainty as to whether a third gun could have been involved. (RT 4745.) Detective Vojtecky then pulled out a photo display of various types of guns and askedherto identify the big gun she saw in the hands of the person standing next to the red car. (RT 4745- 4746.) Detective Vojtecky then coveredup that gun, thus eliminating the option of selecting the same gun, and asked herto select a gun she saw in the hands of the person coming out of the house. (RT 4746.) After Hernandez hesitated quite a bit, Detective Vojtecky selected a gun labeled a .45 caliber pistol; Hernandez said thatmight have been the gun that the person coming out of the house had. (RT 4746-4747.) At the instruction of the ethics unit, DDA Abele asked DDA Maurizi to meet with Detective Vojtecky to try to agree on and document what | occurred in the interview; she refused. (RT 4747-4748.) DDA Abele 100 w a * ~ « * ~ e + e 6 @ 6 s | sought advice from Assistant Director of Branch and. Area Operations Thomas L. Trapp, who was visibly unhappy with DDA Abele’s desire to prepare a memorandum regarding what had occurred. (RT 4749-4750.) DDAAbele further testified he would have dismissed the charges pending against some of the defendants in this case for lack of evidence, and that he told his supervisors so at the time. (RT 4751.) . DDAAbele recalled DDA Maurizi became“obsessed”with this case. He based his opinion in that regard on the Newbill murder prosecution, charges which he believed should have been dismissed, and on _ DDA Maurizi’s desire to have DDAsinvestigated for links to the “Family.” (RT 4753, 4756.) DDA Abele denied that he created this incidentto get off the case. (RT 4756.) DDAAbeletestified that he believed the objective of the January 28, 1991 interview of Rosa Hernandez was to make Stanley Bryant appear to be _ a gunman, contrary to any other evidence obtained by the prosecution up to that point in time.” (RT 4762-4763.) DDA Abele said that DDA Maurizi continued to question Hernandez when Hernandez expressed no uncertainty regarding seeing only one man leave the house and no uncertainty regarding the number of guns she saw; DDA Maurizi also did not give the witness an opportunity to refresh her recollection whenshe askedto do so. (RT 4764.) After argument from counsel, the trial court granted the defense °° After the January 28, 1991, interview, Hernandez’s testimony changed in anothersignificant respect: she testified for the first time that she saw James Franklin Williams walking away from the scene ofthe shooting, thus providing corroborating evidence for Williams’ version of events that was otherwise contradicted by all the other percipient witnesses- whosaid they never saw him walking away from the scene. (CT 13823- 13824.) 101 motion torecuse the LADA’s office. (RT 4816-4821.) The trial judge, a former prosecutor and police offer, found that “the entire office has failed.” (RT4816.) His findings follow in some detail: The conflict is so-obviousto this court that I can't even articulate all the things that are wrong with this case. When wefirst talked about the in-camera hearings, we talked about what was germane to me, what I needed to know to grant or deny the recusal motion. Everybody puta lot of hours in; and the basic question I asked again was, "Is there anything else? Is there anything else that you -could tell me that would have an impact on the outcome of my decision?” And obviously there was becauseat the time one ofthe directors of that organization wanted me to have another in-camera hearing. And I knew with 39 years of experience andinstincts that there sure as hell was something else they had. Little did I know that that would be a conflict between two of their attorneys, either vying for the same position or whateverit was. They both have their impressions of how the interview was handled. It was so extremethat one district attorney -- and all of you here know, anyone here, anyone who works for anybodyelse, that to go andtalk about another employee is almost fatal. That personfelt enoughaboutit to go to Mr. Trapp and other people and talk aboutit. And hefelt it was so important he wentto his ethics group and didn't get much help from them either. Thentheysat on it and they looked atit, talked aboutit; and then two years later again they come up with that information that does have an impact on these defendantsfor a fair trial. They sat on it four years. * * OK These people [the defendants], whatever the situation, had been here for a long time. They had a right to a speedytrial. They 102 * ~ e * ~ @ o s & o @ é 6 ~ @ had a right to discovery. They had a constitutional and state nght, just a do-what's-right philosophy. * OK OK But when you show anintentional, deliberate holding back of evidence, that is the conflict. There is no question that Miss Maurizi, Mr. Hecht and Mr. Trapp, whoever was involved, knew that that was discoverable; and that is the problem. And it must have been a tough decision for them. : * OK Ok But whenthe State is asking forthe life of some of these defendants -- this is a death penalty case. I said this in the beginning. This is not a burglary or robbery -- this requires the maximum protection of those rights. And they are entitled to it, whether we like it or agree with it, all of us here. Most of you in this court are officers of this court. They sat on that information when askedrepeatedly by this court for that information, "Do they haveit all? Wouldit affect it? Would it have an impact on this case? Wouldit affect their rights to a justtrial, to a speedytrial?” It did, and it does have another impact now because the court grants recusal. I can rely on all of the materials that the People have presented, and I am not goingto refer to it anymore. * OK OK Eventhe attorney general has askedthe investigating officer be removed from the case. [ have never heard of anything like that. Now wehavecareers of some ofthese fine people, in the twilight of their careers, challenged. We havethe investigating officer recommendedto be recused by the attorney general's office. Wehavean entire new staff of district attorneys, from the high people down. This doesn't affect one or two people. This isn't like the Greer case, one witness. This case involved _ -- [had Mr. Reiner on the stand. | had his press secretary. We have had the assistants; we have had Mr. Hecht; we have had Mr. Trapp.I have never seen so manydistrict attorneys. I must say 25, 30 people 103 were involved in this one case. They were out doing work, research work, going throughfiles. I look out and see every one of these guys almost daily, and they gave me some paperwork. This whole office was involved.It has been in the press, the papers. I sat here and felt like Mr. Reiner was ontrial. He sat here and the defendants were overthere in the jury box with their counsel. It was almost a backwardssituation. I have never seen anythinglike it in mylife. The case has to be reviewed by somebodydifferent, and I am designating you [DAG Bigelow], you and whateverinvestigating _ officer you think is appropriate. It has to be done. This is four years and youare talking not just about the money and the other problems, but you havea lot of things going on here. (RT 4816-4821.) The AG’s appealed, and a flurry of briefing, motionsand letters were filed in the CCA.© The AGaskedforthe record of the in camera proceedings held relevantto the recusal motion to be transmitted to the CCA. Then, in opposing the defense request to unseal those transcripts, the AGargued the records were not relevant to the issue before the CCAin that the transcripts related to the first recusal motion which was denied by the °° Appellant requested that the CCA be orderedto produceits file for inclusion in the instant record on appeal; the trial court declined to make that order. The court did allow appellants to copy the file for inclusion in the record on appeal. Attorneys for appellant’s Smith and Bryant were involved in that process, but appellant believes that the most accurate record remains in the possession of the CCA. (See, e.g., RCRT 1271-1277, 1339- 1353, 1407-1413, and 1490-1500.) Pursuant to Evidence Codesections 452, subdivision (d) and 453, appellant has requested that this Court take judicial notice of the content of Second District Court of Appealcasefile number B074364. 104 e ® @ * » + e e e o @ ¢ trial court, rather than to the second motion which wasgranted on January 22, 1993, and from whichthe appeal was taken. Aspreviously mentioned, the in camera transcripts were never unsealed, and have not been provided to the defense to date: The CCAreversed the grant of recusal. (CT 3090-3121.) In so doing, the CCA declined to review the issues raised attendant to the “first” recusal motion. It ruled thatthe trial court based his recusal order only on the discovery violation raised attendant to the “second” recusal motion, and that the discovery violation did not warrantrecusal of the entire office. (CT 3117-3119.) Thetrial court resumed its duties on this case uponits return to the superior court. (RT 4929-4930.) While the defendants’ petitions for review were pending, counsel for then-codefendant Andrew Settle askedthe trial court to clarify its ruling on the recusal motion, asking whether, contrary to the CCA opinion, the court considered the motions and evidencereceived, . including the evidence taken in the in camera hearings, in granting the defense recusal motions. (RT 4935.) The trial court replied that it thought it was clear that the ruling related back to the prior recusal hearings, thatit believedit stated that the denial of recusal based on whatit heard in camera was a very closecall, and that the decision to recuse the LADA’s office was based onall the prior hearings and motions. (RT4935-4936.) Respondents’ Petitions for Review were denied on June 16, 1994. (CT 13470.)*! °! On August 18, 1994, Judge Smith recused himself from the case. (CT 13581.) Judge Smith provided a written statementof recusal, which read: (continued...) 105 During pre-trial proceedings before the Honorable Charles M. Horan,the judge whopresided at appellant’s trial, appellant moved to strike the death penalty on the groundsthat the prosecution’s misconduct which formedthe basis of the recusal motion(s) had undermined the Eighth Amendment’sreliability requirement in death penalty cases to such an extentthat imposing the death penalty in this case would deprive appellant — of his rights to a fair trial, procedural-and substantive due process, the effective assistance of counsel, and to a reliable judgment of death as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution. (CT 13780-13788.) Thetrial court denied appellant’s request. (RT 6100-6101.) (Ibid.) *!(...continued) In preparing for pending and upcoming motions,the court has reviewedrelevantportions of the file including recently filed materials. This review broughtto light information which caused me to reflect on the various investigations of which I was aware during my 25 years as a police officer. In light of this information about whichI have just learned, I have determined that my recusal will further the interests ofjustice and that I am therefore disqualified underthe provisions of Code of Civil Procedure section 170.1, subdivision (a)(6)(A). The reasons for my recusal were first learned after my prior rulings in this matter and, therefore, those rulings should betreated in accordance with Code of Civil Procedure section 170.3, subdivision (b)(4). . 106 s @ * ~ @ e e @ @ 6 & @ é C. The LADA’s Office Abandoned Its Role As An Impartial Prosecutor In This Case; It Also Suffered From A Conflict Of Interest Such That Its Prosecution Of Appellant Denied Appellant His Rights To A Fair Trial, Due Process of Law, To Present A Defense, To Be Present At His Capital Trial, To Confrontation, To The Effective Assistance Of Counsel And To A Reliable Death Judgment In Violation Of The Fifth, Sixth, Seventh, Eighth And Fourteenth Amendments To The United States Constitution And Parallel Provisions Of The California Constitution . The district attorney of each county is the public prosecutor, vested with the powerto conduct on behalf of the People all prosecutions for public offenses within the county. (Gov. Code, § 26500; Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228, 240.) Therefore, subjectto supervision by the Attorney General (Cal. Const., art. V, § 13; Gov. Code, § 12550), the district attorney of each county independently exercisesall the executive branch's discretionary powersin the initiation and conduct of criminal proceedings. (People ex rel. Younger v. Superior Court (1978) 86 Cal.App.3d 180, 203; People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193, 199-204.) | Thedistrict attorney's discretionary functions extend from the investigation of and gathering of evidencerelating to criminal offenses (Hicks v. Board ofSupervisors, supra, 69 Cal.App.3d at p. 241), through the crucial decisions ofwhom to charge and what chargesto bring,to the numerouschoices the prosecutor makesat trial regarding "whetherto seek, oppose,accept, or challenge judicial actions and rulings." (Dix v. Superior Court (1991) 53 Cal.3d 442, 452; see also People v. Superior Court _(‘Greer”) (1977) 19 Cal.3d 255, 267 [giving as examples the manner of conducting voir dire examination, the granting of immunity, the use of 107 particular witnesses, the choice of arguments, and the negotiation of plea bargains].) “The importance, to the public as well as to individuals suspected or accused of crimes, that these discretionary functions be exercised ‘with the highest degree of integrity and impartiality, and with the appearance thereof” (Greer, supra, 19 Cal.3d at p. 267) cannoteasily be overstated.” (People v. Eubanks (1996) 14 Cal.4th 580, 589 (“Eubanks”).) The public prosecutor “‘is the representative not of any ordinary party to a controversy, but of a sovereignty whoseobligation to govern impartially is as compelling as its obligation to govern at all; and whoseinterest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of whichis that guilt shall not escape or innocence suffer.’” (Greer, supra, 19 Cal.3d at p. 267, quoting Berger v. United States (1935) 295 U.S. 78, 88.) The nature of the impartiality required of the public prosecutor follows from the prosecutor's role as representative of the People as a body, rather than as individuals. “The prosecutor speaks not solely for the victim, or the police, or those who support them, but for all the People. That body of ‘The People’ includes the defendant and his family and those who care about him. It also includes the vast majority of citizens who know nothing about a particular case, but who give over to the prosecutor the authority to seek a just result in their name.” (Eubanks, supra, 14 Cal.4th at pp. 589-590, quoting Corrigan, On -Prosecutorial Ethics (1986) 13 Hastings Const. L.Q. 537, 538-539.) That impartially was manifestly absent from the prosecution of appellant’s case, in which trial deputies through supervising and managing attorneys displayed their willingness to prosecute appellant for crimes while 108 @ @ e ® @ & @ * ~ s a ) ¢ ~ e e s o @ o e e w 6 e e covering up crimes of LADA employees. DDA Maurizi declared, in a summary of plannedtrial evidence attached to a verified pleading, that appellant’s alleged organization had“infiltrated” the LADA’soffice, among variousotherofficial agencies. (CT 11258.) Yet, even though the prosecution planned to present that evidenceat trial, and despite numerous _ Tepresentationsto the trial court and defense counselthatall discovery had been providedto the defense, the defense had not been provided with any discovery related to the alleged infiltration. When the defense argued that a conflict existed in that the prosecution was withholding evidence that was the basis of the recusal motion (RT 4329), the prosecution arguedthat evidence of an ongoing investigation and former investigations which _ resulted in the termination of persons from the LADA’s office was privileged and not relevant. (RT 4329-4330.) Thus, the prosecution, on the one hand, withheld the documents and witnesses which would have provided appellant with evidence of the prosecution’s conflict of interest, and on the other hand askedthetrial court to deny appellant’s recusal motion because ofhis inability to prove what the prosecution was withholding. (CT 11947.) . The LADAclaimeda privilege for information relatingto its investigation ofits employees whohad been convicted ofa crimeor crimes relating to the charges pending against appellant, but, at the same time | insisted that it would introduce evidencerelating to the infiltration ofits ranks against appellant. The information sought by the defenseasto the alleged infiltration of the LADA’s office by the Family was relevant both to the recusal motion and to appellant’s ability to present a defense. Yet the prosecution soughtto shield, and hasto this date succeeded in shielding,its employees from allegations of wrongdoing and possibly from criminal 109 prosecution. In fact, as referenced above, one DDA whohad been investigated for being involvedin the alleged criminal conspiracy was prosecuted and convicted by the AG’s office for an unrelated crime(i.e., or she was diverted on drug charges). (CT 11964.) Thus, the LADA decided not to pursue any further investigation of that deputy with regardtothis case. | The LADAoffice’s inability to exercise its discretionary functions in an even-handed manner was further evidencedbyits failure to investigate one of its own until media reports exposed the lack of prosecutorial zeal relating to its own employees. Thus, the same newspaperarticle that. exposed DDA Maurizi’s plan to present evidence at appellant’s trial of the ‘“Family’s” alleged infiltration into the LADA’soffice, reported that DA _ Reiner’s statement that there was nointernal investigation of LADA employees underway. (CT 11281.) When recusal motion was filed based on charges that the LADA’soffice was not investigating wrongdoinginits ranks, DA Reiner, forced to testify under penalty of perjury, conducted an exercise in semantic gymnastics, testifying that there was a difference between an internal inquiry into wrongdoing and a formal investigation. ‘(RT 4363-4373.)- He said that when he wasinterviewed for the newspaper article there was no formalinvestigation ongoing,only inquiriesrelating to the infiltration of the LADA’soffice by the “Family,” but that a formal investigation of the alleged infiltration was opened 10 daysafterthe article appeared. ([bid.) The most egregious example of the LADA office’s failure to perform its prosecutorial function in an objective manner came daysafter the trial court’s initial denial of the recusal motion, when the LADA’s office disclosed what it had withheld for years: in a nutshell, the LADA’s 110 o e * ~ e o e eo ¢ é @ ¢ office concealed that one of the formertrial deputies assigned to this case, Eduards Abele, witnessed successful and intentional efforts from lead prosecutor DDA Maurizi and the investigating officer, Detective Vojtecky, acting in collusion to tamper with a child percipient witness, generate fabricated evidence of appellant’s guilt as a shooter, and fabricate corroborating evidence of James Franklin Williams’ version of events. The office further withheld other evidence of the bias against appellant extending from the lead trial deputy through supervising attorneys in the office: DDA Abele was discouraged from reporting his belief in that regard to superiors; his supervisor removed DDA Abele from the prosecution of appellant’s case days after he reportedthe misconduct; and DDA Abele believed that DDA Maurizi had lost her objectivity regarding the prosecution of the case, as evidenced by baseless charges brought against some of the defendants.” In summary, both the public and appellant were denied the right to an impartial prosecutor in this case, as demonstrated by the prosecution’s failure to advise the defense of internal investigations relevant to charges pending against the defendants, its failure to tender discovery,its failure to refer to the AG’s office for prosecution the cases of alleged informants and witnesses whoeither provided non-truthful information or who were involved in a criminal conspiracy with the defendants,its failure to try the case on the merits rather than in the press, andits failure to be truthfulto the trial court and the Court of Appeal. ° All homicide charges against codefendants Tannis Curry and Nash Newbill were eventually dropped. 111 Moreover, these facts establish a conflict of interest within the meaning of Penal Code section 1424, requiring recusal of the entire office. Penal Code section 1424 providesthat "[t]he motion [to disqualify the district attorney] may not be granted unless the evidence showsthat a conflict of interest exists that would renderit unlikely that the defendant © would receivea fair trial." In People v. Conner (1983) 34 Cal.3d 141, 147 (“Conner”), this Court held the statute "contemplates both ‘actual’ and ‘apparent’ conflict when the presence of either rendersit unlikely that defendantwill receive a fair trial.” The distinction between actual and apparentconflict is not critical underthe statute because ofthe "additional statutory requirement" that the conflict must "renderit unlikely that the defendant would receivea fair trial." (Zbid.) This Court held that a "conflict," for purposes of section 1424, "exists wheneverthe circumstances of a case evidence a reasonable possibility that the DA's office may not exercise its discretionary function in an evenhanded manner.” (/d. atp. 148.) For the reasons stated above,this standard was met. ® Section 1424, enacted in 1980, was the Legislature's response to criminal cases stressing the importance of the appearance of impropriety and other apparent conflicts as bases for prosecutorial disqualification. As noted by this Court: “The Legislature's response, however, was not as unequivocalasit might have been:the statute refers simply to a ‘conflict of interest’; it does not explicitly require an ‘actual’ conflict, nor does it explicitly exclude ‘apparent’ conflicts. On the other hand, the statute allows disqualification only when a conflict ‘render[s] it unlikely that the defendant would receive a fair trial,’ (§ 1424) whereas [pre-1980 cases] allowed disqualification even when the conflict might merely ‘appear to affect’ the prosecutor's fairness.” (Eubanks, supra, 14 Cal.4th at pp. 690-591 [citations omitted].) 112 @ e @ v e e d e a 9 0 o @ @ o e @ & e e e e Further, if, as the trial court found after numerous in camera hearings with the prosecution, there was no evidenceofinfiltration (RT 4480-4481), then the defense contention that DDA Maurizi’s allegations of infiltration were designed to taint thejury pool created, at the very least, an apparent conflict of interest within the meaning of section 1424, in that such misconduct evidenced the prosecution’s inability to be fair regarding appellant’s case. (Conner, supra, 34 Cal. 3d at pp. 147-148.) The conflict was sufficiently grave to warrant recusal of the LADA’s office. (Eubanks, supra, 14 Cal.4th at p. 594 (citing Conner, supra, 34 Cal.3d at pp. 148-149.) The recusal of an entire DA’s office due to a conflict of interest is disfavored the courts, absent a substantia] reason related to the proper administration ofjustice. (People v. Hernandez (1991) 235 Cal.App.3d 674, 679-680 [citations omitted].) Much of the authority favorable to the concept of a limited grant of recusal involves instances where there was some type of relationship between the prosecutor and defendant, or the prosecutor and the victim, which could have had some impact on his or her exercise of prosecutorial discretion. (See, e.g., People v. Breaux (1991) 1 Cal.4th 281 [prosecuting deputy’s wife was acquainted with murder victim and both were membersof a club having some involvement in the case; People v. Hernandez, supra, 235 Cal.App.3d 674 [same office was prosecuting victim in one case as a defendant in another, and deputies could have learned facts concerning an underlying dispute by virtue of witnessing the aftermath of an assault]; People v. Lopez (1984) — 155 Cal.App.3d 813 [defendant’s former lawyer joined district attorney’s office just prior to trial of charges prosecuted against defendant by the same office]; Trujillo v. Superior Court (1983) 148 Cal.App.3d 368 [a deputy district attorney assisted in apprehending a defendant attemptingtoflee 113 custody after a murder conviction, and the sameoffice subsequently prosecuted the defendant for the escape attempt.]; Deukmejian v. Superior Court (1980) 110 Cal.App.3d 427, 434 [no appearanceofpossible impropriety arises from the activity of a few deputies who have no supervisory or policy making functions].) In each of these cited instances, the reviewing court concludedthatsufficient precautions could be taken within the involved office to ensure that the inferentially tainted prosecutors had no contactwith the case and no discussion concerning the matter. Recusal of an entire district attorney's office has nevertheless been held appropriate when there was substantial evidence that personal | animosity, bias or personal emotionshad affected the office. (See, e.g., People v. Vasquez (2004) 122 Cal.App.4th 1027 [18 Cal.Rptr.3d 848, 851- 863 [recusal of LADA’soffice warranted where defendant was child of DDAand wheretrial deputy refused to agree to benchtrial by a judge who was a former LADAforfear of appearing lenientto the victim’s family]; People v. Eubanks, supra, 14 Cal.4th 580, 599-600 [fact district attorney requested substantial financial assistance from the private victim created a substantial risk of bias and of being underthe influenceorcontrol of the victim]; People v. Choi (2000) 80 Cal.App.4th 476, 481-482 (district attorney was a close friend of the murder victim and had made public statements regarding the murderofhis friend and a connected case]; Lewis v. Superior Court (1997) 53 Cal.App.4th 1277 (every employee of the district attorney's office was necessarily a victim of and affected by the county's auditor/controller's misconductresulting in the county's bankruptcy]; People v. Lepe (1985) 164 Cal.App.3d 685 (district attorney had previously represented the defendant in the same matter and necessarily had privileged information regarding the case]; Younger v. Superior Court, 114 C e v e e e & @ 6 a o e o ¢ d é supra, 77 Cal.App.3d 892 [private attorney with extensive criminal law practice was appointedto the third ranking position in the district attorney's office; because of his policy-making and supervisory position it was likely his decisions would affect his formerclients' cases prosecutedin his office]; People v. Conner, supra, 34 Cal.3d 141, 148- 149 [defendanttried to escape by shooting and stabbing deputy sheriff and then shot at deputy district attorney who witnessed the scene; deputy district attorney reported the incidentto his superiors, discussed the incident with the majority of the prosecutorsin his office and gave interviews to the media; recusal regarding the escape charges was upheld as proper because the prosecutor was both a victim of, and a witness to, the incident]; People v. Greer, supra, 19 Cal.3d 255, 137 CalRptr. 476 [recusalof entire office upheld as proper where murder victim's mother worked in the samedistrict attorney's office as a clerical employee, and many other employeesofthe office had an emotional stake in the outcome]. In addition, appellant has found no case in which appellate courts of this state were confronted with a conflict of interest of the type of magnitude that was the catalyst for the trial court’s ultimate grant of recusal of the entire LADA’s office. With regard to the original infiltration allegations, the prosecution either withheld evidence relevant to the instant proceedingsorlied to taint the jury pool with false allegations. The DA himself was forcedto testify to explain contradictory statements he and membersofhis office made regarding the LADA’s internal investigations. With regard to the prosecution’s decision to withhold DDA Abele’s observations of witness tampering from the defense, and to silence his efforts to documentvalid concerns surrounding the prosecution of the action, numeroushigh-ranking officials participated in, and thereafter (15 ratified, the determination to withhold evidence of the extremes to which the prosecution wentin order to convict appellant. In Younger v. Superior Court, supra, 77 Cal.App.3d 892, the CCA affirmed a grant of recusal of the entire LADA’s office where a high level official within the office represented a defendantin a prior matter. The CCA concludedthat, despite the LADA’s remedial efforts to ensure that the concerned prosecutor had “no contacts with the prosecution of any of his clients or those of his former law firm,” the recusal order precluding the - office from prosecuting any action in which heorhis former law firm had represented a defendant did not constitute an abuse ofdiscretion. In | discussing the problem created by allowing the LADA’soffice to continue ' prosecution of the actions, the court noted: In any event the District Attorney's office would always be "on the spot” in the public's mind as regards its handling of any of the Cochran cases. The problem is a “Caesar's wife” problem. Not only mustevil itself be avoided but any significant appearance thereof must likewise be avoided. The presence of a former leading criminal defense attorney, near the top of a public prosecutor's office, suggests to those of a paranoid and conspiratorial turn of mind the presence of a fox in the hen house. We do not think that such abnormalsuspicion has any reasonable basisin fact whatsoever, but since a public prosecutor must “perform his functions with the highest degree of integrity and impartiality, and with the appearance thereof”[citation], for appearance’s sake, the basis for this suspicion ‘should, under these circumstances, be eliminated. (77 Cal.App.3d at p. 897.)™ The disclosed high-ranking officials involved in the recusalissues in this case included District Attorney Ira Reiner, Chief Deputy District °* While Youngeris no longer authority for defining a conflict within the meaning of section 1424,it is informative regarding when a conflict, once found, is so grave as to warrant the recusal of an entire prosecuting agency. 116 e e 6 s o @ o e a o o ¢ Attorney Greg Thompson, Branch and Area Operations Director Richard Hecht, Assistant Branch and Area Operations Director Larry Trapp, and — Head Deputy District Attorney Harry Sondheim. These officials were active participants, and their actions were subject to question. Asthe trial court stated, ““Now we havethe careers of someofthese fine people, in the twilight of their careers, challenged.” (RT 4819.) Each thus had a personal stake in the outcomeofthis trial: convictions would vindicate their conduct, or at least minimize the damageit caused. Further, any fledgling or seasoned deputy assigned as prosecutor to the case would likely have felt that he or she was under the watchful eye of these personally-involved powers within the office. Their objectivity could havebeen tainted by the obvious impactthe result of the trial could have on their supervisors’ future and the reciprocal effects it mayhavehad onhisor her own fate within the office. Consider, for instance, that after reporting the witness tampering to his supervisors DDA Abele spentthe next five and a half years without a promotion. (RT 4790-4791.) Further, in Conner, this Court found recusal of an entire district attorney's office appropriate where a DDAtold 10-25 of his fellow felony prosecutors details of the crime he had witnessed wherethat office was also prosecuting the alleged perpetrator of that offense. (Conner, supra, 34 Cal.3d at p. 145.) In determining whether the conflict was so grave as to renderit unlikely that the defendant would receive fair treatment during all portions of the criminal proceeding, this Court considered as relevant factors the size of the office, the communication of what he had witnessed by the DDAto his coworkers, the seriousness of the apparent threat to the DDA’ssafety, and the impact of the DDA witnessingthe serious injuries 117 actually inflicted on the named victim of the crime for which the defendant | was charged. (/d. at p. 148.) This case is analogous to Connerin that the subject-matter of the conflict was widely known and discussed inall ranksofthe office, from support staff through supervisors and policy makersto the DA himself: at least 18 DDAs and the DA had played a part in some aspect of the case and were potential witnesses. (See 6 SUPP CT 3149.) Thetrial court found that in 39 years in the criminal justice field he had never heard of such a case involving “everyonein the top echelon ofthe [LADA’s] office [.. .].” (RT 4475.) Thetrial court erroneously denied the motion to recuse, only later to get it right, finding that the “entire office failed.” (RT 4816.) The trial court found that the office failed in its obligation to be objective and impartial to appellant, and that the LADA’s office was incapable of guaranteeing appellanthis right to a fairtrial. The recordreflects that the prosecution was(1) incapable of performing its prosecutorial functions objectively and in an even-handed manner, and (2) suffered from such a conflict of interest that its prosecution of appellant denied him his rights to a fair trial, due process of law, to present a defense, to confrontation, to the effective assistance of counsel and to a reliable judgment of death. (U.S. Const., Amends. V, VI, VII, VHI and XIV;Cal. Const. art. I, §§ 1, 7, 15 and 17.) : Prosecution by a biased prosecutor so infected the trial with unfairness as to make the resulting conviction the result of the denial of due process, and deprived the sentencing determination ofthe reliability the Eighth Amendment requires. (See 7;umey v. Ohio (1927) 273 U.S. 510 [trial by unbiased judge denies defendant due process]; Darden v. Wainwright (1986) 477 U.S. 168, 181, citing Donnelly v. DeChristoforo 118 e e s e o a o e @ & eo « @ @ o e (1974) 416 U.S. 637 [improper remarks by prosecutor can so infecttrial as to deprive defendant due process].) This error is "structural," and thus subject to automatic reversal. (See, e.g., Gideon v. Wainwright (1963) 372 U.S. 335 [complete denial of counsel]; Tumey v. Ohio, supra, 273 U.S. 510 [biased trial judge]; Vasquez v. Hillery (1986) 474 U.S. 254 [racial discriminationin selection of grand jury]; McKaskle v. Wiggins (1984) 465 U.S. 168 [denial of self-representation at trial]; Waller v. Georgia (1984). 467 U.S. 39 [denial of public trial]; Sullivan v. Louisiana (1993) 508 U.S. 275 [defective reasonable-doubtinstruction].) The U.S. Supreme Court © explained that these cases contain a "defect affecting the framework within whichthetrial proceeds, rather than simply anerror in the trial process itself." (Arizona v. Fulminante (1991) 499 U.S. 279, 310.) Such errors "infect the entire trial process," Brecht v. Abrahamson (1993) 507 U.S. 619, 630, and "necessarily rendera trial fundamentally unfair." (Rose v. Clark (1986) 478 U.S. 570, 577.) Put another way, these errors deprive defendants of "basic protections" without which "a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence... and no criminal punishment maybe regarded as - fundamentally fair." (/d. at pp. 577- 578.) In the alternative, if this Court finds appellant did not carry his burden of establishing (1) the existence of a conflict of interest and (2) that the conflict was sufficiently grave as to warrant recusal of the DA’s office, appellant submits that he was improperly denied an opportunity to doso. Appellant requested an evidentiary hearing on the conflict issue, and argued that any privileged claimed by the LADA’soffice as to the relevant materials was either waived or could notbe legally sustained. (CT 11929- 11942.) Thetrial court declined to allow that evidentiary hearing, opting 119 for the in camera hearings. The defense requested that the transcripts of the in camera hearings be unsealed priorto final argument on the recusal motion, explaining that a defense could not be properly presented absent accessto all the information before the court, and the trial court denied that request. (RT 4439.) Appellant unsuccessfully movedin the Court of Appealto unseal those transcripts. (6 SUPP CT 2724-2739, 3576.) Appellant’s request to unseal those transcripts during record correction in the superior court was also denied (RCRT 1265-1266)), and his request in this Court to unseal the transcripts remains pending (see appellant’s Motion to Vacate Certification, or, in the Alternative, to Correct, Augment and Settle the Record on Appeal, at pp. 76-77). Without those transcripts, appellant has been denied his right to an adequate record upon which to argue this claim on appeal. Argument XXXIV,post, is incorporated by reference herein. | // / 120 Il THE TRIAL COURT ERRONEOUSLY AND PREJUDICIALLY PERMITTED A BIASED AND CONFLICTED INVESTIGATING OFFICER TO SIT AT THE PROSECUTION’S TABLE A. Proceedings Below On December 9, 1994, appellantfiled a motionto: (1) recuse Investigating Officer Detective James Vojtecky “from further conduct in and contact with this case, except to the extent his presence 1s required to testify;” (2) for.an order compelling Detective Vojtecky to submit to a psychiatric evaluation; and (3) for an order directing Detective Vojtecky to removeall knives and guns from his person prior to entering the courtroom in connection with any proceeding in this case. (CT 13798-14000.) The motion wasbased onthe facts and allegations of witness tampering arising out of Detective Vojtecky’s January 28, 1991, interview of Rosa Hernandez, as developed during the defense motion to recuse. (See ArgumentI, ante, incorporated by reference herein.) Additionally, appellant’s counsel filed a declaration adding new facts in support of this motion, including, inter alia, that: (1) during the course of the recusal hearing, counsel witnessed Detective Vojtecky engage in an attemptto intimidate DDA Eduards Abele by an intentional and aggressive display of his holstered handguns to DDA Abele while the latter was testifying: (2) since extensive security existed within the Criminal Court Building duein part to the pendingtrial of O.J. Simpson, thus there was no need! for Detective Vojtecky to be armed in the courtroom; and(3) Detective Vojtecky had on numerousoccasions (detailed in the motion) withheld discovery from the defense and misrepresented to the court thatall 121 discovery had been provided to counsel; and 4) Detective Vojtecky had displayed personal animus toward appellant by taking affirmative steps to have appellant’s housing in the Los Angeles County Jail changedto a less desirable location. (CT 13790-13797, 13817-13828; RT 6114.) Appellant argued that Detective Vojtecky’s recusal was necessary to avoid further prejudice to appellant’s rightto a fairtrial, due process of law and the effective assistance of counsel. (CT 13802-13804.) Asauthority for the recusal, appellant cited section 1424 and precedent establishing that public officials engagedin the prosecution of an accused must be fair and | impartial in thedischarge of their duties. (CT 13806-13807,citing, inter alia, Greer, supra, 19 Cal.3d at pp. 265-266; Berger v. United States, supra, 295 U.S.at p. 88; People v. Merritt (1993) 19 Cal.App.4th 1573 (“Merritt’).) Appellant’s motion is incorporated by reference asif fully set forth herein. (CT 13798-14000.) | The hearing on appellant’s motion was held on December21, 1994. _ Appellant movedto strike as untimely the prosecution’s response to appellant’s motion concerning Detective Vojtecky, which was served on appellant that morning. (RT 6113; see CT 14147, 14153) That request was denied, and appellant’s request for a week to review the prosecution’s response was also denied. (RT 6113-6114.) Argument went forward over appellant’s objection. (RT 6114-6118.) The prosecution argued that section 1424 provided a meansfor the recusal of employees of the District Attorney’s Office only, and that Detective Vojtecky was not so employed. (RT 6119; CT 14153.) Appellant argued that both the AG’s office and CCAin this case believed that recusing Detective Vojtecky was an alternative to recusing the entire LADA’s Office. (RT 6119-6120.) Appellant further argued that, since the prosecution argued during the 122 0 @ * @ o e recusal motion in the trial court the prosecution argued that removing Detective Vojtecky fromthe case was the appropriate remedy, they should be estopped from opposing his recusal now. (/bid.) The trial court agreed that it had the authority to recuse the investigating officer if it determined that, due to repeated acts of misconduct, a defendant could not get a fair trial, but ruled that there was no evidence of misconduct by Detective Vojtecky that would prejudice the defense; rather the court foundit likely that Detective Vojtecky’s “unusual” conduct would morelikely prejudice the prosecution’s case. (RT 6120- 6123.) Appellant took exception to the court’s ruling, and argued that Detective Vojtecky’s presence at the prosecution’s table acted as an imprimatur for his behavior and would undercut appellant’s ability to impeach Detective Vojtecky’s credibility through cross-examination. Appellant also argued that Detective Vojtecky had obtained his own lawyer as a result of the allegations arising out of the Hernandez interview, and therefore had a personalstake in the outcomeofthe trial. (RT 6124-6126.) The trial court found that the defense had created Detective Vojtecky’s personal stake in the outcomeofthetrial bylitigating the issue, _ and denied the motion to recuse Detective Vojtecky without addressing the issue of whether his presence at the prosecution table would serve to deny appellant his constitutional rights. (RT 6125.) The court also denied appellant’s motions to compel a psychiatric examination of Detective Vojtecky and to preclude him from being armed in the courtroom. (RT 6123, 6126.) 123. B. The Trial Court’s Prejudicial Denial Of The Motion To Recuse Investigating Officer Detective Vojtecky Requires Reversal Of Appellant’s Conviction And Death Judgment The Fifth and Fourteenth Amendmentsto the United States Constitution provide authority for disqualification of counsel when a defendant’s right to a fair trial may be prejudiced. “[T]he Constitution does not deny trial court authority to disqualify a particular representative when his participation would taint the proceeding.” (Greer, supra, 19 Cal.3dat p. 265.) A fair and impartialtrial is a fundamentalaspectofthe right of accused persons notto be deprived ofliberty without due processof law. (U.S. Const., Amends. V and XIV; Cal. Const., art. I, § 7, subd. (a); see, e.g., Tumey v. Ohio (1927) 273 U.S. 510; In re Murchison (1955) 349 US. 133, 136; People v. Lyons (1956) 47 Cal.2d 311, 319; In re Winchester (1960) 53 Cal.2d 528, 531.) It is the obligation of the prosecutor, as well as the court, to respect that mandate. (Berger v. United States, supra, 295 U.S. at p. 88; People v. Lyons, supra, 47 Cal.2d at p. 318; People v. Talle (1952) 111 Cal.App.2d 650, 676--678.) As set forth in Argument I, ante, Penal Code section 1424 provides legislative authority for the recusal of a memberofa district attorney’s office when a conflictofinterest exists “such as would renderit unlikely that the defendant would receive a fair trial.” . Section 1424 has been found applicable to investigators employed by a district attorney’s office. In Merritt, supra, 19 Cal.App.4th 1573, the appellate court reversed trial court’s order granting the recusal of the LADA’soffice. The trial court had granted recusal on the groundsthat: (1) the investigator had engaged in sexual impropriety towards a material witness; and(2) the investigator was guilty of “gross misconduct,”if not the 124 e e * @ o e @ o ¢ a d actual crime of suborning perjury. (/d. at p. 1577.) The trial court concluded that recusal of the LADA’s Office was warranted becauseat somepoint the investigator would be a witness at trial and that there would be a danger that prosecutors would try to protect the office. (/d. At p. 1578.) The appellate court reversed, finding that the recusal ofthe entire LADA’s Office was not appropriate under section 1424 on the following record: the trial deputies had been cleared of wrongdoing; the LADA’s office had removed the investigator from all further decisions and investigation in the case; there was no evidence that the investigator had wide influence in the LADA’soffice nor any evidence that he discussed the case with other investigators or DDAs; and the investigator had no determinative say in the charging decisions and held a position ofrelative - insignificance in the LADA’s Office. Ud. at pp. 1580-1581.) The appellate court modified the recusal order to “apply only to preclude participation of [the investigator] in any further investigation or decision making with regard to [the] case, and to any other investigators or deputy district attorneys who may be shown to have participated in or approvedofthe activities of [the investigator] which werethe subject matter of the recusal.” - (Id. at pp. 1581-1582.) In the instant case, while representing the People on appealofthe trial court’s grant of recusal, the AG’s office relied on Merritt, supra, in arguing that removing Detective Vojtecky was the appropriate remedy under section 1424 in this case. (See CT 13807, 13990-13991.) In reversing the grant of recusal, the appellate court recommendedthetrial court consider motions for other sanctions, such as the recusal of those involved. (CT 13488, 13501.) 125 But when appellant then moved to recuse Detective Vojtecky, one of the newtrial deputies assigned to the case, DDA Paul Sortino,® arguedthat Merritt was inapplicable because Detective Vojtecky was not employed by the LADA’soffice. (RT 6119.) However, Detective Vojtecky testified numerous times during the course of the prosecution of appellant’s case that he was on loan from the LAPD to LADA’s Office; he was in fact on loan to that office when the motion to recuse him as investigating officer was brought, and when DDASortino represented to the court that Detective Vojtecky was not working for the LADA’s office. (RT 2896, 4136, 8251- 8252.) Notwithstanding the prosecution’s misrepresentation of the facts to the trial court, the trial court prejudicially erred in denying appellant’s motion to recuse Detective Vojtecky. It is well-settled that when it appears the State has engaged in misconduct, the burdenis on the State to show by a preponderanceof the evidence that sanctions are not warranted because the defendant was not prejudiced by the misconduct. (People v. Zapien (1993) 4 Cal.4th 929, 967.) Even though the AG’s Office, the CCA anda prior trial judge in this case believed that removing Detective Vojtecky was the appropriate sanction, and even though the prosecution utterly failed to meet its burden to showthat that sanction was not appropriate, the trial court nonetheless denied appellant’s motion to recuse Detective Vojtecky, ruling instead that the prosecution would be harmedbyhis presence at counsel table once evidence of his misconduct cameto light during trial. ® Sortino first began his work on this case as a member of the AG’s Office; hewasa trial deputy for the LADA’soffice by the time appellant’s case wentto trial. (RT 4846, 5026.) 126 © 0 e e The prosecution circumvented that problem, however, by not calling Rosa Hernandez as a witness; the jurors never heard the crucial evidence undermining Detective Vojtecky’s credibility and highlighting the extremes to which the prosecution would goin its zeal to secure a conviction against appellant. Detective Vojtecky was allowed to sit at counseltable and to testify to prior inconsistent statements of numerous witnesses whom he had interviewed, and whosetrial testimony did not aid the prosecution’s case against appellant, yet his highly questionable ethics not only remained unexamined,his credibility wasbolstered by sitting at counsel table with the ‘prosecution, envelopedin the prestige, however undeserved,ofthatoffice. The record clearly reflects that Detective Vojtecky should have been . recused from the prosecution of appellant’s case. Unlike the investigator in Merritt, Detective Vojtecky continued to make decisions of importance in this case — in fact, both the AG and appellant’s counsel arguedforhis recusal on the ground,inter alia, that he was running the prosecution. (RT 4740; CT 13813-13814.) Like the investigator in Merritt, Detective Vojtecky appeared, on the basis of the testimony of a deputy district attorney, to have committed a criminal act, witness tampering, along with myriad other “improprieties” previously mentioned (see ArgumentI, ante), in his efforts to secure a conviction against appellant at any cost. Thetrial court’s failure to recuse this clearly conflicted agent of the prosecution denied appellant his right to a fair trial, due process of law, to present a defense, to confrontation, to the effective assistance of counseland to a reliable judgment of death under the federal and state constitutions. (U.S. Const., Amends. V, VI, VII, VIII and XIV; Cal. Const. art, I, §§ 1,7, 15 and 17.) His conviction and judgmentof death must be reversed. 127 OF Respondent Must Be Judicially Estopped From Opposing This Claim As noted in ArgumentI, ante,while Respondent wasrepresenting _ the LADA’s Office at the hearing on the defense motionto recuse that office, respondent moved to recuse Detective Vojtecky from acting as the investigating officer on this case on the groundsthat he had demonstrated his inability to work with impartiality, disagreed with the new administration's recent recommendation regarding case dismissals, and appeared to be directing the prosecution. (RT 4740.) Underthe doctrineof judicial estoppel, respondent should be barred from opposing appellant’s _ argumentthat, for the same reasonscited by respondent, Detective Vojtecky should have been recused from acting as investigating office at appellant’s trial. This Court has recognizedthat, as a matter of state law, the doctrine ofjudicial estoppel precludes a party from taking inconsistentpositions in judicial or quasi-judicial proceedings... “ ‘Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantageby taking - an incompatible position. [Citations.] The doctrine's dual goals are to maintain the integrity of the judicial system and to protect parties from opponents' unfairstrategies. [Citation.] Application of the doctrine is discretionary.’ “ (Koo v. Rubio’s Restaurants, Inc. (2003) 109 Cal.App.4th 719, 735, fn. omitted.) The doctrine applies when: “(1) the same party has taken twopositions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successfulin asserting thefirst position (i.e., the tibunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and(5) thefirst position was not taken asa result of ignorance, fraud, or mistake.” (Jackson v. County ofLos Angeles (1997) 60 Cal.App.4th 171, 183; Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 943.) 128 ® 6 o e Aguilar y. Lerner (2004) 32 Cal.4th 974, 986-987.) The Court should apply the doctrine in this case andpreclude respondent from opposing the instant claim, because it made a well- informed decision during pre-trial proceedings to recuse Detective Vojtecky _ due to his impartiality with regard to appellant’s case. In opposing appellant’s claim, it would necessarily have to take the inconsistent position that recusal was not warranted because Detective Vojtecky was not impartial. Factors (1), (2), (4) and (5) as set forth in Aguilar have clearly been met. (Ibid) With regardto factor (3), the trial court ultimately adopted respondent’s position regarding the recusal of Detective Vojtecky. Initially, the trial court deferred judgment on respondent’s motion to recuse Detective Vojtecky, and expressed uncertainty as to whetherit had the authority for such an order. (RT 4740.) The trial court’s remarks in its © The doctrine ofjudicial estoppelis essentially the sameinits purpose andin its implementation in federal courts. (See Rissetto v. Plumbers and Steamfitters Local 343 (9th Cir. 1996) 94 F.3d 597, 600 [doctrine “precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position"]; cf. Correll v. Stewart (9th Cir. 1998) 137 F.3d 1404, 1413 ["[s]imply put, the State cannot successfully oppose a petitioner's request for a state court evidentiary hearing, then argue in federal habeas proceedings that the petitioner should be faulted for not succeeding."]; Rockwell Int'l Corp. v.HanfordAtomic Metal Trades Council (9th Cir. 1988) 851 F.2d 1208, 1210, cert. denied (1991) 501 U.S. 1260 [purpose of doctrine to protect against a litigant playing "fast and loose with the courts”]; Russell v. Rolfs (9th Cir. 1990) 893 F.2d 1033, 1037, cert. denied (1991) 501 U.S. 1260 [doctrine is invoked by a court at its discretion]; Helfand v. Gerson (9th Cir. 1997) 105 F.3d 530, 535 [doctrine applies to "a party's stated position, whetherit is an expression of intention, a statement of fact, or a legal assertion"].) 129 ruling on the recusal of the LADA’s Office showedthatit did not rule immediately on the motion to recuse Detective Vojtecky because of the novelty of the issue: “Even the attorney general has asked that the investigating officer be removed from the case. I have never heard of anything like that.” (RT 4819.) In ordering the LADA’s office recused, however,the trial court said: “The case has to be reviewed by somebody different, and I am designating you [DAG Bigelow], you and whatever investigating officer you think is appropriate.” (RT 4820.) Sincethe trial court adopted respondent’s position that Detective Vojtecky had to be recused, factor (3) as set forth in Aguilar, supra, 32 Cal.4th at pp. 986-987 has also been met. | Forall the foregoing reasons, this Court should rule that respondent is judicially estopped from arguing against appellant’s position that the trial court erred in denying the request to recuse Detective Vojtecky as the investigating officer in this case. // // 130 e o Ti THE TRIAL COURT?’S FAILURE TO SEVER APPELLANT’S CASE FROM THAT OF HIS CODEFENDANTS REQUIRES REVERSAL Appellant’s confinement and sentenceare illegal and unconstitutional underthe Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and parallel provision ofthe state constitution becausethe trial court deprived appellant of an unbiased jury determination by: (1) denying appellant’s pretrial motions to sever his case from codefendantSettle’s case, despite evidence that codefendant Settle’s defense would be adversarial to appellant’s; (2) failing to grant appellant’s motions to sever and for a mistrial after the adversarial defense was presented; and (3) denying appellant’s pretrial motion to sever his case from that of coappellants Wheeler and Smith. This Court must reverse because the joinder of appellant’s case to that of his three codefendantsresulted in gross unfairness to appellant amounting to a denial of due process, the nght to a fair trial, the right to counsel and the right to a reliable sentencing determination. A. The Relevant Law Regarding Severance Section 1098°’ provides that when two ormore defendants are jointly ®7 Penal Codesection 1098 provides: Whentwo or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials. In ordering separate trials, the court in its discretion may order a separate trial as to one or more defendants, and a jointtrial as to the others, or may order any numberof the defendants to be tried at one trial, and any numberofthe others at differenttrials, or- may order a separatetrial for each defendant; provided, that . (continued...) 131 charged with an offense, they must betried jointly, unless the court,in its discretion, orders separate trials. In determining whether a motion to sever (or consolidate) has been properly denied, a reviewing court mustinitially look at the facts as they were developed when the motion washeard. (People v. Isenor (1971) 17 Cal.App.3d 324, 334; see, e.g., People Vv. Johnson (1989) 47 Cal.3d. 1194, 1230.) The statute, however, does not provide any guidelines for the exercise of the court’s discretion. The guidelines for the implementation of section 1098 come from this Court in People v. Massie (1967) 66 Cal.2d 899. (People v. Johnson, supra, 47 Cal.3d at p. 1230.) There the Court provided that - | separate trials should be ordered “in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.” (People v. Massie, supra, at p. 917.) In addition, joinder laws must neverbe used to deny a criminal defendant’s fundamental right to due process anda fair trial. (Williams v. Superior Court (1984) 36 Cal.3d 441, 451-452; Calderon v. Superior Court (2001) 87 Cal.App.4th 933, 939.) Regardless of any statutory preference for joint trials, a court retains the powerto severcases, otherwise properly joined, “in the interests ofjustice.” (Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1285.) In People v. Keenan (1988) 46 Cal.3d 478, this Court observed: “Severance motionsin capital cases should receive heightened scrutiny for potential prejudice.” (Ud. at p. 500.) This °7(...continued) where two or more persons can bejointly tried, the fact that separate accusatory pleadings werefiled shall not preventtheirjointtrial. 432 6 @ ¢ e o o @ o w » ~ * principle is consistent with the Eighth Amendmentrequirement of heightenedreliability in capital cases. (See, e.g., Mills v. Maryland (1988) 486 U.S. 367, 376.) Severance is not required where there is no showingat the time of the hearing why prejudice would result from a joint trial (People v. Johnson, supra, 47 Cal.3d at p. 1230) or where the prosecution has assured the court that it would not use the evidence upon whichthe defendant requesting the severance had based his motion (People v. Turner (1984) 37 Cal.3d 302, 312.) A court's denial of a motion for severance is reviewed for abuse of discretion, judged on the facts as they appeared at the time of the ruling. (People v. Hardy (1992) 2 Cal.4th 86, 167.) Ifa trial court abuses its discretion in failing to grant severance on the ground of antagonistic defenses, reversal is required upon a showingthat, to a reasonable probability, the defendant would have received a more favorable result ina separate trial. (People v. Keenan, supra, 46 Cal.3d at p. 503.) This Court recently held that a reasonable probability of a more favorable outcomein a case involving conflicting defenses is not established if there exists sufficient independent evidence against the moving defendant that demonstrates his guilt. (People v. Coffman (2004) 34 Cal.4th 1, 42-43.) Although the standard of review ofa trial court’s ruling on a motion for severance is whetherthetrial court abused its discretion based on the showing madeat the time of the hearing of the motion (People v. Johnson, supra, 47 Cal.3d at p. 590), on appeal reversal will be required where the joinderactually resulted in gross unfairness amounting to a denial of due processeven if severance wasnot initially warranted at the time the motion was made. (People v. Mendoza (2000) 24 Cal.4th 130, 162; People v. Arias (1996) 13 Cal.4th 92, 127.) 133 In Zafiro v. United States (1993) 506 U.S. 534, the United States Supreme Court held that severance is proper“if there is a seriousrisk that a joint trial would compromisea specific trial right of one of the defendants, or prevent the jury from making a reliable judgmentaboutguilt or innocence.” (Id. at p. 1081.) As this Court noted in People v. Massie, supra, in assessing a claim of improperdenial of severance, an appellate court “. .. must weigh the prejudicial impactofall of the significant effects that may reasonably be assumed to have stemmed from the erroneousdenial of a separatetrial.” (/d. at p. 923.) Appellant asserts that the State trial court's denial of his motion to sever compromised his constitutional rights, set forth below,renderedhistrial fundamentally unfair and deprived him of due process of law. (Estelle v. McGuire (1991) 502 U.S. 62, 68; Jammalv. Van de Kamp (9th Cir.1991) 926 F.2d 918, 919-20; Grisby v. Blodgett (9th Cir. 1997) 130 F.3d 365, 370.) His conviction must be reversed andhis judgment of death must be vacated. B. TheTrial Court’s Failure To Sever Appellant’s Case From That Of CodefendantSettle Requires Reversal 1. Procedural History Of Appellant’s Efforts To Sever His Case From That Of CodefendantSettle On June 24, 1994, codefendant Settle’s case was joined with the cases of appellants Bryant, Wheeler and Smith. (RT 4950-4951; CT 13472- 13473.) On November10, 1994, codefendantSettle’s request to represent himself was granted. (RT 6071-6088; CT 13744.) On December 12, 1994, appellant filed a motion seeking to sever his case from that of Wheeler and Smith and especially that of codefendantSettle. (RT 6128- 68 Appellant’s claims regarding the failure to sever his case from that (continued...) 134 ® @ o e - 6151; CT 14084-14136.) With regard to codefendantSettle, appellant argued in relevant part that codefendantSettle’s defense was antagonistic to appellant’s, because would be a second prosecutor during appellant’s trial. (CT 14103.) On December 21, 1994, at a hearing on the matter, it was apparent that all parties were aware that codefendant Settle’s defense would be antagonistic to the other defendants. (RT 6140-6141.) Codefendant Settle told the court, “My defense is extremely antagonistic. [....] I didn’t doit. It is antagonistic. I intend to assign the proper responsibility to the respective defendants. In doing so, that may deprive them oftheir right to a fair trial because ofthe antagonistic nature of my defense.” (RT 6143- 6144.) Counselfor appellant complained that codefendant Settle would be another prosecutorat the table and that he would fabricate evidenceif he needed to do so in order to escape conviction. (RT 6144-6145.) Counsel further argued that counsel were governed by ethical guidelines that limit whattheycan do in court, but that codefendantSettle wasnot so constrained. (RT 6147-6148.) In addition, counsel informed the court that there was a recent newspaperarticle in which codefendantSettle told the press that “*he was innocentandall the other baby killers wereall guilty.” (RT 6137, 6139.) Counsel was concerned that codefendant Settle would misperceive his codefendants’ defenses as “pointing the finger at him” and ®§(...continued) of coappellants Wheeler and Smith will be discussed later in this argument. © Appellant also filed a motion to sever his case from that of codefendantSettle, citing the risk of antagonistic defenses. (CT 11074- 11078.) 135 trigger statements from codefendant Settle that would harm the other defendants. (RT 6137-6138.) The prosecution countered that the suggestion that codefendant Settle would create an inconsistent defense was not well founded, becauseit is something that could not be knownuntillater. (RT 6145-6146.) Appellant Wheeler joined in the motion to sever his case from codefendant Settle. (RT 6144.) The court denied appellant’s motion to sever from Wheeler and Smith and took under submission appellants’ motion to sever from codefendantSettle. (RT 6151.) | On January 18, 1995, at the commencement of appellants’ trial and prior to jury selection, the court returned to appellants’ motion to sever their case from codefendantSettle and codefendant Settle’s motion to sever his case from theirs. (RT 6192.) Amongthe considerations proffered by appellants in support of the motion was that codefendant Settle would likely choose a course of action detrimental to his codefendants. (RT 6195-6196.) — Thetrial court found that was an allegation not borne out by any concrete evidence presented to the court. (RT 6196.) The court expressed the view . that it had not seen any proof that codefendant Settle would somehow hurt his codefendants and the court was not convincedthat it was “tremendously likely that that will happen.” As a palliative, the court offered thatif its estimate turnedout to be overly optimistic, the court could remedy the situation at any time, even after the case had goneto the jury. (RT 6196.) The court denied the motion, reasoning that joint trials were judicially efficient, and avoided the burden on the prosecution and witnesses of multiple proceedings, especially in large conspiracy cases. (RT 6192-6193, 6196.) The court also noted thatjoint trials have been viewedas serving the 136 e e o @ ¢ o e o e o e @ # @ @ interest ofjustice “by avoiding inconsistent verdicts,” which the court noted wasparticularly important in capital cases. (RT 6193.) On January 24, 1995, still prior to jury selection, codefendantSettle informedthe court that he had the right to testify and that his testimony was not going to be favorable to his codefendants. (RT 6342.) In addition, he advised the court that he had been threatened. (RT 6342-6343.) Defense counsel renewedtheir motion to sever codefendantSettle’s case, arguing that, in his pro per status, he could not be controlled by the court or counsel and was free to make such allegations without cross-examination. Counsel argued thatif the allegations weretrue, they were entitled to cross-examine him to learn who the witnesses were. If the allegations were nottrue, they werealso entitled to know because it would support their position that codefendantSettle would do anything, including fabricating evidence,to convict appellants. The court respondedthat it could prevent codefendant - Settle from engaging in misconductby taking awayhis pro perstatusif he violated the court’s orders, and once again deniedthe motion. (RT 6342- 6343, 6379-6382.) On February 9, 1995, the date the alternate jurors were impaneled, codefendant Settle renewed his motion for severance from his codefendants” case and asked for federal protection because ofhis fear for his safety. (RT 7834-7837.) Codefendant Settle advised the court that he would testify and that “it may be damagingto ... the co-defendants,” (RT 7834-7835.) Counsel for appellant joined the motion to sever, but the court denied the motion. (RT 7837-7838.) On April 17, 1995, during cross-examination by the prosecution of a witness codefendant Settle had called and examined, counsel for appellant objected that the cross-examination waseliciting information damaging to 137 appellant that would never have been before the jury if appellant’s case had been severed from codefendantSettle’s; appellant’s motion for a mistrial based on the failure to sever his case from-codefendant Settle was denied. (RT 14675-14676.) On April 25, 1995, counsel for appellant and coappellant Wheeler again sought to sever their cases from codefendant Settle’s case, citing the damage codefendant Settle did to appellant’s case during his cross- examination of appellant on the preceding day. (RT 15471-15472.) The motion was denied. (RT 15472.) Later in the day, when codefendantSettle was permitted to reopen his case and testify after all of the appellants had rested,”” counsel for appellants once again soughtto sever their case from that of codefendant Settle, but their request was denied. (RT 15543.) On May9, 1995, after codefendant Settle’s closing guilt phase argument, defense counsel renewedtheir motion to sever codefendant Settle’s case from theirs and moved for a mistrial based on his conductin the case, particularly his testifying after appellants had rested. (RT 16634- 16635.) Both motions were denied. (RT 16635.) 2. Appellant Was Denied A Fair Trial And Due Process Of Law By The Trial Court’s Failure To Sever The Case Of Pro Per CodefendantSettle From Appellant’s Capital Trial Time and again the trial court was explicitly informed, from pro per - codefendantSettle himself, of the antagonistic nature of codefendant Settle’s defense, yet the trial court denied appellant’s repeated motions to sever. CodefendantSettle delivered the antagonistic defense he promised. ” This deviation from the orderly presentation of the case is the topic of ArgumentIV,post. 138 C e e e e e e e e e e e e e e e e e e e 6 @ e o e e o ® © S d o r The joinder of codefendant’s case to appellant’s resultedin trial so unfair to appellant that he was denied due process of law and deprived him of the heightenedreliability required in capital cases. (U.S. Const., Amends. V, VII, VII and XTV.) Reversal is required. | a. The Trial Court Abused Its Discretion In Denying Appellant’s Severance Motions i. Evidence Before The Trial Court Showed That Codefendant Settle’s Defense Was Antagonistic To , Appellant’s Defense “(M]utual antagonism! exists where the acceptance of one party's defense will preclude the acquittal of the other. " (People v. Hardy, supra, 2 Cal.4th at p. 169 [citations andquotation marks omitted].) Severance on the ground of antagonistic defenses is warranted if a defendant’s statements implicate another defendant. (People v. Massie, supra, 66 Cal.2d at p. 919 [one defendant's confession implicated second defendant andfailure to severtrials ruled prejudicial]; People v. Wheeler (1973) 32 Cal.App.3d 455 - [one defendant claimed second defendantforced him to participate in crime and erroneousfailure to sever cases held harmless].) Prior to the start of the prosecution’s case, the evidence before the trial court at the time of appellant’s motions to sever his case from codefendantSettle’s established that codefendantSettle intendedtotestify and that his testimony would exculpate himself and inculpate appellant. During the hearing on the first motion, codefendant Settle informedthe trial court, “] intend to assign the proper responsibility to the respective defendants. In doing so, that may deprive them oftheir right to a fair trial because of the antagonistic nature of my defense.” (RT 6143-6144.) The trial court indicated that codefendant Settle’s defense was that he was not 139 “present during the crime, and it expressed doubt about codefendantSettle’s ability incriminate the other defendants. (RT 6139, 6140.) Counsel for appellant replied that all codefendant Settle had to do was “stand up and say it.” (RT 6139-6140.) Thetrial court counteredit did not see how he could do that short of “standing up and yelling in court,” and that if codefendant Settle did so it would only happen onceandthat the court would then take ‘measures to protect appellant’s nghts. (RT 6140.) If such an event transpired, counsel argued that a mistrial would be required. (RT 6140.) Nonetheless, the court denied appellant’s severance motion, ruling that no “concrete evidence” had been presentedto it indicating that codefendant Settle’s defense “might somehow hurt the other defendants.” (RT 6195- 6196.) Thetrial court’s remarks indicate it believed the only way codefendant Settle could harm the other defendants’ cases was by an | outburst in court, which thetrial court believed it could remedy by instructing the jurors to disregard codefendant Settle’s comments. However, during a later argument surrounding appellant’s motionto sever, codefendantSettle informedthetrial court that he intended to testify at trial and that his testimony was not going to be favorable to the other defendants. (RT 6342.) Nonetheless, even with an offer of proof about codefendant _. Settle’s adversarial defense, the trial court again denied appellant’s motion to sever, ruling that it could control the proceedings so as to avoid harm to Settle’s codefendants. (RT 6342-6343, 6379-6382.) Ata subsequent hearing, codefendantSettle again informedthetrial court that he intended ~ to testify against the codefendants, andthetrial court again denied, without discussion or explanation, appellant’s motion to sever. (RT 7837-7838.) 140 Codefendant Settle explicitly informedthetrial court that he would testify that he was innocent and appellant was guilty. Thus, there existed more than “adequate grounds”before thetrial court warranting severance on the ground of antagonistic defenses. Thetrial court knew: (1) codefendantSettle’s testimony would implicate appellant (Peoplev. Massie, supra, 66 Cal.2d at p. 919); and (2) the acceptance of codefendant Settle’s defense would preclude the acquittal of appellant. (People v. Hardy, supra, 2 Cal.4th at p. 169.) Thetrial court at first failed to understandthe nature of codefendant Settle’s defense, believing that codefendant Settle would make an outburst incriminating appellant, a problem the court believedit could correct by instructing the jury to disregard codefendant Settle’s unsworn comments. Later, the trial court wasinformed that codefendantSettle plannedto testify against appellant, but the-trial court did nothing, believing it could fix any problem created by the joinder of codefendant Settle’s case to appellant’s; in so doing,it failed to consider the fact that no instruction could cure the harm caused by sworn testimony of a codefendantthat inculpated appellant. (See Bruton v. United States (1968) 391 U.S. 123, 135-136 [the admission of a nontestifying _ defendant's confession, faciallyimplicatinghis codefendant in the crime, wasso inherently prejudicialthat it violated the codefendant's rights under the Confrontation Clause of the Sixth Amendment, despite a limiting instruction to the jury to consider the statement against the declarant defendant only]; see also People v. Aranda (1965)63 Cal.2d 518 [same]. Underthese circumstances, the trial court abused its discretion in dismissing appellant’s requests to sever madeprior tothestart of the prosecution’s case. (People v. Ervin (2000) 22 Cal.4th 48, 68.) 141 Thetrial court further abused its discretion when it denied appellant’s motions to sever during the presentation of evidence. Appellant again renewed his motion to sever and requested a mistrial after the prosecution’s cross-examination of Floyd Tillman, a witness codefendant Settle called, elicited testimony damaging to appellant. (RT 14670-14675.) Counsel argued that the witness would not have been called if appellant had been tried separately, and thus the damaging testimony would not have been before appellant’s jury. (RT 14675-14676.) Thetrial court denied the motion without commenton the merits of appellant’s motion, ruling only that the scope of the prosecution’s cross examination was properdueto a prior inconsistent statement made by the witness. (RT 14676.) The trial court abusedits discretion in failing to address the merits of appellant’s motion. . Codefendant Settle’s cross-examination of appellantleft little doubt but that he was a second prosecutorin this case. CodefendantSettle undercut appellant’s defense when he asked appellant how William Settle moved from “stacking beer in the 7-11s”for Budweiserto leading a narcotic organization. (RT 15457.) He further asked appellant if the Toyota, also knownas the “companycar,” needed brakes on the date of the homicides in this case, whether appellant called codefendantSettle on that date and whether Frank Settle acted as a go-between for appellant with regard to car transactions. (RT 15457-15458, 15460-15642.) The next morning counsel argued that “the 10 minutes by Mr.Settle yesterdayI think did more than anything that I have ever seen in 28 years to destroy on nonissues. .. . I think that it was grounds for severance when westarted. ... _Each daythere are questions andtactical and strategic decisions being made by Mr.Settle in pro per that could corroborate or support the severance that 142 should have been granted in this case, and should be granted at this point.” | (RT 15471.) Given the evidence of antagonistic defenses beforeit, the trial court abused its discretion when it denied the motion without comment on the merits of whether a severance was warranted based on antagonistic defenses. (RT 15473.) Thetrial court then permitted codefendantSettle to testify, over appellant’s objection. (RT 15472.) In relevant part, codefendantSettle testified that: at about 3 p.m. on the day of the homicides, appellant telephoned codefendantSettle and inquired how long a brakerepair job on a Toyota would take; when told by codefendantSettle that it would be about an hourif he didnot need parts or two if he did, appellant asked codefendantSettle if he had any cars for sale; codefendantSettle read list of cars and appellant chose a green 1970 Bonneville for $900, and told codefendant Settle that Frank Settle would be over to pick itup; Frank came overin the red Toyota “company car” and drove away in the Bonneville; codefendantSettle fixed the brakes on the Toyota in an hour. (RT 15539, 15553, 15579, 15600.) About an hour and a half after dropping off the — Toyota, coappellant Wheeler and Frank Settle returned to codefendant Settle’s place driving in whathadbeenidentified attrial as the red Jeep belonging to Wheeler’s girlfriend; they paid codefendant Settle the $900 and picked up the Toyota. (RT 15539-15541, 15561.) CodefendantSettle denied ever being to the house on Wheeler Avenue. (RT 15541.) He said that his brothers Frank and William were both involvedin drug sales, but that he was mostly gainfully employed as an auto mechanic. (RT 15531- 15534.) He testified that after a work-related accident, he briefly allowed William to pay him to use his houseon Vanport to sell drugs, but codefendant Settle cancelled the arrangement when contacted by Detective 143 Lambert regarding activities at the house. (RT 15533-15534.) Codefendant Settle denied making the statements that Reynard Goldmansaid he heard codefendant Settle make at the Vanport house, i.e. that Armstrong “would not be around much longer” (RT 9278), stating the Vanport house had been ‘rented out and that he had not been on the property. (RT 15536-15537.) | Atthis point in codefendant Settle’s narrative, counsel for appellant renewed the motion to sever and incorporatedall prior arguments made by appellant for severance of his case from that ofcodefendant Settle; the court denied the motion, but stated, “Let’s hear the testimony and the examination and then make whatever motions you have.” (RT 15543.) The trial court abusedits discretion in failing to grant appellant’s motion to sever when it knew, in no uncertain terms, that codefendant Settle’s defense was extremely antagonistic to appellant’. A discussion of . the evidence before the trial court prior to codefendantSettle’s testimonyis illustrative of this point. The prosecution’s case against appellant was, in summary: (1) appellant was a high-ranking memberof a multi-million dollar narcotics organization known as “The Family,” run by appellant’s brother Jeff Bryant, since about 1982; (2) appellant and his brother paid Andre . Armstrongto kill Ken Gentryin 1982 because of a dispute arising out of a drug sale; (3) after Armstrong was convicted of the Ken Gentry killing, he was interviewed by homicide investigators while in prison and said that he intended to collect from the Family for money owed him for the Gentry hit; (4) upon his release from prison in 1988, Armstrong and James Brown sold Family drugs in northern California before movingto southern California, where Armstrong intended to “squeeze” the Family for moneyorpart ofits business; (5) appellant arranged for the killings of the victims in this case in 144 order to protect the Family’s business; (6) appellant had arranged for other violent acts against people over drug disputes; (7) appellant had arranged for violent acts against Keith Curry, the second husbandof appellant’s former wife Tannis; (8) at the time of the homicides, Armstrong and Tannis were romantically involved; (9) appellant was present at and facilitated the instant homicides; and (10) appellant made admissions regarding the homicides after they occurred. (See Statement of Facts, ante.) Appellanttestified in his own defense that: (1) he had long been ' working for people whosold narcotics,at first for his brother Jeff Bryant; (2) appellant sold the Family to William Settle after Jeff was incarcerated because appellant did not know howto run it; (3) he denied knowing anything about the homicides before they occurred, denied arranging for the homicides, denied being present at the Wheeler Avenue house on the date of the homicides and denied making any admissions regarding the homicides; (4) he denied paying Armstrong to kill Ken Gentry andtestified that Armstrongtold appellant he killed Gentry for personal reasons; and (5) denied ever arranging for violent attacks on anyone. Appellant presented additional evidence that Armstrong killed Gentry because Gentry was dating Armstrong’s love interest, Karen Flowers, and that Armstrong stalked Karen Flowers upon his release from prison in 1988. Appellant’s defense also underminedthe credibility of the prosecution’s witnesses and undercut key aspects of the prosecution’s case in chief; the defenses of Smith and Wheeler did not contradict appellant’s defense. (See Statement of Facts, ante.) In short, appellant testified that, although he was involved in drug sales, he wasnot in a leadership position and did not order violent acts to furtherthe interests of the organization. Appellant’s defense challenged the 145 existence of the alleged admissions by appellant, and also called into question the proffered motive for and existence of various bad acts allegedly committed by appellant. No one but James Williams, an original defendantin this case, gave direct testimony inculpating appellant in the homicides, and his testimony was subject to extensive impeachment. Given the contradictory state of the evidenceat this point, it was reasonably probable that one juror would have found that the prosecution had not carried its burden of establishing appellant’s guilt beyond a reasonable ‘doubt. Then came codefendantSettle’s testimony, which secured appellant’s conviction for the prosecution. Thetrial court abusedits discretion in failing to grant appellant’s motion to sever giventhe prejudice caused to appellant from joinder with codefendant Settle’s case. Finally, the trial court abused its discretion whenit failed to grant appellant’s motions to sever and for a mistrial after codefendant Settle’s closing argument. Codefendant Settle began by arguing “This case is not a murder mystery. It’s clear that the Bryant organization strikes again, and it’s Stanley Bryant calling the shots on August 28, 1988.” (RT 16592.) He argued that when Wheeler yelled that there was a womanin the red car, he was shouting to appellant, who did nottell Wheeler not to shootinto the car. (RT 16599-16000.) Then codefendantSettle argued that appellant used his .45 caliber handgunto kill James Brown. (RT 16610.) Codefendant Settle further argued facts not in evidence whenhesaid that Tannis Curry was knownin the community as the “Black Widow”because men whohadan affair with her were killed by appellant. (RT 16611- 16612.) CodefendantSettle argued, again not based onthe facts in evidence, that his brother Frank, who looked like codefendantSettle, had a lot of money, was being paid by appellant. (RT 16619-16620.) 146 Appellant’s counsel objected to these comments andaskedthetrial | courtto instruct the jury that closing arguments are not evidence, and the court agreed. (RT 16625-16626.) When codefendant Settle continued with his argument, appellant’s counsel objected that codefendantSettle argued facts not in evidence when he argued that Frank told him that Frank would nottestify about the green car; the court overruled the objection. (RT 16628.) CodefendantSettle then again argued that appellant shot James Brown. (RT 16630.) Immediately following codefendantSettle’s closing argument, counsel for appellant renewed appellant’s motion to sever and moved for a mistrial based on: (1) codefendant Settle’s argument, which was “new and different from everything heretofore;” (2) codefendant Settle’s testimony; and (3) on codefendant Settle’s prior conduct throughoutthe trial, including his failure to abide by the court’s admonition not to argue facts notin evidence. (RT 16634.) Thetrial court found the “second portion” of — codefendant Settle’s argument to be “unobjectionable” and denied counsel’s ‘motion for severance and a mistrial without further commentorelucidation. (RT 16635.) | Givenall the foregoing, there can be no debate aboutthe antagonistic nature of codefendantSettle and appellant’s defenses. Consequently, the trial court clearly abusedits discretion in denying appellant’s motions to sever and for a mistrial. . 147 ii. It Is Reasonably Probable That Appellant Would Have Received A More Favorable Result In A Trial Separate From That Of Codefendant Settle Codefendant Settle wove a tale not only consistent with the prosecution’s facts, but one that filled gaps in the prosecution’s evidence, directly contradicted the testimony both of appellants Bryant and Wheeler and provided additional circumstantial evidenceoftheir guilt. As set forth above, prior to codefendant Settle’s testimony, there was a reasonable probability that the prosecution could not carry its burden of proving appellant’s guilt beyond a reasonable doubt; therefore, it cannot be said that there existed sufficient independent evidence against appellant, absent codefendant Settle’s antagonistic testimony, demonstrating appellant’s guilt. (See People v. Coffman, supra, 34 Cal.4th at pp. 42-43.) CodefendantSettle’s testimony,in appellant’s counsel’s words, was an “ambush”that secured appellant’s conviction for the prosecution. (RT . 16703.) Certainly, the jury attributed weight to codefendantSettle’s testimony, since they did not convict him of the instant crimes. If appellant’s case had beensevered from that of codefendantSettle, appellant’s jury would have been instructed that codefendant Settle was an accomplice as a matter of law and that his testimony must be viewed with distrust. Compounding the harm to appellant was the prosecution’s improper argument that codefendant’s Settle’s testimony did in fact — corroborate James Williams with regard to the State’s case against appellant in that his testimony showed that appellant set up the killing. (RT 16526- 16527.) Had severance been granted, the jury would not have been able use his testimony to tip the scale in favor appellant’s guilt. 148 Giventhese facts, there is a reasonable probability appellant would have received a more favorable result in a trial separate from codefendant Settle’s; reversal is required. (People v. Keenan, supra, 46 Cal.3datp. 503.) b. If this Court. Determines That Severance Was Not Warranted At the Time Appellant’s PretrialMotions Were made, ReversalIs Nonetheless Required Because The Joinder Of Codefendant Settle’s Case To Appellant’s Case Resulted In A Gross Unfairness To Appellant Such That He Was Denied Due Process Of Law _ Forthe reasonsstated in the immediately preceding section, incorporated by reference herein, the antagonistic testimony of codefendant Settle resulted in a gross unfairness to appellant such that appellant was denied due process of law. (People v. Mendoza, supra, 24 Cal.4th atp. 162; People v. Arias, supra, 13 Cal.4th at p. 127.) Codefendant Settle made good on his representations to the trial court: he secured appellant’s conviction for the prosecution while attaining ahung jury for himself. CodefendantSettle later pled guilty four counts of voluntary manslaughter . and received a determinate term of 21 year, 4 months. (CT 16171-16179, 16233, 1 SUPP CT 7108, 4 SUPP CT 143.) During his sentencing, in pleading for leniency, codefendant Settle’s advisory counsel even referred ‘to codefendantSettle as a “fourth prosecutor” of appellant. (1 SUPP CT 7085.) At trial, codefendantSettle lied to save himself, at the expense of appellant. Today, codefendantSettle is a free man, while appellantsits on death row.It is difficult to ponder a result that is more “grossly unfair” than that. 149 Forall the foregoing reasons, the joinder of codefendantSettle to appellant’s case resulted in a trial so unfair to appellant that he was denied due process of law and deprived him of the heightenedreliability required in capital cases. (U.S. Const., Amends. V, VII, VIII and XIV; People v. Mendoza, supra, 24 Cal.4th at p. 162; People v. Arias, supra, 13 Cal.4th at p. 127; People v. Keenan, supra, 46 Cal.3d at p. 500; see Zafiro v. United States, supra, 506 U.S. 534; Mills v. Maryland, supra, 486 U.S. at p. 376.) Reversal is required. C. The Trial Court’s Failure To Sever Appellant’s Case From That Of Coappellants Wheeler And Smith Requires Reversal Appellant also movedpriorto trial to sever his case from that of coappellants Wheeler and Smith. (CT 14084-14136.) With regard to coappellant Wheeler, he argued that, given the prosecution’s theory that appellant was notthe actual shooter of any victim, he would be prejudiced by the joinderofhis case with that of the actual shooter of the two female victims in this case, one being a two-year-old. (RT 14115-141 16.) With regard to appellant Smith, appellant argued,inter alia, that coappellant Smith’s counsel had demonstrated an intent to become a second prosecutor in this case: (CT 141 10-141 15.) Thetrial court denied appellant’s motions as to coappellants Wheeler and Smith without commentor elucidation. (RT 6151.) On appeal reversal will be required where the joinder of defendants actually resulted in gross unfairness amountingto a denial of due process even if severance was notinitially warranted at the time the motion was | made. (People v. Mendoza, supra, 24 Cal.4th at p. 162; People v. Arias, supra, 13 Cal.4th at p. 127.) Appellant submits that the joinder of 150 coappellants Wheeler and Smith denied him due process underthis standard, both at the guilt and penalty phasesoftrial. Atthe guilt phase, coappellant Wheelertestified that he had been hired by a man named Eddie Barberto sell narcotics, and that Barber had assigned coappellant Wheeler to work at the Wheeler Avenue house, which James Williams ran, and that Williamswas responsible for the killings. (RT 13931-13932, 14070.) This contradicted and thus undermined appellant’s testimony that William Settle was in charge of both the drug operation and the Wheeler Avenue house,and thuslikely responsible for the killings. (RT 15222-15223, 15333.) Had severance been granted, appellant’s jury would neverhad heard the contradictory testimony. Without coappellant Wheeler’s testimony,thereis at least a reasonable probability that the jury would have believed appellant’s testimony as opposed to that of Williams and codefendantSettle, and that, consequently, appellant would have received a more favorable result in a separate trial. (People v. Keenan, supra, 46 Cal.3d at p. 503.) Evenif severance wasnot initially warranted at the time the motion was made,the joinder actually resulted in gross unfairness amountingto a denial of due process. (People v. Mendoza, supra, 24 Cal.4th at p. 162; People v. Arias, supra, 13 Cal.4th at p. 127.) In addition, appellant was denied due process by the joinderofhis case with that of coappellant Smith because he was denied his right to mount an adequate defense to the charges that he had coappellant Smith shoot Curry because Curry wassleeping with appellant’s ex-wife. Appellant’s counsel argued that, had coappellant Smith’s case been severed from appellant’s, Smith’s independent motive to shoot Curry would have been available, that is, that Smith shot Curry because Curry wastaking 151 Smith’s children with him to sell drugs in order to throw off the police. (RT . 10951, 11160.) At the penalty phase, the prejudice to appellant ofthe joinder of defendants in this case is even more apparent. Coappellant Wheeler presented evidence that his childhood was chaotic, that he was abandoned by his father and beaten byhis stepfather, that his mother was a drug addict whodied at a critical time in coappellant Wheeler’s life, and that he began selling drugs to provide for his younger brother. (See Statement of Facts, | ante.) Coappellant Smith presented evidencethat he had a below average 1Q, suffered from a variety of mental disorders and that he wastortured as a child by his father. (See Statement of Facts, ante.) Appellant presented evidencethathis friends and family cared for him and wanted him to live, and that appellant cared for his young daughter. (See Statement of Facts, ante.) In light of the evidence presented at the penalty phase, there is a grave risk that the jury's verdict was not based solely on appellant's character, background and participation in the capital offense, but ratherit was based on evidencerelating to his codefendants that would not have been admissible had appellant been given a separate penalty trial. The joinderofthe coappellant’s mitigation cases, both of which were more compelling than appellant’s, violated appellant's due process and Eighth Amendmentrights to a fair, reliable, individualized and non-arbitrary sentencing determination. Beginning with Woodson v. North Carolina (1976) 428 U.S. 280, the United States SupremeCourt has stressed the principle that "the fundamental respect for humanity underlying the Eighth Amendment" requires an "individualized" sentencing determination in which the jury considers "the character and record ofthe 1individual offender and the circumstancesof the particular offense... .' 152 (Id. at p. 304; see also Zantv. Stephens (1983) 462 U.S. 862, 879 ["Whatis importantat the selection stage is an individualized determination on the basis of the character of the individual and the circumstancesof the crime."). In Lockett v. Ohio (1978) 438 U.S. 586, the Court further recognized that "an individualized decision is essential in capitalcases. The need for treating each defendant in a capital case with that degree of respect due the uniquenessof the individual is far more important than in non-capital cases." (id. at p. 605.) Again, in Penry v. Lynaugh (1989) 492 U.S. 302, the Supreme Court reaffirmed the principle "that punishment should be directly related to the personal culpability of the criminal defendant." (/d. at p. 319.) It is critical that the sentencer treat the defendant "as a ‘uniquely individual human bein[g],' and has made a reliable determination that death is the appropriate sentence." (Ibid. (quoting Woodson v. North Carolina, supra, 428 U.S. at pp. 304- 305). "*Thus, the sentence imposedat the penalty stage should reflect a reasoned moral responseto the defendant's background, character and crime." (/bid. [quoting California v. Brown (1987) 479 U.S. 538, 545 (con. opn. of O'Connor, J. (emphasis in original)].) . The jury's consideration of appellant's mitigation was undoubtedly minimized because of its proximity to the codefendants’ more powerful | penalty phasepresentations. This prevented the jury from determining the appropriate sentence based on the defendant's background, character and crime. Because an individualized sentencing determination must be based on the "characterofthe individual and the circumstancesofthe crime" (Zant v. Stephens, supra, 462 U.S, at 879), the background and culpability of codefendants have no place in the jury's decision. The codefendants’ 153 tragic upbringing and various mental impairments are not relevant to whether appellant should receive a death sentence. Noris it appropriate to weigh appellant's culpability for the crime against the codefendants in determining which of the four deserve death. Such a processthat encouragesthe jury to compare and contrast defendants to determine which one should receive the death penalty cannot withstandconstitutional scrutiny. | Appellant's death sentence wasthe direct result ofjoinder. Evidence of the codefendants’ background and comparisons between appellant and his codefendants would never have been permitted if appellant were tried separately. Under California law, only evidence pertaining to the statutory factors is admissible in aggravation. (See People v. Boyd (1985) 38 Cal.3d 762, 771-776; Cal. Penal Code § 190.3.) Moreover, evidence of a codefendant's lesser sentence has repeatedly been found inadmissible and irrelevant to a defendant's capital sentencing. (See People v. Morris (1991) 53 Cal.3d 152, 225 [citing People v. Carrera (1989) 49 Cal.3d 291, 343 ["The punishment meted out to a codefendantis irrelevant to the decision the jury must make at the penalty phase: whether the defendantbeforethe jury should be sentenced to death."].) "Clearly, the fact that a different jury underdifferent evidence, found that a different defendant should not be put to death"is irrelevant. (People v. Dyer (1988) 45 Cal.3d 26, 70.) Moreover, under California law, intercase proportionality review, "whether the comparison involves sentences for other, similar crimes or sentences of codefendants"is not permissible. (People v. Ramos (1997) 15 Cal.4th 1133, 1182.) Thus, while all of the codefendants compared appellant's mitigating and aggravating factors with their own, and argued that appellant was worse, appellant was precluded from arguing there were 154 _ numerousothercapital crimes far more heinousandcapital defendants whose backgrounds and characters were less mitigating. Here, in a joint penalty trial in which the jury was confronted with four defendants with different levels of culpability and mitigating evidence, the jury was urged to compare the three in determining the appropriate sentence. Joinder was particularly prejudicial where the mitigating evidencepresented on the codefendants’ behalf was more compelling than that presented in appellant's case, even though viewed on its own appellant’s mitigating evidence may have been sufficient to movethe jury to a life without possibility of parole sentence. The Ninth Circuit has recognized the primary danger ofa joint penalty phase of codefendants: "A single jury . . : may well assess relative blame, with the resultant imposition of a non-capital sentence on the less blameworthy of the two defendants." (Beam v. Paskett (9th Cir, 1993) 3 F.3d 1301, 1304,fn.1 [criticizing use of dualjuries in capital trials].) Such a calculus certainly occurred here when the jury reached a verdict of death for appellant and a verdict oflife without possibility of parole for his three codefendants. Having one jury decide the appropriate penalty forall four defendants in this case deprived appellant of his due process and Eighth Amendmentrights to a fair, reliable, | individualized and non-arbitrary sentencingdetermination.”’ D. Conclusion A basic principle underlying the concept of a fundamentallyfairtrial is that the culpability of every criminal defendant on each charge will be ” Appellant is not arguing that a joint penalty trial is unconstitutional per se, but only that in this case it rendered the trial fundamentally unfair and deprived appellant ofa fair, reliable and individualized sentencing determination. 155 determined solely on the basis of evidence regarding him individually. (See, e.g., People v. Mitchell (1969) 1 Cal.App.3d 35, 39.) The denial of separatetrial prejudicially denied appellant a fair determination ofhis guilt. Similarly, the failure to sever the guilt phasetrial prejudiced appellant in the penalty phase ofhis trial. The Eighth Amendmentof the US. Constitution requires that in determining whether a death sentenceis appropriate the jury must make an “individualized determination” based on the character of the defendant and the circumstances of the crime. (See, e.g., Zant v. Stephens, supra, 462 U.S. at p. 879.) When carrying out this task, the jury must focus on the defendantas a “uniquely individual human being.” (Woodson v. North Carolina, supra, 428 U.S. at p. 305.) Also, considerations not relevant to defendant’s personal responsibility and moral guilt should not play any part in the jury’s determination of whether defendant shouldreceive the death penalty. bid.) — Forall of the foregoing reasons, appellant’s Fifth, Sixth, Eighth and Fourteenth Amendments rights to fundamental fairness, a fair and reliable guilt determination and a reliable, fair and individualized sentence as well as his correspondingrights under California law were violated as a result of the trial court’s erroneousdenial of appellant’s severance motion. Appellant’s convictions must be reversed and his judgment of death vacated. | I // 156 IV THE TRIAL COURT’S FAILURE TO CONTROL THE CONDUCTOF THE TRIAL DENIED APPELLANTA FAIR TRIAL AND DUE PROCESS OF LAW After codefendant Settle exercised his right to self-representation under Faretta v. California (1975) 422 U.S. 806, the defense made several motions for a severance. (RT 6071-6088, 6129, 6144; CT 13756.) When the request for a severance was made,the defense predicted that codefendant Settle would not abide by rules which govern the conduct of attorneys. As will be detailed below, appellant argued beforetrial that he would be deprived of a fair trial and due process of law if forcedto trial with codefendantSettle as a pro per defendant; appellant’s counsel, based on conversations with codefendantSettle as well as codefendant Settle’s in- court representations, warned the court that codefendant Settle would fabricate evidence to exonerate himself and inculpate appellant. Thetrial court assured appellant that it would be able to control the conduct of the trial so as to assure appellant’s constitutional nghts. Throughout appellant’s trial, codefendant Settle engaged in repeated acts of misconduct ‘that violated appellant’s constitutional rights, but the trial court failed to admonish codefendantSettle or attempt to alleviate the prejudice to appellant. The result denied appellant fair trial and due process of law. Asa result, his confinement and sentence are illegal and unconstitutional under the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution. A. Pretrial Proceedings Aspart of appellant’s motion to sever his case from codefendant Settle’s, appellant specifically argued that the trial court needed to weigh 157 ~ codefendant Settle’s right to self-representation against appellant’s right to a fair trial and due process of law. (RT 6146-6147; CT 14084-14136.) The trial court said it did not “see it that way”andruled that it could notrule to sever codefendantSettle’s case on the basis of codefendantSettle exercising his right to represent himself. (RT 6147.) Mr. Gregory, counsel for appellant Smith, pointed out that attorneys are underethical guidelines and subject to sanctionsif those guidelines are violated. In contrast, a pro per defendant in a capital cases is not underthat type of constraint. In rhetorical question, Mr. Gregory asked whether the court would fine codefendantSettle if codefendant Settle violated the ethical restraints that would normally be imposed on attorneys. Because of this factor, Mr. Gregory argued there wasa serious danger to the fair trial of the other defendants; he argued that indetermining severance, the rights of those defendants to fair trial needed to be weighed against codefendant Settle’s:-right to represent himself. (RT 6147-6149.) The trial court disagreed,ruling that: You don’t balance pro perrights against anything. I disagree with you. He is pro per. That’s a fact of life.... The analysis as to whetherthereis a joint or separate trial cannot turn on his status of self [representation] because it assumes the following. If he had a lawyer, the lawyer would muzzle him. A lawyer would do thingsin a particular way. That’s more to your advantage. That’s not necessarily the case. I won’t assumethatis the case. (RT 6149-6150.) | Subsequently, this issue was raised again, after codefendantSettle made a motion for protective custody based onhis accusations that he was in danger from the other defendants. Appellant’s counsel expressed concern because ofthe possibility that codefendant Settle might fabricate 158 evidenceif it was in his interest; counsel for appellant explained that the defense had the right to knowwho made those threats, arguing that if the information wastrue, the defense needed to knowitfortrial, or, if the information was nottrue, the defense needed to know it because it would show that codefendant Settle had no compunction aboutfabricating evidenceif he believed it advantageous to his defense. (RT 6378-6379.) At this time, Ms. Harris, counsel for appellant Wheeler, informed the court that she believed the court was “sadly mistaken”if the court believed it could prevent codefendant Settle from engaging in misconduct. The court informed Ms. Harris that she was sadly mistaken if she believed that the -court could not prevent codefendantSettle from engaging in prejudicial misconduct. (RT 6381.) Ms. Harris explained that, with codefendantSettle acting as his own attorney, he may make statements that could notbe cross- examined, and it would not be possible to “unring”the bell. (RT 6381.) The court stated that the matter was a “simple thing,” in that codefendant Settle had to comply with court's orders or he wouldlose his pro per status. (RT 6381.) While counsel for the defendants provided reasonsto the trial court as to why the represented defendants should not be forcedto trial with a pro per defendant, that pro per defendant provided the clearest basis for severance: codefendant Settle stated, in no uncertain terms, that his defense was “extremely antagonistic” in that he planned to implicate his codefendants. (RT 6143-6144.) Appellant’s counsel argued that, in light of codefendant Settle’s representations to the court, there was no doubt his defense was antagonistic to appellant’s, that he would bea “second prosecutor”in this case and that he would fabricate a defensein orderto save himself. (RT 6144.) The trial court indicated that codefendant Settle’s 159 defense was that he was not present during the crime, and it expressed doubt about codefendant Settle’s ability to incriminate the other defendants. (RT 6139, 6140.) Counsel for appellant replied that all codefendantSettle had to do was “stand up andsayit.” (RT 6139-6140.) Thetrial court countered it did not see how he could do that short of “standing up and yelling in court,” and that if codefendantSettle did soit wouldonly happen once and that it would then take measuresto protect appellant’s rights. (RT 6140.) Aswill be shown below,thetrial court failed miserably. ’ Codefendant Settle engaged in gamesmanship withthe court and his _ codefendantsthatthetrial court failed to control. The court permitted codefendant Settle to violate the law, the rules of evidence and ethics and to manipulate the order ofthe trial to ultimately testify after all of the defendants, including himself, had rested their cases. As a result of the trial court’s failures, appellant was denieda fair trial and due processoflaw. B. The Relevant Law Thetrial judge must preserve order in the courtroom. (People v. Hill (1992) 3 Cal.4th 959, 999.) This includes the responsibility to guard against “any conductcalculated to obstruct justice.” (People v. Slocum (1975) 52 Cal.App.3d 867, 883.) Thestatutory authority is in Penal Codesection 1044 whichprovides: It shall be the duty of the judge to controlall proceedings duringthetrial, and to limit the introduction of evidence and the argumentof counsel to relevant and material matters, with a view to the expeditious and effective ascertainmentof the truth regarding the matters involved. 160 Penal Codesection 1093 sets forth the normalorder oftrial.” Section 1093 provides: The jury having been impaneled and sworn, unless waived, the tnal — shall proceed in the following order, unless otherwise directed by the court: (a) If the accusatory pleading be for a felony, the clerk shall read it, and state the plea of the defendantto the jury, and in cases whereit charges a previous conviction, and the defendant has confessed the same,the clerk in readingit shall omit therefrom all that relates to such previous conviction. In all other cases this formality may be dispensed with. (b) The district attorney, or other counsel for the people,may make an opening statementin support of the charge. Whetherornotthedistrict attorney, or other counsel for the people, makes an opening statement, the defendantor his or her counsel may then make an opening statement, or “mayreserve the making of an openingstatement until after introduction of the evidence in support of the charge. . (c) The district attorney, or other counsel for the people shall then offer the evidence in support of the charge. The defendantor his or her counsel maythen offer his or her evidence in support of the defense. (d) The parties may then respectively offer rebutting testimony only, unless the court, for good reason,in furtherance ofjustice, permit them to offer evidence upontheir originalcase. (e) Whenthe evidence is concluded, unless the case is submitted on either side, or on both sides, without argument, the district attorney, or other counsel for the people, and counsel for the defendant, may argue the case to’ the court and jury; the district attorney, or other counsel for the people, opening the argument and havingthe rightto close. (f) The judge may then charge the jury, and shall do so on any points of law pertinentto the issue, if requested by either party; and the judge may state the testimony, andhe or she may make such comment on the evidence and the testimony and credibility of any witnessas in his or her opinionis necessary for the proper determination of the case and he or she may declare the law. At the beginning ofthetrial or fromtime to time during the trial, and without any request from either party, the trial judge may give the jury suchinstructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case. Upon the jury retiring for deliberation, the court shall advise the jury of the availability of (continued...) 161 However, section 1094 permits the court in its discretion to depart from that order.” Nonetheless, the judge has the duty to stop introduction ofhighly prejudicial matter. (People v. Arends (1957) 155 Cal.App.2d 496, 508.) There are other limitations on the court’s discretion. After the parties have presented their cases in chief, only rebuttal evidence is allowed unless the trial court allows otherwise for good reason. (Pen. Code, § 1093, subd. (d); Witkin, California Evidence, Presentation at Trial 3 (4th ed. 2000), § 71, p. 102.) In People v. Carter (1957) 48 Cal.2d 737, this Court explained the need for the rule: The purposeofthe restriction in that section is to assure an orderly presentation of evidence so that the trier of fact will not be confused; to prevent a party from unduly magnifying certain evidence by dramatically introducingit late in thetrial; and to avoid any unfair surprise that may result when a party whothinks he has met his opponent’s case is suddenly confronted at the end oftrial with an additional piece of crucial evidence. (Id. at p..753.) Evidence.code section 778 provides: After a witness has been excused from giving further testimony in the action, he cannot be recalled without leave of the court. Leave may be granted or withheld in the court’s discretion. 2(...continued) a written copy of the jury instructions. The court may,at its discretion, provide the jury with a copy of the written instructions given. However,if the jury requests the court to supply a copy of the written instructions, the court shall supply the jury with a copy. ® Section 1094 provides: Whenthestate of the pleadings requires it, or in any othercase, for good reasons, and in the sound discretion of the court, the order prescribed in the last section may be departed from. 162 This rule is particularly true after each party has presentedits entire case in chief. (Witkin, California Evidence, Presentation at Trial 3, supra, § 78, p. 112; see People v. Thomas (1992) 2 Cal.4th 489, 542; People v. Cooks (1983) 141 Cal.App.3d 224, 327.) C. The Trial Court Failed To Protect Appellant’s Constitutional Rights In Failing To Give Appropriate Admonishments To The Jury After CodefendantSettle Committed Misconduct Prejudicial To Appellant’s Case In his first appearance before the jury, codefendantSettle explained’ that he was representing himself becausea trial is a truth seeking process and the best way to get to the truth is through the defendant. Hefurther said that although a defendant had a right to remain silent, he was going to give up that right because he was innocent. (RT 8157-8158.) At the start ofhis closing argument, codefendantSettle stated that the other three defendants and Williams were the ones who were involvedin the killings. (RT 16592.) Almost immediately thereafter, codefendant Settle repeated the argument, "I'm here representing myself becauseit is a truth-seeking process, andI feel that the best way to get to the truth is through the defendant." (RT 16592-16593.) | Codefendant Settle’s remarks effectively communicatedto the jury that innocent people do not allow themselves to be represented by counsel, and thus deprived appellant of his constitutional rights to be presumed . innocent, to be represented by counsel, to a fair trial and to due process of law. (U.S. Const., Amends. VI and XIV; Gideon v. Wainwright, supra, 372 U.S. at p. 344 ["lawyers in criminal cases are necessities not luxuries”]; In re Winship (1970) 397 US. 358, 363, quoting Coffin v. United States (1985) 156 U.S. 432, 453 [principle of presumption of innocencein favor of the accused is axiomatic and its enforcement lies at the foundation of the 163 administration of criminal law].) Certainly in nosituation in a criminaltal is the fact that one is represented by counsel probative of one’s guilt or innocence. (See Bruno v. Rushen (9th Cir. 1983) 721 F.2d 1193, 1194 [mere act of hiring an attorney not probative in the least of the guilt or innocence of defendant].) To say that codefendant Settle was representing himself because he believed the best way to get to the truth was through self-representation asks the jury to make a positive inference on his . self-representation, which, by necessary implication, creates a negative inference towards thosewho elect to have an attomey. Codefendant Settle’s comments were calculated to impute guilt to appellant and "str[uck] _at the jugular" of the appellant’s defense. (/d.at p. 1 195.) The remarks in codefendantSettle’s closing argument occurred . within minutes of the defense asking for a previewof codefendantSettle’s argument to make sure that no misconduct would occur. The court simply denied this request, saying that it could admonish codefendantSettle if the engaged in misconduct. (RT 16588-16589.) CodefendantSettle also. argued facts not in evidence during his closing that were extremely prejudicial to appellant, as discussedin ArgumentIII, ante, incorporated by reference herein. Despite its promise to protect appellant’s rights, the court made no admonishmentsto the jury regarding any of the misconduct by codefendant Settle discussed herein. D. The Trial Court Failed To Protect Appellant’s Constitutional Rights When It Allowed Codefendant Settle To Manipulate The Order Of Evidence To Appellant’s Detriment ‘The jury had a five day break after the People rested before the commencementof the defense cases. (CT 14948-14949.) Upontheir return, the court told them that the parties had agreed that the defense cases 164 would be presented in the following order: appellant Smith, appellant Wheeler, codefendant Settle, and appellant Bryant. (RT 13910.) Thereafter, appellant Smith immediately rested withoutcalling any witnesses. (RT 13910-13911.) Appellant Wheeler, from April 10th through April 12th, put on his defense. (RT 13911-14377.) His defenseis detailed above in the Statementof the Facts, incorporated herein. His defense did not inculpate codefendantSettle. | CodefendantSettle then put on his defense, calling nine witnesses from April 13th through April 18th. (RT 14526-14847.) His defenseis detailed above in the Statement of the Facts, incorporated herein. On April 17th, codefendant Settle told the court that he intended to testify. (RT 14774-14775.) The court advised him thathe had the absolute right not to testify and that his testimony might help, but could also devastate, his case. (RT14774-14775.) Codefendant Settle said that he would like to see what Mr. Leonard,his assisting counsel, thought. (RT 14775.) Later in the day, codefendant Settle told the court that he had decided notto testify. (RT14786-14788.) The court again cautioned him abouthis decision and asked whether he had any questions. (RT 14787.) CodefendantSettle replied: Should the codefendanttestify and raise issues that after I have rested that would make me wantto testify? The Court: I would let you. Defendant Jon Settle: All nght. The Court: I think it would be error for a court to refuse a defendant’s requestto testify, basically at any point in the case. I don’t think I could do that. 165 Defendant Jon Settle: Okay. The Court: Unless the case had been arguedto the jury. You know what I am saying? While wearestill taking testimony,ifyou change your mind and decided you hadto get up there, yeah I would. Defendant Jon Settle: Okay. In that case, — The Court: But I’d kind of like you to do this—again, I have | told you the truth, but what I would like you to do is if you know for sure that you are goingto,let’s do it now. Defendant Jon Settle: At this point, I’m not. And I just have one more witness, my wife. (RT 14787-14788.) At the end of the day appellant’s counsel expressed his concern to the court that codefendant Settle said he might testify: Wehad agreed upon a rotation, so to speak, and the only concern | have wasthat we not go in front of codefendantSettle. The Court: Well, there is only so much I can do, and I gave him an honest answerto this question, and I think he is being honest with me. Has been throughout mostofthe trial. He has indicated that his intention is notto testify in the case. Am correct on that? Defendant Jon Settle: Yes. The Court: Andhe was inquiring if somebody got up and dumped on him or said something about him that he disagreed with would he be allowed to rebut that, and I gave him, again, the honest answer, the only answerI could, that I would allow. I cannot prevent, no more than I could if Mr. Wheeler changed his mind and decided now he—or Mr. Smith changed his mind. It was an agreement, but if he does change his mind,I haveto let him testify. ‘(RT 14805.) The following day, codefendantSettle rested without testifying. (RT 14847.) 166 Appellant then put on his defense, beginning on April 18th and concluding on April 25th. (RT 14856-15523.) His defense is detailed abovein the Statement of the Facts, incorporated herein. His defense did not inculpate codefendant Settle. At the end ofthe court day on April 24th, the court.asked appellant Wheeler’s counsel if they would have any additional evidence and was informed that they would not. Counsel for appellant Smith reminded the court that they hadrested. (RT 15463.) The court asked codefendantSettle if he had decided if he was going to testify. Codefendant Settle responded, “Yes, Iam.” (RT 15463.) The following morning, counsel for appellant objected to codefendantSettle testifying. (RT 15472.) He argued that codefendant Settle was violating the original agreement on the order of the defenses and that he had maneuvered thesituation so that he could present his account last. (RT 15472.) The Court affirmed from codefendant Settle that he wantedto testify. (RT15473.) The court mused: I don’t believe, asI indicated, trying to be honest with the defendant. I don’t believe the court has the authority to preclude a defendant from testifying in the guilt phase, notwithstanding he madethat decision after he has passed the first time around and rested. And later he was waiting in the wing to see what Mr. Bryant did and what he testified to. Perhaps, that is what was going on. Perhaps, he made the decision to testify whether Mr. Bryant did or not. I don’t know. - But for sure he has the constitutional right to testify as all defendants do, and I am not going to preclude him fromtestifying in this case. (RT 15473.) CodefendantSettle’s testimony, imparted though his narrative and cross-examination by counsel for appellants Wheeler and Bryant and the People, consumeda substantial part of the court day on April 25th and April 26th. (RT 15487-15782.) The substanceofthat testimony is detailed in the 167 Statement of the Facts, and is incorporated herein. In short, codefendant Settle contradicted appellant’s testimony that he was not involved in the instant homicides bytestifying that appellant arranged for the purchase of the large green car (described by Williamsas the vehicle he was asked to -back into the garage at the Wheeler Avenue house) on the afternoon of homicides, and that that Frank Settle told him that that car was used in the murders. (RT 15572-15582.) Codefendant Settle wove appellant Wheeler into his tale and placed him with Frank Settle an hourafter Frank Settle had taken possession of the green car. Defense counsel argued that codefendantSettle’s vacillation about-° whether he would testify was a subterfuge. The court agreed. (RT 15800-15801.) Counsel for appellants Wheeler and Bryant informed the court that a defense investigator as well as counsel for appellant Bryant spoke with Frank Settle, on the evening after codefendantSettle testified, . and Frank said that he did not know appellant Wheeler, he had not been with him on August 28th, he had not picked up a car at codefendantSettle’s residence on that date, he did not take codefendantSettle a car for repair on that date, and he had never been to the Wheeler Avenue house. The court appointed counsel for Frank Settle, who shortly thereafter advised that Frank would assert his constitutional right not to testify if asked about the green car transaction. (RT 15784-15785, 15793-15794, 15798-15799.) Counsel complained that this was the first time they had heard these purported facts in the seven years that they had been on the case. (RT 15792-15793.) Frank Settle was ordered to return on the following morning. (RT 15803-15804.) He ultimately testified and confirmedthe facts alleged by counsel above. (RT 15841-15870.) After codefendant Settle’s closing guilt 168 phase argument, defense counsel renewedtheir motion to sever codefendant Settle’s case from theirs and movedfor a mistrial based on his conductin the case, particularly his testifying after appellants had rested. (RT 16634-16635.) Both motions were denied. (RT 16635.) Thetrial court erred in allowing codefendantSettle to testify in this case. Certainly, an accused’sright to testify in his defense is a “constitutional right of fundamental dimension.” (United States v. Joelson (9th Cir. 1993) 7 F.3d 174, 177; Rock v. Arkansas (1987) 483 U.S. 44, 51.) Theright stems from several provisions of the Constitution, including the Fourteenth Amendment’s Due Process Clause, the Sixth Amendment’s Compulsory Process Clause, and the Fifth Amendment’s privilege against self-incrimination. (Rock, supra, 483 U.S. at pp. 51-52.) ... The right is personal, and “may only be relinquished by the defendant, and the defendant’s relinquishmentof the right must be knowing andintentional.” (Joelson, supra, 7 F.3d at p. 177.) (United States v. Pino-Noriega (9th Cir. 1999) 189 F.3d 1089, 1094; accord People v. Robles (1970) 2 Cal.3d 205, 214.) However, a defendant’s right to testify is circumscribed by procedural and evidentiary rules, whenthe rules are neither arbitrary nor disproportionate to the purposes they are designed to serve. (Rockv. Arkansas, supra, 483 U.S. at pp. 55-56.) The right “‘may, in appropriate . cases, bow to accommodate otherlegitimate interests in the criminaltrial process.’” (Ibid., quoting Chambers v. Mississippi (1973) 410 U.S. 284, | 294.) For example, a defendant’s demandtotestify must be timely made. (United States v. Pino-Noriega, supra, 189 F.3d at p. 1095 [too late after verdict has been reached, even though verdict had not been announced].) “Hence, a defendant does not have an unrestricted right to testify at any 169 point duringtrial. Generally, if he wishesto testify, he must do so before he rests his case: otherwise, he can movethetrial court to reopen the evidence, but the choice whetherto reopenis left to the court’s sounddiscretion.” (United States v. Peterson (1st Cir. 2000) 233 F.3d 101, 106, citing United States v. Santana (1st Cir. 1999) 175 F.3d 57, 64.) “Such a rule serves to ensure that the trial proceeds in a fair and orderly manner, with the defendant’s testimony occurring when the judge, jury, and prosecution reasonably expectit. (Peterson, supra, citing United States v. Jones (8th Cir. 1989) 880 F.2d 55, 59- 60.) The Fifth Circuit in United States v. Thetford (Sth Cir. 1982) 676 F.2d 170 enumerated the factors a district court must considerin deciding whether to reopen the evidenceto allow a defendant to testify: In exercising its discretion, the court must considerthe timeliness of the motion, the character of the testimony, and the effect of the granting of the motion. The party movingto reopen should provide a reasonable explanation forfailure to present the evidencein its . case-in-chief. The evidenceproffered should berelevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or innocence of the accused. The belated receipt of such testimony should not“imbue the evidence with distorted importance, prejudice the opposing party’s case, or preclude an adversary from having an adequate opportunity to meet the additional evidence offered.” : (Thetford, supra, at p. 1177, quoting United States v. Larson (8th Cir. 1979) _ 596 F.2d 759, 778; accord United States v. Walker (5th Cir. 1985) 772 F.2d 1172, 1177; United States v. Peterson, supra, 233 F.3d at p. 106.)" ™ Tn United States v. Peterson, supra, the court upheld the refusal to permit the defendant to reopen andtestify where he had given the court little indication as to what he wishedto testify about, where there was the (continued...) 170 There is abundantauthority illustrating that the right to testify is not absolute. (State v. Chapple (Wash. 2001) 36 P.3d 1025 [defendant properly prohibited from testifying by his expulsion from the courtroom for disruptive conduct]; United States v. Gallagher (9th Cir. 1996) 99 F.3d 329, 332 [defendant properly prohibited from testifying in a narrative form after his counsel indicated that he had no further questions]; State v. Mitchell (S.D. 1992) 491 N.W.2d 438, 446-447 [defendant’s testimony properly limited in surrebuttal to issues raised in rebuttal where he hadnottestified in the defense case-in-chief]; UnitedStates v. Blum (8th Cir. 1995) 65 F.3d 1436, 1444 [defendant’s testimony properly refused where she chose notto testify but then after the close of the evidence and then she sent a message to the court that she had changed her mind]; United States v. Stewart (1994) 20 F.3d 911 [defendant’s testimony properly refused where he unequivocally stated his desire not to introduce evidenceafter the government rested and requested to testify only after the court informed the . jury that they would hear closing statements]; People v. Collier (Ill. App. 2002) 738 N.E.2d 267, 271-274 [same, becausethe justification for the defendant’s repeated “change of heart” appeared to be a manipulation of the trial process]; Comm. v. Moore (Mass.App.Ct. 2001) 751 N.E.2d 901, 903-906 [same, where did not requestto testify until both he andhis _ codefendanthad restedtheir cases]; State v. Barnett (Wash.App. Div. 2001) 16 P.3d 74, 78-79 [same, defendant’s change of mind after he rested was too late]; Smith v. Campbell (M.D. Tenn. 1991) 781 F.Supp. 521, 532-533 *(...continued) strong possibility that he planned to commit perjury, and where he had offered no excuse for not testifying during his case-in-chief although he had had ampletime to offer testimony. (233 F.3d at p. 107.) 171 [defendant’s testimony properly refused where request to testify made after the prosecution’s rebuttal evidence and where the defendant knew ofthe importance ofhis testimony during his case-in-chief, chose to remain silent for strategic reasons, and his proffered testimony was not offered as rebuttal].) | In this case, as in People v. Collier, supra, 738 N.E.2d at pp. 271- 274 and Comm. v. Moore, supra, 751 N.E.2d at pp. 903-906, that trial court ~ commentedthat codefendant Settle “was waiting in the wing to see what [appellant] did and whathetestified to.” (RT 15473.) Thetrial court acknowledged that codefendant Settle engaged in a pattern of _ “gamesmanship” duringthe trial. (RT 15818.) In this case, “gamesmanship”as used bythetrial court is a euphemism for what occurred: codefendant Settle waited until all the evidence against him was in, with that knowledge concocted a story of his innocenceand presented fabricated evidence of appellant’s guilt in order to save himself. The subterfuge codefendant Settle employed wascalculated to obstruct justice in his case while tipping thescales ofjustice against his codefendants. In the context of capitallitigation, prejudice arising from a similar situation was found State v. Carruthers (Tenn. 2000) 35 S.W.3d 516. In Carruthers, the Tennessee Supreme Court reversed the conviction and death sentence of a defendant who had beentried along with a pro per co-defendant. That Court explained that protective measures whichthetrial court attempted to employ did not prevent the possibility of prejudice from ripening into actual prejudice. The Court found prejudice where it appeared that the pro per defendant had engaged in offensive mannerismsin front of the jury and had engaged in questioning of witnessesthat elicited 172 incriminating evidence, including calling a witness whotestified as to the non-pro per defendant’s admissions regarding the offense. (35 S.W.3dat p. 553-555.) In this case,thetrial court not only failed to take actions that might haveprotected appellant’s rights, but it failed to realize that it could have prevented codefendantSettle from testifying. This issue does not present merely a review for abuse ofdiscretion, however, because thetrial court did not knowthatit had the power,let alone the obligation, to exercise discretion and prevent codefendantSettle from manipulating the proceedingsby testifying after he had rested, to his advantage at the expense of his codefendants. (RT 15473,15800-15801; People v. Slocum, supra, 52 Cal.App.3dat p. 883 [trial judge has the responsibility to guard against “any conduct calculated to obstruct justice”) ; People v. Carter, supra, 48 Cal.2d at p. 753 [trial judge has the obligation “to prevent a party from unduly magnifying certain evidence by dramatically introducing it late in thetrial; and to avoid any unfair surprise that may result when a party whothinks he has met his opponent’s case is suddenly confronted at the end of trial with an additional piece of crucial evidence”); United States v. Peterson, supra, 233 F.3d at p. 106 [generally a defendant musttestify . before he rests his case]; United States v. Thetford, supra, 676 F.2d at p. 1177 (‘t]he belated receipt of such testimony should not ‘imbue the evidence with distorted importance, prejudice the opposing party’s case, or preclude an adversary from having an adequate opportunity to meet the additional evidence offered.”].) The trial court’s acquiescence to codefendantSettle’s late testimony produced a trial that was fundamentally unfair, and the prosecution cannot demonstrate that this error was harmless beyond a reasonable doubt. 173 (Arizona v. Fulminante, supra, 499 U.S. at pp. 306-307 [the Chapman standard applies to “ordinary trial errors” implicating the federal constitution].) For, as one of the prosecutors observed during jury argument, with codefendant Settle’s testimony,the jury did not need Williams’ testimony. (RT16501.) The prosecutor repeatedly pointed out the value of codefendant Settle’s testimony to the prosecution’s case against appellants Bryant and Wheeler. (RT 16526-16527,16531, 16542.) The result produced a gross unfairness amounting to a denial of due process and a fairtrial in violation of appellant’s rights underthe Fifth, Eighth, and Fourteenth Amendments and requiring reversal of his convictions and judgment of death. (Chapman v. California (1967) 386 U.S. 18.) Appellant further asserts that the trial court’s error in failing to sever appellant’s case from that of codefendantSettle’s (see ArgumentIII, ante, incorporated by reference herein), coupled with the trial failure to make good onits promises to control the conductof trial 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 mayresult from the cumulative . impact of multiple deficiencies”]; Donnelly v. DeChristoforo, supra, 416 U.S. at pp. 642-643 [cumulative errors may so infect “the trial with unfairness as to make the resulting conviction a denial of due process”].) Reversal is required. // // 174 Vv THE IMPROPER USE OF A REACT BELT RESTRAINT ON APPELLANT DURING THE COURSE OF HIS CAPITAL TRIAL REQUIRES REVERSAL OF HIS CONVICTION AND DEATH JUDGMENT A. Proceedings Below Appellant madehis first appearance in court proceedingsrelating to this case in October, 1988. (CT 5329.) Thereafter, for almost six years, he made numerous appearancesin various courts before the case wasfinally assigned to trial before the Honorable Charles M. Horan in September, 1994. (RT 5006.) At no point was appellant in any way disruptive of proceedings, nor was he a disciplinary problem in the county jail. (CT 14284.) Nevertheless, during pretrial proceedings on January 18, 1995, the court announced it intended to order each defendant to weareither a “leg brace or some form of shackle” duringtrial, or if he chose, each defendant would be afforded the opportunity to wear “whatthey call a REACTbelt.” (RT6200.) The court explained the belt was a relatively new device, and althoughit did not know whatthe belt was madeof, it consisted of electrodes worn underneath one’s clothing that provided the deputies with — the ability to shock, and thus immobilize, a defendant. (RT 6201.) The court represented the REACTbelt would “not in any wayrestrict the ability of the defense to move”andthat it would notbe “atall visible to the jury unless somebody does something that requires its usé. Then it becomes quite obvious.” (RT 6201.) Oneof the court’s deputies, apparently the only person in the courtroom who had seen one of the restraints, explained the device consists of a square box that can be positioned on either one’s front or back, but the front position was preferred from the deputy’s standpoint. (RT 6202.) 175 The court stated the restraint was necessary “becausea caselike this, this many defendants and these kinds of [unspecified] allegationsfloating ‘around, we will have a lot of security here.””8 (RT 6202.) After the court then said it would hear argumentfrom the parties, the prosecution declined to be heard first. (RT 6202.) All defendants objected to the court’s plan. (RT 6202-6207.) Specifically, appellant argued his conduct did not warrant the use of restraints, and asked whether the same button controlled all four defendants. (RT 6203-6204.) After being informedthatit did not, appellant asked for more time to consult with someone regarding how the belt worked, including how muchvoltage was used. (RT 6204.) The court provided the defense time to research the issue and gave them until January 24 to decide which kind ofrestraint they would wear. (RT 6206.) On January 24, 1995, appellant filed a written objection to shackling or to the use of the REACT belt. (CT 14280-14285.) In that pleading appellant argued such restraint was contrary to state law that prohibited use of physical restraints during trial absent a showing of manifest need, and that the use ofrestraints duringtrial violated his state and federal ’> The record does notreflect the specific allegations to which the court referred. At the time the court made this remark, the case had been beforeit for a very short period of time; it had not taken any testimony and had heardlittle argument from counsel. (RT 5006-6202.) The prosecution had not movedfor an orderto restrain the defendants, and there was no record of any misconductby the defendants other than the charges contained in the information. In fact, many of the substantive issues argued to the court up to that point involvedthe propriety of continued participation in the prosecutionof this case by Detective Vojtecky and Deputy District Attorney Janice Maurizi based on charges of witness intimidation leveled against them. (RT 6022-6031, 6113-6126; see also ArgumentI, ante.) 176 constitutional rights to due process and a fair trial as well as state statutory and commonlaw.’ (Ibid.) | In that pleading appellant’s counsel declared that, since his arrest in 1988, appellant had no criminal record of violence exceptas to the unprovenallegations in this case, had not attempted escape nor been involved in incidents of violence in the county jail, and had never disrupted a courtroom proceeding in the six and some-oddyears his case had been pending. (CT 14284.) In pretrial proceedings held that same date, January24, 1995, the court restated its decision to impose physicalrestraints on the defendants duringtrial, and asked if anyone wished to makefurther argument. (RT 6344.) Appellant’s counsel stated she spoke with a representative of the Los Angeles County Sheriff's office and was informed the REACT belt ’® Specifically, appellant argued the use of such restraints: (1) violated Penal Code section 688, which provides that no person charged - with a public offense may be subjected before conviction to any more restraint than is necessary for his detention to answer the charge; (2) was contrary to People v. Ceniceros (1994) 26 Cal.App. 4° 266, which required a Showing of “manifest need” before such restraints were used in the présenceofthe jury; (3) was contrary to People v. Duran (1976) 16 Cal.3d 282, which required a showing of necessity before restraints were used, and which held that the imposition of physical restraints in the absence of a record of violence or a threatof violence, or other such nonconforming conduct, would be deemed an abuse ofdiscretion; (4) violated the common law privilege of a prisonerto be tried free of restraints absent a showing of necessity, e.g., where there was a danger of escape, under People v. Harrington (1871) 42 Cal. 165; (5) violated the requirement of People v. Condley (1977) 69 Cal.App. 3d 999, that restraints be out of view; and (6) violated the federal constitutional rights of a defendant to appear before a juryfree of restraint and the prohibition of the use of such restraint except as a “last resort” under J/linois v. Allen (1970) 397 U.S. 337 and Spain v. Rushen (9th Cir. 1989) 883 F.2d 712. (CT 14281-14282.) 177 “pumps about 50,000 volts of energy into the kidneys” and that she so informed appellant. (RT 6344-6345.) Without concedingthe justification for shackling, she informedthe court that, given the choice betweena leg brace and the electronic restraint, appellant believed the leg brace was preferable. (RT 6345.) The court then informed appellant “the leg brace wouldn’t do it,” that it would require him to wear shackles. (RT 6345.) Appellant’s counsel reiterated that, if given a choice betweenan electronic restraint and a nonelectrical device, appellant would choose the nonelectrical. (RT 6345.) The courtthen said that “was a bad choice,” but it would not make anyone wearthe electronic device. (RT 6345.) © Codefendants Wheeler and Smith also objected to the use of restraints for lack of a showing ofneed,and also selected shackles versus the REACT belt. (RT 6346.) CodefendantSettle objected to restraints, but chose the REACTbelt; he asked forthe criteria for its activation, and he expressed concern the belt might be activated if he “itched or scratched.” (RT 6347.) The court attempted to assure codefendantSettle the belt would not be activated “just simply for the heck of it”but only if therewere suddenor hostile movement toward other individuals involved in the case”or failure to comply with repeated demandsor requests made by the court.” (RT 6347.) At the same time, it told codefendantSettle, “You will be in good shape, nothingis going to happen. ... And no oneis going toset this thing off, and I don’t expect it during the entire course of the trial.” (RT 6347.) The court then asked for the prosecution’s reasonsit believed restraints were necessary. (RT 6347.) The prosecution informed the court. the only acts it was aware of other than the circumstances of the crime was codefendant Wheeler’s attack on an inmate and a deputy while incustody. 178 (RT 6347-6348.) The prosecutionsaid the nature of the case “is somewhat unusual” in that each of the defendants are alleged to be a memberofa “sophisticated criminal organization” in the county jail knownas the “BGF” and that they had ties to the Crips and Bloodsbecauseoftheir narcotic activity. (RT 6348.) The prosecution conceded appellant himself did not have any acts of aggression, but argued sincejail records showed appellant possessed too manytoiletries, cookies and candybarsin his cell, that was evidence appellant wasstill engaged in illegal activities of the type he was allegedto have engaged in before he was incarcerated. (RT 6348-6349.) After a break and discussion of otherissues, the court asked the parties if anyone had further thoughts aboutthe issue of “REACT belt ' versus shackles.” (RT6372.) Appellant’s counsel informedthe court appellant had been “enduring a great dealof physical pain” while wearing the shackles that day, and that he did not believe that he could tolerate it for eight hours a day. (RT 6372.) While stating his continued objection to restraints, appellant then chose the REACTbelt over the shackles. (RT 6372.) The court addressed appellant directly and appellant’said “leg chains for eight hours are ridiculous.” (RT 6373.) The court acknowledged the chains were heavy andthat they chafed. (RT 6373.) Appellant said if he was“forced to wear the belt,” he would wear it. (RT 6373.) Codefendants Smith and Wheeler followed suit. (RT 6373-6375.) Then the court once again stated its decision to order each defendant to wear a REACTbelt over the objection of all defendants. (RT 6375.) Thecourt stated its belief that: the belts would have no effect on any defendants’ right to a fair trial; the belts would not be seen by jurors; the belts were necessary based onthe facts of the case as it knew them;andthe belts were necessary because of the “the very high pressure situation thatall 179 the defendants find themselves in” due to the fact that the death penalty was being sought for each and becauseofacts of violence by certain defendants and “ill will between someof the defendants here and others.” (RT 6376.) Counsel for Wheeler then requested the court to acknowledge there was “no evidence that he did anything in custody,” there were only allegations that had resulted in two pendingcases. (RT 6376-6377.) The court assumed that since the cases were in superior court “somefinding has been made by somebody that the allegations are not woven outof cloth.” (RT 6377.) During voir dire, one of the prospective jurors wrote in her questionnaire that she could see something under the sweaterof one of the defendants, and wonderedif he waswearing a life vest. (AUG CT | 032.) After consultation with counsel, the court did not address this issue withthe juror, but appellant’s counsel was forced to exercise a peremptory challenge ‘to removethis juror. (RT 7052-7053, 7060.) The court later noted the REACTbelts were the size of a fanny pack, and when a defendant stood up, “there [was] a big lump that show[ed] in the lower back area.” (RT 18789.) The court recognized jurors may have seen the belt when a defendant walked forward to take the witness stand, but the court did not perceive the problem to have been “serious.” (RT 18789-18790.) Appellant testified in his own defense at the guilt phase oftrial; the record reflects that on several occasions appellant was required to walk between the defense table and the witness stand in front of the jurors. (RT 15157, 15486, 15501.) The record further reflects that appellant was uncomfortable sitting in the witness chair while wearing the stun belt, and that counsel attempted to help appellant find a comfortable sitting position in the witness chair by advising him he would be more comfortable if he leaned back in the chair and pulled the microphonecloser to him; appellant 180 thanked counsel but stated he was leaning back as far as he could. (RT 15158.) B. The Trial Court Erred In Ordering Appellant To Wear A REACTBelt During Appellant’s Trial, Including During Appellant’s Testimony Before The Jury, In The Absence Of Any Record Showing Of A “Manifest Need” For The Use Of Physical Restraints Limitations on the use of physical restraints on criminal defendants during trial date from the early English common law.” (People v. Duran (1976) 16 Cal.3d 282, 288 (Duran).) In People v. Harrington (1871) 42 Cal. 165, 168 (Harrington), the Court recognized: [A]ny orderor action of the Court which, without evident necessity, imposesphysical burdens, pains and restraints upon a prisoner during the progressofhis trial, inevitably tends to confuse and © embarrass his mental faculties, and thereby materially to abridge and prejudicially affect his constitutional right of defense; and especially would such physical bonds andrestraints in like manner materially impair and prejudicially affect his statutory privilege of becoming a competent witness andtestifying on his own behalf. In Duran, this Court reaffirmed the Harrington rule: Webelieve that possible prejudice in the mindsofthe jurors, the affront tohumandignity, the disrespect for the entire judicial system whichis incident to unjustifiable use of physicalrestraints, as well as the effect such restraints have upon a defendant’s decision to take the stand, all support our continued adherence to the Harrington rule. Wereaffirm the rule that a defendant cannot be subjectedto physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of manifest need for such restraints. ™ This prohibition has been codified as Penal Code, section 688, whichreads, “No person charged with a public offense may be subjected, before conviction, to any morerestraint than is necessary for his detention to answerthe charge.” 18] (16 Cal.3d 290-291.) | As discussed more fully below, federal courts have recognized that the use of restraints infringes myriad federal constitutional rights, including the right: to be presumed innocent; to be presentattrial; to testify in one’s own defense; to participate in, communicate with and assist counselin one’s own defense;to be tried by an impartial jury; to a fairtrial; to due process of law: and, in a capital trial, to a reliable determination of penalty. (U.S. Const. Amends. V, VI, VII, VIII and XIV;Illinois v. Allen, supra, — 397 U.S. 337; Eddings v. Oklahoma (1982) 455 U.S. 104; Lockett v. Ohio, supra, 438 U.S. 586 (plur. opn.); Gardner v. Florida (1977) 430 U.S. 349 (plur. opn.); Woodson v. North Carolina, supra, 428 U.S. 280 (plur. opn.); Dyas v. Poole (9th Cir. 2002) 309 F.3d 586, 588; Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734, 748; Spain v. Rushen (1989) 883 F.2d 713, 720-72; see Riggins v. Nevada (1992) 504 U.S. 127; Rock v. Arkansas, supra, 483 USS. at pp. 51-53, 62; Crane v. Kentucky (1986) 476 U.S. 683, 690; Faretta Vv. California, supra, 422 U.S. at pp. 834; Parker v. Gladden (1966) 385 U.S. 363. “Generally, a criminal defendant hasa constitutional right to appear before a jury free of shackles." . (Spain v. Rushen, supra, 883 F.2d at p. 716 [citation omitted].) The Supreme Court noted in J//linois v. Allen, supra, to avoid unnecessary implication of such constitutional concerns, "no person should betried while shackled and gagged exceptas a last resort." (397 US.at p. 344.) Stun belts are a methodof prisonerrestraint, used as an alternative to shackles. (Gonzalez v. Pliler (9th Cir. 2003) 341 F.3d 897, 899.) Also known as a “REACTbelt,” an acronym for “remoteelectronically activated 182 control technology,””it is an electronic device that is secured around a prisoner's waist. (People v. Mar (2002) 28 Cal.4th 1201, 1214.) Powered by nine-volt batteries, the belt is connected to prongs attachedto the wearer's left kidney region. (bid.) When activated remotely, "the belt delivers a 50,000-volt, three to four milliampere shocklasting eight seconds." (Hawkins v. Comparet-Cassani (9th Cir.2001) 251 F.3d 1230, 1234; see also People v. Mar, supra, 28 Cal.4th at p. 1215 [citations omitted.]) Upon activation of the belt, an electrical current enters the body near the wearer's kidneys and travels along blood channels and nerve pathways; the shock administered from the activated belt "causes incapacitation in the first few seconds and severe pain during the entire period." (Hawkins v. Comparet-Cassani, supra, 251F.3d at p. 1234.) "Activation may also cause immediate and uncontrolled defecation and urination, and the belt's metal prongs may leave welts on the wearer's skin requiring as long as six monthsto heal." (People v. Mar, supra, 28 Cal.4th at p. 1215 [internal citation and quotation marks omitted].) Activation of a stun belt can cause muscular weakness for approximately 30-45 minutes and heartbeat irregularities or seizures. (Ibid.) Accidental activations are not unknown. (See, e.g., United States v. Durham (N.D. Fla. 2002) 219 F.Supp.2d 1234, 1239 [reporting a survey that showed 11 out of 45 total activations (24.4%) were accidental, but noting the low percentage of ~ accidental activations on general usage].) The use of stun belts raises all of the traditional constitutional concerns described above about the imposition of physical restraints. 78 A REACTbeltis also commonly knownasa stunbelt, and the terms will be used interchangeably herein. 183 (Gonzalez v. Pliler, supra, 341 F.3d at p. 900.) The use ofstun belts, moreover,risks "disrupt[ing] a different set of a defendant's constitutionally guaranteed nghts." (lbid., citing United States v. Durham (11th Cir.2002) 287 F.3d 1297, 1305 (“Durham”).) Given "the nature of the device andits effect upon the wearer whenactivated, requiring an unwilling defendantto weara stun belt during trial may have significant psychological consequences." (People v. Mar, supra, 28 Cal.4th at p. 1205.) These "psychological consequences" cannot be understated. (Gonzalez v. Pliler, supra, 341 F.3d at p. 900, [quoting Mar].) Stun belts, for example, may "pose[...] a far more substantialrisk of interfering with a defendant's Sixth Amendmentright to confer with counsel than do leg shackles." (bid, quoting Durham, supra, 287 F.3d at p. 1305.) Federal courts have long noted that "one of the defendant's primary advantages of ‘ being presentatthetriall...] [is] his ability to communicate with his counsel." (Spain v. Rushen, supra, 883 F.2d at p. 720; see also Kennedy v. Cardwell (6th Cir.1973) 487 F.2d 101, 106 [asserting restraints confuse . mental faculties and thus abridge a defendant's constitutional rights].) Stun belts may directly derogate this "primary advantage[...]" (Spain v. Rushen, supra, 883 F.2d at p. 720), impacting a defendant's right to be presentat trial and to participate in his or her defense. As the Eleventh Circuit recently observed, "[w]earing a stun belt is a considerable impedimentto a defendant's ability to follow the proceedingsandtake an active interestin the presentation of his case." (Durham, supra, 287 F.3d at p. 1306.) "The fear of receiving a painful and humiliating shock for any gesture that could be perceived as threatening likely" hinders a defendant's participation in defense of the case, "chill[ing] [that] defendant's inclination to make any 184 movements during trial--including those movements necessary for effective communication with counsel." (Jd. at p. 1305.) Forlike reasons, a stun belt may "materially impair andprejudicially affect" a defendant's "privilege of becoming a competent witness and testifying in his own behalf." (People v. Mar, supra, 28 Cal.4th at p. 1216 [citation omitted] .) In the course of litigation, it is "not unusual for a defendant, or any witness, to be nervous while testifying." (Jd. at p. 1224.) "[IJn view of the nature of a stun belt and the debilitating and humiliating consequencesthat such a belt can inflict," however, "it isreasonable to believe that many if not most persons would experience an increase in anxiety if compelled to wear such a belt while testifying at trial." ([bid.) This "increase in anxiety" may impact a defendant's demeanoronthe stand; this demeanor, in turn, impacts a jury's perception of the defendant, thus risking material impairmentof and prejudicial affect on the defendant's "privilege of becoming a competent witness andtestifying in his own behalf.” (/d. at p. 1216 [citation omitted].) For these reasons, "a decision to use a stun belt must be subjected to at least the same close judicial scrutiny required for the imposition of other physical restraints." (Mar, supra, 28 Cal.4th at p. 1219; Gonzalez v. Pliler, supra, 341 F.3dat p. 901 [citation omitted].) And for these reasons, before a court may order the use of physical restraints on a defendantat trial, "the court must be persuaded by compelling circumstances that some measureis needed to maintain security of the courtroom," and "the court must pursue less restrictive alternatives before imposing physicalrestraints." (Duckett v. Godinez, supra, 67 F.3d at p. 748 [internal citations and quotation marks omitted]; see also Morgan v. Bunnell (9th Cir.1994) 24 F.3d 49, 51.) California's and the Ninth Circuit's respective physical restraint doctrines 185 are, despite somelinguistic distinctions, largely coextensive: Under California law, a court directing the use of stun belts must determine that a "manifest need"justifies the use. (Gonzalezv. Pliler, supra, 341 F.3d at p. 901, quoting Mar, supra, 28 Cal.4th at p. 1216.) This Court explicitly held in Duran and reaffirmed in Mar that a showing of “manifest need” must be a matter of record: The showing of nonconforming behavior in support of the court’s determination to impose physical restraints must appear as a matter of record, and, except where the defendant engages in threatening or violent conduct in the presence of the jurors, must otherwise be made out of the jury’s presence. The imposition of physicalrestraints in the absence of a record showingofviolenceor a threat of violence or other nonconforming conductwill be deemedto constitute an abuse of discretion. (Mar, supra, 28 Cal.4th at p. 1217, quoting Duran, supra, 16 Cal.3d at pp. 291-292 [emphasis added].) While no formal hearing is necessary to fulfill Geethe mandate ofDuran,a trial court is “obligated to base its determination onfacts, not rumor and innuendof.. .].’” (Mar, supra, 28 Cal.4th at p. | 1218, quoting People v. Cox (1991) 53 Cal.3d 618, 651-652 [emphasis added in Mar].) . “Nonconforming conduct” has been deemedactual violent conduct, escape attempts,or the threat of escape or threat of acting violently in the courtroom. (Duran, supra, 16 Cal.3d at pp. 292-293.) "In all [ ] cases in which shackling has been approved," the Ninth Circuit noted, there has been "evidence of disruptive courtroom behavior, attempts to escape from custody, assaults or attempted assaults while in custody, or a pattern of defiant behavior toward corrections officials and judicial authorities." (Duckett v. Godinez, supra, 67 F.3d at p. 749 [emphasis added].) 186 In Duran,the fact the defendant wasa state prison inmate who had been convicted of robbery and was charged with a violent crime did not, without more,justify the use of physical restraints. (Duran, supra, 16 Cal.3d at pp. 292-293.) Numerousstate cases indicate what circumstances will demonstrate a “manifest need” for restraints, and all require more than the fact that a defendant has been charged with a violent crime. (Mar, supra, 28 Cal.4th atpp. 1216-1217, citing People v. Kimball (1936) 5 Cal.2d 608, 611 [defendant expressed intent to escape, threatened tokill witnesses, secreted lead pipe in courtroom]; People v. Burwell (1955) 44 Cal.2d 16, 33 [defendanthad written letters stating he intended to procure a weapon and escape from the courtroom with the aid of friends]; People v. Hillery (1967) 65 Cal.2d 795, 806 [defendant had resisted being broughtto court, refused to dress for court, and had to be taken bodily from prison to court]; People v. Burnett (1967) 251 Cal.App.2d 651, 655 [evidence of escape attempt]; People v. Stabler (1962) 202 Cal.App.2d 862, 863-863 [defendant attempted to escape from county jail while awaiting trial on other escape charges]; People v. Loomis (1938) 27 Cal.App.2d 236, 239 [defendant repeatedly shouted obscenities in the courtroom, kicked at the counsel table, fought with the officers, and threw himself on the floor].) MarandPliler leave no doubt that a showing of “manifest need” was required before the trial court could order appellant to weara stun belt during histrial. (People v. Mar, supra, 28 Cal.4th at p.1219; Gonzalez v Pliler, supra, 341 F.3d at p. 901 [“compelling circumstances” that some measure is needed to maintain the security of the courtroom].) The record in this case clearly demonstratesthetrial court failed to adhere to the relevant constitutional standards in forcing appellant to wear the restraint. The trial court took no testimony on whysuch a debilitating restraint was 187 necessary. In fact, the court indicated its decision, ipse dixit, to order appellant and his codefendants be held in restraint before it took any argument from counsel on the matter. (RT6200.) The argument the court eventually heard did not provide any evidence of “manifest need” for the use of restraint against appellant: the court was informed by appellant’s counselthat appellant had not caused any courtroom disruptions in the more than six years his case had been pending, he had no escape attempts and no disciplinary record in the county jail.” (CT 14284.) The prosecution did | not contradict any of those facts. The only “reason”the prosecution could manufacture.for the useof restraints against appellant wasthe specious speculation that, since appellant had too many cookies, candy bars and toiletries in his cell, he still must have been involved in drug sales and therefore a security risk. (RT6348-6349.)*° ” Tn fact, the record reflects appellant was a trustee in the mainline section of the Los Angeles County jail for many years. (RT 6101-6103; CT 13790-13798.) 8° The opinion in Hawkins v. Comparet-Cassani, supra, 251 F.3d at pp. 1234-1235, contains the following policy of the Los Angeles County Sheriffs Office regarding the circumstances under which the belt could be used: The R.E.A.C.T. Belt may be placed around the waist of any prisoner whose actions pose a physical threat to the safety of deputies, a Judge or courtroom staff. The belt may only be placed on a prisoner under the following circumstances: i. An attempted escape while in custody or in a courtroom ii. Violent or assaultive behavior while in custody or in a courtroom iii. Documented past incidents of violent or assaultive behavior while in custody or in a courtroom. . iv. Documentedpast incidents of escapes or attempted escape from custody or from a courtroom. (continued...) 188 Thearticulated bases forthe trial court's decision to force appellant to don the belt was based onthe “‘facts of the case” as it knew them,“the very high pressuresituation that all the defendants find themselves in” due to the fact the death penalty was being sought for each, because ofacts of violence by certain defendants and “ill will between some of the defendants here andothers.” (RT 6376.) Noneofthearticulated reasons provides an | adequate basis for depriving a defendant of myriad constitutional rights by forcing him to be physically restrained during his capitaltrial. _ First, as discussed at length above, it is well-established under both state and federallaw that the fact that appellant had been charged with a. violent crime and risked a serious penalty if convicted, without more, did not justify theuse of restraints. (See, e.g. I/linois v. Allen, supra, 397 U.S. 337; Duckett v. Godinez, supra, 67 F.3d at p. 749; Duran, supra, 16 Cal.3d at pp. 292-293.) 8continued) v. Documented incidents in which the person has threatened to escape or attempt to escape from custody; or has threatened violent or assaultive behavior while in custody. vi. Documented or objectively observable evidence that the prisoner poses a threat because he/sheis suffering from a mental disorder or disease. vii. Overt acts or attempt [sic] to removerestraints or the R.E.A.C.T. Belt itself. vill. The R.E.A.C.T. Belt may also be used pursuantto a facially valid court order communicated to Sheriff's personnel by the Judge. Althoughit is unclear from the opinion whenthe policy was enacted, one thing is clear: appellant committed none of the requisite acts warranting the belt’s use. 189 Second, although there were allegations codefendant Wheeler had committed acts of violencein the county jail, there were no such allegations nor evidence appellant had committed any acts of violence against anyone while in custody. Nor was there any evidence he attempted or threatened escape. In fact, the record reflects appellant was a trustee in the mainline section of the Los Angeles County jail for many years. (RT 6101-6103; CT 13790-13798.) Nor were there any allegations or evidence that, during the six years this case had been pending,appellant had acted inappropriately in any way while in a courtroom. . Third, there was no showingofill will on the part of appellant toward any of his codefendants. Justprior to its final ruling requiring appellant to weara stun belt, the trial court considered pro per codefendant Settle’s motion to be placed in federal custody becauseofthreats he allegedly received. (RT 6336-6344; CT 14252-14262.)* The upshotof codefendantSettle’s allegations was that, because his testimonyin this case would be adverse to the penal interests of other defendants, the lives of he and his family had been threatened by “sympathizers and/or members of the alleged Bryant Crime Family and their associated gang member[sic], the Crips, the Bloods and the Black Guerrilla Family.” (/bid.) He did not specify who communicated these threats to him, nor did codefendantSettle specify which defendant or defendants would suffer from codefendant Settle’s testimony. (/bid.) The allegations of threats amounted to no more than the kind of rumor and innuendo deemedto be an insufficient basis for 8! This exact motion does not appear to be contained in the CT provided to appellant. However, the CT section cited above contains a declaration and documents filed by codefendant Settle regarding threats he says he and his family received. 190 the use of physical restraint. (Mar, supra, 28 Cal.4th at p. 1218; Peoplev. Cox, supra, 53 Cal.3d at pp. 651-652 [error to shackle defendantattrial where defense counsel informed the court there was a possibility of an escape attempt; while the record was nfe with an undercurrentof tension - and charged emotiononallsides,it did not contain a single substantiation of violence or the threat of violence on the part of the accused].) Fourth, the court itself acknowledged,at least impliedly, the restraints were not necessary. The court stated it did not “expect it [the REACTbelt] to be used during the entire course of the trial.” (RT 6347.) If it did not expect to need to activate the REACTbelt, then, ipso facto, . there was no “manifest need”for the restraint in the first place.® In this case, the trial court’s decision to compelthe use of a stunbelt wasillegal and unconstitutional. As will be shown below,the trial court’s error in compelling appellant to wear a stun belt from jury selection through ~ sentencing, including during appellant’s testimony in his own defense, was prejudicial. ® The court’s facility with ordering the useof the stun belt without a sufficient showing of need, as well as its commentsthat the belt was preferable to other methodsofrestraint, are strongly suggestive of the belief, now repudiated by this Court, that a stun belt is a less restrictive and presumptively less prejudicial security tool than traditional shackles or chains because the belt was worn underclothing and interfered less with a. defendant’s freedom of movementthan did other restraints. (See Mar, supra, 28 Cal.4th at pp. 1225-1230.) 191 C. Under Any Standard, Appellant Was Prejudiced By Being Forced To Wear A REACTBelt Restraint During Trial In _ The Absence OfA “Manifest Need” For Such Restraint Historically, pursuant to California state law the issueof whether a defendant was prejudiced by the erroneous imposition of physical restraints was deemed an abuseofdiscretion and evaluated under the standard applicable to ordinary state law error under People v. Watson (1956) 46 Cal.2d 818, 836-837 (Watson). (Duran, supra, 16 Cal.3d at pp. 288-289 [citations omitted].) In Mar, this Court found the improperuse of a REACTbeltin that case to be prejudicial under the Watson standard, but specifically left open the question whetherthe “error in requiring a defendantto testify while wearing a stun belt, without an adequate showing of danger, constituted federal constitutionalerror that is subject to a more rigorous prejudicial errortest.” (Mar, supra, 28 Cal.4th at p. 1225, fn. 7; see also Duran, supra, 16 Cal.3d at p. 296, fn. 15 [Court did not express an opinion whether the erroneous imposition of physical restraints, alone or in combination with othertrial court errors, resulted in the deprivation of a federal constitutional right of sufficient stature to require reversal based the tule of Chapmanv. California, supra, 386 U.S.at p. 24].) However, as noted above, federal courts have long recognized the erroneous imposition of physical restraints to beof federal constitutional dimension. Appellant therefore urges this Court to, at minimum, apply the Chapmanstandard. Appellant further argues below that recent precedent establishes that the erroris not only of federal constitutional stature, but is also structural in nature, and therefore not subject to harmless error analysis. (Arizona vy. Fulminante, supra, 499 U.S.at pp. 307-309.) 192 Underany standard of review,the prejudice from the tnal court’s improperruling requiring appellant to wear a stun belt duringtrial, including during his testimony in his own defense, is demonstrated. 1. Reversal Is Required Under Arizona v. Fulminante And Riggins v. Nevada The United States Supreme Court has developed distinct methodologies to determine whetheran error of federal constitutional magnitude is Subject to or defies harmless error analysis. In Arizona v. Fulminante, supra, 499 U.S. at pp. 307-309, the Court differentiated “structural error,” which defies harmless error analysis, from “trial error,” whichis subject to such analysis. ‘“‘[S]tructural’” errors require automatic reversal and include: racial discrimination in the grandjury selection (Vasquez v. Hillery, supra, 474 U.S.-254); denial of self-representation at trial (McKaskle v. Wiggins, supra, 465 U.S.at pp. 177-178, fn. 8); complete denial of counsel (Gideon v. Wainwright, supra, 372 U.S. 510); biased adjudicator (Tumey v. Ohio (1927) 273 U.S. 510); defective reasonable-doubt instruction (Sullivan v. Louisiana, supra, 508 U.S. 275). (Arizonav. Fulminante, supra, 499 U.S.at pp. 309-310; Neder v. United States (1999) 527 U.S. 1, 8.) Trial error, which occurs during the prosecution of the case to the jury, may be quantitatively assessed in the context of other presented evidence to determine whetherits admission was harmless beyond a reasonable doubt under the standard of Chapman, supra, 386 U.S.at p. 24. (Arizona v. Fulminante, supra, 499 U.S.at pp. 307-308.) Theerror in this case is similar in kind to the error the United States Supreme Court has found cannot be subject to harmless error analysis. In 1992, the high Court decided Riggins v. Nevada, supra, 504 U.S. 127, which eschewedstructural-trial error categorization. Riggins challenged his 193 robbery and murder convictions on the groundthat the State of Nevada unconstitutionally forced an antipsychotic drug upon him duringtrial. Because the Nevadacourts failed to make sufficient findings to support the forced administration of the drug, the United States Supreme Court -reversed. (/d. at p. 129.) Riggins was not required to show howthetrial would have proceeded differently if he had not been given Mellaril. (/d.at p. 137.) Efforts to prove or disprove actual prejudice from the record before us would be futile, and guesses whether the outcomeofthetrial might have been different if Riggins’ motion had been granted would be purely speculative. ... Like the consequences of compelling a defendantto wearprison clothing,” (Estellev. Williams, supra, 425 U.S. at pp. 504-505) “or of binding and gagging an accusedduringtrial,” (I/linois v. Allen, supra, 397 U.S.at _ p. 344), the precise consequencesof forcing antipsychotic medication upon Riggins cannot be shownfroma trial transcript. (Ibid.) What the United States Supreme Court would “notignore,is a strong possibility that Riggins’ defense was impaired due to the administration of Mellaril.” (Jbid.) The High Court held that, even if the Nevada Supreme Court was correct in holding that expert testimony allowedjurors to assess Riggins’ demeanorfairly,“an unacceptable risk of prejudice remained.” (/d.at p. 138.) The Nevada Supreme Court’s judgmentwasreversed. (Ibid.) In Mar, this Court recognized that the concernsraised in Riggins by the involuntary administration of antipsychotic medication, are the same as those raised by the compelled use of a stun belt insofar as both involve the circumstancethatthe State’s intervention mayresult in the impairment, _ mental or psychological, of a criminal defendant’s ability to conducta. defenseat trial. (Mar, supra, 28 Cal.4th at pp. 1227-1228.) 194 Riggins governs this case and requires, without an actual prejudice assessment,reversal of appellant’s conviction and death judgment. The precise consequencesof forcing the stunbelt restraint upon appellant cannot be shown from trial transcript. There is a strong possibility appellant’s defense was impaired due to the involuntary stun belt restraint. An unacceptable risk of prejudice remains that, because of the stun belt restraint, jurors were not allowed to assess appellant’s demeanorfairly during the two days of testimony inhis own defense. Reversalis required. (/d. at pp. 129, 137-138; Illinois v. Allen, supra, 397 U.S. 333; Arizonav. Fulminante, supra, 499 U.S. 279; see also State v. Damon (N.J. Super. A.D. 1996) 669 A.2d 860, 863-864 [rejecting restraint harmless error doctrine].) Appellant’s conviction and death judgment must be reversed. __ 2. Reversal is Required underthe Chapman Standard As implied in Mar and as discussed above, improperly forcing appellant to wear a stun belt during his trial violated appellant’s federal constitutional rights, as enumerated above. Appellant urges this Court to explicitly hold the Chapman standard applies in determining prejudice resulting from the improperuse of a stun belt. | Under Chapman,the State has the burden to prove beyond a reasonable doubt the error did not contribute to the verdict obtained. (Chapman, supra, 386 U.S.at p. 24.) “The inquiry, in other words, is not whether, in a trial that occurred withoutthe error, a guilty verdict would surely have been rendered, but whetherthe guilty verdict actually rendered in this trial was surely unattributable to the error. (Sullivan v. Louisiana, supra, 508 U.S.at p. 279.) | Applying the Chapmanstandard, appellant was indeed prejudiced by being forced to wear a stun belt during his capitaltrial, including duringhis 195 testimony in his own defense during the guilt phase. The prosecution’s case against appellant for the instant homicides turned upon whetherthe jury believed James Williams, or whetherthey believed appellant. Williams said appellant was presentat the scene of the homicides and conspiredto kill Armstrong and Brown. Appellanttestified that, while he had been involved in the business of distributing narcotics with. his brother Jeff, appellant had sold the business to William Settle when Jeff went to prison in 1985; appellant further testified that he was an employee of William Settle at the time of the homicides; he denied playing anyrole in the killings. (RT 15157-15169.) Appellant’s testimony, objectively speaking, was not absurd or inherently implausible. The jury obviously did not believe appellant, because if they had, they would not have convicted him. Therecordreflects the stun belt had at least some negative effect on appellant’s demeanor while testifying: appellant knew that the belt, if activated, would pump 50,000 volts of electricity into his kidneys (RT 6344-6345); he heard fears expressed by codefendant Settle that the belt would be activated if he ; “itched or scratched” (RT 6347); appellant was not informed of any specific , standards for the activation, only that it would be usedif “somebody did something that required its use” (RT6201); appellant wasso resistant to wearing the belt he initially chose the only other option offered to him — shackles ~ until he could no longerbear the pain of wearing them (RT 6200, 6345); and, like Mar, he was uncomfortable the entire time hetestified becausethe belt preventing him from being able tolean back in the witness chairfor the twofull dayshetestified. (RT 15158; Mar, supra, 28 Cal.4th at p, 1210.) As this Court stated in Mar: Even when the jury is not aware that the defendant has been compelled to wear a stun belt, the presence of the stun belt may 196 preoccupy the defendant’s thoughts, make it more difficult for the defendantto focus his or her entire attention on the substance of the court proceedings, and affect his or her demeanorbefore the jury — especially while on the witness stand. (Id. at p. 1219.) And, as emphasized in Pliler and Durham,fearof the REACTbelt not only negatively affected appellant during his testimony, butit interfered with his Sixth Amendmentright to confer with counsel throughoutthe entiretrial. (Pliler, supra, 341 F.3d at p. 900, quoting Durham, supra, 287 F.3d at p. 1305.) In this case, appellant was further prejudiced because the REACT belt was visibleto the jurors. When a defendant is charged with a violent crime, his appearance beforethe jury in visible restraints is likely to lead the jurors improperly to infer that he isa violent person disposed to commit crimesof the type alleged, and thus violate a defendant’s right to be presumed innocent (Duran, supra, 16 Cal.3d at p. 290 [citations omitted]) and to his right to betried by 12 unbiased jurors. (Dyas v. Poole, supra, 309 F.3d at p. 588 [reversal required if one juror saw shackles imposed without sufficient showing of need].) Once seen, a stun belt may be more prejudicial than handcuffor leg iron becauseit implies that uniqueforceis necessary to control the defendant. (Durham, supra, 287 F.3dat p. 1297.) The record clearly reflects the jurors could see appellant was wearing the belt: one of the prospective jurors noted it on his/her juror questionnaire (AUG CT 1032); the trial court acknowledged the belt was visible if a defendant leaned forward or walked in front of the jury (RT 18789); and appellant several times walked before the jurors to and from the witness stand (RT 15157, 15486, 15501); and, as noted above, appellant had to lean forward during his entire testimony. (RT 15158.) 197 Given these circumstances, the State cannot carry its burden of showing the guilty verdict was “surely unattributable to theerror.” ((Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) Reversal of appellant’s conviction and death judgmentis required. 3. Reversal Is Required Under The Watson Standard Under the Watson “reasonable probability” standard, reversalis required when there exists “at least such an equalbalance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result.” (Watson, supra, 46 Cal.2d at pp. 836-837.) Given the above circumstances ~ the importance ofappellant’s credibility to his defense, the likelihood the stun belt had a negative effect on his demeanor while testifying, and that fact the belt was visible to the Jurors ~ there is a reasonable probability the error affected the outcome of appellant’s trial. Appellant’s conviction and sentence of death must be reversed. D. In The Alternative, Should This Court Hold The Trial Court Properly Determined The Existence OfA “Manifest Need” For The Use Of Restraints, Appellant Was _ Deprived Of His Constitutional Right To The Use Of The Least Restrictive Alternative Dueprocess requiresthat, in determining whatphysicalrestraint to use, a court must consider and imposethe least restrictive alternative. (llinois v. Allen, supra, 397 U.S. 337; Morgan, supra, 24 F.3d at p. 51; Spain v. Rushen, supra, 883 F.2d 713; Mar, supra, 28 Cal.4th 1201; Duran, supra, 16 Cal.3d 282.) As this Court acknowledged, in view of the potentially significant psychological effects of the use ofa stun belt, any presumption that the use of the belt is less onerousorless restrictive than the use of more traditional security measures is unwarranted. (Mar, supra, 198 28 Cal.4th at p. 1228.) This Court has set forth several factorsthat must be considered before the use of such a debilitating device: the defendant’s perspective on whetherleg chains or leg braces constitute a less intrusive or restrictive alternative; the risk of accidental activation should be brought to the attention of a defendant whois asked to express a preference regarding the use of stun belt over moretraditional restraints; whether a defendantis medically cleared to wear a dangerous device; and whether the current design of the belt — which delivers a 50,000-volt shock lasting 8 to 10 seconds is necessary to achieve the court’s legitimate security objectives, or whether lower voltage at a shorter duration would be more appropriate. (Ud. at pp. 1228-1230.) In this case, assuming arguendothis Court finds no errorinthetrial court’s decision to order appellant to wear a physicalrestraint,the trial court nonetheless fatally erred in making no effort to pursuea less restrictive alternative (I/linois v. Allen, supra, 397 U.S. 337; Morgan, supra, 24 F.3d at p. 51; Spain v. Rushen, supra, 883 F.2d 713; Duran, supra, 16 Cal.3d 282) and in making no attempt to determine whetherthe use of the stun belt on appellant was safe and appropriate. (Mar, supra, 28 Cal.4th at p. 1230.) At the outset of the discussion ofthis issue, appellant madeit clear he preferred physical restraints over the stun belt. He wore.the stun belt only after his request to weara leg brace, an alternate form ofrestraintinitially offered by the court, was denied by the court (RT 6200, 6345) and after he wasincapacitated by the pain he suffered wearing the chains in court. (RT 6373.) When codefendant Settle voiced concerns aboutaccidental activation, the court simply told him and the other defendants that that would not happen (RT 6347), yet at the same time offeredlittle in the way of standardsforits use: the court said it would be used only if “somebody 199 does something that requires its use.” (RT 6201.) The court thus did | nothing to allay fears attendant to wearing the stunbelt. Further, the court made no inquiry into whether appellant had an existing medical condition that would put him at risk of serious injury or death if the belt was used. The court failed to consider the psychological consequencesthe belt would have upon defendant, even when faced with appellant’s demonstrated fear of the belt. Appellant testified in his own defense for two days, most of that encompassing cross examination,all while wearing the belt he feared. (RT 15157-15501.) The trial court, while acknowledgingthe stun belt was visible to jurors if a defendant walked before them or if he leaned forward (RT 18789-18790), did not take the standard precaution of bringing jurors into the courtroom after appellant had taken his seat on the witness stand — instead, appellant was required to walk to the witness stand on several occasions (RT 15157, 15486, 15501); such a simple precaution may have protected appellant’s rightto be presumed innocent. (Morgan, supra, 24 F.3d at p. 52.) In light of the complete lack of any record appellant himself had ever committed a violent act by his own hands, or any evidence appellant ever planned to escape, there was simply no reason the court could not have ordered appellant to wear a leg brace rather than a debilitating device such as the REACT belt, or whyother less restrictive measures to ensure security already being employed at appellant’s trial, such as the use of additional security personnel (RT 6194-6195; see Holbrook v. Flynn (1985) 475 U.S. 560, 568-569, 571; People v. Miller (1990) 50 Cal.3d 954, 1004 [trial court exercised its discretion wisely by not utilizing physical restraints and reducing the numberofbailiffs as the threat of disruption appeared to 200 diminish]), would not have been sufficient. Appellant’s conviction and judgment of death must be reversed. // / 201 VI EXTENSIVE SECURITY PRECAUTIONS EMPLOYED THROUGHOUT THE TRIAL IMPROPERLY PREJUDICED APPELLANT Uponthetrial court’s own motion, extensive security precautions were taken throughouttheinstanttrial.® They suggestedtothe jury that these defendants were dangerous and violent people and that only extraordinary security measures could ensure public safety as well as the safety ofall trial participants, including jurors. The affect of these precautions undercut appellant’s presumption of innocence, deprived him of hisright to an impartial jury, a fair trial, due process of law and reliable | death judgment. As a result, his confinement and sentenceare illegal and unconstitutional underthe Fifth, Sixth, Eighth, and Fourteenth Amendments ofthe United States Constitution. | A. Proceedings Below Onthe first day of appellants’ trial, the court told theparties that the case would require additional bailiffs and other security support personnel throughout the trial. (RT 6194-6195.) Seven to eight deputies were in the courtroom at all times and nine were presentat the commencementofjury deliberations. (CT 15888, RT 6194-6195, 6202, 6298, 16865, 18596, 18782, 18787-18788.) Some wore uniforms; many were out of uniform. (RT 18787-18788.) Over the course ofthetrial, the jury became aware of these additional deputies. (RT 18788) | ®5 Noneofthe previous judges assignedto this case, including those whopresided over appellant’s preliminary hearing found the needto institute such security precautions. . ** This was a key issue in appellant’s motion for a new trial. (CT 15884-15900.) 202 Structural changes were made to modify the courtroom that included installation of twice the normal numberoftables to accommodate the four defendants and six counsel representing appellants. (RT 16867.) The courtroom wasonthe ninth floor of the courthouse and had its own metal detector in addition to the one at the entrance of the courthouse, and spectators, witnesses, and counsel had to pass through both. (RT 6442, 6567, 6651, 7468-7469.) In addition, the court informed the parties at the commencementofthe trial that it was considering the likely installation of _ yet another metal detector at the entrance to the courtroom,althoughit is unclear from the record on appeal whether that was done. (RT 6296-6299.) One of the themes that ran through the court’s voir dire of prospective jurors was whether they would remain impartial if they learned that a witness or witnesses would be testifying only because they had been given a grant of immunity for their testimony. (RT 6662-6663, 6688-6689, 6722, 6738, 6743, 6764, 6799, 6810-6811, 6825-6826, 6908-6909, 6921, 7013, 7058, 7081, 7089, 7131, 7267, 7503, 7566, 7597-7598, 7605-7606, 7614, 7622, 7646-7467, 7721, 7737, 7911, 7929.) During one such exchange with a prospective juror in the presenceofall the jurors being examined that morning,the court prefaced its inquiry: | Howaboutifthere was somebody that was—-I am not talking about this case but hypothetically. What if there was somebody who was so bad and so dangerous that nobody could testify against him unless they got somethingin return for it? [§]] Do you think that might be an appropriate time to givesomebody immunity to get them into court? (RT 7596-7597.) The defense motions to excuse that juror and the panel that heard this exchange was denied. (RT 7605-7607; see also Argument XX, post, incorporated by reference herein.) Thereafter, during the course 203 of the guilt phase of the trial, the jury learned that at least four prosecution witnesses had been given grants of immunity.* | Amongthe security precautions taken, the jury itself was given unique status and treatment. Over appellants’ objections, the court ordered that all the jurors’ names would be withheld. (RT 6194, 6203, 6207-6215, 6358-6366, 7980-7981.) And although the jury was permitted to go home at night, during the court day from the momentthey parked their cars until they left the parking lot in the evening, they were not free to roam in or leave the courthouseorbe outside the companyofthe bailiffs. They had to take their breaks in a special room inside the courthouse and theyparked in a secret location and were escorted bybailiffs to and from the courtroom by way of a route known only to the jurors and court personnel. They were not permitted to leave the courthouse for lunch, but were fed in the building at the court’s substantial expense. (RT 6194-6196, 6365, 6651-6653, 7980-7988, 8057-8072, 9567-9577.) | ‘On February 14, 1995, after the jury had been impaneled and shortly before the prosecution’s opening statement, the court spoke with the jury out of the presence of counsel and the defendants. (See also Argument XXX,post, incorporated by reference herein.) In that session, the court attempted to ameliorate the natural concernsthe jury would have overthe implicit reasons for the special and unique provisions that were being taken on their behalf. Although the court cast the explanation as a need to safeguard them from media and witness contact, the court asked the jury not 8° Those witnesses were Andrew Greer (RT 11649-11650), George Smith (RT 11230, 14875-14876), James Williams (RT 12278, 12387-12388, 12587-12588, 12651-12653, 14907-14908, 16093-4 - 16093-5), and Tannis Curry (RT 13050-13054.) 204 to “speculate as to any reasonsthat.[they] might imagine exists and utilize that sort of speculation as evidencein this case....” (RT 8057-8072.) The court continued, “We are having security arrangements, but that is appropriate. That does not mean you should now start imagining abut what was going on in my mind.” (RT 8064.) Two weekslater, on March 1, 1995, the court had another session with the jurors out of the presence of counsel and the defendants. They were told that the arrangements that had been made to get them into the court in the morning, to keep them together, and provide them lunches was “done for their benefit and at considerable expense.” (RT 9567.) The court asked them not to speculate why the court was doing this. The court offered as explanation, “Let me indicate to you that based on my 20 years in the system,it is necessary for the reasons that I stated earlier that this take place.” (RT 9568.) “This is being done because the court thinksit is appropriate. That is aboutall I will say at this point in time.” (RT 9569.) The court continued: I understandthis is a long case. It is uncomfortable to be here in the criminal courts building. But believe me whenI tell you that it would be a lot worse if we were not doingthis. [{]] Okay? It would be a lot harder on you in termsof getting here and all that you would have to do to fight the public elevators and things of that nature. (RT 9569.) The court affirmed ajuror’s question whether they were restricted to the room provided even during their lunch break. (RT 9570.) Anotherjuror expressed concern that they were no longer beingsearched. The juror said a bailiff explained that the court “didn’t want it that way.” The court replied that it was convinced there was no needto search them. (RT 9571.) The court again asked them not to speculate “about whatis 205 going on and why.” (RT 9572.) Another juror asked whether there would be more “‘little talks like this” every couple of weeks. The court replied: [T]he answeris probably no unless something comes up becauseall the parties and the prosecution and defense have a right to be present for matters like that. Matters that deal with the security of the jury and the comfort of the jury the court feels they are not entitled to be present although they wouldall disagree with me. . (RT 9572.) The court told the jurors that the deputies attending them had been “hand picked”over the course of a number of weeks. (RT 9573.) The defense was told about these security precautions asfaits accomplis without requiring the prosecution or anyone else to make any particular showing on the need for such provisions and without holding an evidentiary hearing to explore the bases andtheir sources for these precautions. (See People v. Duran, supra, 16 Cal.3d at p. 291, fn. 8 [if armed guards present in unreasonable numbers, need for such security should be justified by the court or the prosecutor].) In addition to these precautions, the court advised the parties thatit wished their input on the court’s proposal to employ one of two options: Each defendant would either wear a leg brace with waist and leg shackles during the trial or they would wear a “REACT”belt.” (RT 6200, 6205, 6297.) For the reasons set forth in Argument V, ante, incorporated by reference herein,the trial court’s ruling regarding the imposition of restraints during trial was without legal basis, and, standing alone, constitutes grounds for reversal of appellant’s conviction and judgment of death. 206 B. Security Precautions Taken Created The Same Aura Of Guilt And Violence OverThe Trial As Would Displaying Appellant To The Jury Shackled Adoptionof security measures requires due process safeguards, because the measures create a courtroom environmentthat distinguishes the defendant’s trial from those ofothers, that suggests to the jurors that these defendants are dangerousandviolent. people requiring extraordinary measures, and possibly deters some persons from attending. (Gibson v. Superior Court (1982) 135 Cal.App.3d 774, 779.) Security at the scale employed in appellants’ trial created the same negative impact on the presumption of innocence and impartiality of the jury as would the requirement that appellants wear shackles visible to the jury. (Cf., Gibson v. Superior Court, supra, at pp. 779-780.) Displaying a defendant shackled | at his trial is inherently prejudicial and, hence, requires close scrutiny and a showingthat it is justified by an essential state interest. (Illinois v. Allen, supra, 397 U.S.at p. 343; Spain v. Rushen, supra, 883 F.2d at pp. 721-722.) The resulting aura of guilt resulting from such use of shacklesis indistinguishable from that that arose from the extensive security 666precautions taken in appellants’ case. It provided “‘the constant reminder of the accused’s condition implicit in such distinctive’” circumstances and “‘may [have affected] a juror’s judgment.’” (Rhoden, supra, quoting Estelle v. Williams, supra, 425 U.S. 501, 504-505.) Such an aura “is an indication of the need to separate a defendant from the community at large, creating an inherent danger that the jury may form the impression that the defendantis dangerous or untrustworthy. (Rhoden, supra, citing Holbrook v. Flynn, 475 U.S. at pp. 568-569; accord Dyas v. Poole, supra, 309 F.3d at p. 588.) 207 As discussed above, the court had told the jury that the special and unique provisions taken intheir behalf were necessitated by the court’s concern for them to avoid media and witness contact and to makeit easier for the jurors to get in and outof the courthouse. Security was not highlighted as a reason for any of the precautions (RT 8057-8072, 9567-9573), although the court twicementioned security in his private sessions with the jurors (RT 8064, 9572), and repeatedly asked them not to speculateon the reasonsfor the precautions taken. However,the very act of asking them not to speculate only called attention to the security being employed in this case. Certainly the juror who inquired why they were no longer being searched (RT 9571) was concerned aboutsecurity and not media or witness contact. In addition, at least those jurors present in the morning session of the February 7, 1995 jury voir dire hearing had been programmed to assume that a motivation for immunizing prosecution witnesses was becausethe defendants were “so bad and so dangerous that nobody could testify against [them] unless they got something in return for it.” If all the jurors had not immediately after being advised of the precautions being taken or soon thereafter understood that security was the prime reasonfor all of the precautions being taken, it would have been clear by the midpoint ofthe guilt phase when Detective Vojtecky was permitted to testify over defense objection that during a portion of the period pretrial, he took varying routes between the courthouse andthe police station because of security concerns that “had arisen in connection with this case.” (RT 10755-10757.) 208 Moreover, the prosecution used a series of witnesses® to ostensibly testify about the drug organization, but their testimony provided a much more damaging themethat their lives were in dangerby their allegedrole in the prosecution’s case against the “Family.” This was a predominant theme of the prosecution’s opening (RT 16448-16449, 16458-16459, 16474-16480, 6483-16487, 16490-16491) and closing arguments (RT 16474-16489, 16804, 16807-16809, 16824.) If there remained any doubt about whythe security precautions were taken, it was made abundantly clear in the court’s instructions to the jury that they were not to consider or discuss the security measures employed in determininganyissue in the case. (RT 16381.) Further, during the jury’s deliberations at the end of the guilt phase, it became necessary for the court to interview oneofthe jurors when the concern arose about whetherthe juror was discussing the - “security” arrangements with someoneonthe telephonein the special room that had been made available for the jury during their breaks. (RT 17001-17002, 17006.) Immediately after that interview, the court again referred to the “security” arrangements that the jury had to endure. (RT 17005-17006.) The jurors in appellant’s case essentially spent five months 8° These witnesses were G.T. Fisher (RT 8887), Barron Ward(RT 9027), Rhonda Miller (RT 9077), John Allen RT 9228-9233, 9337-9339, 9348-9350), Reynard Goldman (RT 9264), Francine Smith (RT 9455-9456), Una Distad (RT 9726, 9741-9742), William Johnson (RT 10215-10218, 10220-10222, People’s exh. 216, CT3 10601-10617), Ladell Player (RT 10233, 10248, 10252-10253, 10338-10339, 10488-10492, People’s exh. 216, CT3 10546-10570), Laurence Walton (RT 10681-10682, 10688-10689, 10698-10700, People’s exh. 216, CT3 10468-10472.), George Smith (RT 10781-10791, 10836-10837), Alonzo Smith (RT 10986-10987), Pierre Marshall (RT 11773, 11781-11782), James Williams (RT 12494, 12604, 15768). 209 in which they were in the custody of the Los Angeles County Sheriff's Department, five months in whichto identify with their guardians,the. people whofed them, five months to observe the extensive security precautions, including the equipment used toretrain the defendants. In short, the jury was constantly reminded from the beginning of the trial until its end, by evidence improperly admitted at trial (see,e.g., Arguments VII, VIII, IX, X, and XII, post) and by extraneous security measures that had not been shown necessary, that this was a very bad organization made‘up of very bad men doing very bad things. Appellant wasentitled not to be so marked with the concomitant suggestion “that the fact of his guilt [was] a foregone conclusion.” (Rhoden, supra, 172 F.3d 633, 636, quoting Stewart v. Corbin (9th Cir. 1988)f 850 F.2d 492, 497.) Due process only permits such an aura as last resort. (Rhoden, supra, citing Stewart v. Corbin, supra, at pp. 497-498; see also Illinois v. Allen, supra, 397 U.S. 337; Spain v. Rushen, supra, 883 F.2d 712.) The cumulative impact of the extensive security precautions, including the decision to force appellant to wear a stun belt without legal cause (see Argument V, ante, incorporated by reference herein), denied appellant his rights to be presumed innocent, to a fair trial by an impartial jury, to a reliable judgment of death, and so infected the trial with unfaimessas to makehis resulting convictions a denial of due process. Asa result, the confinement and sentenceare illegal and unconstitutional underthe Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution. | HI HI 210 Vil THE TRIAL COURT PERMITTED THE PROSECUTION TO INFLAMETHE JURY BY PRESENTING IRRELEVANT AND PREJUDICIAL EVIDENCE OF BAD CHARACTER AND CRIMINAL PROPENSITY Thetrial court erroneously admitted literally weeksofirrelevant, unreliable, misleading, and inflammatory evidence that portrayed appellant as a callous, violent drug dealer whoterrorized his community and who attempted to murder a man whowassleeping with appellant’s estranged wife. With little credible evidence to connect appellant with the murders, the prosecution relied instead on this evidence for theimpermissible purpose of showing appellant was a bad person with a propensity to kill his rivals and any man that slept with his wife. | There was unquestionably some evidence of appellant’s role in the sale of narcotics inthe Pacoima/Lake View Terracearea that, based on the prosecution’s proffers, was relevant to this case. Appellant did not move to exclude evidencerelating to the shootings of Ken Gentry and Reynard Goldman,*’ which was admitted as relevant to the prosecution’s theory of *7 With regard to the evidence concerning the Ken Gentry killing, appellant moved that an instruction be given prior to the introduction ofthis evidencelimiting its purpose to show a connection between Armstrong and one or more of the defendants. (CT 11093-11099.) Thetrial court ruled that a limiting instruction prior to the admission of the evidence was proper, but expandedthe limiting instruction to say the evidence could also be considered as to issues of motive, premeditation and intent with regard to the charged homicidesin this case; a key factor in the court’s ruling was the prosecution’s proffer that further evidence wouldestablish that Armstrong’s threats were in fact communicated to appellant (RT 8724-8730, 8786-8787.) Appellant made the same objection to the evidencerelating to the Goldmanshooting, and the court ruled and instructed in the same (continued...) 211 motive, intent and premeditation with regard to the instant homicides,i.e.: Armstrong had been hired in 1982 by appellant and his brother Jeff Bryant to kill Gentry and Goldman over drug disputes; after Armstrong was. convicted of killing Gentry and shooting Goldman,he threatened to force appellant to pay forthe hit; that appellant knew ofthis threat; and that upon ' Armstrong’s release from prison appellant arranged to have him killed in order to protect appellant’s business interests. Nor did appellant moveto excludeall testimony from other formeror current drug dealers regarding narcotic sales in the Pacoima/Lake View Terrace area. However,the fact | that some evidencerelating to appellant’s role in narcotics sales may have been appropriately introduced did not immunize the jury from the emotional impact of evidence detailing alleged criminal and violent propensities of appellant and his fellow drug dealers. Indeed, the evidence of threats, murders, and violence which had nothing to do with the case surely overshadowedthe evidence that was actually relevant to the jury’s determination of guilt. Likewise, evidence that purported to establish that appellant arranged attacks onthe loverofhis estranged wife wasirrelevant to the prosecution’s proffered motive, that is, that Armstrong and the others were shot to prevent Armstrong from collecting for the 1982 shootings. 87(_..continued) manner. (RT 9218-9220, 9226.) Thetrial court there allowed Goldman to testify regarding implied threats he received priorto his testimonyin his case; however, the court ruled that unless the threats were linked to appellant, that evidence would be limited to the credibility of the witness. (RT 9219.) No evidence was introduced showingeither that (1) Armstrong’s threats to collect from appellant were communicated to appellant or (2) that appellant directed people to threaten Goldmanpriorto his testimony. 212 The emotionally-charged bad character evidence described herein wasirrelevant, unreliable, inflammatory, cumulative, remote, and far more prejudicial than probative. Its admission violated state law as well as appellant’s state and federal constitutional rights. In view of the weakness of the case against appellantas to the instant homicides and the inflammatory nature of the other crimes evidence, alone and when _ combined with the other erroneously admitted evidence described in Arguments VIII and IX,post, incorporated by reference herein,its | admission was prejudicial. A. Legal Standards Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidenceis defined as "evidence, including evidencerelevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequenceto the determination of the action." (Evid. Code, § 210.) Relevant evidence may be excluded under Evidence Codesection 352, however,if a trial court determines that the probative value of the evidenceis substantially outweighedby the probability that its admission will create substantial danger of undueprejudice, of confusing the issues, or of misleading the jury. (People v.Smithey (1999) 20 Cal.4th 936, 973.) Evidence should be excluded undersection 352 if it uniquely tends to evoke an emotionalbias against the defendantas an individual, and yet has very little effect on the issues. (People v. Coddington (2000) 23 Cal.4th 529, 588, overruled on ; other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Evidenceis substantially more prejudicial than probative under section 352 if it poses an intolerable “risk to the fairness of the proceedingsorthe 213 reliability of the outcome.” (People v. Alvarez (1996) 14 Cal.4th 155, 204, fn. 14). . Evidence Codesection 1101, subdivision (a) prohibits the admission of evidence of a person’s character, including specific instances of conduct, to prove the conductofthat person on a specific occasion. Section 1101, subdivision (b) provides an exception to this rule when such evidenceis relevant to establish some fact other than the person’s character or disposition. (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) Under section 1101, subdivision (b), character evidence is admissible only when “relevant to prove somefact (such as motive, opportunity, intent...) other than his or - her disposition to commit such an act.” (People v. Catlin (2001) 26 Cal.4th 81, 145-146.) The rule excluding evidence of criminal propensity derives from. early English law andis currently in force in all American jurisdictions. (See People v. Ewoldt, supra, 7 Cal.4th at p. 392; People v. Alcala (1984) 36 Cal.3d 604, 630-631.) Such evidence is impermissible to “establish a probability of guilt.” As the United States Supreme Court stated in Michelson v. United States (1948) 335 U.S. 469: | The State may not show defendant’s prior trouble with the law, specific criminal acts, or ill name amonghis neighbors, even though such facts mightlogically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because characteris irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despiteits admitted probative value,is the practical experiencethat its disallowance tends to prevent confusion of issues, unfair surprise and undueprejudice. 214 (id. at pp. 475-476, fns. omitted.) Whenevidenceofother acts is offered to prove a materialfact, the court must employ a case-by-case balancing test of the probative value of the evidence compared withits prejudicial effect in order to determine the admissibility of the evidence. (People v. Stanley (1967) 67 Cal.2d 812.) There mustbe a strong foundational showingthat the evidenceis sufficiently relevant and probative of the legitimate issue for which it is offered to outweigh the potential, inherent prejudice of such evidence. (See People v. Poulin (1972) 27 Cal.App.3d 54, 65.) Evidenceof other acts “should be scrutinized with great care ... in light of its inherently prejudicial effect, and should be received only when its connection with the charged crime is clearly perceived.” (People v. Elder (1969) 274 Cal.App.2d 381, 393-394, quoting People v. Durham (1969) 70 Cal.2d 171, 186.) The exercise of discretion to admit or exclude evidence pursuant to Evidence Code section 352 should favor the defendant in cases of doubt because in comparing prejudicial impact with probative value the balance “is particularly delicate and critical where whatis at stake is a criminal defendant’s liberty.” (Peoplev. Lavergne (1971) 4 Cal.3d 735, 744; People -v. Murphy (1963) 59 Cal.2d 818, 829.) “[U]nchargedoffenses are admissible only if they have substantial probativevalue.” (People v. Tihompson (1980) 27 Cal.3d 303, 318, original emphasis,fn. omitted.) | A defendant’s uncharged offense is admissible under Evidence Code section 1101 on the issue of identity only if the offense is “highly similar” to the charged crimes. (People v. Kipp (1998) 18 Cal.4th 349, 369.) “The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common 215 featuresthat are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation omitted.] “The pattern and _ characteristics ofthe crimes must be so unusual and distinctive as to be like a signature.’” (People v. Ewoldt, supra, 7 Cal.4th at p. 403 [citing 1 McCormick on Evidence (4th ed. 1992) § 190, pp. 801-803 (italics added)].) Thus, to prove identity, the uncharged misconduct and the charged offense must be “mirror images.”** “The strength of the inference in any case depends upon twofactors: (1) the degree ofdistinctiveness of individual shared marks, and (2) the number of minimally distinctive shared marks.” (People v. Tihornton (1974) 11 Cal.3d 738,756 [italics in original].)® On the other hand, courts will find no signature if the crimes 88 See, e.g., People v. Huber (1986) 181 Cal.App.3d 601, 622; People v. Balcom (1994) 7 Cal.4th 414, 425 [“The highly unusual and distinctive nature of both the charged and unchargedoffensesvirtually eliminates the possibility that anyone other than the defendant committed the charged offense”]; People v. Willoughby (1985) 164 Cal.App.3d 1054, 1066 [“highly distinctive marks of similarity” between the prior offense and the charged crime are requiredfor admissibility to prove the defendant’s identity]; People v. Wein (1977) 69 Cal.App.3d 79, 90 [prior offense was “unique and peculiar” to the extent that it constituted defendant’s “trademark”]; People v. Rodriguez (1977) 68 Cal.App.3d 874, 883-884 [uncharged and charged offenses must have “highly distinctive marks of similarity”’]. ® See, e.g.,People v. Hughes (2002) 27 Cal.4th 287, 333 [the existence of stolen credit cards in Crown Royal bagsin both the charged and unchargedoffenses is sufficiently distinctive “signature” characteristic to support an inference that the same person committed both the charged and the uncharged acts]; People v. Catlin, supra, 26 Cal.4th at p. 120 [“the charged and uncharged crimes bore a numberofhighly distinctive common marks” — each victim was a close femalerelative of the defendant (wife or mother); the defendant stood to gain financially from each victim’s death; and the victims had died from paraquat poisoning, whichis “rare”]; People (continued...) 216 ~ are not uniquely similar.*° Moreover, “the presence of marked | 8°(...continued) v. Kipp, supra, 18 Cal.4th at pp. 370-371 [the charged and uncharged offenses displayed commonfeatures that revealed a “highly distinctive” pattern: in both rape-murders, the perpetrator strangled a 19-year-old woman in one location, carried the victim’s body to an enclosed area belonging to the victim, and covered the body with bedding; the bodies of both victims were found with a garment on the upper body, while the breasts and genital area were unclothed; in neither instance had thevictim’s clothing been torn, and the bodies of both victims had been bruised on the legs]; People v. Medina (1995) 11 Cal.4th 694, 748 [admission of uncharged murders wasjustified in murder prosecution; both charged and uncharged offenses involved robbery and.murder of conveniencestore employee, each victim was shot inthe head execution-style, and ballistics reports indicated use of the same handgun,later traced to the defendant]; People v. Sully (1991) 53 Cal.3d 1195, 1223-1225[illicit sex, cocaine and the abuse of prostitutes were commonto all crimes, and each crime occurred in defendant’s warehouse, where he lived, worked, and controlled “what came in and out”].) *° See, e.g., People v. Bean (1988) 46 Cal. 3d 919, 937 [finding no unique signature where the murders occurred three days apart in the same neighborhood, both victims died as a result of brutal blowsto the headarea, both victims were elderly women who were robbed and their homes burglarized, and in each instance an automobile belonging to the victim was taken and abandonedin the samevicinity]; People v. Rivera (1985) 41 Cal. 3d 388, 393 [finding the following characteristics not sufficiently distinctive so as to demonstrate a signature: “(1) both crimes occurred on a Friday night; (2) both occurred at approximately 11:30 p.m.; (3) both involved convenience markets; (4) both markets were in Rialto; (5) both markets were located on street corners; (6) both crimes involved three perpetrators; (7) both involved getaway vehicles; (8) prior to both crimes, two or three people were observed standing outside the store; (9) defendant used an. alibi defense in both cases: when accusedofthe prior offense, he claimed to have been withhis brotherall night; in the current case he claims he spent the evening with hissister’”]; People v. Antick (1975) 15 Cal.3d 79, 94 [fact that charged and uncharged offenses involved removal of personal property from private residence during owner’s absence “cannot seriously . (continued...) 217 dissimilarities between the charged and unchargedoffensesis a factor to be considered bythetrial court” in determining whetherto admit the other crimes evidence. (People v. Haston (1968) 69 Cal.2d 233, 249,fn. 18 [italics added].)” *°(...continued) be asserted as a distinctive and signature-like feature’”’]; People v. Nottingham (1985) 172 Cal.App.3d 484, 500 [finding no logical inference of identity where (1) both victims were young women who werecasual acquaintances of defendant; (2) both victims resided in the same neighborhood as defendant; (3) both attacks occurred ini remote locations; (4) each victim had force applied to her neck and her clothing ripped; the first victim had hands placed around herneck thatstartled her and apparently left no permanentphysical injuries, while the second victim was strangled to death]; People v. Alvarez (1975) 44 Cal.App.3d 375, 385 [similarities between earlier statutory rape of 13-year-old andlater forced rape of 14-year-old were simply “necessary concomitants” of the crime, rather than distinctive marks tying defendant to both crimes], Statev. Dewey (1998) 93 Wash. App. 50, 55-58, 966 P.2d 414, 417-418 [evidence was neither unique norsufficiently uncommon where (1) defendant used friendly conversation to develop a level of trust with both female victims; (2) he invited each woman to accompany him on date to a restaurant or lounge to enjoy music; (3) on both occasions,after they left the public establishment, defendant suggested they go to his home;(4) in bothcases, after initially playing the sociable host, defendant forcibly had sexual intercourse with the women;(5) afterward, defendant was friendly toward the women — allowing them to dress, driving them home,and acting as if they had been on “a regular date” culminating in consensualsex].) *! See, e.g., People v. Alcala, supra, 36 Cal.3d at p. 633 [defendant’s pattern of sexual conduct was not consistent or distinctive and “[m]ost importantly, [the last victim] was killed, while the earlier victims were not’’]; People v. Guerrero (1976) 16 Cal. 3d 719, 729 [reversing murder conviction for admitting evidence of other crime where other crime victim was raped, not murdered, and murdervictim was not raped].) 218 B. Evidence Of Other Alleged Crimes Was Inadmissible Under Evidence CodeSections 350, 352 And 1101 1. The Bribe Of Rhonda Miller a. Proceedings Below Appellant moved to exclude the following statements of Rhonda Miller, who identified Andre Armstrongas the shooter of Ken Gentry in a line-up, that: the day after the line-up she wasvisited by Rollo and Tannis (whoat the time werethe girlfriends of Jeff Bryantand appellant, | respectively) during whichvisit Rochelle offered Miller money from Jeff not to inculpate Armstrong in the Ken Gentry shooting; after Miller refused the money,she wasvisited by her abusive husband Alvin Brown, whotold Miller to take the money; Brown took the money and,at the preliminary hearing, at which Jeff Bryant, appellant and Armstrong were defendants, recanted her identification of Armstrong; Alvin Brown had been bailed out by Jeff and appellant’s mother, Florence Bryant, using a house on Louvre Street as collateral. (RT 9075-9081.) Appellant argued, in relevantpart, that the admission of such evidence was more prejudicial than probative under Evidence Codesection — 352 and to the extent the prosecution relied on a conspiracy theory for the evidence’s admission, no foundation had been laid. (RT 9078-9079.) The prosecution argued the evidence wasrelevant to Miller’s- recantation at the preliminary hearing that Armstrong wasthe shooter. (RT 9081.) The defense countered Armstrong’s guilt of the Gentry shooting was uncontested and that the defense maintained that he did it as a solo venture. (RT 9083.) The trial court ruled that there existed a reasonable inference that the bribe money came from the “Family,” thus evidencing an interest in the outcomeofthe prosecution, that that interest suggested the 219 possible involvementof others in the Ken Gentry homicide; the court also ruled the bribe evidence admissible to belie the inference that Amnstrong was an independentactor andin turn “buttress the credibility” of the taped statement of Armstrong. (RT 9082, 9084.) b. The Evidence Relating To The Bribe Of Rhonda Miller Was Inadmissible It mustbefirst noted that thetrial court’s ruling wasincorrect insofar it held the evidence admissible to “bolster the credibility” of Andre Armstrong in his taped statement to police in 1983, because that taped statement was inadmissible testimonial hearsay. (See Argument IX, post.) Since the taped statementwas inadmissible, testimony concerningthe bribe - of Miller wasalso inadmissible. To the extent that the evidence objected to wasrelevant to belie the inference that Armstrong wasa solo actor in the Gentry homicide, it was clearly more prejudicial than probative under Evidence Code Section 352; the court found there was a reasonable inference that the money used to bribe Miller came from the “Family.” (RT 9082.) However, there was no evidence that appellant, as opposed to his brother Jeff, was involved in the bribe of Miller or in the release of Alvin Brown. Numerous law enforcement personnelas well as former employees stated unequivocally . that Jeff Bryant was in charge of the organization, and it was Jeff Bryant’s girlfriend Rollo who offered Miller the bribe. That appellant was dating the woman who wentwith Rollo to perform that task haslittle or no probative value as to the issue of whether appellant directed the bribe to occur, and thus was inadmissible under Evidence Code section 352. (Ibid; People v. Lavergne, supra, 4 Cal.3d at p. 744[ifin doubt, the exercise of discretion should weighin favorof the defendant]. 220 In any event, given the statements of other witnesses putting appellant near the scene either before or after the Gentry shooting, and - given the statementsof Ken Gentry that came in through other witness that implicated appellant, the probative value of the evidence regarding the Miller bribe as to appellant’s role in the Gentry shooting wasso slight as to be far outweighed bythe prejudicial effect of the evidence that whomever was behindthe bribe of Miller would bail out a wife-beater to ensure compliance with the offer. (People v. Crew (2003) 31 Cal.4th 822, 840 [evidence with very little effect on the issues that tends to evoke an emotionalbias against the defendant should be excluded under Evidence Code section 352].) 2. The Attack On Francine Smith a. Proceedings Below Appellant moved to exclude the statement of Francine Smith regarding a beating she received in 1986, after she tried to buy drugsatJeff Bryant’s Louvre Street house with a $10 bill she attempted to alter to look | like a $100 bill; she was caught and verbally reprimanded by the person working at the houseat that time. (RT 9449-9450.) In Decemberof the sameyear, she was beaten on the head, neck and chest with a billy club with a chain in the middle by someone she didnot know. (RT 9450-9451.) Appellant was standing far away in the parking lot while the beating was occurring. (RT 9451.) Francine denied that she told prosecutors that appellant was ten feet away while she was being beaten. (RT 9452.) After the beating ceased, Francine went to a party and cleaned up. (RT 9452.) She saw appellant about a day or twoafter that, and hetold her that she was lucky to be alive, and that they if they had not known herso well, she would be dead. (RT 9452-9453, 9462.) | * 221 Appellant movedto exclude this portion ofher testimony, arguing that the evidence wasirrelevant to any issue in this case and that it was moreprejudicial than probative under Evidence Codesection 352. (RT 9421-9424.) Thetrial court denied the motion, finding the evidence showed appellant’s “involvement andinterest in the financing of these various narcotic houses and, perhaps,his willingness to use violence to make sure those things are run as they were supposedto run and that people don’t rip them off and thingsof that nature, all of which are issues in the | case.” (RT 9424.) b. The Evidence Relating To The Attack On Francine Smith Was Inadmissible Similarly, the beating of Francine Smith in appellant’s presence over a minor drug debt in 1986 wasirrelevant to the issue of whokilled Armstrong and the others in 1988, It clearly lacks any of the “high distinctive marks of similarity” with the instant homicides required for admission to prove identity under Evidence Code section 1101. (People v. Ewoldt, supra, 7 Cal.4th at p. 403; see also cases cited in section A ofthis Argument, ante.) Moreover, evidence regarding motive forthe instant crimes had already beenintroducedat length, and the beating of Smith added nothing to the prosecution’s case on any material fact in the instant case, 1.e.,it did not relate to motiveor intent to kill Armstrong and the others. Rather, this evidence was admitted to show appellant’s “involvementand interest in the financing of these various narcotic houses and, perhaps,his willingness to use violence to makesure those thingsare run as they were supposed to run and that people don’t rip them off and things of that nature...” (RT 9424.) Thus,the court clearly admitted the evidence for the inadmissible purpose of showing appellant’s character in 222 the form of a specific instance of uncharged misconductto provehis conduct on the specified occasion charged: that is, that appellant was someone whodid, as was the case with Francine Smith, act with violence in the instant case in order to protect his business interests. The evidence | impermissibly established a “probability of guilt” as to appellant’s guilt of the instant crimesandit posed an intolerable “risk to the fairness of the proceedingsorthe reliability of the outcome.” (Evid. Code, § 1101; People v. Alvarez, supra, 14 Cal.4th at p. 204, fn. 14; see also Michelson v. United States, supra, 335 U.S. at pp. 475-476.) 3. Evidence Relating To Narcotic Sales in 1985 And To Appellant’s 1986 Conviction For Conspiracy To Distribute Narcotics a. Proceedings Below Prior to the introduction of evidence regarding evidence of the activities of the “dope operation,” all defendants objected to the presentation of evidence through the testimony of detectivesrelating to drug sales bythe Family in “1984 or 1985"as irrelevant and more prejudicial than probative under Evidence Code section 352; the defense argued that the evidence had a tenuouslink to the motive for the instant homicides, and that the evidencerelated to a drug conspiracy count that was severed from the case years prior.” (RT 9533-9535.) Thetrial court denied the motion *° The Honorable J.D. Smith, Judge of the Superior Court, severed count 7, which charged the defendants conspired “to operate a major narcotics sales distribution/transportation business”from the instant case in 1992. (RT 366, 4247.) In so doing, the court foundthat the entire conspiracyto sell narcotics was not motive for the instant homicides. (RT 4231-4232.) 223 without comment.” (RT 9533.) The prosecution then presented the following: ‘LASO Deputy Sheriff Gheral Taylor was assigned to the narcotic bureau on June 27, 1984, when he executed several search warrants. (RT 9582-9588.) Taylor first stopped and searched vehicle drivenbyJeff Bryant and seized his keys. (RT 9588, 9590.) He next went to 13031 Louvre Street, which was owned byJeff and Florence Bryant, and used one of the keys seized from Jeff to open oneofthe steel doors to the house;all the doors and the windowsto the house werebarred. (RT 9590-9591, 9597.) Danny Miles wasarrested in the house; an eighth of an ounce of cocaine was recovered from a potofhot oil, and a shotgun and police scanner werealso found there. (RT 9591-9593.) Taylor also searched Jeff Bryant’s residence at 10743 De Haven; he recovered a plate that contained a small amountof a substance that appeared to be cocaine and $6,500 in cash. (RT 9594-9594.) Taylor also searched Eli Bryant’s house, which was next doorto Jeff’s at 10731 De Haven andseized $20,000 foundin a safe in the bedroom. (RT 9583, 9595-9596.) Eli was employed by LASO asa - deputy sheriff, assigned to the Men’s Central Jail. (RT 9583, 9599.) Detective Charles G. Uribe of the LAPDtestified that in thefirst four monthsof 1985 he was assigned to the narcotics division ofthe Valley bureau unit, partnered with Detective James Dumelle. (RT 9536.) He and Detective Dumelle focused on “rock houses” in the Lakeview Terrace/Pacoimaarea that he opined were uniqueto the Bryant family 3 At onepoint during the presentation of this evidence whenall counsel renewed their Evidence Code section 352 objection, the court ruled this category of evidence admissible because one counsel disputed the existence of the Family in opening statements. (RT 10536.) 224 organization. (RT 9536-9538.) One unique characteristic were that the houses were very well fortified; the front doors were electronically controlled; buyers were buzzed in and then locked between two metal doors when making a transaction. (RT 9537.) In two of the Bryant rock houses a | hot crock potfilled with oil was kept in the kitchen to enable the quick destruction of cocaine. (RT 9538.) On January 22, 1985, LAPD Detective Ernest Guzmanserved a search warrant on 11442 Wheeler. (RT 9983.) He recovered 46 bindles of cocaine from the toilet bowl; a carton labeled “acid” was found next to the toilet bowl. (RT 9985.) Terry Evans, who wasin the house when the warrant wasserved, was arrested. A 12 gauge sawed-off shotgun was found in the living room, and $300 was foundin a pot in the kitchen. (RT 9985, 9988.) It did not appear that anyone wasliving in the house. (RT | 9986.) On February 6, 1985, Detective Dumelle served a search warrant on 13037 Louvre Street, a “fortified rock house.” (RT 9641.) The SWAT team entered the house using a battering ram, putting a hole in the front bedroom of the house. (RT 9642.) Detective Dumelle found equipment commonly used to “rock” powder cocaine, whathe believed to be recordations of narcotic transactions and a grant deed to the homein the nameof Jeff Bryant. (RT 9645-9646.) Antonio Johnson arrived duringthe ‘search andidentified himself as a resident of the house. (RT 9647.) On March 5, 1985, after an undercover purchase ofnarcotics at 13031 Louvre Street, Detective Uribe served:a search warrant and arrested the home’s sole occupant, Kenny Reaux; a pound and half of narcotics wereseized, as were several one gallon Wesson Oil containers, a calendar and paperwork Detective Uribe said were “pay and owes in the narcotic 225 industry.” (RT 9541-9543, 9550-9555.) This house wasalso owned by Jeff Bryant. (RT 9638, 9668-9669.) A week after the search, Detective Dumelle wentto the location and saw the house wasbeing repaired. (RT 9658.) Three repair mentestified that they worked to repair the Louvre Street and Wheeler Avenue houses; one recalled that appellant paid him for the work; paperwork from the repairs the other two completed was found in appellant’s home. (RT 9676-9693.) OnMarch 18, 1985, Detective Dumelle went to Neighborhood Billiards because the business’s police commission license to runa pool hall had not been paid. (RT 9661.) Detective Dumelle had previously surveilled the pool hall andtestified that it didn’t appear to him that many people played pool there. (RT 9660-9661.) He found appellant behind the counter and cited him for not having the proper permits. (RT 9661.) Two days later, when appellant was interviewed by LAPD homicide detective Manford Brown, appellant told Brownthat appellant was part ownerof the pool hall. (RT 9895-9896.) | On March 22, 1985, Detective Dumelleexecuted a search warrantat 11442 Wheeler Avenue. (RT 9648-9650.) A battering ram was again used by a SWATteam to enter the house. (RT 9651-9652.) Inside Detective Dumelle found crock pots tipped over, some spilling a white greasy oil, and a notebook with “pays and owes;” Kenny Reaux wasarrested in the house. (RT 9652-9653.) . Detective Dumelle interviewed Kenny Reaux onMarch 25, 1985, three days after Detective Dumelle had arrested Reaux at the Wheeler | house. (RT 9628-9631.) Detective Dumelle testified that Reaux told him that he needed some extra money and had been recruited by appellant at the pool hall to work an eight hour shift inside the Wheeler house for $200. (RT 226 9632.) Reaux said that appellant had driven him to the house at about 2:30 | p-m.that day in appellant’s white Audi, that appellant told him there was no cocaine in the house and that he instructed Reaux to watch the house. (RT 9632.) Reaux then said he didn’t wantto talk aboutit any more because Jeff Bryant would have him killed. (RT 9632, 9706.) LAPDdetective William Thurston testified that he interviewed Reaux in prison regarding the Charles Gentry homicide. (RT 9717-9718.) Hetestified that Reaux toldhim that he was working a rock housefor Jeff and appellantandthat he was in custody on narcotics-related charges. (RT 9719.) Reaux told him thathis bills and family were being taken care ofby the Bryants and that he was receiving money from the Bryants through his wife. (RT 9720.) In response to questions about the Charles Gentry homicide, Reaux said that the Bryants were family and that he would notrat on them. (RT 9720.) | Kenny Reaux testified and disputed the testimony of Detective Dumelle and Thurston regarding his prior statements. Reauxsaid that he was working for himself along with a partner named Alfonso when he was arrested both on March 5, 1985 at Louvre Street and on March 22, 1985 at Wheeler Avenue. (RT 9604-9606, 9610-9612.) He deniedhe told Detective Dumelle that the Bryants had any involvementin drugssales at those locations and that he said he would not testify against them. (RT 9614-9616.) Reaux said that he worked as an attendant, handing out racks and balls, at NeighborhoodBilliards before his arrests in 1985; he testified that it was a legitimate business and that he was paid by John Bryant. (RT 9606-9608.) Reaux also denied that Thurston asked him any questions about the Charles Gentry homicide and he denied making any of the statements that Thurston attributed to him. (RT 9616-9621.) 227 On April 18, 1985, Detective Uribe led a team that served a search warrant on appellant’s house on Judd Street. (RT 9539.) Detective Uribe found a calendar similar to the one seized at Louvre Street the previous month, a piece of paper with the booking number of Kenny Reaux with a citation to an Heath and Safety Code section, as well as some one gallon Wesson Oil containers. (RT 9540-9544.) He also found paperworkrelated to repair work andutility bills from 11442 Wheeler Ave, as well as a Health and Safety Code violation in the name of Tony Johnson that contained the Wheeler Avenue address. (RT 9545-9549.) Detective Uribe also recovered personal belongings of appellant which indicated that he lived at the Judd Street address. (RT 9550.) | At the same date and time that Detective Uribe wasserving the warrant on appellant’s house, Detective Dumelle led a search team at Jeff. Bryant’s house at 10743 De Haven. (RT 9635-9638.) A half kilo ofa white powder commonly used as a cutting agent was found in his garage. (RT 9639-9640.) Detective Dumelle testified that he believed that Jeff Bryantran the narcotics operation, and that Jeff Bryant would continue to do so whether he was in prison or not. (RT 9703.) Detective Dumelle also testified that in the Pacoima/Lake View Terrace area, the term “the Family” referred to the Bryant family or the Jeff Bryant family, and that the Bryant family organization was completely separate from a prison gang known as the “BGF.” (RT 9705-9708.) Detective Lambert opined that the Bryant family’s narcotics operations operated continuously from 1985 through 1988, and that the houses on Wheeler, Carl, Adelphia, Fenton and Vanport wereall part of the Bryant organization. (RT 9794, 9811.) He also said the organization distributed cocaine at the Hansen Dam and at a rented home at 12707 228 Dronefield. (RT 9812.) He said it was a common characteristic of the Bryant organization to have their properties in the names of its members or relatives or friends; the Adelphia and Fenton houses were in Eddie Barber’s name, who Lambert said was a high-ranking member. (RT 9835.) At the time of the homicides, the Wheeler house had been quit-claimed to Nash Newbill by Jeff Bryant. (RT 9916-9917.) Lambert believed that it was highly likely that Jeff Bryant continued to run the organization while he was in prison; he also testified that he believed that appellant ran the organization while Jeff was in prison.” (RT9873, 9882, 9945.) Lambert opinedthat, at the time of the homicides, the people running the Bryant family organization were appellant, John Roscoe and Eli Bryant, and that Jon, William, Frank and Andrew Settle werealso involved. (RT 9946.) He also opined that William “Amp” Johnson, Ladell Player, Lawrence Walton, Larry Bradley, William “Binky” Blaylock and Darrell Blaylock were all Family members. (RT 9952-9955.) Asa result of the 1985 narcotics investigation, Jeff Bryant pled guilty to two counts: operating a house (11442 Wheeler Avenue) where narcotics were dealt and selling or transporting cocaine. (RT 9730.) Appellant pled guilty in 1986 to conspiracy to distribute narcotics; the prosecution moved to introduce both the fact of appellant’s 1986 guilty plea to conspiracyto sell or transport narcotics as well as appellant’s plea ~ allocution. (RT 9721-9722.) The overt acts admitted during appellant’s plea included: “recruiting Kenny Reaux to work in the rock house that he and Jeff Bryant were running:” offering Reaux $200 per eight hour shift for ** The erroneous admissionof Detective Lambert’s opinion testimonyin this regard is the subject of ArgumentX,post. 229 selling cocaine at 11442 Wheeler Avenue; Reaux had 137 grams of cocaine in his possession at 11442 Wheeler Avenue on March 22, 1985, while working for appellant; and that Reaux attempted to destroy the cocaine by putting in into a crock pot containing hot cooking oil. (RT 9730.) The prosecution arguedin part that the overt acts admitted were relevant to impeachthe testimony of Kenny Reaux. (RT 9722.) Appellant objected, arguing that evidence of appellant’s prior conviction was inadmissible unless and until appellanttestified, but conceded that the overt acts admitted during the plea were admissible as an ~ admission. (RT 9722.) Appellant argued that the fact of the conviction _ itself wasirrelevantin that it did not add to the prosecution’s case, that Reaux would be adequately impeached with the admissions, and that evidence regarding the fact of conviction was more prejudicial than probative under Evidence Codesection 352. (RT RT 9721-9722.) Thetrial court overruled appellant’s objection, ruling that admissions have moreofan indicia of reliability when they comebefore a plea, and found no prejudice under Evidence Code section 352. (RT 9726-9727.) At appellant’s request, the court gave the following limiting instruction after reading the fact of appellant’s conviction and his admission to the overt acts __ as follows: the evidence was not offered to show bad character or propensity, but whether (1) there existed an organization of the type alleged by the prosecution, and, if so, its membership andscope ofactivities; and (2) as to the credibility of Kenny Reaux. (RT 9727-9733.) 230 b. The Evidence Relating To Narcotic Sales In 1985 And To Appellant’s 1986 Conviction For Conspiracy To Distribute Narcotics Was Inadmissible The extraneous evidence regarding the drug operations set forth above had no relevance to the instant homicides. The motives proffered by the prosecution were (1) that appellant owed Armstrong moneyfor Armstrong’s shooting Ken Gentry and Reynard Goldman and/or(2) that appellant wanted Armstrong dead because Armstrong wassleeping with appellant’s ex-wife. That appellant and his brother were involved in narcotic sales while Armstrong wasin prison is irrelevant to these motives as the alleged debt owed Armstrong and Armstrong’s affair with Tannis were not connected in any wayto the drug operations describedin detail over weeks of testimony. To the extent that the prosecution argued that appellant had Armstrong killed because Armstrong threatened appellant and demandedpart of appellant’s drug business in paymentforhis services, the © prosecution failed to introduce any evidence that appellant knew of Armstrong’s threats and demands. At the very least, the evidence relating to drug operationsprior to | and including appellant’s arrest in 1985 and conviction in 1986 were irrelevant to the proceedings since appellant admitted selling drugs for his brother Jeff during this period of time. (RT 15158-15159, 15174-15176, 15191-15192.) The evidence wasprejudicial in no small part becauseit allowed the prosecution to introduce a comment Kenny Reaux madeto detectives regarding the Charles Gentry homicide, i.e., that the Bryants were family and he would not rat on them. (RT 9720.) The implication was clear: appellant was responsible for the uncharged homicide ofKen Gentry’s father and, therefore, was likely the kind of person to be guilty of 231 the instant crimes. The introduction of Reaux’s statement wasparticularly harmful in light of the fact that the prosecution stipulated that the Ken Gentry and Charles Gentry homicides were unrelated. (RT 9411.) Numerousother irrelevant and prejudicial statements were introduced during the prosecution’s presentation of evidence regarding the “drug operations.” The out-of-court statement by William “Amp” Johnson contained references to the uncharged homicide of Tank Hennegan, which the prosecution conceded was inadmissible in their case in chief. (RT 10059; 3 SUPP CT 10603.) The Johnson statement also contained other inadmissible referencesto the bad characterofthe drug dealers in Pacoima: he said that young men in Pacoima were corrupted by the drug dealers whom they looked up to because of their material possessions (3 SUPP CT 10607-10609), that there were people in Pacoima who “for $500 they come burn your whole house down, kill your mama,kill everyone else and then brag about it because they know they ain’t going to jail, because its been demonstrated” (3 SUPP CT 10604, 10609, 10616-10617), that “they”still had “their threat on” and that a lot of people were goingto be dying (3 SUPP CT 10609-10610), and that “they” can reach out and touch him at Pelican Bay and otherprisons. (3 SUPP CT 10614-10615.) This type of evidence similar to gang-related evidence, which,like other bad character evidence, is not admissibleif it is introduced only to "show a defendant's criminal disposition or bad character as a meansof creating an inference the defendant committed the charged offense." (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) Such evidenceis only admissibleif it is relevant to issues in the case, is not more prejudicial than probative, and is not cumulative. (See People v. Ruiz (1998) 62 Cal.App.4th 234, 240.) In addition, this Court has cautioned that even if 232 gang evidenceis relevant, it may have a highly inflammatory impact on the jury, and therefore, "trial courts should carefully scrutinize such evidence before admitting it." (People v. Williams (1997)16 Cal.4th 153, 193; | People v. Gurule (2002) 28 Cal.4th 557, 653, quoting People v. Champion (1995) 9 Cal.4th 879, 922.) Whatwasin dispute was the not the bad character of those who deal drugs, but specifically, whether or not appellant ordered the killing of Armstrong and his cohorts in the instant case. The prosecution’s evidence in this regard was based primarily on an accomplice who. turned state’s evidence to save himself from multiple murder charges. Asa result, the prosecutor soughtto bolster its case by introducing the above-described evidence which demonstrated that appellant was a bad person who waspart of a bad organization with a propensity to murder those whothreatened its _ existence. Such damning propensity evidenceis precisely what Evidence | Code 1101 forbids. (People v. Ewoldt, supra, 7 Cal.4th at pp. 392-393.) 4. Testimony And Statements Of William “Amp” Johnson, Lawrence Walton And Ladell Player a. Proceedings Below i. Taped Statement And Testimony Of William “Amp” Johnson At trial, William “Amp” Johnsontestified that in 1987 through 1988 he sold narcotics and sometimes bought from the Family organization, which included appellant as a member; he did not know if appellant or Jeff Bryant ran the organization. (RT 9993-9996.) He wasarrested in 1987 ina rock house on Dronfield where he and his cousin sold narcotics for the “Family.” (RT 10010.) He further denied that all drugs sold in Pacoima from 1985 through 1988 were Family drugsor that there was pressure on 233 him to nottestify in this case. (RT 9996-9997.) Hetestified that he did not wantto testify, but denied that being forced to do so was putting him in a bad position; he admitted being afraid for his family if he testified and admitted telling the prosecutor that he would rather goto jail than testify in this case. (RT 1003-1004.) . Throughout the course of Johnson’s testimony, there were defense objections under Evidence Code section 352 to various out-of-court statements made by Johnson,discussed morefully below,that relate to his perceptionsof the effect the narcotic sales operations run by the Family had on the community in Pacoima. (RT 10006-10009.) Thetrial court allowed the prosecution to examine Johnsonregardingthe full content ofhis prior statement, subject to “revisiting” the issue at a later time; the court also directed counsel not to make objections during a witnesses’s testimony regarding alleged threats — rather, the court instructed counselto listen to _ the prosecution’s case and then explain to the jury to what use they may put it to later. (Ibid.) The prosecution wasallowedto essentially read portions of Johnson’s prior statements to him; Johnson denied making some statementrelating to the fear caused by andthe effect the Family organizationhad on the people of Pacoima. (RT 10000-10013.) Whenthe prosecution sought to introduce the entirety of Johnson’s tape-recorded statementto police as a prior inconsistent statement, all of the defendants objected. The defense argued that the taped statement contained “vague ramblings” and frequent references to “they” being bad guys and that the statement was more prejudicial than probative under under Evidence Code section 352. (RT 10188-10195.) The defense also objected to damaging and prejudicial statement of the interviewers contained on the tape that were hearsay and not admissible as a prior inconsistent statement 234 of Johnson. bid.) In addition, the defense specifically objected to the portion of the tape in which Johnsontells the police that they have the correct people in custody, but that there are people involved other than the defendants who are out on the streets. (RT 10202-10206.) The prosecution argued that the entire statement was relevant to the witnesses’s state of mind,that is, he was fearful because of what was going on in the streets and thus mightnottestify truthfully. The prosecution conceded that muchof the statement was not admissible for the truth of the matter asserted. (RT 10206-10207.) | The court tuled the tape would be playedinits entirety to the jury with the instruction that the statements could only be considered asit bears on the state of the mind and credibility of the witness. (RT 10211.) When the court instructed the jury before the playing of Johnson’s taped statement, however, it gave the standard instructionregarding prior inconsistent statements, which included the provision that the jury could consider the prior statement forthe truth of the matter therein if they did not believe a witness’s testimony. (RT 10214-10218.) Detective Lambert testified that he, DDA Kevin McCormick and Detective Walter Hampton surreptitiously tape recorded their interview of William “Amp” Johnson on November28, 1994; an edited version of that tape recorded statement was played to the jury. (RT 10219-1 022.) According to Johnson, a house on Desmond was sometimes a Family location for drug sales, but sometimes Johnsonsold drugs there independently, when the Family wasn’t operating from the location. (3 SUPP CT 10601-10602.) At this time, there was one dope man in Pacoima, and that man would not get involvedin sales by individuals until he saw material indicia that the person wasprofiting from the sales; then 235 “something might happen”to the person who wasprofiting. (3 SUPP CT 10603.) Nothing had changed in Pacoimasince the homicides in 1988, and there was pressure onthestreets keep one’s mouth shut. (3 SUPP CT 10604-10605.) Johnson used to do freelance drug sales, and he hungoutat the carwash,at the poolhall and at Hansen Dam;the organization wasnot a gang, but a business. (3 SUPP CT 10605-10607.) Johnson bought from them because it was the only safe way to do business in Pacoima, but the | was nevera salaried employee. (3 SUPP CT 1061 1-10613.) Johnson is younger than the Bryant brothers and did not hang out with them. (3 SUPP CT 10607.) When Johnson wasreleased from prison, he wasaskedif he needed some work, and he declined. (3 SUPP CT 10607.) . According to Johnson,the police had missed lot, but Johnson could not tell them what. The police were dealing with people who hadbasically Tun Pacoimaall ofhis life and whom helookedup to because of the cars they drove and the jewelry they wore. (3 SUPP CT 10607-10608.) Sooner or later they would offer to “show you game,”that is, show you how things work and how to makesurethings did not get back to them. (3 SUPP CT 10608-10609.) Johnson planned to contacthis parole officer and get locked up forthe instanttrial as a way of protecting himself and his family; if he was inj ail, they know heis not telling on them. Johnson explained that there were people in Pacoima who, “for $500 they come burn your whole house down,kill your mama, kill everyone else and then brag aboutit because they knowthey ain’t going to jail, because its been demonstrated.” (3 SUPP CT 10604, 10609, 10616-10617.) At the time of Johnson’s taped interview, things were pretty shaken up in Pacoima, and he thought there was going to be a lot of people dying. (3 SUPP CT 10609.) Johnsonsaid hetold his parole officer that when the 236 - police getto the list of people they wantto talk to about this case, some ~ people would not be around andthat those people would notcareif there were caught and putin jail, because they would rather do that than testify because “theystill got their threat on.”. (3 SUP CT 10609-10610.) The first ttme Johnson wentto prison “was because of them motherfuckers” and that he “ain’t never had a dollarafter that.” (3 SUPP CT 10610.) Now that the case is back, “everybody wantto be friendly and everybody want to be close to everybody because everybody wantto know who’s telling on each other.” (3 SUPP CT 10610.) If he was made to testify, he would not say anything that will damage them in any way because“you can’t get no police - protection, ain’t enough fundage[sic].” (3 SUPP CT 10613-10614.) Johnsonsaid that “they can reach out and touch”him at Pelican Bay or in other prisons. (3 SUPP CT 10614-10615.) During the interview, DDA McCormicktold Johnson that he would _ “do absolutely everything that needs to be done to make sure that they don’t get away with killing a two-year-old baby.” (3 SUPP CT 10611 .) Johnson agreed that the killing was “cold-hearted” and “didn’t have nothing to do with what was going on,” that he couldn’t “see anybodykilling a child for no reason.” (3 SUPP CT 10611.) | ii. Testimony And Statements Of Lawrence Walton Priorto the testimony of Lawrence Walton, the defense objectedto the “series of witnesses that the prosecution is putting on,”i.e., former employeesof the alleged organization havesaid they areafraidto testify. (RT 10535.) Specifically, counsel argued Walton’s testimony was repetitive, cumulative and more prejudicial than probative under Evidence Code section 352 in thatit created an unacceptable risk the jury would 237 convict the defendants not on the evidence but because “they were bad guys and had a very bad organization and they were out doing bad things.” (RT 10535-10537.) The defense also argued that evidencerelating to narcotics sales was irrelevant to any count charged in the instant case. (Ibid.) The court ruled the evidence admissible since one defendant disputed the existence of a drug organizationin his opening statement, and Walton will identify all defendants as participants in the drug operations. (RT 10536.) Lawrence Waltontestified that he did not wantto be in court because this was all part of his past. (RT 10538-10539, 10545.) He identified photographsof various alleged Family members,includingall four defendants. (RT 10541-10544.) According to Walton, when he worked at the Fenton location, people cameto the house and received a slip of paper with a numberonit in exchange for money; the people wouldtake those slips to anotherlocation to receive narcotics. (RT 10547-10550.) Walton denied that there was an organization known as the Family, that appellant wasthe bossofit, or that appellant would bail Walton outofjail. (RT 10550-10552.) Walton denied working for the Family, testifying that he worked for himself and that he once worked for Nash Newbill at the pool hall. (RT 10558.) Walton sold drugs at the Hansen Dam, Filmore Park and the dead end of Adelphia, among other places. (RT 10560.) Walton did not recall many other statements attributed to him by Lambert. (RT 10561- 10572, 10604.) Walton used to make large deliveries of narcotics to people, and he once delivered a quarter kilo to Billy Fields. (RT 10584.) According to Walton, Wheeler was dressedniceall the tume when he was on the street and wore a thickgold chain around his neck. (RT 10582.) In 1988, James Franklin Williams was knownas “Jay Baby”, workedat the pool hall and at the Wheeler house, told jokesall the time, and wastall and 238 fat. (RT 10586., 10591.) Walton knew Smith only as “Duke.” (RT 10593.) Prior to the testimony of Los Angeles County District Attorney Investigator Steven Johnsonabouthis interview of Walton,the defense again objected under Evidence Code section 352. Counsel argued that a taped statement of Walton to be introduced through Investigator Johnson did not contain statements that were inconsistent with his testimony and that Walton’s fear of testifying was conveyed while he was on the stand. (RT 10675.) Counsel argued that the tape was repetitive regarding the witnesses being frightened: I think it has the effect of having the jurors to convict[sic] these guys because they’re bad guys and not on the evidence. [{]] Thatis really the purpose of the DA introducing this type of evidence. He does not have a case as to the homicidesso heis trying to make them the worst guysin the world. (RT 10675.) The prosecution argued the tape was “important” becausein it Walton said his prior statements to police were truthful, but that he was not going totell the jury the truth. (RT 10676.) Defense counsel replied that Waltontestified that his prior statement was true. (RT 10676.) Thetrial court ruled the entire statement was admissible on the issue of the witness’s credibility in that Walton testified he did not recall if he said he was fearful about testifying. (RT 10677-10679.) At the sametime,the trial court cautioned the prosecution to be mindful that its opinions aboutthis case stated during these surreptitious recording will be played to the jury. (RT 10678-10679.) The trial court also instructed the prosecution not to go through the entire interview of Walton by Detective Lambert, finding most of it cumulative. (RT 10679-10680.) 239 Investigator Johnsontestified that he was present for an interview by DDA McCormick of Lawrence Walton at 8:50 p.m. on the morningthat Waltontestified; the entire conversation was tape recorded without Walton’s knowledge, and that tape was played for the jury. (RT 10681- 10684.) Walton said that he did not wantto testify because he was through with the druglife, that he had not been arrested for drugs since 1988, that he did not associate with any of those people anymore, that he would nottell the truth if called to the stand because that life was behind him, that he had a job anda little boy, and that if he testified he would have to look over his shoulder for years to come. (3 SUPP CT 10468-10472.) Detective Lambert testified that he interviewed Lawrence Walton on June 17 and June 23, 1992, but these interviews were not tape recorded. (RT 10688.) According to Walton’s interview statements,he waspart of the organization knownas the Family, which included both the Bryant and the Settle brothers, and appellant was the boss. (RT 10689, 10691, 10697.) Membershe had seen at the Wheeler house included appellant, William Settle, Darrell Blaylock, Newt Newbill, Tony Johnson, Ben andSlimm. | (RT 10691.) The purpose of the meeting at the pool hall regarding the institution of the 90 minute schedule wasto get the maximum amount of sales and to introduce people to the new system regardingselling at the | Fenton and Adelphia locations. (RT 10689-10690.) Walton operated one of the roving sales locations, and he would call the pool hall when he movedtotell them his new location. (RT 10691-10692.) Either Tony Johnsonor Frank Settle gave Walton more drugs when needed, and the narcotics were fronted to him and the money obtained through sales was turned over to other people. (RT 10692.) 240 Lambert was present during a tape recorded interview of Walton on October 28, 1994. Accordingto this interview, Walton never took orders from appellant and wasnot hired by appellant; everyone out buying and selling drugs waspart of one big family. (RT 10699-10703.) Walton did not know anything about coappellant Smith, and codefendant Settle was a loner with whom Walton never dealt. (RT 10706, 10712.) iii. Testimony And Statements Of Ladell Player Prior to the testimony of Ladell Player, defense counsel objected under Evidence Code section 352 to the admission of portions ofhis out-of- court statements in which he: stated that out of fear he bought drugs from the Family and no oneelse; referred to a number of violent incidents unrelated to the instant crimes; referred to threats perceived or received; and told police what the word onthe street was about the homicides. (RT 10226-10227.) The prosecution said it had no intention ofeliciting what Player had heard onthestreets, but it planned to get into otherparts of his statementif Player went “backwards.” (RT 10227.) The court deferred ruling pendingthe testimony of Player. (RT 10228-10229.) | Ladell Player testified that he started selling drugs when he was 20 years old and sold for about six years, until 1990. (RT 10235-10236, 10268.) He had an arrangement to purchase regularly nine ounces of cocaine from appellant. (RT 10236-10243.) Player would payat the Wheeler house, and afterward Amp Johnson or Darrell Blaylock would deliver the drugs to Player’s apartment. (RT 10241-10242.) He negotiated the price of the nine ounces with appellant; the price varied from $4,200 to $4,500. (RT 10247.) The term “the Family’ was used to refer to people whodealt with appellant in those days. (RT 10248.) After the homicides, 241 Player continued to purchase from the same group of people, only then through Nash Newbill. (RT 10248-10249.) Playertestified that he met Leroy Wheeler in 1986, when Wheeler sold drugs aroundthe Terra Bella apartments. (RT 10253.) Player also knew Lamont Gillon as someone who delivered drugs, and Jay, a big kid, from the Wheeler house. (RT 10258- 10259.) | Player did not cometo court voluntarily, but rather was arrested and brought to court. (RT 10264.) He believed that testifying in this case would help him get a sentenceof less than 30 yearsto life in his federal narcotics distribution case. (RT 10270.) Healso told the prosecutorthat he would probably say just about anything so he could get back onthestreet | and get high again. (RT 10291.) Player further testified that he was currently in a half-way house and admitted he told police that he would rathertestify againstJohn Gotti than this organization. (RT 10345-10347.) Player otherwise denied the statements attributed to him by DDA Maurizi and those contained in a videotape. (RT 10251-10267.) DDAJanice Maurizi”testified that she was present for a February 6, 1991 interview of Ladell Player. (RT 10368.) Accordingto that interview, in 1988, Player had been going to the Wheeler house weekly for five months, where he paid money to Jay Williams, Antonio Johnson, codefendant Settle, Lamont Gillon and coappellant Wheeler. (RT 10369- 10370; 10373.) On the day after the homicides, Player walked up to the front porch of the house, saw the blood andthepolice tape,andleft immediately. (RT 10369-10370.) He and Billy Fields went to court in the °° DDA Maurizi was removed from prosecutingthis case as a result of a successful defense motion to recuse the Los Angeles District Attorney’s office (later reversed on appeal). (See ArgumentI, ante.) 242 San Fernando Valley two or three days after that, where Player saw and talked to appellant. (RT 10370-10371.) Player told appellant that he had gone to the Wheeler house, described what he had seen, and asked what had happened. Appellant told him that “we had alittle problem, but we took care of it.” (RT 103071.) According to DDA Maurizi, appellant told Player he was in court because of a problem he was having with his wife, Tannis. (RT 10371.) DDA Maurizi found a minute orderindicating that appellant was in court for some sort of domestic violence situation. (RT 10372.) According to Player, codefendant Settle and his brothers were high up in the organization andin charge of large shipments involving large amounts of money. (RT 10372.) Codefendant Settle was a “gun nut” and was always armed. (RT 10373, 10382.) Appellant told Player that if anyone messed with him (appellant), appellant would shake theirhand, smile at them, let them think that everything was OK,and then would have them killed because he could not have people going behindhis back. (RT 10375-10376.) Prior to the playing of the videotapedstatement of Player, defense objected under Evidence Code section 352 to portions ofthe tape in which: (1) Player said appellant told him that Tank Hennegan was mistakenly killed and (2) Player expressed displeasure upon learning that appellant received a copy of Player’s statements in discovery. (RT 10420-10427.) The court ordered the prosecution to excise the former but permitted the latter portion of the tape to be Player, ruling it relevant to Player’s reluctanceto testify. (RT 10427.) Defense counsel also objected on hearsay groundsto portions of the tape in which the prosecutor said that a lot of people who deal with the Bryants end up getting killed; the court believed that the jury would take that commentonly as hyperbole, but 243 agreed to instruct the jury that the interview questions were not evidence. (RT 10428-10431.) | The court gavethis instruction and also instructed the jury only that the statements Player attributed to appellant could be used against appellant only. (RT 10487-10488.) However, the courtdid not instruct regarding the properuseofprior inconsistent statements. (/bid.) Brent McCleve, an out-of-state law enforcementofficer, was present in a monitoring room for a December 28, 1994 videotaped interview of Ladell Player by DDA McCormick. (RT 10484-10487.) The videotape wasplayed to the jury.” In that interview, Player recalled someofof the 1991 interview, but he had a bad drug habit at the time and probably would have said just about anything to get back out on the streets. (3 SUPP CT . 10546-10547.) Player could not get involvedin this case; he had given up Tommy Chavez, and he wasnot goingto testify against anyone anymore. (3 SUPP CT 10548-10549.) Player would rather goto the electric chair than testify against appellant. (3 SUPP CT 10549.) Player couldnotrecall any dealing with appellant, and he lied when he said he met appellant at the Wheeler house. Player had never been inside the Wheeler house, and he never workedfor the Bryants. (3 SUPP CT 10550-10551 .) Player denied that he ran into appellant at thecourthouse; it might have been Billy Fields that had gone to the courthouseor who had heard somebodytalking about °° The recordis notentirely clear as to whether the entire tape was played, whether there was an edited portion, or whether the transcription in the SUPP CTreflects the portion that was played. In addition, the court stated that something was “mixed in” on the second portion of the tape that should not have been. Court told the prosecutorto edit tape before it was received into evidence. (RT 10495-10496.) These ambiguities were the subject of settlement requests, which were denied. 244 that. (3 SUPP CT 10552-10553.) Player wouldtestify that he did not know appellant because “what Stan’s got going on right now is none of my business.” (3 SUPP CT 10554.) If called to testify, Player would say he did not know anything about the family drug organization and that he just went to jail for selling drugs in Minnesota. (3 SUPP CT 10556-10560.) Player © would not voluntarily testify in court in this case. (3 SUPP CT 10561- 10570.) He would nottestify because he wanted to go home for Christmas, and putting his parents in the witness protection program would not make any difference. é SUPP CT 10564-10565.) Player ended the interview in dismay after learning that appellant had been provideddiscovery relating to Players statements. (3 SUPP CT 10569.) b. TheTestimony AndStatements Of Johnson, Walton Were Inadmissible This evidence should not have been admitted under California Evidence Codesections 352 and 1101. Admission of the Johnson statements was extremely prejudicial to appellant, while its probative value wasslight. In fact, the only evidence relevant the issue of appellant guilt came in through Johnson’s testimonyattrial: he testified that in 1987 he sold narcotics for appellant and Jeff Bryant. (RT 9993.) Johnson’sprior statement wasnotinconsistentin this regard, but rather contained referencesto the bad character of drug dealers in Pacoima; there was no connection between these vague and ambiguous statements and the circumstances leading to the killing of Armstrong and the others. Johnson’s statements were minimally probative of appellant’sindividual culpability in the instant crimes, and highly prejudicial and inflammatory in that appellant wascategorized part of a very bad organization that threatened and killed | people to preserveits interests. The error in admitting this evidence was 245 compounded whenthetrial court erroneously instructed, contrary to its prior ruling, that Johnson’s statements could be consideredfor the truth of the matter asserted, rather then only as it bore on Johnson’s state of mind and credibility. (RT 10211, 10214-10218.) | Similarly, while parts of the testimony and out-of-court statements of Lawrence Walton and Ladell Player relevant to the instant case and arguably more probative than prejudicial (as described in relevantpart in the Statement of Facts, ante), much of what was adduced was irrelevant and/or cumulative to the issues. in the instant case and highly prejudicial. The out-of-court statements of these men conveyed to the jury the witnesses’s reluctanceto testify in this case and allowed the prosecution to argue that appellant was the West Coast equivalent of John Gotti. Player’s concern that the prosecution had discovery obligations to the defense was simply not relevant to any material fact in issue, was notinconsistentto any of his testimony and, even if deemed relevant, was moreprejudicial that probative given the fact that the reasons for the witnesses’s reluctance to testify had already been explained. _The cumulative impactof the “drug operations” and the testimony and statements of its former employees shifted the focus from the properly admittedtestimony and turnedthetrial into what was essentially a character assassination. In light of its misleading nature and minimal probative value, the bad character evidence should not have been admitted. 5. The Attacks On Keith Curry a. Proceedings Below The prosecution sought to introduce evidencethat: (1) in 1986 Keith Curry suffered injury after a pipe bomb explodedas heleft the apartmentof Tannis Bryant, the estranged wife of appellant; and (2) in 1987coappellant 246 Smith shot Keith Curry, who was then married to Tannis, after appellant put a contract out on Curry.”” (RT 10936-10937.) Appellant objected to the admission of the car bombing as irrelevant and more prejudicial than probative under Evidence Codesection 352.” (RT 10939-10941, 10948, 11285-11286.) | With regard to the shooting of Keith Curry, appellant joined in coappellant’s Smith’s objection, in which he argued that evidence was irrelevant and also inadmissible under Evidence Codesections 1101, subdivision. (a) and 352, in that the incident was domestic innature and not relevant to the motive for the instant crime,1.e., that Armstrong and the others were killed to protect the interests of the drug operations. (RT 10939-10941.) Appellant’s counsel also argued the additional prejudice from the evidence in that Keith Curry would testify from a wheelchair, as he was subsequently paralyzed in an unrelated shooting.” (RT 10948.) Thetrial court ruled the evidence of the shooting was relevant and moreprejudicial than probative to show the relationship between appellant and coappellant Smith and was admissible under Evidence Code1101 to show that coappellant Smith would shoot someoneat the request of appellant. (RT 10950.) However, the court precluded the prosecution from . *” Coappellant Smith pled guilty to the shooting of Keith Curry. (RT 10949.) 8 The erroneous admission of evidence regarding the Keith Curry car bombing over appellant’s claim of marital privilege is addressed in Argument, VIII, post.) °° Mr. Curry’s paralysis was nota result of the shooting by coappellant Smith. (RT 11274.) The trial court excluded evidencerelating to the shooting of Mr. Curry that resulted in his paralysis. (RT 10949, 11292-11293.) 247 eliciting from Keith Curry his belief that appellant hired coappellant Smith to commit the shooting. (RT 10942-10943, 11299.) . The next court day, coappellant Smith was permitted to continue his objection to the admission of this evidence. He argued that the real purpose of the evidencewasto establish coappellant Smith’s identity as a shooterin the instant case. (RT 11150-11154.) He further argued that there existed insufficient similarities in that: the shooting of Keith Curry was over a domestic issue, while the prosecution’s motive for the instant crimes was that the killings occurred in order to protect the interests of a narcotic organization; the prosecution would not be able to connect the Curry shooting to appellant; and the crimes bore no commonsignature, since the Curry shooting occurred in the street and the instant shooting was an ambush in a house. (RT 11154-11155.) The prosecution countered that the evidence was offered not to establish identity but rather to show a commonschemeorplan, 1.e.,, that at appellant’s request coappellant Smith shoots men whosleep with Tannis; the prosecution proffered they would show through testimony of Andrew Greer that Tannis and Armstrong were involved in a sexual relationship at the time Armstrong waskilled and that appellant was awareof that relationship. (RT 11 157, 11 160.) The prosecution further proffered that Pierre Marshall would testify that in 1988, appellant admitted being involved in the Keith Curry shooting while mimicking a paralyzed person. (RT 11259-11260.) The court indicated that, based on Ewoldt, it was considering reversing its ruling on the admissibilityof the evidence regarding the shooting of Curry, finding dispositive the issue of whether appellant knew of the relationship between Tannis and Keith Curry and harbored some 248 animus because of their relationship. (RT 11158.) Coappellant Smith | disclosed that it was his position that coappellant Smith shot Keith Curry because the latter took coappellant’s children out with him on drug deals to distract the police. (RT 11160.) The court deferred ruling in favor of a Evidence Code section 402 hearing regarding Keith Curry’s testimony. (RT 11161-11162.) - | In response to the court’s examination, Keith Curry testified that whenhestarted his relationship with Tannis, he was dealing drugs in Pacoima; he did not know appellant, and he did not attempt to hide his relationship with Tannis. (RT 11262-11264, 11266.) Several monthsafter they were dating, a bomb exploded in his Porsche as Curry left Tannis’s apartment. (RT 1 1264-11265, 11270.) He did not receive threats prior to this injury, nor did he or Tannis know why he was targeted. (RT 11267.) He maintainedhis relationship with Tannis after the incident. (RT 11268.) Keith Curry knew coappellant Smith; the latter was married to a sister of Tannis. (RT 11272-11273.) Keith Curry was shot in the faceby coappellant Smith while the two talked; he had no idea why coappellant Smith shot him. (RT 11271.) Coappellant Smith argued there existed no competent evidence linking the incident to the “Bryant organization,” no similarities of common plan or scheme and the evidence wasbeing introducedfor the inadmissible purpose of showing that someone of Smith’s stature in the organization would commit the Wheeler house homicides. (RT 11280-11283.) Appellant joined in this objection and argued the evidence should be excluded under Evidence Code section 352 because the relationship between Keith Curry and Tannis was open, there was no evidence of any 249 threats by appellant and no evidence anyone but Tannis appellant knew of Keith Curry’s location. (RT 11285-11286.) | The prosecution replied that the Keith Curry shooting wassimilar to the instant homicides in that Tannis pretendedto be close to both Curry and Armstrong before they were shot; however, in responding to appellant’s argument that there was no evidence that Tannis played any role in the instant homicides, the prosecution stated that while there was evidence of a commonplan or schemeasto the relationship between Tannis and the two men, that was not the purpose for which the evidence was being offered. (RT 11286.) Theprosecution arguedthat the evidencerelating to the timing of Curry’s injuries was circumstantial evidence of what appellant knew and thought about the relationship between Curry and Tannis. Regarding the car bombincident, the prosecution proffered that Gwendolyn Derby would testify that she heard Tannis say that appellant admitted that he was responsible for the car bombing incident. (RT 11287.) In responseto the court’s inquiry, the prosecution said Andrew Greer wouldtestify that: Tannis and Armstrong were involved in a sexual relationshipof which everyone was aware; on the day of the homicides Armstrong wanted Tannis to take guns ‘in her purse in case “Dude”tripped; Armstrongleft for the Wheeler houseafter dropping off Tannis at her relative’s apartment; Greer refused to go to the Wheeler house after seeing this; while dropping Greer off, Loretha Anderson and her two kids got in the car and went to the Wheeler house with Armstrong and Brown. (RT 11288-11289.) All defense counsel objected to the admission ofthe evidence - regarding the Keith Curry assaults undersection 352, arguing that it was a “mini case” that, after two months of testimony that the motive for the 250 killings was drug-related, to introduce evidencerelating to a different theory for the instant homicides. (RT 11285, 11290-11292.) The trial court ruled both incidents admissible. (RT 11293.) The court found the evidence that coappellant Smith shot Keith Curry, a man he had no apparent “beef” with, “strongly suggestive” that he didit atthe request of appellant because of Tannis’s affair with Curry, and that such evidence was probative of appellant’s and coappellant Smith’s guilt of the instant crimes insofarasit tends to show that appellant uses coappellant Smith to commit violent acts for him. (RT 11294-11297.) The court found the evidence of the Curry shooting admissible to show coappellant’s Smith’s identity as the shooter in the instant case, finding that the common marks shared were Tannis Curry’s “central involvement”in both incidents and coappellant Smith’s friendship with andability to lure the victimsto. locations where they are shot.'° (RT 11297-11299.) Thecourt further noted its ruling was dependent upon the prosecution proving upits proffers regarding the testimony of Andrew Greer, Tannis Curry, Pierre Marshall and Gwendolyn Derby. (RT 11300-11301.) Prior to the testimony of Keith Curry, the court instructed the jury that the evidence was admissible only as to appellant and coappellant Smith as to the issues of intent and motive for the charged crimes,the identity of the person who committed the charged crimes, and “as it may tend to prove the relationship between Mr. Bryant and Mr. Smith in this case.” (RT 11314.) '° There was evidence that Armstrong and coappellant Smith once shared a common address, and Smith was Keith Curry’s brother-in-law. (RT 11297.) 251 b. The Evidence Relating To The Attacks On Keith Curry Was Inadmissible The evidence regarding the attacks on Keith Curry wereirrelevant to the prosecution’s proffered motive, i.e., that Armstrong was killed because of threats he posed to appellant and appellant’s alleged business. Indeed, the trial court found the evidence admissible only as to the secondary ‘motive: the theory that appellant would kill anyone who slept with his ex- wife. However, the court’s decision, which it clearly considered a close one, turned on whether appellant knew ofthe affair between Curry and Tannis and whetherthere existed evidence that he was angry about the affair. As is argued post, evidence regarding these predicate facts was erroneously admitted in violation of appellant’s marital privilege. (See ArgumentVIII, post.) Without that erroneously admitted evidence, the predicate facts that appellant knew Tannis was having an affair with Keith Curry and that appellant was angry aboutthat affair were not established. Thus, the evidence of the car bombing as well as the shooting of Keith Curry by coappellant Smith were improperly admitted against appellant, since there existed no admissible evidence of a motive for appellant to want Keith Curry harmed. In addition, there was no evidence adduced attrial that appellant knew ofthe affair between Tannis and Armstrong,so the theory that the affair was the motive for the instant homicides fails as well. Mostegregiously, however, the trial court’s decision to instruct the jury that they could consider coappellant Smith’s shooting of Keith Curry as evidence of appellant’s identity as the perpetrator of the instant crimes was without basis in law, contrary to the prosecution’s purpose for offering the évidence and contrary to the court’s own ruling regarding the permissible use of the evidence. The prosecution specifically stated the evidence was 252 not being offered to establish identity as to appellant, but rather to show a common plan or scheme,that is, at appellant’s request, coappellant Smith shoots men whosleep with appellant’s ex-wife. (RT 11160.) The trial court specifically found that the shooting of Curry by coappellant Smith | wasrelevant on the issue of identity only as to coappellant Smith. (RT 11297-11299.) This ruling was erroneous,as the shooting of Mr. Curry with a handgunbyhis brother-in-law while each wassitting in his car on a public street was hardly a mirror image of the shooting of Armstrong and Brown in a private homeby multiple shooters using multiple shotguns and certainly did not eliminate the possibility that anyone other than appellant was behind the charged offense. (People v. Huber, supra, 181 Cal.App.3d at p. 622; People v. Balcom, supra, 7 Cal.4th at p. 425.) In any event, as stated by this Court in Ewoldt, “it is imperative that the trial court determine specifically what the proffered evidence is offered to prove, so that the probative value of the evidence can be evaluated for that purpose.” (People v. Ewoldt, supra, 7 Cal. 4th at p. 406.) In this case,the trial court specifically | determined that, as to appellant, the probative value of the evidenceasit related to acommon plan or scheme was outweighedbythe prejudice. It erred in failing to instruct the jury that it could consider the shooting of Keith Curry as it relates to coappellant Smith’s identity only. 6. In This Case, Other Crimes Evidence Was Inadmissible On TheIssue Of Intent The court erred in admitting all other crimes evidence on the issue of intent, because evidence of intent was irrelevant. Evidence is only relevant if it has a tendency to prove or disprove a “disputed fact.” (Evid. Code, § 210; see 1 Witkin, Cal. Evid. 4th (2000) Circum Evid, § 88, p. 428 253 [evidence of other offenses is admissible to show intent or motive, where they are disputed by defenses such as mistake, accident, or insanity].) The defense did not dispute the killings in this case were premeditated. (RT 8728.) As counsel pointed out, “shooting people inside a cageis going to show ample evidence of premeditation;”in the alternative, counsel argued the evidence was cumulative as to the issue of intent. (bid.) The circumstances of the crime as established by the physical evidenceleft no doubt about the intent of the shooters in this case. The disputed issue was | their identity. Even if this Court determines that intent was a disputed issued, the minimal probative value of the evidenceas it relates to the issue of premeditation was far outweighed bythe prejudicial effect of evidence of other crimes evidenceupon the jury. The trial court erred each timeit instructed the jury it could consider the evidenceas to the issue of intent and/or premeditation. D. The Admission Of Bad Character Evidence Violated Appellant’s Constitutional Rights The admission ofthis evidence violated appellant’s right to due process under the Fourteenth Amendment, which “protects the accused against conviction except upon proof [by the State] beyond a reasonable doubtofevery fact necessary.to constitute the crime with which heis charged.” (In re Winship, supra, 397 U.S.at p. 364.) The trial court’s erroneous admission of the evidence lightened the prosecution’s burden of proof, improperly bolstering the credibility of witnesses and permitting the jury to find appellant guilty in large part because ofhis criminal propensity. (See e.g., Sandstrom v. Montana (1979) 442 U.S. 510, 520-524.) The introduction of such evidence soinfected thetrial as to render appellant’s 254 convictions fundamentally unfair. (Estelle v. McGuire, supra, 502 U.S.at p. 67; see also McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378.) In addition, the admission ofthis evidence violated appellant’s due processrights by arbitrarily depriving him ofa liberty interest created by Evidence Codesection 1101 not to have his guilt determined by propensity evidence. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346-347.) By ignoring well-established state law that prevents the State from using evidence admitted for a limited purpose as general propensity evidence and excludes the use of unduly prejudicial evidence, the state court arbitrarily deprived appellant of a state-created liberty interest. . Appellant was also deprived ofhis right to a reliable adjudicationat all stages of a death penalty case. (See Lockett v. Ohio, supra, 438 U.S.at pp. 603-605; Beck v. Alabama (1980) 447 U.S. 625, 638; Penry v. Lynaugh, supra, 492 U.S. at p. 328, abrogated on other grounds Atkins v. Virginia (2002) 536 U.S. 304.) E. The Use Of Bad Character Evidence WasPrejudicial The prosecution’s case against appellantas to the instant crimes was far from overwhelming, and relied on witnesses of dubious credibility to establish the key facts that connected appellant to the shootings. To persuade the jury that appellant was guilty, the prosecutor sought to significantly bolster its case through innuendoand character assassination by introducing extremely inflammatory evidencethat portrayed appellant as a person of bad character and as a memberofan organizationthatkills. Noneofthis evidence had any relevance to the murders, but was likely to inflame the jury and misleadit with regard to appellant’s guilt. The — prominenceof the other crimes evidence in the prosecution’s case cannot be overstated. The sheer volume ofthe testimony of uncharged offensesis 255 staggering — it literally went on for months and involved dozens of witnesses. . The prosecution’s closing argumentis replete with references urging the jury to convict appellant because he was a memberofa groupofwith a propensity for violence such that the entire community was threatened. The prosecution personified this organization as a beast that expands and grows, one that does not break stride with police raids or the killing of innocent people. (RT 16430P.) The People told you [in opening statements] you were going to hear about an organization, the biggest most violent drug organization that anyonecould imagine and that you would wish did not exist. {I do believe that is what you’ve heard aboutin this case. § It hasn’t changed. It adapts. (RT 16430S.) They are an organization that has existed for a long, long timein this county getting by on selling dope, poisoning their fellow citizens, intimidation, threats, paying off witnesses, killing people, blowing people up, beating people. § The worst you can imagine, folks. And they have been getting away with it for years. § This is an organized crime case... because this is the way these peopleare. . . .[{{] The reason the law treats an organized crime case differently than one individual who goes out and does the robbery, when you are dealing with groupsof criminals the threat to the public is much greater. The ability of law enforcement to apprehend them and do anything about them is much, muchharder. § It is just like dealing with the Mafia, whenthey have a huge organization of thugsand killers out there in the streets. (RT 16430T.) You are dealing with an organization that has perpetuateditself by intimidation, threats, by paying off witnesses, by beating uppeople, by blowing up people, and by killing people. And, you know, everybody in the community knows whatthese people are, and everybody’s attitude is the same. They all want to see them prosecuted, but when it comestimeto be a witness, they all have just 256 that attitude, you can do it without me... . “The truth about what these people are . . . and the truthabout the harm to society that is done by an organization like that...” (RT 16490-16491.) The prosecution called it a “very powerful, violent, wealthy organization run by Stan Bryant, that has hundred and fifty to two hundred employees, an organization you all wish never existed, and an organization responsible for killing a baby, innocent woman and two other men on August 28".” (RT 16494.) The prosecution continued its theme of referencing uncharged offenses throughoutits closing argumentto the jury. The prosecution argued the William Johnson taped gavejurors “insight on these people” and showedtheeffect of the organization on the peoplein Los Angeles. (RT 16475-16476.) With regard to the bribe of Rhonda Miller, the prosecution argued she cried whiletestifying in this case about the incident because “her life went downthe toilet after taking this money and she wasliving onthe street for years.” (RT 16550-16451.) Likewise Francine Smith was categorized as “Bryant’s victims, victims of the organization” and it argued that appellant did nothaveher killed because he thought he could make moneyoff of her: “This case is about greed, money ~ and power. It is about protecting an empire they have built that has lasted all these years.” (RT 16471-16472.) | The prosecution repeatedly exploited the irrelevant and highly inflammatory portions of the taped statement of Player that he would “rather go to the electric chair than testify against John Gotti” (RT 16483, 16494) and Player’s belief that appellant would present a friendly face to someone before having them killed. (RT 16484.) 257 In rebuttal argument, the prosecution argued “And I can get up here and yell and scream andtalk about what a horrible, greedy person that Stan Bryantis, I can talk aboutall the people he’s murdered and beaten.” (RT 16783.) It further argued that appellant is head of an organization that thrives on teaching young kids that violenceis the better way. (RT 16785, 16787.) | - Appellant was further prejudiced by the erroneous admission of voluminousother crimes evidencein this case bythetrial court’s failure to properly limit the jury’s consideration of this type of evidence. Argument XV,post, is incorporated by reference herein. Given the weaknessin the prosecution’s case, which essentially relied on James Williams, who admitted being present at and assisting in the killings, and codefendant Settle, who madeup the best story he could in order to save himself, its reliance on this inflammatory evidence was extremely prejudicial especially in the absence of an adequate limiting instruction. Reversal is required because the error was not harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) RF, Conclusion The admission of wholly irrelevant and highly inflammatory evidence of uncharged misconduct rendered appellant’s trial fundamentally unfair and requires reversal of the conviction, special circumstance finding and death judgment. // i 258 Vill THE TRIAL COURT’S ERRONEOUS OVERRULING OF APPELLANT’S CLAIM OF MARITAL PRIVILEGE RESULTED IN THE ADMISSION OF EXTREMELY . PREJUDICIAL EVIDENCE REGARDING ATTACKS ON KEITH CURRY The prosecution’s ability to establish the factual predicate for the admissibility of all of the evidencerelating to the attacks on Keith Curry turned on thetrial court’s erroneousruling that appellant did not have a marital communicationsprivilege to prevent testimony aboutan alleged conversation between appellant and his then-estranged wife in which he was said to have admitted responsibility for harmingKeith Curry. Thetrial court’s error resulted in the erroneous admission ofirrelevant and highly inflammatory evidence that was far more prejudicial than probative on the issues in this case, and amounted to nothing more than bad character evidence. Its admission violated appellant’s Fifth, Sixth, Eighth, and Fourteenth Amendmentrights and requires reversal. A. Proceedings Below Keith Curry (“Curry”) was injured on March 15, 1986, when a pipe bomb exploded as he drovehis car out of the parking garage of the apartment building where appellant’s then estranged wife, Tannis, was living. (RT 11823.) The prosecution sought to examine Tannis Curry (as she was knownat the timeoftrial and referred to as “Tannis” herein) regarding statements appellant purportedly madeto her in a telephone conversation concerning the pipe bombing and which she repeated toa | ‘woman at a beauty parlor on April 6 or 7, 1986. (RT 11821-11826.) Appellant objected to Tannis being called as a witness, and requested both counsel for Tannis and a hearing to determinethestatus of the marital 259 relationship at the time the statement was made. (RT 11822-11823.) The prosecution argued that even if a valid marriage existed at the time the statement was made,it was not privileged under Evidence Code section 980 since: (1) she was separated from appellant and in a relationship with Curry; (2) she was not asserting the marital privilege; and (3) she waived the privilege by conveying the communication to a third party. (RT 11824- 11825.) Thetrial court conducteda brief examination of Tannis outside the presence of the jury in an attempt to determinethe dates of her marriage to appellant, but the witness refused to answer any questions posed by the court. (RT 11827-11829.) The court then ruled that the prosecution could question herin front of the jury, but after being sworn, Tannisasked to be represented by counsel. (RT 11830-11840.) The court interrupted the’ prosecution’s examination of Tannis in order to permit her to consult with counsel. (RT 11841-11842.) The court later told Tannis’s counsel that if a valid marriage wasin place at the of the statement, People v. Johnson (1991) 233 Cal.App.3d 425 wasrelevant to privilege issues in this case. (RT 11903.) | Another hearing was conducted wherein Tannis was represented by counsel, who informed the court that, in addition to any marital privilege - that may have existed, Tannis’s Fifth Amendment rights were implicated; the court deferred ruling on the matter so court documents could be obtained establishing the date the marriage ended. (RT 11961-11999.) ‘Ata subsequent hearing, court records were introduced that showed that appellant and Tannis’s marriage was dissolved on May 13, 1986 and that the final judgment was entered in September 2, 1986. (RT 12972, 13062.) Counsel for Tannis and appellant argued that the issue of marital 260 privilege should be decided prior to any determination of whether Tannis could claim a Fifth Amendment privilege notto testify; appellant formally. asserted his marital privilege to the alleged communication;thetrial court | indicated that Tannis may have waived herprivilege, and ruled it would require herto testify regarding the circumstances in which the statement was madeso it could determine if the parties reasonably expected the communication to be confidential. (RT 12972-13006.) Prior to her testimony, the prosecution granted Tannis transactional immunity, and she agreedto testify regarding the pipe bombing. The court — ruled her testimony was necessary priorto its ruling on appellant’s claim of privilege under section 980. (RT 13051-13057.) Out of the presence of the jury, Tannistestified regarding the attack and Curry’s injuries, but denied that she called appellant to confront him about the incident and denied that appellant said he was responsible and that he would do it again until Curry was dead. (RT 13057-13061.) | Appellant argued he had a right to assert the marital communication privilege as to the statement since he and Tannis were legally married when the communication occurred. (RT 13062.) The prosecution argued that the statement wasnotthe kindthe privilege was designed to protect because whenit ws made appellant and Tannis were no longerliving together and she was in a relationship withsomeone else. (RT 13062-13063.) Appellant replied that the prosecution’s position was contrary to the law, and noted that if having an affair terminates the marital relationship “then many of us will be in trouble.” (RT 13063.) | The court overruled appellant’s claim of marital privilege, ruling ‘that: (1) given that appellant had been served with the divorce papers in 1983, and given the circumstancesoftheir living arrangements and intimate 261 relationships with other, there was “no real marriage here”of the kind that the law seeks to protect through the marital communications privilege; and | (2) assumingthere was a marriage, there. was no reasonable expectation by either party that the communication would be a privileged one. (RT 13067- 13072.) The court found the situation similar to the Johnson case in that both involved “crimes against the boyfriend” by ex-husbandsin the general proximity of the ex-wife, and found that the differences between this case and the circumstances in the Johnsoncaseto be “a distinction without much of a difference.” (RT 13072.) | Whenappellant pointed out that that the attack was not donein Tannis’s presence nordid it involve hercar, the court foundthat although appellant did not commit a crime against Tannis, he nonetheless committed a “wrong against her” of the type the statute does not intent to protect. (RT 13073-13074.) The court found that appellant’s admission to the bombing to Tannis would, standing alone, likely be privileged, but the added statement that appellant would doit again until Curry was dead madeit a statement that no one would expect to remain private, and that such a statement wasstatutorily exempted from the privilege. (RT 13075.) In response to counsel’s continued argument that appellant and Tannis were living together until shortly before the pipe bombing, the court said the law does not protect threats to kill someone, and noted mandatory reporting requirements in the context of other privileged relationships such as lawyer/client and psychotherapist/patient. (RT 13075-13076.) _ The court also ruled that, for the same reasons, the privilege was not available to Tannisto assert, or, in the alternative, if she did possess the privilege, she waived it when she repeated the communication at the beauty parlor. (RT 13072.) 262 Tannis then testified before the jury and denied appellant made any admissions to her and denied that she repeated his alleged statements to others in a beauty parlor. (RT 13080-13085.) Gwendolyn Derby then testified that she heard Tannis say that appellant admitted he was responsible for the pipe bomb andthat he would doit again until Curry was dead. (RT 13095-13098.) B. Legal Standards In California,all privileges are statutory. (See Evid. Code, § 911, | | subd.(a) ["Except as otherwise provided by statute: [| (a) Noperson has a privilege to refuse to be a witness"].) California recognizes a marital - communicationsprivilege, which provides that a spouse mayrefuse to disclose or may prevent the other spouse from disclosing confidential communications between them during their marriage. (Evid. Code, § 980.) The marital communicationsprivilege is defined in Evidence Code section 980: Subject to Section 912 and except as otherwise provided in this article, a spouse [. . .], whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between him and the other spouse while they were husband and wife. Evidence Codesection 912, subdivision (b) provides that the waiver of the marital privilege provided by section 980 by one spouse doesnot affect the right of the other spouseto claim the privilege. The marital privilege attaches to communications made between spouses until the marriage is legally dissolved; whether the marriage is otherwise viableor intactis irrelevant. (See Jurcoane v. Superior Court (2001) 93 Cal.App.4th 886, 263 894-895 [spousal testimonial privilege as provided by Evidence Code section 970 et seq.is retained even though wife had not lived with husband for 17 years and husband had lived with another woman] .) The Legislature created certain exceptionsto rule of marital privilege. For example, there is no privilege if the communication was made, in wholeorin part, to enableor aid anyone to commit or plan to commit a crime or a fraud. (Evid. Code, § 981.) Section 981 authorizes a limited exception to section 980, however. With reference to section 981, the Law Revision Commission Commentreads in part: It is important to note that the exception provided by Section 981 is quite limited. Jt does not permit disclosure of communications that merely reveal a plan to commit a crime or fraud; it permits disclosure only of communications made to enable or aid anyone to commit or plan to commit a crime or fraud. Thus, unless the communication is for the purpose of obtaining assistance in the commission of the crime or fraud orin furtherancethereof, it is not made admissible by the exception providedin this section... . Thus, statements made by one spousebefore the alleged commission of an offense as to what he intended to do, why he intendedto doit or how he intended to do it, or, after the alleged commission of a crime, as to what he had done, whyhe had doneit or how he had doneit, are communications, within the privilege of Evidence Code section 980. (People v. Dorsey (1975) 46 Cal.App.3d 706, 719.) Upon timely objection and claim of privilege, such testimony must be excluded. (Jbid.) Evidence Codesection 985 codifies other exceptions to the marital communications privilege. It provides in relevantpart: Thereis no privilege underthis article in a criminal proceeding inwhich onespouseis charged with: 264 (a) A crime committed at any time against the person or property of the other spouseor ofa child ofeither. (b) A crime committed at any time against the person or property of a third person committed in the course of committing a crime against the person or property of the other spouse. Privileges and their exceptions are statutory creations which cannot be altered by judicial interpretation. "[T]he Legislature has determined that evidentiary privileges shall be available only as defined bystatute. ([ ] § 911.) Courts may not add to the statutory privileges except as required by state or federal constitutional law [citations], nor may courts imply unwritten exceptions to existing statutory privileges. [Citations.]" (Roberts v. City ofPalmdale (1993) 5 Cal.4th 363, 373, emphasis added.) This Court reaffirmedthis rule: "The privileges set out in the Evidence Codeare | legislative creations; the courts of this state have no power to expand them or to recognize implied exceptions. [Citing Roberts.]" (Wells Fargo Bank y. Superior Court (2000) 22 Cal.4th 201, 206, emphasis added.) The Legislature has addressed marriage in other statutes. "Marriage is a personal relation arising out of a civil contract between a manand a woman, to whichthe consentof the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division..." (Fam. Code, § 300.) Moreover, the Legislature has also defined how marriages can be dissolved: "Marriage is dissolved only by one of the following: [§] (a) The death of one ofthe parties. [{] (b) 4 judgmentofdissolution ofmarriage. [{] (c) A judgmentofnullity of marriage." (Fam. Code, § 310 (emphasis added).) 265 As shown below,appellant’s marital communicationsprivilege remained intact at the time the alleged conversation between appellant and his then-estranged wife Tannis took place, andthetrial court erroneously permitted testimony regarding that privileged conversation. C. Appellant Had A Right To Assert His Marital Communications Privilege To Preclude The Testimony Of Tannis Curry Relating To The Alleged Admission of Appellant There was no dispute that appellant and Tannis werelegally still married when the communication in issue allegedly took place, nor could there have been. The pipe bombingtookplace on March 15, 1986 andit was Claimed that Tannis repeated the content of her conversation-with appellant on April 6 or 7, 1986. The marriage wasdissolved on May13, 1986, andfinal judgmentin the divorce was entered on September 2, 1986. Unquestionably, the appellant and Tannis were legally married when the alleged communication took place. Based on those facts, appellant had a right under Evidence Codesection 980, given his timely assertion of the marital communications privilege, to prevent disclosure of any statements he may have made to Tannis concerning the attack on Keith Curry. Thus, the trial court erred in permitting the testimony of Tannisin this regard. - - Thetrial court mistakenly relied on People v. Johnson, supra, 233 Cal.App.3d 425 to support its ruling that the law did not extend the privilege to legally married people who were not longerliving together. In People v. Johnson, supra, 233 Cal.App.3d 425, a wife testified against her husband, a defendant in a preliminary hearing, without any assertion of privilege by the defendant that, while inflicting a beating onher, he told her that what happenedto the victim in the criminal case could happento her.. Atthe time of the wife’s testimony, the defendant wasalso chargedin 266 another criminal proceeding with attempting to murder her. Thelatter charges werelater dismissed. Attrial, the defendant attempted to assert his marital communicationsprivilege, but the trial court found it waived when his wife testified at the preliminary hearing. On appeal, the defendant argued that because that charge was dismissed beforetrial, the statements he madeto his wife should have been afforded the protection of the privilege at trial. The Court of Appeal found the waivervalid under Evidence Codesection 912, subdivision (a), which providesin relevant part that the privilege is waived when a holderof the privilege consents to the disclosure of a significant portion of the communication. In responseto the defendant’s additional claim on appeal that his counsel wasineffective for failing to assert the marital communicationsprivilege to prevent the wife’s testimonyat the time of the preliminary hearing, the Court of Appeal ruled counsel was notineffective because there existed no marital communicationsprivilege under Evidence Code section 985, subdivision (a), which providesthere is no such privilege in a criminal proceeding when a defendantis charged with a crime against the spouse. (233 Cal.App.3d at pp. 437-438.) TheJohnson court commented: Wedoubt, too, whether the statements assumed the mantle of confidentiality when they were first made, inasmuch as defendant, in abusing Lenora, abused the relationship on whichthe privilege is predicated. In People v. Carter (1973) 34 Cal.App.3d 748, the court held a marital communication, made while the husband wasassaulting his wife, not confidential. The court observedthat "[t]he privilege _ afforded to a confidential marital communication is based on considerations of public policy which seek to preserve the confidence andtranquility of the marital relationship. The essence of a confidential communication between spousesis 267 that it springs from the confidence which exists between them because of the marital relationship. [§] These public policy considerations would not be served by shielding as confidential and privileged threats against third persons made by one spousein the course of criminally victimizing the other spouse.” (/d. at pp. 752-753.) (233 Cal.App.3d at p. 438.) The trial court here seized on this languageto support its ruling that appellant possessed nomarital privilege to assert. - Thetrial court’s reliance on this language waserror for several reasons. First, this portion of the opinion was dicta. Second, Tannis was not criminally victimized by appellant — it was undisputed that Tannis was not harmed by appellant and that she was notpresent when Curry was harmed (RT 13082) — so the exception to the privilege under Evidence Code section 985 did not apply. Third, contrary to the trial court’s belief, the marital privilege attaches to communications made between spouses until the marriage is legally dissolved; whether the marriage is otherwise viable or intact is irrelevant. (See Jurcoane v. Superior Court, supra, 93. Cal.App.4th at pp. 894-895.) Fourth, the communication was privileged even if appellant did admit to committing the pipe bomb attack on Curry and evenif he said he would do it again until Curry was dead. Evidence Code section 981 providesthat there is no privilege if the communication was made, in whole or in part, to enable or aid anyone to commit or plan to commit a crime or a fraud, unless the communication wasfor the purpose ofobtaining assistance in the commission ofthe crime orfraud or infurtherance thereof. So, the statement to Tannis was not made admissible by the exception provided in section 981. (Cal. Law Revision Com. com., West’s Ann. Cal. Evid. Code (2004 ed.) foll. § 981.) The prosecution argued that 268 Tannis called and confronted appellant after Curry wasinjuredin hiscar, and appellant admitted to her what he had done and said he would doit again. (RT 13058.) There is no evidencethat appellant soughtto obtain assistance from Tannis in committing a crime against Curry; in fact, the trial court interpreted the commentsto be a threat or “wrong” against Tannis.!”" (RT 13072-13073.) ‘Thus, statements purportedly made by appellant as to whathe did or intended to do are communications within the privilege of Evidence Code section 980 and are not within any statutory exception to that rule. (People v. Dorsey (1975) 46 Cal.App.3d 706, 719.) Assuming arguendo that Tannis waived her marital privilege, appellant’s right to assert the privilege remained intact (Evid. Code, §§ 912, subd. (b) and 980), and thetrial court erred in rejecting appellant’s claim of marital privilege. | DD. The Erroneous Admission Of The Testimony Of Tannis Curry Requires Reversal Of Appellant’s Conviction And Death Judgment The prosecution argued that evidence ofthe Curry attacks was ' admissible under Evidence Code section 1101, subdivision (b) to establish motive for the instant crimes, 1.e., appellant has men who were sleeping with his ex-wife killed. (RT 11157.) The prosecution proffered thatit would show that Tannis was sleeping with both Curry and Armstrong before they were harmed andthat appellant knew and was angry about each affair. (RT 11157.) With regard to the Curry attacks, the prosecution represented to the court that it would establish that: (1) appellant admitted ‘0! The fact that after the pipe bomb incident Tannis divorced appellant and married Curry (11826-11827) also belies the prosecution’s oft-stated theory that Tannis was somehow involvedin setting both Curry and Armstrong up to be injured by appellant or his agents. 269 to Tannis the pipe bombing of Curry andtold her that he would do it again until Curry was dead; and (2) appellant admitted to Pierre Marshall responsibility for shooting and paralyzing Curry. (RT 11259-11260.) In admitting the evidence of the attacks on Keith Curry, the trial court stated it was relying on the prosecution’s proffer that it would prove two essential factual predicates to the admissibility of that evidence under Evidence Codesection 1101, subdivision (b): (1) appellant knew ofthe affair between Tannis and Curry; and (2) appellant possessed some animus aboutthat relationship. (RT 11158.) The trial court ruled, “Withoutthat, you [the prosecution] really don’thave a whole lot other than that otherwise unexplained shooting by Mr. Smith. In other words, for this to make any senseat all, it has got to come back to Mr. Bryant’s relationship with this young woman [Tannis] and some demonstrable proof that he was angry | about this, and that Mr. Curry’s problems beganat or near the time he took up with her.” (RT 11158-11159. ) The prosecution’s proffer that Pierre Marshall’s testimony would supply a factual underpinning for the admissibility of this evidence never materialized. After Marshall’s denial that appellant made such an admission (RT 11752-11756), Detective Vojtecky testified that Marshall had told him that the meeting between Marshall and appellant tookplace for _ tworeasons: (1) because a cousin of Marshall, Derrick Johnson, owed the Familythe cost of a half kilo of cocaine; and (2) Marshall had slept with Jeff Bryant’s wife a couple of years prior and the word wasonthestreet that there wasa hit out on him. According to Marshall’s statement, as he sat downto talk with appellant, appellant began holding his hands in a deformed fashion aroundhis head while laughing, and said, "Remember how that nigger got paralyzed?" Marshall knew appellant wasreferring to 270 Curry. (RT 11791-11793.) Appellant’s commentsandgestures hardly constitute an admission that he was responsible for shooting Curry. In fact, the trial court deemed another shooting of Curry, which resulted in Curry’s paralysis, inadmissible in the instant case. (RT 10949, 11274, 11292- 11293.) If the trial court had properly upheld the application of the marital communications privilege to the alleged conversation between appellant and Tannis, Tannis would not have been compelled totestify about the communication. Therefore Derby’s testimony regarding Tannis’s _ §tatements in the beauty parlor would have been inadmissible hearsay. (See RT 11288, 11303-11304.) Derby’s testimony wasthat only evidence that showedthe factual predicates, as determined by the trial court, to the admissibility of the Curry attacks under Evidence Code section 1101, subdivision (b). Therefore, had appellant been afforded his right to assert his marital communicationsprivilege, the prosecution would not have met its burden of establishing the factual predicates for the admissibility of any of the evidence regarding the attacks on Keith Curry. Given the weakness ofthe case against appellant and the inflammatory nature of this evidence, its admission, particularly in combination with the other bad character evidence discussed in Argument VII, ante, was prejudicial. The erroneously admitted evidence regarding the attacks on Keith Curry was extremely damaging and prejudicial to appellant’s case. Appellant’s trial counsel noted the pathos and sympathy for the prosecution’s case evoked by the testimony of a quadriplegic. The error is even more egregious considering that Curry was paralyzed from a shooting the court ruled unrelated to this case. The testimony ofPierre Marshall did nothing but communicate to the jury that appellant was not a 271 nice man, but rather was one who would laugh at the fact that Curry had been paralyzed and who would use a word very derogatory to African Americans. Since the trial court’s erroneous ruling on appellant’s marital privilege led to the admission of highly prejudicial evidence relating to the attacks on Keith Curry; such error was not harmless beyond a reasonable ~ doubt. (Chapmanv. California, supra, 386 U.S.at p. 24.) Further, the emotional impact of this evidence unfairly prejudiced and inflamed the jurors against appellant, and its admission infected the trial with unfairness and lightened the prosecution's burden of proofin violation of appellant's rights to due process,a fair trial and impartial jury underthe Fifth, Sixth and Fourteenth Amendments to the United States Constitution, and analogousprovisionsof the California Constitution. (Jn re Winship, supra, 397 U.S. at p. 364; Estelle v. McGuire, supra, 502 U.S.at p. 67; see e.g., Sandstrom v. Montana, supra, 442 U.S. at pp. 520-524; McKinneyv. Rees, supra, 993 F.2d 1378.) In addition,thetrial court's failure to apply the California Evidence Code in a non-arbitrary manner violated appellant's liberty interest in violation of due process byarbitrarily depriving him ofa liberty interest created by Evidence Codesections912, 980 and 1101 notto havehis guilt determined inadmissible evidence or by propensity evidence. (Hicks v. Oklahoma, supra, 447 U.S.at pp. 346-347.) By ignoring well-established state law that prevents the State from using evidence admitted for a limited purpose as general propensity evidence and excludesthe use of unduly prejudicial evidenceas well as privileged marital communications,the state court arbitrarily deprived appellant of a state-created liberty interest. Appellant was also deprived of his right to a reliable adjudication at all stages of a death penalty case. (See Lockett v. Ohio, supra, 438 US.at 272 pp. 603-605; Beckv. Alabama, supra, 447 U.S. at p. 638; Penry v. Lynaugh, — supra, 492 U.S.at p. 328, abrogated on other grounds Atkins v. Virginia, | supra, 536 U.S. 304.) // Tt 273. IX THE ERRONEOUS ADMISSION OF PREJUDICIAL HEARSAY EVIDENCE REQUIRES REVERSAL Thetrial court erred in admitting numeroushearsay statements, including testimonial statements that had never been subject to cross- examination, as well as hearsay statements not properly within any exception to the hearsay rule. The improperly admitted evidence included: the tape-recorded police interrogation of Andre Armstrong; statements of | Winifred Fisher during police interrogation relevant to the Ken Gentry shooting; the out-of-court statements by Ken Gentry to Benny Ward; and a portion of the tape-recordedstatement of William “Amp”Johnson. In addition to violating state evidentiary rules, the erroneous admission of each statement deprived appellant of his right to confront witnesses under Sixth and Fourteenth Amendmentsto the United States Constitution and parallel provisionsof the state constitution. Each error and its attendant prejudice to .appellant’s case will be discussed individually below, followed by a discussion of the prejudice resulting from the aggregateerrors. A. General Principles Of Relevant Law The Sixth Amendment’s Confrontation Clause provides:“In all criminal prosecutions, the accuséd shall enjoy the right ... to be confronted with the witnesses against him.” The Sixth Amendmenthas been made applicable to the States through the Fourteenth Amendment. (Pointer v. Texas (1965) 380 U.S. 400, 403-405; Davis v. Alaska (1974) 415 U.S. 308, 315.) “Hearsay” is defined in Evidence Code section 1200 as “evidence of a statement that was made other than by a witness while testifying at the hearing andthat is offered to prove the truth of the matter stated.” Readliterally, the Sixth Amendment would excludeall hearsay. 274 However,as discussed below, the United States Supreme Court has interpreted the Sixth Amendmentas allowing the admission of nontestimonial hearsay providedsufficient indicia of reliability can be demonstrated. It prohibits the admission of testimonial hearsay unless the declarant is unavailable and there has been a prior opportunity for cross- examination. The U.S. Supreme Court recently held that testimonial evidence can be admitted consistent with the Confrontation Clause only if the witness was unavailable and the defendant had a prior opportunity for cross-examination. (Crawford v. Washington (2004) US. __ [124 S.Ct. 1354, 1374 (Crawford).) The High Court ruledthat, “[w]here testimonial statements are at issue, the only indicrum ofreliability sufficient to satisfy constitutional demandsis the one the Constitution actually prescribes: confrontation.” (Ibid.) The Court did not attemptto defineall types of statements that might come within the category of “testimonial,” but it held that, at a minimum, “testimonial” statements include “prior testimony at a preliminary hearing, before a grand jury, or at a formertrial; and to police interrogations.” ([bid.) Where nontestimonial hearsay is at issue, Crawfordheld that the Sixth Amendment, consistent with Ohio v. Roberts (1980) 448 U.S. 56 (Roberts), affords states more flexibility in developing hearsay law. (Crawford, supra, 124 S.Ct. at p. 1374.) In Roberts, the Supreme Court held that hearsay would-be admissible where the prosecution demonstrated the unavailability of the declarant whose statement it wished to use against a defendant and wherethe hearsay borecertain “indicia ofreliability.” (Roberts, supra, at p. 65; Snyder v. Massachusetts (1934) 291 U.S. 97,107.) In assessing whethera particular hearsay statement bears sufficient “indicia 275 of reliability” to satisfy the Confrontation Clause, courts “essentially determine whetherthe historical reasons for believing that a particular type of statementis inherently reliable have withstoodthetest of time.” (People v. Farmer (1989) 47 Cal.3d 888, 905.) This test may besatisfied if the statement falls within a long-recognized hearsay exception, such as the exception for spontaneousutterances. (Ibid.) Thus, nontestimonial hearsay is inadmissible unless it qualifies under an exception, and the proponentof the evidence has the burden ofproof that a statement comes within an exception to the hearsay rule. (Peoplev. Ramos, supra, 15 Cal.4th at p. 1177; People v. Livaditis (1992) 2 Cal.4th 759, 779.) Each hearsay exception has its own foundational requirements that must be met before the admission of any statement. (People v. Hawthorne (1992) 4 Cal.4th 43, 57, citing Chambers v. Mississippi, supra, 410 US.at p. 302.) . As explained below in the subdivisions dealing with specific forms of nontestimonial hearsay introducedattrial, the specific hearsay items introduced by the prosecution did not possess the foundational requirements for any hearsay exceptions. Furthermore, for none of these statements was there a showing of trustworthinessorreliability. Because confrontation ensuresthe reliability of the fact finding process (Crawford, supra, 124 S.Ct. at pp. 1373-1374; Roberts, supra, 448 U.S.at pp. 63-64), the trial court’s erroneous admissionofthis large volume of hearsay testimony lessenedthereliability of the jury’s determination of appellant’s guilt in violation of the Eighth and Fourteenth Amendments. Furthermore, to the extent that the introduction of some of these hearsay statements violated only state evidentiary law, appellant’s nghts to due process, equal protection,a fairtrial by an impartialjury, and a reliable 276 death judgment were violated by the State arbitrarily withholding a nonconstitutionalright provided by its laws. (U.S. Const., Amends. V, VI, VII, XIV; Cal. Const., art. 1, §§ 1, 7, 15, 16; Woodson v. North Carolina, supra, 428 U.S. 280; Gardnerv. Florida, supra, 430 US, 349; Ross v. Oklahoma (1988) 487 U.S.at pp. 88- 89; see Hicks v. Oklahoma, supra, 447 U.S. 343.) B. Erroneously Admitted Testimonial Hearsay 1. The Tape-Recorded Police Interrogation Of Andre Armstrong Aspreviously stated, one of the victims in this case, Andre Amnstrong, was convicted of the 1982 killing of Ken Gentry. (RT 9386.) While Armstrong wasin prison, on July 23, 1983, as part of an investigation into the murder of Ken Gentry’s father, Charles Gentry, police interrogated Armstrong and tape-recorded muchofthat interview. (RT 9405-9417.) During that interview, Armstrong said, inter alia, that: the Bryants contracted with Armstrong to shoot Ken Gentry and Reynard Goldman; appellant paid Armstrong $15,000 after Ken Gentry was killed; the Bryants were supposedto take care of witnesses after Armstrong’s arrest for the Ken Gentry homicide, but they failed to do so; Armstrong was convicted and sentenced to 28 years to life for that crime; Armstrong believed the Bryants owed him andthat they were “lightweights;” Armstrong said it was going to be “messy in Pacoima” if and when he was released from prison; the Bryants owed him and heintendedto “squeeze” the Bryants; he had killed about seven people but would not kill children if offered millions of dollars. (3 SUPP CT 10473-10545.) The prosecution moved in limine to admit the tape recording of the Armstronginterrogation; the State contended that the tape was admissible underthe following 277 hearsay exceptions: (1) declaration against penalinterest as defined by Evidence Code section 1230; (2) statement of a then-existing mental state as set forth in Evidence Codesection 1250, subdivision (a)(1) and (a)(2); (3) statementof a present intent to prove a future act by an unavailable declarant, admissible under Evidence Codesection 1250 and Peoplev. Alcalde (1944) 24 Cal.2d 177; and (4) hearsay statement of an available declarant admissible under Evidence Code section 1350. (CT 14296- - 14395.) . Appellant argued that none of these hearsay exceptions was properly applied to the taped interrogation,that the statements of Armstrong were inherently untrustworthy, and that the admission of the tape would violate appellant’s “Sixth Amendmentand analogousstate constitutional rights to confrontation and cross examination,” as well as his constitutional rights to due process andto a fair trial. (CT 14505-14534.) Appellant also joined in codefendant Wheeler’s opposition to the admissionof the interrogation. (See RT 7971-7980; CT 14496-14504.) The court initially attempted to defer judgment regarding the admissibility of the tape as a whole by deciding only whatportions of the tape it would allow the prosecution to refer to in its opening statement. (RT 7978.) The court ruled that the prosecution could refer to what Armstrong said regarding the Ken Gentry murder and Goldmanassault in order to show “the genesis” of the instant offenses, the fact that Armstrong believed that he was owed moneyorother consideration for the Ken Gentry homicide, and that Armstrong intended to make good on that obligation _ later. (RT 7979.) Appellant objected to the deferred ruling and argued that if the court permitted the prosecution to address portions of the tape, then the defense would need to addressotherportions ofthe tape in its opening 278 statements. (RT 7979-7980.) There was no further discussion of this issue on the record other than the court indicating it previously ruled the tape admissible. (RT 9084.) The tape of the Armstrong’s interview, Exhibit 74, was admitted into evidence over defense objection and was played for the jury. (RT 9414- 9418, 13819; 3 SUP CT 10473-10545.) A short passage containing a discussion of codefendant Smith’s relationship by marriage to a member of the Bryant family was excised. (Ibid.) In addition, there wasa stipulation that Armstrong’s reference to a “Johnny”did not refer to codefendantSettle and that Armstrong’s reference to Lisa Settle did notrefer to a relative of | the codefendant Settle. (/bid.) The admission of thetaped interrogation of decedent Andre Armstrong clearly violated appellant’s Sixth Amendmentright to confrontation. The Crawford Court held that, with regard to testimonial hearsay, the Confrontation Clause demandsthat the declarant be both unavailable and that the defendant had a prior opportunity to cross-examine the declarant. (Crawford, supra, 124 S.Ct. at pp. 1365-1367, 1369.) While ‘the Court in Crawfordleft “for another day any effort to spell out a comprehensive definition of ‘testimonial,’”it specifically held that “statements taken by police in the course of interrogationsare [.. .] testimonial” for Confrontation Clause purposes. (Crawford, supra, 124 S.Ct. at pp. 1364-1365, 1374.) Thus, discussion of whether the tape recording of Armstrong’s interrogation comes within a hearsay exception or showsindicia of reliability is irrelevant to the analysis of whether there was a Sixth Amendmentviolation: a prior opportunity to cross-examine wasa necessary condition for its admission (Id. at p. 1366-1367), and appellant had nosuch prior opportunity to cross-examine Armstrong. The admission 279 of the taped interview at appellant’s trial therefore violated appellant’s Sixth Amendmentright to cross-examine witnesses. Under Chapman, the State has the burden to prove beyond a ~ reasonable doubtthe error did notcontribute to the verdict obtained. (Chapman, supra 386 U.S.at p. 24.) “The inquiry, in other words,is not whether,in a trial that occurred withoutthe error, a guilty verdict would surely have been rendered, but whetherthe guilty verdict actually rendered in this trial was surely unattributable to the error.” (Sullivan v. Louisiana, supra, 508 U.S.at p. 279.) | | _ Applying the Chapman standard, appellant was indeed prejudiced by the admission of the taped-recordedpolice interrogation of Andre Armstrong. The taped-interrogation provided the only direct “evidence” of appellant’s alleged involvementin the shootings of Gentry and Goldman: Armstrong said that appellant paid Armstrong $15,000 after the Ken Gentry killing. (3 SUPP CT 10528-10529) The evidence of appellant’s involvement in the Gentry homicide was otherwise hotly contested. (See, e.g., testimony of Michael Flowers, G.T. Fisher, Benny and Barron Ward, denying appellant’s alleged involvement. (RT 8837-8838, 8883-8899, . 8925-8930, 8939, 9022-9026.) Additional evidence established that the charges brought against appellant in those cases were dismissed. (RT 9344.) Thus, the other evidence adducedattrial did not implicate appellant and did not contradict defense evidence that Armstrong acted alonein killing Ken Gentry and that Armstrong shot Gentry because ofjealousy over a mutual love interest. (RT 8217, 8940, 9029, 15162-15163, 15022-1503 1.) The erroneous admission ofthe taped interrogation led to the erroneous admission of other evidenceprejudicial to appellant’s case. Appellant objected to the admission of the following proffered by the 280 prosecution: after Armstrong’s arrest, Rhonda Miller, a potential eyewitness against him, was visited by Rochelle and Tannis (whoat the time were the girlfriends of Jeff and Stanley Bryant, respectively) during whichvisit Rochelle offered Miller money from Jeff not to inculpate Armstrong in the Ken Gentry shooting. (RT 9075-9076); after Miller refused the money, she wasvisited by her abusive husband Alvin Brown, whotold Miller to take the money (RT 9076-9077); Brown had beenbailed out by Jeff and _appellant’s mother, Florence Bryant, using a house on Louvre Street as collateral. (RT 9080.) Appellant argued that the admission of such evidence: (1) impinged on appellant’s First Amendmentright to freedom of association, that it tended to inculpate appellant based on his blood relationship to Jeff Bryant; (2) was more prejudicial than probative under Evidence Code section 352; and (3) to the extent the prosecution relied on a conspiracy theory for the evidence’s admission, no foundation had been laid. (RT 9078-9079.) The defense further argued that they did not contest Armstrong’s guilt of the Gentry shooting, but maintained that he did it as a solo venture. (RT 9083.) Thetrial court ruled the evidence admissible to belie the inference that Armstrong was an independent actor and to buttress the credibility of Armstrong during the taped interrogation in whichhe states he was paid by the Bryants to do the shooting. (RT 9084.) Under the court’s ruling, none of this evidence would have been admissible had it not been for the erroneous admission of the taped interrogation of Andre Armstrong. The prosecution emphasized the importance ofthe tape-recorded interrogation to its case at the start of its closing argument by informing the jurors of their good fortune:“It isn’t often that a jury hears the voice from the grave ofoneofthe victims explaining the motive and why what 281 happened here happened.” (RT 16430L.) The prosecution then argued Armstrong’s statements should be considered for the truth of the matter asserted in them (his statements), that is, that Armstrong shot both Gentry and Goldman for the Bryants. The prosecution also argued that the tape showedArmstrong felt the Bryants owed him for those shootings andthat he was killed because he wasa threat. (RT 16430L- 16430M.) The prosecution further used the taped interrogation ofArmstrong to inflame the passions of the jurors by arguing that, even though Armstrong was a man who admitted to the cold-blooded murderofat least seven people, he had standards becausehe said he would notkill children for a million dollars: “But killing children, folks. Even among hit men and killers there are some standards. Andthereis nothing lower than what happenedin this case. All to protect — to put moneyin their pockets. That’s the sad part.” (RT 16430-0.) The Constitution prescribes a procedure for determining the reliability of testimony in criminaltrials: confrontation. (Crawford, supra, 124 S.Ct. at pp. 1373-1374.) In this case, the prosecution was permitted to use testimonial statements of a dead man, which had never been subject to cross-examination, to convict appellant of capital murder. Given the circumstancesset forth above, the State cannot carry its burden of proving that the guilty verdict actually rendered in this trial was surely unattributable to the erroneous and unconstitutional admission of the tape-recorded police interrogation of Andre Armstrong. (Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) Appellant’s conviction and judgment of death must be reversed. 282 2. Statements Of Winifred Fisher During Police Interrogation Relating To The Investigation Of The Ken Gentry Homicide During the investigation of the Ken Gentry homicide, Detective David M. Stachowiski interrogated Winifred Fisher in a room in the Foothill Police Station. (RT 8640-8641.) Winifred Fisher was deceased at the time of appellant’s trial. (RT 8642.) The defense objected to the admission of the contentofthat interrogation of Fisher on hearsay grounds. (RT 8641.) The court overruled the objection, implicitly ruling that the statements of Fisher were admissible because Fisher was dead. (RT 8642.) Thereafter, the detective testified that Fisher told him that: he, Ken Gentry and Michael Flowers bought “bunk” dope from a man named Bryant; they _ attempted to get their money back from that Bryant, but were refused; in retaliation, the three stole and vandalized Roscoe Bryant’s van; the three were seen doing this, and Bryant and his friends were upset over it. (RT 8643-8648.) Appellant was not namedin the report. (RT 8647.) | Thetrial court clearly violated appellant’s Sixth Amendmentright to confront witnesses against him whenit ruled that Fisher’s statements made during police interrogation were admissible simply because he was deceased. Fisher’s statements were testimonial hearsay, admissible only if appellant also had had a prior opportunity to cross-examine Fisher regarding the content of the statements. (Crawford, supra, 124 S.Ct. at p. 1374.) The state cannot sustain its burden of proving beyond a reasonable doubt that the error did not contribute to the verdict obtained. (Chapman, supra, 386 U.S.at p. 24; Sullivan v. Louisiana, supra, 508 U.S.at p. 279.) 283 Fisher’s statement established a motive for the shooting of Gentry, which appellant was not able to dispute through cross-examination. The evidence of appellant’s involvement in the Gentry homicide was otherwise hotly contested. (See, e.g., testimony of Michael Flowers, G.T. Fisher, Benny and Barron Ward, denying appellant’s alleged involvement. (RT 8837- 8838, 8883-8899, 8925-8930, 8939, 9022-9026.) During closing argument, the prosecution argued that Fisher’s statement should be consideredforits truth and used the reference to Fisher to imply that appellant was responsible for Fisher’s death: “You know . . [the reason Ken Gentry was killed] from Winifred Fisher. He’s dead too.” (RT 16447.) The erroneously admitted evidence was therefore patently prejudicial, requiring reversal of appellant’s conviction and judgmentof death. 3. Statements Admitted Pursuant To California v. Green When The Witness Denies Making All Or Part Of The Statement At Trial In this case, numerous prior statementsof testifying witnesses were introduced pursuant to California v. Green (1970) 399 U.S. 149, 165-168, which permits the introduction of prior statements made bytestifying witnesses to law enforcement that are inconsistent with the witnesses’s trial testimony. In Crawford, the Supreme Court held the Confrontation Clause does not bar admission of a prior statement to law enforcementso long as the declarantis present at trial to defend or explain the statement. (Crawford v. Washington, supra, 124 S.Ct. at p. 1369.) To the extent that testifying witnessesin this case denied in wholeorin part prior statements to law enforcement, appellant submits that since the declarants did not defend nor explain the prior statements, the Confrontation Clause was not satisfied; the prior statements introduced throughthe testimony of law 284 enforcementofficers therefore violated appellant’s rights under the Sixth Amendment. (Jbid.) C. Other Erroneous Rulings On Hearsay Evidence 1. Prior Statements Of Benny Ward Were Not Inconsistent With His Trial Testimony Benny Ward was with Ken Gentry prior to and at the time of the Gentry shooting. (RT 8923-8924.) He was called by the prosecution inthis case andtestified to the circumstances surrounding the homicide. (RT 8925-8939.) After his testimony, the prosecution sought to introduce the statements Ward made aboutthe shooting to a detective in 1982 and to the ' prosecution in 1992. (RT 8973-8978, 8983, 9002-9007.) Over defense objection, the court found Ward’s testimonyto be evasive and his statements admissible underthe prior inconsistent statement exception to the hearsay rule. (RT 8977.) | Benny Ward’s prior statement to law enforcement was improperly admitted as a prior inconsistent statement under Evidence Code section 1235. A statement by a witness that is inconsistent with his or hertrial testimony is admissible to establish the truth of the matter asserted in the statement underthe conditionsset forth in Evidence Codesections 1235 and 770.'° The "fundamental requirement"of section 1235is that the 102 Evidence Codesection 1235 provides as follows: "Evidence ofa statement made by a witness is not made inadmissible by the hearsayrule if the statementis inconsistent with his testimony at the hearing andis offered in compliance with Section 770." Evidence Code section 770 providesthat: - "Unless the interests ofjustice otherwise require, extrinsic evidence of a statement made bya witnessthat is inconsistent with any part ofhis testimonyat the hearing shall be excluded unless: [{]] (a) The witness was so examined while testifying as to give him an opportunity to explain or to (continued...) 285 statement, in fact, be inconsistent with the witness's trial testimony. (People v. Sam (1969) 71 Cal.2d 194, 210.) Normally, the testimony of a witness that he or she does not rememberan eventis not inconsistent with that witness's prior statement describing the event. (People v. Green (1971) 3 Cal.3d 981, 988.) However, courts do not apply this rule mechanically. "Inconsistency in effect, rather than contradiction in express terms,is the test for admitting a witness' prior statement[citation], and the same principle governs the case of the forgetful witness." (Ibid.) When a witness's claim of lack of memory amounts to deliberate evasion, inconsistencyis implied. (/d. at pp. 988- 989.) As long as there is a reasonablebasisin the record for concluding that the witness's "I don't remember" statements are evasive and untruthful, admission ofhis or her prior statementsis proper. (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220 [citation omitted].) Examination ofthe record discloses no reasonable basis for a belief that the testimony Benny Ward gaveat trial was materially inconsistent with his statement to law enforcement some 13 years prior. Therecordreflects, as trial counsel argued, that Ward answered questions regarding the shooting and had genuinely attemptedto recall what had happened some 13 years prior. (RT 8973-8975.) Wardtestified that he was shocked and upset whenthe shooting occurred, and that that affected his memory of the events. (RT 8926, 8930, 8975.) Admission of Ward’s prior statements to law enforcement was,therefore, erroneous. (People v. Johnson, supra, 3 Cal.4th at pp. 1219-1220; see People v. Arias, supra, 13 C.4th at p. 153 102continued) deny the statement; or [§] (b) The witness has not been excused from giving further testimony tn the action." 286 [testimony of defendant's mother, a prosecution witness, was not sufficiently inconsistent with her prior-statements to detective].) 2. Statements Of Ken Gentry Contained In Benny Ward’s Prior Statements Were Inadmissible Hearsay Further, the trial court erred in admitting hearsay statements of Ken Gentry contained in Ward’sprior statements to police. Within Ward’s 1982 statement, Ward said that while he wassitting in the car with Gentry prior to the shooting, Gentry said, “There goes the niggers I got a beef with. I ain’t got myshit but I’d get down with them.” (RT 8979.) Ward then looked up and sawa brown Cadillac driving by, and Gentry said, “It is a nigger namedStanley.” (/bid.) In a 1992 interview, Ward was asked about his earlier police statement and seemedto recall Gentry’s reference to “Stanley.” (RT 9002-9007; 3 SUPP CT 10618-10620.) The court asked for a separate basis for the admissibility of those statements. (RT 8978.) The prosecution argued that they were spontaneous statements and therefore admissible as a hearsay exception under Evidence Codesection 1240. (RT 8978-8979.) The defense argued: (1) the statement was ambiguousin that Ward reported that there were two Cadillacs that had driven by, and the statement was notclearly in responseto the first sighting; and (2) it didnot qualify as a spontaneous statement. (RT 8980.) The court overruled the objection. (RT 8980.) The court said it understood “I don’t have my shit” to meanthat Gentry did not have his gun, and that since ‘Gentry expressed a desire to arm himself moments after seeing the person or persons drive by, it was “the type of event described in 1240(a), an act, condition or event perceived by the declarant which might cause bit of a fright.” (RT 8980-8981.) The statement was subsequently introduced 287 through the testimony of the detective who interviewed Ward after Gentry’s murder. (RT 8983-8995.) Evidence code section 1240 provides: Evidence of a statement is not made inadmissible by the hearsay rule _ if the statement: [§] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and[{] (b) Was made spontaneously while the declarant was underthe stress of excitement caused by such perception. Asinterpreted by this Court, to render statements admissible under the spontaneous declaration exception, it is required that: (1) there must be someoccurrencestartling enough to producethis nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposedstill to dominate and the reflective powersto be yet in abeyance; and (3) the utterance mustrelate to the circumstance of the occurrence precedingit. (Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460, 468; accord, People v. Poggi (1988) 45 Cal.3d 306, 318.) The crucial element in determining whethera declaration is sufficiently reliable to be admissible under excited utterance exception to the hearsay rule is not the nature of statement, but the mentalstate of speaker. (People v. Roybal (1998) 19 Cal.4th 481, 516.) It is clear that the statements of Gentry do not qualify under this exception becausethere was no showing and nobasis to conclude that seeing appellant was necessarily a startling event to Gentry or that Gentry was upset when he made the statements. Althoughthere is no one fact that is determinative of whether a statement is an excited utterance, there must be some facts present which indicate that the declarant is making the statement underthe influence of 288 somestartling event. For example, evidence that a declarant had just witnessed a robbery at gunpoint and still appeared “nervous” or “distraught” presented a a reasonable basis to conclude declarant was emotionally upset when the statement was made. (Peoplev. Gutierrez (2000) 78 Cal.App.4th 170, 180.) Likewise, whenthe statement was made while the declarant was crying and shaking after having witnessed a murderit was held to be a spontaneous statement within the exception to the hearsay tule. (People v. Brown (2003) 31 Cal.4th 518, 540; see also People v. Hughey (1987) 194 Cal.App.3d 1383, 1388 [victim, who was crying and had abrasions, was screamingfor help as the police arrived shortly after assault].) In the instant case, there was no showing that Gentry was underthe stress of any event. He may have had a dispute with the people who drove ~ by, but Ward did not describe anything that would indicate that Gentry possessed a mental state remotely similar to those described by the cases interpreting Evidence Codesection 1240. Gentry did not appear fearful or startled: he remainedin the parkinglot, did not attempt to flee, and he did not attempt to find a weapon with which to arm himself. Rather, he continued working on his car. Given Gentry’s actions at and after the time the statements were made, the statements can only be interpreted as those of aman communicating to his friend that he believed he could handle the person or persons with whom hehad a “beef> without a weapon. Contrary to the court’s ruling, there is no evidencethat the sighting of “Stanley”or anyone else gave Gentry even a “bit of a fright.” Therefore, this did not qualify under any exception to the hearsay mule and should not have been admitted into evidence. (See People v. Pearch (1991) 229 Cal.App.3d 289 1282, 1291 [statement inadmissible where evidence unclear that speaker was excited or underthe influence of the event].) | . The hearsay statement attributed to Gentry by Benny Ward’s statement established a motive for the shooting of Gentry, which appellant wasnotable to dispute through cross-examination. As referenced above, the evidence of appellant’s involvementin the Gentry homicide was otherwise hotly contested. (See, e.g.,testimony of Michael Flowers, G.T. Fisher, Benny and Barron Ward, denying appellant’s alleged involvement (RT 8837-8838, 8883-8899, 8925-8930, 8939, 9022-9026.) The | erroneously admitted evidence wastherefore patently prejudicial, requiring reversal of appellant’s conviction and judgmentof death. 3. The Prior Statement Of William “Amp” Johnson Regarding His Belief In Appellant’s Guilt Was Inadmissible Hearsay After William “Amp”Johnsontestified at trial, the prosecution moved to play an edited portion of a law enforcementinterview of Johnson that took place in November, 1994. Appellant objected to the portion of the tape in which Johnsonstated that the prosecution did not havethe “wrong people” in custody on the instant homicides as hearsay without foundation and speculation. (RT 10202-10212.) The prosecution conceded the statement would normally have been inadmissible hearsay, but arguedthat it should be admitted because appellant’s counsel questioned Johnson on the subject. (RT 10206.) The court agreed that the statement probably reflected an “opinion...without foundation” but ruled that that part of Johnson’s statement was admissible because appellant’s counsel had questioned Johnson about whetherhe hadsaid that the wrong people were in custody. (RT 10205-10206.) Appellant’s counsel then argued that he 290 never asked Johnson about Johnson’s opinion as to whether the defendants werecorrectly arrested on the instant crimes; rather, counsel had asked Johnson about whether had had told law enforcement a person who was involved had been arrested and released, and that J:ohnson then corrected counsel’s misunderstanding of Johnson’s statement on that subject. (RT 10209.) The court ruled the tape, including Johnson’s opinion that the night people were being prosecuted for the instant crimes, was admissible as a prior inconsistent statement that could be considered for the purposes of determining the witness’s credibility as well as for the truth of the matter asserted. (RT 10216-10220; 3 SUPP CT 10604.) - The portion of the Johnson statement appellant objected to was hearsay not within any exception. It was not a prior inconsistent statement under Evidence Code section 1235 because, contrary to the court’s ruling, counsel had not questioned the witness on that part of his statement, and therefore the witness made no statement, inconsistent or otherwise, regarding his opinion of whether the right or wrong people were in custody for the Wheeler Avenue homicides. (Compare People v. Dominguez (2004)_Cal.4th__,__ [police officer’s opinion of guilt improper testimony; no error becauseelicited by defense].) In addition, it is well established that a witness’s opinion regarding. the guilt or innocence of the defendant is inadmissible. (People v. Torres (1995)33 Cal.App.4th 37, 47 [citations omitted].) Further, standing alone, as both the court and the prosecution conceded,that portion of Johnson’s statement was inadmissible under Evidence Codesection 702, which requires that a person havepersonal knowledgeas to any matter to which he testifies, and that such “must be shown before the witness maytestify concerning the matter.” In other words, for hearsay evidence to be 291 admissible under any exception it must be trustworthy and the witness must be have personal knowledge of the events. (People v. T.atum (2003) 108 Cal.App.4th 288, 289.) The statement was, as the court noted, opinion without foundation or personal knowledge. (RT 10205-10206.) The prosecution emphasized Johnson’s taped statement during closing argument, quoted theportion objected to by the defense, and argued that the jurors neededto listen to the Johnson tape “to get someinsight on these people.” (RT 16475-16476.) In the tape, Johnson directly implicated appellant in the instant crimes. In summary,the portion of the Johnson statement objected to by appellant was hearsay for which no exception existed, and was patently prejudicial. The trial court erred in admitting that evidence. D. Prejudice The cumulative effect of the erroneous admission of hearsay evidence at appellant’s trial was prejudicial to appellant’s case. Because the introduction of this evidence violated appellant’s federal constitutional right to confront witnesses, it must be judged underthe standard established by Chapman v. California, supra, 386 U.S. 18, requiring reversal unless the error was harmless beyond a reasonable doubt. Much of the evidence went a long way to establishing the motive for the underlying crime, namely, the desire of Armstrong to collect for a debt owed tohim for killingKen Gentry. More damaging to appellant, the erroneously admitted statements tied himpersonally to that motive,alink that was otherwise a hotly contested issue and denied by most prosecution witnesses. The ptejudice from the erroneously admitted statements was exacerbated by the prosecution’s exploitation of the evidence in closing argument, as discussed above. Given the foregoing circumstances, the State cannot carry its burden 292 of proving that the guilty verdict actually rendered in this trial was surely unattributable to the error. (Sullivan v. Louisiana, supra, 508 U.S.at p. 279.) Appellant’s conviction and judgment of death must be reversed. i | / 293 x THE TRIAL COURT ERRONEOUSLY ADMITTED OPINION TESTIMONY THAT INVADED THE PROVINCE OF THE JURY | A. Proceedings Below Detective James Dumelle testified regarding investigations he conducted into drug sales in the Pacoimaarea in 1985. His testimony included describing the execution of search warrants at 13037 Louvre Street and 11442 Wheeler Ave,citing appellant at Neighborhood Billiards for failing to have proper permits, and interviewing Kenny Reauxafter his | arrestat the Wheeler house. Detective Dumelle testified that Reaux told him that appellant had recruited him to work at the Wheeler house andthat hedid not wantto talk because Jeff Bryant would kill him. (RT 9628-9653, 9706.) While appellant objected to the relevancy and admissibility of evidence of drug operations from this time period (see Argument VII, ante), appellant additionally objected when the prosecution soughtto elicit from Detective Dumelle his opinion, given his “understanding of the people running this organization,” as to whom Jeff Bryant would leave in charge of narcotic sales operations while he served his prison term. (RT 9707.) Appellant objected to the question, arguing it soughtto elicit improper opinion testimony and lacked of foundation. ([bid.) Detective Dumelle thentestified he believed Jeff Bryant would leave appellant in charge. (Ibid.) 294 B. Detective Dumelle’s Opinion As To Who WasIn Charge Of Narcotic Operations While Jeff Bryant Was Incarcerated Was Improper And Prejudicial Generally, a witness may testify only about matters of which he or she has personal knowledge. (Evid. Code, § 702, subd. (a).) A lay witness may provide opinion testimonyif such opinionis rationally based on the perception of the witness and is helpful to a clear understandingofhis or her testimony. (/d., § 800.) "[A] lay witness maytestify in the form of an opinion only when he cannot adequately describe his observations without using opinion wording." (People v. Miron (1989) 210 Cal.App.3d.580, 583.) "Where the witness can adequately describe his observations,his opinion or conclusionis inadmissible becauseit is not helpful to a clear understanding ofhis testimony." (Jbid.; in accord, see People v. Sergill (1982) 138 Cal.App.3d 34, 40.) In this case, Detective Dumelle was not qualified as an expert witness in any regard. He more than adequatelytestified regarding his observations during the execution of search warrants and otheractivities conducted during the investigation into narcotic sales in the Pacoimaarea in 1985. Arguably, his lay opinion that Jeff Bryant was in charge ofthe Family business was reasonably based on his observations given that the homesin which indicia of drug sales were found belonged to Jeff Bryant and given Reaux’s statement to him. However, his opinion of whom Jeff Bryant would leave in charge of his business while in prison was inadmissible because it was not based onhis perceptions and it was not helpful to the jury’s understanding of his testimony. Assuming arguendothis Court finds Detective Dumelle qualified as an expert on drug operations in the Pacoima area in 1985, his opinion 295 testimonythat Jeff Bryant would have putappellantin charge of operations while he was incarcerated was nonetheless improperopinion testimony. An expert witness is one who hasspecial knowledge,skill, experience, training, or education sufficient to qualify as an expert on the subject to which his or her testimonyrelates. (Evid. Code, § 720.) An expert may offer opinion testimonyif the subject is sufficiently beyond common experience that it would assistthe trier of fact. (/d. at § 801.) The opinion must be based on matter perceived by, or personally known, or made known to the witness at or before the hearing that is of the type that reasonably may be relied on in forming an opinion on the subject to which the expert's | testimonyrelates. (Jbid.) On direct examination, an expert may state the reasonsfor his or her opinion and the matter upon which the opinionis | based. (/d. at § 802.) Additionally, "[t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." (/d. at § 805.) This rule, however, "does not permit the expert to express any opinion he or she may have." (People v. Killebrew (2003) 103 Cal.App.4th 644, 651 (“Killebrew’).) An examination of cases exploring the proper use of expert opinion testimony on gangsis instructive. In People v. Gardeley (1996)14 Cal.4th 605, 617 (“Gardeley”), this Court concluded that "the subject matter of the culture and habits of criminal street gangs" can be the appropriate subject of expert testimony pursuant to Evidence Code section 801. The admission of such testimony may be admissible when the testimonyis used to educate the trier of fact "concerningterritory,retaliation, graffiti, hand signals, and dress." (People v. Valdez (1997) 58 Cal.App.4th 494, 506; see also People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) In Gardeley, the expert 296 permissibly testified on the primary purpose of the gang in question, and that the actions for which the defendants were being prosecuted were gang related. (/d. at pp. 612-613.) Gardeley, however,is not authority for allowing officers who testify as gang experts to state any opinions they may have about gangs and gang activities. (See Killebrew, supra, 103 Cal.App.4th at p. 654.) While it may be appropriate to admit evidence regarding gangculture and habits to provide the jury with some understanding of gang actions andto put the crimes in context, this does not "bestow upon an expert carte blanche to express any opinion he or she wishes." (Summers v. A.L. Gilbert Co. (1999) 69Cal.App.4th 1155, 1178.) Indeed, "testimony that a specific individual had specific knowledge or possessed a specific intent” is not the proper area of gang expert testimony. (Killebrew, supra, 103 Cal.App.4th at pp. 656-658, and cases cited therein.) In Killebrew, the defendant was convictéd of felony conspiracy to ‘possess a handgun after membersof his gang were involved in a drive-by shooting. The prosecution's theory wasthat the shooting would generate retaliation, which would have compelled the occupants of three vehicles to conspire to possess the gun that was recovered. The prosecution relied heavily on the expert's testimony, which went far beyond a general discussion of gangs and gang psychology. The expert testified, for example, on the subjective knowledge and intent of the occupants of the car, opining that "when one gang memberin a car possesses a gun, every _ other gang memberin the car knowsof the gun and will constructively possess the gun." (/d. at p. 652.) The Court of Appeal found this testimony to be improper and inadmissible. The court noted that testimony regarding the "knowledge and 297 intent" of each occupant was much different from "expectations" of gang members in general when confronted with a specific action. (/d. at p. 658.) The court recognized that the expert testimony was "the type of opinion that did nothing more than inform the jury how [the expert] believed the case should be decided." (/bid.) The court noted: Testimony that a gang would expectretaliation as:a result of a shooting such as occurred at Casa LomaPark, that gangs wouldtravel in large groupsif expecting trouble, that in a confrontation more than one gang member mayshare a gun in someidentified circumstances, and that oftentimes gang memberstraveling together may knowif one oftheir groupis armed, would have been admissible. Beyondthat, [the gang expert] simply informedthe jury of his belief of the suspects’ knowledge and intent on the night in question, issues properly reservedto the trier of fact. [The expert’s] beliefs were irrelevant. (Id. at p. 658.) ‘Similarly, in appellant's case, assuming arguendo Detective Dumelle was an expert in the narcotic activities of the “Family,” it was nonetheless impermissible for him to testify about the subjective beliefs of the witnesses ~ that is, that Jeff Bryant believed appellant was the person to whom he believed most qualified to run the business while Jeff was in prison. As in Killebrew, this type of testimony regarding the specific state of mind of individuals was irrelevant and improper. In essence, the prosecution presented a police officer who vouchedfor the credibility of its other witnesses whotestified or claimed in out-of-court statements that they believed appellant was in charge of operations while Jeff was in prison. It is impermissible, however, for the State to place the prestige of the government behind a witness. (See People v. Sergill, supra, 138 Cal.App.3d 34 [police officer not qualified to testify regarding truthfulness 298 of one whoclaimed to be victim of crime]; cf. People v. Fierro (1991) 1 Cal.4th 173, 211 [“Impermissible ‘vouching' may occur where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness's veracity or suggests that information not presented to the jury supports the witness's testimony"); United Statesv. Roberts (9" Cir. 1980) 618 F.2d 530, 533 ["the government may not vouch for the credibility of its witnesses, either by putting its own prestige behind the witness, or by indicating that extrinsic information not presented in court supports the witness's testimony"].) The issue ofwho was running narcotic sales operations in the Pacoima area on August 28, 1988 wascentral to the prosecution’scase. The prosecution’s theory of the case was that whomever wasin charge arranged to have Armstrongandthe otherskilled because Armstrong posed a threat to the business. Testimonythat Jeff Bryant would have put appellant in charge while Jeff was in prison unfairly skewed the evidence in the prosecution's favor and supplanted the jury's factfindingrole. The admissionof Detective Dumelle’s opinion that appellant ran the operations while Jeff Bryant was in prison usurped thejury's role as fact finder, rendered the trial fundamentally unfair, lightened the prosecution's burden of proof, unduly inflamed the jury, deprivedappellant of his nght to confront and cross-examine witnesses, undermined the need for heightened reliability at all stages of a capital case, and constituted an arbitrary deprivation of appellant's liberty interest in the application of state evidentiary rules, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. 299 XI THE TRIAL COURT PREJUDICIALLY ERRED BY ADMITTING IRRELEVANT, INFLAMMATORY, GRUESOME, AND CUMULATIVE PHOTOGRAPHSOF THE VICTIMS' BODIES | Thetrial court abused its discretion under Evidence Codesection 352, depriving appellant of due process of law, a fair trial, and a reliable penalty determinationin violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and parallel provisions of the state constitution by admitting irrelevant, inflammatory, gruesome, and cumulative photographsofthe victim's body. A. Proceedings Below The defense objected to showing the jury photographs of Loretha and Chemise during the opening statement on the groundthat they were inflammatory. The court overruled the objection, stating that there was a good chance that the photographs would be admissible in the prosecution's case-in-chief and therefore could be used in the opening statement. (RT _ 8078-8079.) Thedefense also objected to the photographs of Armstrong and Brown,stating that it was willing to stipulate to the identity and cause of death of Armstrong and Brown andthatthe piece of scalp from Wheeler Avenue came from Brown's head. (RT 8260-8261, 8265.) The defense argued that these photographs were very gruesomeas they depicted the bodies after they had been outside in 100-degree heat for several days, were infested with maggots, and partially eaten by animals. (RT 8264-8265, 8267.) | In response, the prosecution stated that this had beenthe first time - that it had heard the defense waswilling to stipulate that the scalp came 300 from Brown,asit had previously understood that the defense was claiming that the scalp came from the actual killer, who had somehow been harmed by Armstrong and/or Brown,and that the photograph therebyrelated to some type of self-defense argument. (RT 8266.) The prosecution argued that the position of the wounds,as reflected in the photographs, was important because the prosecution believed that Brown waskilled in the car by a gunshot woundto the head as a coup de grace. (RT 8268.) Asto the photographs of Chemise, the prosecution argued it was important to show how she waspositioned to show the deliberateness of the shooting. (RT 8271.) | The court overruled the objections, except as to one picture depicting the removed spinal cord from Chemise. The court stated that while the other photographs were "grisly," they werenottoo grisly, and they related to the cause of death. (RT 8274-8275.) Later, the defense again objected photographs which depicted the decomposedbodies of Armstrong and Brown, arguing the coroner had already testified as to the state of decomposition of the bodies, and that the photographs wereparticularly gruesome, cumulative, inflammatory, and designed to prejudice the jury. The court's attention was specifically drawn to one photograph of a face with a "skeletal grimace with the lips drawn back away from the teeth." (RT 8716-87 17.) The prosecution explained that the pictures showed more than the position of the bodies,in that they also reflected the position of the shoes and clothing found nearthe bodies. (RT 8716-8717.) The court sustained the objection to photograph A in People's Exhibit No.47, but overruled the objection to the other photographs. (RT 8718-8720.) 301 . The defense renewed these objections when the exhibits were admitted at the end of trial. The defense objected to the x-ray and another _ Set of photographs of Chemise on the grounds of relevance. The prosecution explained that these photographsdepicted the cause of death and were therefore relevant. The court overruled the objections, stating that the photographs depicted the wounds, and were not too graphic. (RT 13795-13798.) . | A defense objection to the photographs of Loretha was partly overruled,after the prosecution explained that those photographs depicted the paths and numberofthe different wounds received by Loretha. (RT 13798-13801.) | The defense also objected to the series of photographs contained in People's Exhibit No. 12, pictures of Armstrong's body after it had been _ badly decomposed in the heat. (RT 13802.) The prosecution explained that the photographs were relevant because the coronerhadtestified as to the state of decomposition ofthe bodies and the resulting difficulties that he had in determining the numberandpattern of the gunshots. (RT 13803.) The court partially overruled the objection, removing only one photograph from the sequence. (RT 13803-13804.) A similar objection was made as to People's Exhibit No. 16, photographsofBrown,with the defense again arguing that the pictures were unduly prejudicial given the state of decomposition of the body. (RT 13804.) The prosecution argued that these photographs depicted the muzzle stamping describedby the coroner. (RT 13804-13805.) The defense also objected to People's Exhibit No. 19, another series of photographs, on the groundsthat it was too prejudicial, as all the exhibit did wasportray several clumpsof hair. (RT 13806-13806.) The prosecution explained that the 302 photograph depicted how the portion of scalp was removed "traumatically" by a shot gun blast. (RT 13806.) The court noted that it was hard to imagine how thehair could have been removedother than "traumatically." (RT 13806.) The court sustained the objection as to two of the photographs C and D,but overruled the objection as to the others. (RT 13806.) The defense also objected to some of the photographs from Lopez Canyonin People's Exhibit Nos. 46 and 47, arguing that they were repetitive. The defense pointed out photograph E, which showedthe maggot infested wound. (RT 13810-1381.). Although the court acknowledgedthat the photographs were "grisly," the court stated it had earlier found that the probative value outweighed the prejudicial impact, and therefore overruled the objection, with the exception of photograph D, which it excluded. (RT 13812-13813.). iB. The Relevant Law Under Evidence Codesection 352 a court hasdiscretion to exclude evidence whenits probative value is outweighed by the probability it will create a substantial danger of undue prejudice, confusing the issues, or misleading thejury. (Evid. Code, §352.) In several cases courts have found an abuseofdiscretion in allowing photographsof the bodies of murder victims. Thus, "when allegedly gruesome photographsare presented, the trial court must decide whethertheir probative value outweighs their probable prejudicial effect." (People v. Love (1960) 53 Cal.2d 843, 852.) Such evidence can have such a powerfuleffect that "[u]nnecessary admission of gruesome photographs can deprive a defendantof a fairtrial and require reversal of a judgment." (People v. Marsh (1985) 175 | Cal.App.3d 987, 997 (“Marsh’’).) | Thus, "photographs should be excluded 303 wheretheir principal effect wouldbe to inflamé the jurors against the defendant becauseofthe horrorofthe crime...” (People v. Chavez (1958) 50 Cal.2d 778, 792.) | "Autopsy photographs have been describedas‘particularly horrible,’ and wheretheir viewingis of no particular value to the jury,it can be determined the only purpose of exhibiting them is to inflamethe jury's emotions against the defendant." (Marsh, supra, 175 Cal.App.3d,at p. 998; quoting People v. Burns (1952) 109 Cal.App.2d 524, 541.) In Marsh, supra, the prosecutor argued that the autopsy photographs were relevant to show the amountof force usedto inflict the fatal blows. (Id. at p. 997.) The Court of Appeal held that although cause of death was the central issue _In the case, the coroner's testimony was adequate to make the prosecution's point, and therefore, the photographs were more prejudicial than probative and their introduction into evidence waserror: | Here,the jury was not enlightened one additional whit by viewing these seven gory autopsy photographs. The oral testimonyof the autopsy surgeon describing his findings comprehensively advised the jury of his observations and why he concluded there were multiple fatal impact sites which could not have been caused bya fall from the sofa to the hearth. The primary cause of death..., was never disputed..... Here, where the uncontradicted medical testimonyidentified the precise location and nature of the injuries the autopsy photographshavelittle, if any, additional probative value. (Ibid.) The Court also observed that autopsy photographsare often far more prejudicial than probative because muchofthe revulsion that they inducein the vieweris caused not by the wounds themselves but by the activities of the autopsy surgeon. The Court noted that the photographsin the case before it were "gruesome solely because of the autopsy surgeon's 304 handiwork; . . . In other words, their inflammatory nature has been greatly enhancedby the mannerin which the surgeon choseto “pose' the body portions." (/d. at p. 998; see also People v Poggi (1988) 45 Cal.3d 306, 322-323 [trial court improperly admitted two photographs of the murder victim, one depicting the victim while still alive and a second autopsy photograph showing incisionsthat the surgeons made performing a tracheotomy].) Similarly, in People v. Smith (1973) 33 Cal.App.3d 51, the defense objected to the introduction of three color photographsofthe bodies of two victims, particularly to one which depicted a woman's semi-nude, mutilated bloody corpse. The Court of Appeal found that the photographs "have a sharp emotional effect, exciting a mixture ofhorror, pity and revulsion" and held that the trial court had erred in admitting them. (/d. at p. 69.) The courtstated that such photographs mustbe analyzed in termsofan "evidentiary mosaic," rather than as isolated evidence. (/bid.) In view of the testimony of the coroner and the other evidence, the court found the ‘photographs to have been far more prejudicial than probative: In this ‘case there were ample descriptions of the positions and appearancesof these two bodies. There was autopsy testimony regarding the precise location and nature ofthe wounds, which needed noclarification or amplification. (Citation omitted.) The Attorney General points to no added probative value possessed by these exhibits. They supplied no morethan a blatant appeal to the jury's emotions. Their prejudice-arousing effect heavily outweighedtheir probative value. Thetrial court erred in admitting them. ([bid.) , Other cases have also addressed factors to be consideredin determining the admissibility of this type of evidence. In People v. Anderson (2001) 25 Cal.4th 543, 592, the court noted that the fact that 305 bodies were found relatively quickly argued for their admissibility, as the photographs did not show the remains in a state of decomposition, which would make them more gruesome, and therefore more prejudicial. Other cases have found no error where the photographs were not particularly gruesome because the woundshad been cleaned up and were shown to the jury in a "clinical setting." (People v. Staten (2000) 24 Cal.4th 434, 462-464.) Likewise,it is not error to admit this type of evidence when the photographsare particularly probative, such as when they are admitted in the penalty phase to show the deliberate and brutal nature of the crime. (People v. Staten, supra, 24 Cal.4th at pp. 462-464 [18 stab woundsreflect very intentional nature of killing].) Similarly, in People v. Scheid (1997) 16 Cal.4th 1, the shocking nature of the photographitself was relevant because by portraying the scene they helped explain the mental state of the two witnesses who foundthe victims. That mental state, when the first witness made statements to the police, had been the subject of somelitigation. (/d. ‘at p. 16.) On the other hand, admission of irrelevant and lurid photographs may rendera trial fundamentally unfair. (See, e.g., Ferrier v. Duckworth — (7th Cir. 1990) 902 F.2d 545, 548.) Whena trial court's ruling admitting prejudicial evidence rendersa trial fundamentally unfair, regardless of whetherthe ruling complies with or violates state evidentiary law,the ruling runs afoul of the Due Process Clause. (Jammal v. Van De Kamp (9th Cir. 1991) 926 F.2d 918, 919.) The-wrongful admission ofthis type of evidencealso violates the Eighth Amendmentprohibition on cruel and unusual punishments, extended to the states through the Fourteenth Amendment, which encompassestherightto a fair and reliable guilt and 306 penalty determination. (Gardnerv. Florida, supra, 430 US.at pp. 357-358; Lockett v. Ohio, supra, 438 U.S. at p. 605.) C. Application Of The Law To The Facts Of This Case Applying these principles, it is clear that thetrial court erred in admitting the photographs objected to by the defense. The most important lesson from the foregoing cases is that when the depiction of a victim's injuries is unnecessary for the resolution of disputed issues, introduction of gruesome photographsofthe victims is error. The instant case presents precisely such a situation. | In this case, even the reasoning that the photographs were necessary to show the nature of the woundsis questionable, because the decomposition of Brown andArmstrong's body rendered the photographsof questionable value for that use. Furthermore, it is important to note that many of the purported reasonsfor this evidence which the prosecution presented are of dubiousrelevance. For example, the prosecution argued for the admission ofthe photographs depicting Brown's scalp because the. prosecution had previously understood that the defense was claiming that the scalp came from the actual killer, and therefore this was relevantto a self-defense claim. However,at the time that this issue wasraised, it was clear that such a claim was not being made by the defense. The prosecution should not be allowed introduce evidence simply to disprove something whichthe defense has no intention of arguing. Thus, the focus of the inquiry should have been on whatissues were in dispute when the issue was raised. Likewise, the prosecution noted that the position of the wounds was important. The specific position of the wounds wasnotrelevant to any disputed issue in this case. The difference in the inference to be provenis 307 negligible whether someoneis shot with a shotgun from onefoot away Or from a contact wound. Accompanied by a second fatal wound, any desired inferences - suchas the intentional nature of the shooting - fades even further. Therefore, the specific nature of the wounds wasirrelevant. Evenif thepositioning of the wounds could be consideredrelevant,- there is no additional relevance to photographs of the maggot-infested remains. This case must be contrasted with People v. Navarette (2003) 30 Cal.4th 458 where this Court explained that a photographofthe victim's | naked chest was relevant "to show the dense concentration of stab wounds" to the heart area for the inference that the killing was intentional. Likewise, showing the victim with her pants around her ankles and her handsandfeet tied together was relevant to show the victim was immobilized before being killed, also allowing an inference that the killing was intentional. (/d. at p. 495.) Similarly, in this case the prosecution arguedthat the pictures of Chemise were.also important to show how she was positioned to show the deliberateness of shooting. (RT 8271.) Again,it is respectfully submitted that shooting a toddler in any position from close-up rangeis almost conclusive evidencethat the shooting was deliberate. In this caseit is clear that the photographshadlittle or no probative value relating to any disputed issue in this case. The fact of the murders, the manner in which they were committed, the identity of the victims, and other facts that these photographs might have had bearing on were not actually in dispute. Truly, in this case there was nothing particularly informative aboutthese pictures, apart from their generic use of showing how the murder was committed. It has been noted that " 'murder is seldom pretty, and pictures, testimony and physical evidence in such a case are 308 always unpleasant....'." (People v. Carpenter (1997) 15 Cal.4th 312, 385, quoting People v. Pierce (1979) 24 Cal.3d 199, 211.) However,if all that is ‘necessary to makethis type of evidencerelevant is a mantraof © "need-to-show-how-the-crime-happened," the boilerplate reason for the admission of evidence would de facto overrule all cases which held this type of evidence was improperly admitted, and would negate the trial court's discretion and an appellate court's oversight of that discretion. Likewise, in this case there were none of the factors found in other cases that would mitigate the prejudice inherentin this type of evidence, such as cases where the photographs did not portray the bodiesin a state of decomposition or cases where the wounds were shown in clinical setting after being cleaned up and having the gore removed. (See, respectively, People v. Anderson, supra, 25 Cal.4th at p. 592 and People v. Staten, supra, 24 Cal.4th at pp. 462-464.) The fact that the woundsportrayedin the pictures were described to the jury negated the needto actually show the pictures. In such a case, the photographs become,at best cumulative. Contrary to the adage that a picture is worth a thousand words,in many casesthe picture addslittle actual knowledge to a lay person who mustrely on an expert for its interpretation. The real value maybe in the testimony explaining what happened,rather than a picture, whicha juror may not understand. Thus, the photographs only add to the emotional aspect of the case, rather than to the analytical aspect. D. Prejudice Whena trial court's error infringes upon thefederal constitutional rights of a criminal defendant, the erroris subject to review underthe standard of Chapman v. California, supra, 386 U.S. 18, 24, and reversalis required unless the prosecution can show the error to have been harmless 309 beyond a reasonable doubt. Because the photographsin this case did not tend to prove anything that was of consequenceto any disputed factin the case, the evidence wasnotrelevant. (Evid. Code § 210.) Havingfailed the _ test of relevance, this leaves only the gruesome nature of the photographs whichclearly was prejudicial. An important consideration in determining prejudice is the weakness — of the case against appellant. Thisis particularly true here inlight of the lack of evidence connecting appellant to the offense and the suspect nature of the testimony of James Williams, as discussed ante. While it has. been held that any error in admitting gruesome photographs was harmless due to the strength of the prosecution's case (People v. Hines (1997) 15 Cal.4th 997, 1046), the same rationale may not be employed here. In a weak case like this one the nature of these pictures, decomposed bodies and bloody photographsof a dead baby and her mother, had an undue detrimental influence on the jury. Because the injuries had already been described to the jury, any information the pictures might have contained had already been conveyedtothe jury, thereby lessening any probative valuein relation to prejudice. All this was done in the most gruesome way regarding the bodies ofthe otherwise unsympathetic hit man and his right hand man, by displaying close-up photographs of Armstrong and Brown’s decomposed, _ maggot-infested bodies. Thus, the trial court's error was sufficiently prejudicial to compel a reversal, even assumingthat it was mere state law evidentiary error rather than federal constitutional error. (See People v. Poggi, supra, 45 Cal.3d 323.) In summary,thetrial court's decision to allow for introduction of irrelevant, inflammatory, gruesome photographsdepicting the bodiesofthe victims was an abuseofdiscretion, depriving appellant of an impartialjury, 310 -a fair trial, due process oflaw,and a reliable penalty determination in violation of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and parallel provision of the state constitution. Appellant’s conviction and death sentence mustbe reversed. // // 311 — XII APPELLANT WAS DENIED A FAIR AND IMPARTIAL TRIAL BY THE TRIAL COURT’S SUA SPONTE CROSS- EXAMINATION OF APPELLANT WHICH UNDERMINED APPELLANT’S CREDIBILITY A fair and impartialtrial is a fundamental aspect ofthe right of accused personsnotto be deprived oflife or liberty without due process of law. (U.S. Const., Amends. V, VI, and XIV; Cal. Const., art. I, § 7, subd. (a); see e.g., Tumey v. Ohio (1927) 273 U.S. 510, 523; People v. Superior ~ Court (Greer) (1977) 19 Cal.3d 255, 266.) There are many componentsto a fair and impartialtrial, one of which is a defendant’s rightto a trial by a detached, fair and impartial judge whois not biased against him. (Ibid.) It is fully recognized that the judiciary must not only be impartial but should always appear impartial. (Un re Richard W. (1979) 91 Cal.App.3d 960, 967.) Appellant asserts that his right to a fair and impartialtrial was violated whenthetrial court indicated it disbelieved appellant during appellant’s cross-examination. | During the prosecution’s cross-examination of appellant, the prosecution attempted to undermine appellant’s credibility in the following exchange: | BY MR. MCCORMICK: Q: A numberof times when I asked you questions, you said that happened sevenor eight years ago, and you just couldn’t rememberthe answer, correct? A: The answer to what? Q: A lot of my questions, you can’t remember because so muchtime had passed that you just had no idea? A: If I couldn’t remembercertain things, I said that. 312 MR. JONES: THE WITNESS: MR. JONES: THE COURT: THE WITNESS: Is there some particular reason you rememberthat you purchased a car on January of 1983, that you had an accident in January of 1987, that you rememberthe date that you bought a house, you rememberthe date John bought a house, you rememberthe date Eli bought a house, you rememberthe date that Jeff bought a house, you rememberthe date a pool hall was purchased, yet when I asked you questions you can’t rememberany ofthe details? Your Honor,I — Did you ask me ~ Iobject as compound. Overruled. Go ahead. Did you me[sic] any of those questions? BY MR. MCCORMICK: Q: A: (RT 15491-15492.) _ Are you havingselective memory problems? Absolutely not. The trial court then interjected its own question: THE COURT: (RT 15492.) _ And youaren’t selectively answering questions you choose to answer because you figure they’re safe to answer? I’m answering the questionsto the best of my ability when you ask me andtheotherattorneys. In exercising the trial judge's broad powerto control the trial proceedings, the judge has a duty to be impartial, courteous, and patient. 313 This duty is recognized in the Canonsof Judicial Ethics (see 2 Witkin, Cal. Procedure (4" ed. 1997), Courts, §50 et seq., pp. 77et seq.]), andits violation may beso serious as to constitute reversible error. (See 7 Witkin, Cal. Procedure (4ed. 1997), Trial, §254 et seq., pp. 300 et seq.) "Atrial judge may examine witnessesto elicit or clarify testimony ... [but he or she] must not become an advocate for either party or underthe gui[s]e of | examining witnesses[,] comment on the evidence or cast aspersions or ridicule on a witness." (People v. Rigney (1961) 55 Cal.2d 236, 241.) Appellant submits that the trial court in this case lost its neutrality and communicatedto the jury its disbelief in appellant’s credibility whenit 103 As previously stated,_ cross-examined appellant as set forth above. appellanttestified on his own behalfand denied any complicity in the instant crimes. Thus, appellant’s credibility wascritical to his defense, and the trial court’s question improperly and prejudicially communicatedto the Jury that the court disbelieved appellant’s testimony. (People v. Perkins, supra, 109 Cal.App.4th at p. 1567 [trial judge committed prejudicial '03 The fact that trial counsel did not object to any ofthese comments does not bar appellate review ofthis issue. Issues relating to the biases exhibited by a trial judge have been found cognizable on appeal despite the lack of an objection in the trial court. (See Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 244.) Further, as commentators have observed,the rule that an appellate court will not consider points not raised at trial does not apply to "[a] matter involving the public interest or the due administration ofjustice." (9 Witkin, Cal.Procedure (3d ed. 1985), Appeal, § 315, p. 326.) This is an issue involving the due administration ofjustice. Further, a defendant's failure to object does not preclude review "when an objection and an admonition could not cure the prejudice caused by" such misconduct. (People v. Perkins (2003) 109 Cal.App.4th 1562, 1567 [citations omitted].) Such is the case here. 314 misconduct by intemperate examination of defendant in mannerindicating that he sided with prosecution].) The trial court’s question undermined appellant’s credibility and deprived appellantof the type of fair and impartialtrial that is required in a capital case, violating appellant’s rights underthe Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal constitution, as well as his nights to a fair trial underthe state constitution. Reversal of his conviction and judgmentof death is required. ([bid.; see also Hallv. Harker (1999) 69 Cal.App.4th 836 [in malicious prosecution action againstattorney,trial judge's frequent negative comments about attorneys generally created appearance ofjudicial bias, providing basis for reversal ofjudgment); Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 455 [in medical malpractice action by injured worker who mayhave been in United States illegally, trial judge's conduct requiredreversal even absent showing of prejudice; his remarks gave appearancethat he had preconceived ideas based on stereotypes of undocumentedaliens, raising doubts about fairness and impartiality of proceeding and casting judicial system in badlight]. In anticipation of respondent’s argumentin reply, appellant asserts that, given that the trial court ruled in favor of respondent and deniedallof -appellant’s requests to correct and settle the record on appeal, the State | must be estopped from asserting the statement attributed to the court as set forth aboveis the due to the court reporter’s error. // | // 315. XII THE TRIAL COURT’S ERROR IN DENYING APPELLANT’S MOTION TO PRODUCE JAMES WILLIAMSAS A DEFENSE WITNESS AT APPELLANT’S SUPPRESSION HEARING AND ITS FAILURE TO SUPPRESS THE EVIDENCE SEIZED DURING UNCONSTITUTIONAL SEARCHESOF THE WHEELER AVENUE AND JUDD STREET RESIDENCES REQUIRES REVERSAL OF APPELLANT’S CONVICTION AND DEATH SENTENCE | Appellant was deniedhis rights, under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and parallel - provisions of the state constitution, to be free from unreasonable searches and seizures and to due process of law when the trial court denied appellant’s motions to suppress the evidence seized as a result of the warrantless search of the house at 11442 Wheeler Avenue, where the prosecution maintained appellant conducted business, as well as that seized one monthafter the instant homicides from his home on JuddStreet. Appellant wasalso denied his rights, under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and parallel provisions of the state constitution, to due process and compulsory process whenthetrial . court denied appellant’s motion to compel the production of James Williamsin order to establish appellant’s reasonable expectation of privacy regarding the Wheeler house. Appellant’s conviction and judgment of death must be reversed. A. Proceedings Below The search and seizure of evidence from the Wheeler location was conducted without a warrant. (RT 4125.) Onefull month after the homicides, Detective James Vojtecky supplied the affidavit that was the basis for a search warrant authorizing the 316 search of appellant’s home at 12719 Judd Street, as well as a search of 23 other residences, for a 12 gauge shotgun, a .38 or .357 caliber revolver and ammunition, clothing described in the initial crime scene report and “[a]ny articles or personal property tending to establish the identity of person who have dominion and control over the premises, automobiles, or items to be seized, including but not limited to: rent receipts, utility bills, telephone bills, miscellaneous addressed mail, personal letters, personal identification, keys, purchasereceipts, sales receipts, tax statements, photographs, vehicle pink slips and vehicle registration.” (CT 10480-10485.) Priorto trial appellantfiled motions: (1) to suppress evidence seized from Wheeler house on the grounds that the search was warrantless and not within any exception to the warrant requirement; and (2) to suppress evidence seized from appellant’s Judd Street homeon the groundsthat the affidavit supporting the search warrant lacked probable cause to search the ‘premises for indicia of appellant’s involvementthe instant homicides, as opposedto indicia of appellant’s involvementin drugsales, and that it was based onstale information. (CT 10441-10521.) Appellantalso filed a motion to compelproduction of James Williams, who was in the prosecution’s witness protection program,to testify concerning appellant’s reasonable expectation of privacy with regard to both addresses. (CT 10437-10440; RT 4116.) All three motions are incorporated by reference as if set forth in full herein. (CT 10437-10440, 10441-10540.) The prosecution opposedall three motions. With regard to the Wheeler house, it argued that the testimony of James Williams would not 317 establish standing’ as to appellant, because Williams had testified that: no onelived at the Wheeler Avenuelocation; appellant had to call ahead of timeto be let into the house, and Williams worked at the house at the direction of appellant and others in the drug operation. (CT 10558.) The prosecution offered to stipulate that appellant operated a narcotics business out of the house, but at the same time argued that no “competent court would find a legitimate expectation of privacyin an illicit” business location. (CT 10559.) The prosecution further arguedthat the search was conducted under the emergency exception to the warrant requirement, as well as the plain view doctrine. (CT 10560-10564.) | With regard to the search of appellant’s home, the prosecution: (1) refused to concede thatappellant had standing to challenge theissuance of the warrant; (2) argued that the warrant contained sufficient evidencethat appellant was involvedin the homicides and thus contained probable cause for issuing the search warrant of appellant’s home for the items listed. (CT 10692-10707.) The motions were heard on August 3, 1992, before the Honorable J.D. Smith, Judge. (RT 4055, 4110-4186.) The prosecution stipulated that the search at the Wheeler location was warrantless, but refused to stipulate that Williams’s prior testimonyat the various preliminary hearings associated with this case established appellant’s standing as to either location. (RT 4120-4122, 4125.) Thetrial court denied appellant’s motion '* The term “standing” in the Fourth Amendmentsearch andseizure ‘context has beenlargely replaced by other nomenclature, whichwill be discussedlater in this argument. However, that term was used by the parties and thetrial court, and appellant will use the term in summarizing the proceedings below for the sake of accurate reporting of events attrial. 318 to compel the attendance of Williamsso that he could testify in that regard. (RT 4124.) After appellant then testified that he lived at the Judd Street location, the court found standing had beenestablished as to that location, but rejected appellant’s arguments about the insufficiency of the warrant, which includedthe additional in-court challenge that the warrant provision to search for “any items of personal property . . . .” was unconstitutionally overbroad. (RT 4175-4186.) The court found appellant had notestablished ” standing to challenge the search and seizure at the Wheeler house. (RT 4186.) B. Trial Testimony Regarding The Search AndSeizure Of The WheelerHouse . Los Angeles Police Department (“LAPD”) Officer Lynn Blees and . his partner Carol Posner werethe first police officers to respond to the scene of the shooting at 11442 Wheeler, a private residence, arriving at about 5:10 p.m. (RT 8532-8533.) Blees found shattered glass in the street where a neighborsaid the red car had been (RT 8535) and large pool of blood on the walkway: going up to the front door of the house. (RT 8537.) He also saw what appeared to be someone’s scalp on the metal grating of .. the front door. (RT 8538.) He walked through the outer steel door and tried to enter the inner front door, but it was locked. (RT 8539.) Blees and his partner secured the scene with yellow tape pendingthe arrival of detectives. (RT 8542.) . While Blees was at the Wheeler house, he was notified of a crime scene at 11311 Osborne Street. (RT 8542.) His wasthe first unit there as well, arriving at about 6:00 p.m. He found a red Toyota Camry with the right rear window blownout; a dead Black female adult and child were in the car. (RT 8543.) Blees returned to the Wheeler house with his 319 supervisor and members of the Los Angeles Fire Department (“LAFD”). (RT 8546-8547.) Blees entered the Wheeler house after the LAFD forced open the garage door. Blees checked for victims,and,finding none,left the house, (RT 8547.) _ When LAPD homicide detective James Vojtecky arrived at the Wheeler house, he spoke with Officer Blees who informed Vojtecky of what he had doneat the two crimesscenes,including his return to the Wheeler house to search for additional victims. (RT 8596-8597.) Vojtecky then proceeded to walk through the entire Wheeler crime scene, including the inside ofthe house, with Officer Blees and Vojtecky’s partner, taking pains not to further contaminate the crime scene. (RT 8597-8606.) Atthis point, Vojtecky had not yet been to the Osborne crime scene;his stated purposefor the walk-through wasto see if there was anyoneelse injured in the house and to get an idea of the physical layout of the scene. (RT 8598, 8606.) After his initial walk through, Vojtecky and his partner went to and examined the Osborne crimescene, determined that there were one or two more victims, and retumed to the Wheeler house. (RT 8607-8611.) _ Vojtecky testified that the purpose of his search of the Wheeler house was to identify the additional victim or victims. (RT 8611.) Vojtecky began his investigation by directing officers to conductfield interviews and by establishing telephone communications with the police station. (RT 8612.) He then conducted an exterior survey of the premises, and then began marking and collecting all the evidence at the Wheeler crime scene; he also directed photographsto be taken andlatentfingerprintlifts to be made. (RT 8613-8625, 8649-8712; CT 10490-10491.) 320 C. The Trial Court Erred In Denying Appellant’s Motion To Compel The Production Of James Williams For The Suppression Hearing And In Denying Appellant’s Motions Suppress Evidence Seized At The Wheeler Avenue And Judd Street Houses 1. The Prosecution Conceded Appellant’s Standing As To The Wheeler House; In The Alternative, The Prosecution Should Have Been Estopped From Contesting Standing As To that Location The Fourth Amendmentprovidesthat thepeople are entitled "to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." Although this Amendmentrestricts only the federal government, the "right of privacy" thus guaranteed is.one of the fundamental rights protected against state action by the Due Process Clause of the Fourteenth Amendment. (Mapp v. Ohio (1961) 367 U.S. 643.) The guarantee extends to any person, including a corporation (Silverthorne Lumber Co. v. United States (1920) 251 U.S. 385) and the guarantee applies to commercial property as well as to private residences. (New York v. Burger (1987) 482 U.S. 691; People v. Paulson (1990) 216 Cal.App.3d 1480, 1483; People v. Roman (1991) 227 Cal.App.3d 674, 680.) Pursuant to California Constitution, article 1, section 28, subdivision (a), courts in this state must be guided by the federal Constitution as interpreted by controlling federal decisionsas the sole basis for exclusion. (See Jn re Lance W. (1985) 37 C.3d 873, 888.) The Fourth Amendmentprotects a person’s privacy in both the home and office setting. As the high court explained: What the Fourth Amendmentprotects is the security a manrelies upon whenheplaces himselfor his property within a constitutionally protected area, be it his homeorhisoffice, his hotel room or his automobile. There he is protected from unwarranted governmental 32] intrusion. And whenhe puts somethinginhis filing cabinet, in his desk drawer, or in his pocket, he has the right to knowit will be secure from an unreasonable search or an unreasonable seizure. (Hoffa v. United States (1966) 385 U.S. 293, 301.) Since Rakasv. Illinois (1978) 439 U.S. 128, the United States Supreme Court has largely abandoned the use of the term "standing"in Fourth Amendment analysis, but without changing the basic inquiry: "whether the defendant, rather than someoneelse, had a reasonable expectation of privacy in the place searched or the items seized." Put another way, the capacity to claim the protection of the Fourth Amendment depends on whether the claimant has a legitimate expectation of privacy in the invaded place. (id. at p. 143.) The high court hasstated that the defendant has the burden of proving he or she hasa legitimate expectation of privacyin the area or item searched. (Rawlings Vv. Kentucky (1979) 448 US. 98, 104.) Undersubstantive Fourth Amendmentprinciples "a prosecutor may simultaneously maintain that a defendant criminally possessed the seized good, but was not subject to a Fourth Amendment deprivation, without legal contradiction” because Simmonsv. United States (1968) 390 U.S. 377, eliminated the self-incrimination problem byruling that a defendant's testimony in support of a motion to suppress cannot be admitted as evidence of guilt at trial. (United States v. Salvucci (1980) 448 USS. 83, 88, 90.) However, Salvucci does not stand for the proposition that the government can always avoid "the vice of self-contradiction." (People v. Dees (1990) 221 Cal.App.3d 588, 596.) As explained in United States v. Issacs (9th Cir.1983) 708 F.2d 1365, 1367-1368, Salvucci simply rejected automatic standing based on possession alone, where there was no | expectation ofprivacy in the area searched. But where circumstancesof a 322 particular case make possession and denial of an expectation of privacy inconsistent, the court in Jssacs concluded the government cannot haveit both ways. (Ibid.; accord, People v. Dees, supra, 221 Cal.App.3d at pp. | 597-598.) . In its opposition to appellant’s suppression motion1n this case, the prosecution presented evidence from many witnesses over the course of a half dozen preliminary hearings and a grand jury proceeding that appellant operated a narcotics trafficking business out of several locations, including the Wheeler house. Theprosecution offered to stipulate to those factsin its opposition papers, and thus conceded appellant’s standing to challenge the warrantless search and seizure of evidence from the Wheeler house. (CT 10559.) Since the prosecution conceded “standing”in their moving papers, the trial court erred in precluding appellant from challenging the legality of the warrantless search and seizure of evidence from the Wheeler house. If this Court rules there was no such concession, then given the circumstancesofthis case, the prosecution must be estopped from arguing that appellant did not carry his burden to prove standing. (United States v. Issacs, supra, 708 F.2d at pp. 1367-1368; People v. Dees, supra, 221 Cal.App.3d at p. 598.) Moreover,the trial court, by holding appellant to answer on the basis of the prosecution’s evidence, thereby rejecting appellant's attempt to disassociate himself from Wheeler house, cannot turn the tables to deny his assertion of privacy based on the exact same showing. (People v. Dees, supra, 221 Cal.App.3d at p. 598.) 323 2. Even If Standing Was Not Conceded And The Prosecution Not Estopped From Contesting Standing, The Trial Court Unconstitutionally Precluded Appellant From Carrying His Burden of Proof Regarding His Reasonable Expectation Of Privacy In The That House Appellant attempted to establish his reasonable expectation of privacy in the Wheeler housein several different ways: (1) through his motion for the production of prosecution witness James Williams, whose whereabouts werein the control of and was knownonly to the prosecution; (2) through the testimony of investigating officer James Vojtecky; and (3) through the testimony of one of the prosecutors in this case, DDA Michael Yglecias. The trial court: (1) denied the motion to produce Williams, ruling simply that it was not required to order him to appear because appellant had otherwitnesses available to him who could establish his standing; (2) ruled that Vojtecky’s testimony regarding the information containedin his affidavit supporting the warrant was based on hearsay and thus inadmissible; (3) ruled that it would not accept Vojtecky’s expert opinion as competent evidence in support of appellant’s claim of standing, evenifit was based on businessrecords, that appellant conducted business out of the Wheeler house and helived at the Judd Street house; and (4) would not permit the DDAto be examinedas to whether they intended to present evidencethat appellant conducted business out of the Wheeler house. (RT 4126-4157.) Appellant then testified that he lived at the Judd Street house during the time in question, but he did not testify regarding the Wheeler house. (RT 4158-4159.) | The Sixth Amendmentprovides in part: "In all criminal 324 prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him [and] to have compulsory process for obtaining witnesses in his favor...." (U.S. Const., Amend. VI.) The nght to present witnesses has long been recognizedas essential to due process. (Chambers v. Mississippi, supra, 410 U.S.at p. 294 (“Chambers’’).) Chambers and Washington v. Texas (1967) 388 U.S. 14 stand for the general proposition that a defendant's right to present a defense includesthe rightto offer . testimony by witnesses and to compeltheir attendance. “While the Sixth Amendment doesnotliterally guarantee the right to present witnesses;it . gives the right to compulsory process to obtain them. However,it is pellucid that the latter includes the former.” (U.S. v. Mack (9th Cir. 2004) 362 F.3d 597, 601 [citing to Taylorv. Illinois (1988) 484 U.S. 400, 409.) In fact, "few rights are more fundamental than that of an accusedto present witnesses in his own defense." (Taylor v. Illinois, supra, 484 U.S. at p. 408 [citation omitted].) As the Supreme Court putit at an earlier time: The right to offer the testimony of witnesses, and to compeltheir attendance,if necessary,is in plain termsthe right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide wherethe truth ‘lies. Just as an accusedhasthe right to confront the prosecution's witnesses for the purpose of challenging their testimony,hehas the right to present his own witnesses to establish a defense. This rightis a fundamental element of due process of law. (Washington v. Texas, supra, 388 U.S.at p. 19.) The Court has recognized that the Sixth Amendmentright to present relevant testimony "may,in appropriate cases, bow to accommodate other legitimate interests in the criminaltrial process." (Rock v. Arkansas, supra, 483 U.S. 44 [citations omitted].) The Court has emphasized, however,that restrictions on a criminal defendant's right to confront witnesses and to present relevant ~ 325 weetevidence 'may notbearbitrary or disproportionate to the purposes they are designed to serve.'" (/d. at p. 56; see also United States v. Scheffer (1998) 523 USS. 303, 308.) A state court may violate a defendant's night to present a defense and witnesses by applying evidentiary standards in an arbitrary or uneven way. In Washington v. Tiexas, supra, for example, the Court held that a Texas rule that prevented an accomplice from testifying on a defendant's behalf arbitrarily denied the defendanthis right to offer the testimony of a witness. (388 U.S.at p. 23.) Similarly, in Rock y. Arkansas, supra, the Court held that Arkansas's per se rule excluding all hypnotically refreshed testimony was an arbitrary infringementof the defendant's right to present testimony. The Court stated that a state's restrictions on testimony may notbearbitrary, (483 U.S. at pp. 55-56); that a state "maynot apply anarbitrary rule of competence to exclude a material defense witness from taking the stand;" and that a state "may not apply a rule of evidence that permits a witness to take the stand, but arbitrarily excludes material portions of his testimony." (Id. at p. 55.) | In addition to ruling that a state may not arbitrarily apply evidentiary standards, the Court has also focusedits criticism on a particular variety of arbitrariness: the unjustified and uneven application of evidentiary standards in a way that favors the prosecution over defendants. In Greenv. Georgia (1979) 442 U.S. 95, 97 [per curiam], the Supreme Court reversed a death penalty sentence becausethetrial court had excluded testimony ‘offered by the defense under Georgia's hearsay rules. While Georgia's hearsay rules did not allow the admission of evidence that would have been exculpatory in Green's sentencing hearing,the state's rules did allow the governmentto introduce the same evidence in his co-defendant'strial. The 326 Court held the exclusion of the evidence at sentencingto be reversible error, listing several reasons whythetrial court should have admitted the hearsay testimony. The Court concluded: "Perhaps most important the State considered the testimonysufficiently reliable to use it against [Green's co-defendant], and to base a sentence of death uponit." (/bid.) Other cases confirm and apply the principle that a state rule or ruling that imposes a greater evidentiary burden on a defendant without justification violates due process. For example, in Webb v. Texas (1972) 409 U.S.95, the trial judge admonished the defendant's witness at length to testify truthfully, but did not give similar warnings to the State's witnesses. As a resultofthetrial judge's lecture, the defendant's witness refused to testify. The Court ruled that the "tnal judge gratuitously singled outthis one witness," and held that the witness' subsequentrefusalto testify deprived the defendantof due process. (409 US.at pp. 97-98.) Moreover, various types of governmental and judicial interference have been found to deprive the criminal defendantof the right to present his ownwitnessesto establish a defense. (See United States v. Smith (D.C.Cir.1973) 478 F.2d 976 [defense witness told by prosecutorthat if he _ testified as indicated by other testimony he could or would beprosecuted for carrying a concealed weapon,obstructing justice, and as an accessory to murder]; United States v. MacCloskey (4th Cir. 1982) 682 F.2d 468 [U.S. Attorney telephoned defendant's girlfriend's attorney to advise him to remind his client that if she testified at trial she could bereindicted on dropped charges]; United States v. Goodwin (Sth Cir. 1980) 625 F.2d 693 [defense witnesses intimidated by threats of prison officials conditioned upon whether the witnessestestified at trial]; United States v. Hammond (Sth Cir. 1979) 598 F.2d 1008 [defense witness threatened by FBI agent 327 with retaliation in other cases pending against him]; United States v. Henricksen (5th Cir. 1977) 564 F.2d 197 (per curiam) [defense witness intimidated by terms of his plea bargain in another case]; United Statesv. Thomas (6th Cir. 1973) 488 F.2d 334 (per curiam) [defense witness told by secret service agent during recessoftrial that he would be prosecuted for a felony if he testified]; Berg v. Morris (E.D.Cal. 1980) 483 F.Supp. 179 [trial court coerced witnessinto giving inculpatory evidenceby twice warning him that his probation would be revoked and perjury chargesfiled if the truth werenottold].) Nothing could be a moreliteral example ofgovernmental and judicial interference with a defendant’s right to present witnesses in his defense than what happenedin this case. The prosecution maintained exclusive access to Williams and refused to bring him to court for purposes of appellant’s hearing. Thetrial court articulated no reason,let alone a rational one, for denying appellant’s motion to compelthe production of ‘Williams. Thetrial court simply said that it did not have to makethe order, and that it believed appellant had “other witnesses” whocould testify as to his standing to challenge the search warrant. Given the context of the suppression hearing, the trial court essentially required appellant to take the stand andtestify in that regard: the only witness present for the defense was Vojtecky, and the court refused to considerhis testimony, expert or otherwise, on the issue of standing, andthetrial court also refused to allow the defense to question the prosecutor in this regard. Appellant wasleft with no witness but himself. The law simply doesallow trial court to control the presentation of defense evidence in this manner. Appellant had a constitutional right to compel Williams’ relevant testimonyin this regard. Aswill be discussed below, Williams’ testimony would have supplied 328 sufficient competent evidence of appellant’s expectation of privacy in the Wheeler house. Thetrial court’s arbitrary denial of appellant’s request to compel Williams’ production and the other limitations it posed on testimony at the suppression hearing denied appellant his federal constitutional rights to compulsory process,to present a defense andto dueprocessoflaw. 3. Appellant Had An Actual, Subjective Expectation Of Privacy At The Wheeler House, And The Warrantless Search Of That House Was Not Within Any Exception To The Fourth Amendment’s Warrant Requirement; All Evidence Seized Therein Should Have Been Suppressed a. Appellant’s Expectation Of Privacy In The Wheeler House The prosecution arguedthat: (1) appellant had no legitimate expectation ofprivacy in the Wheeler house because he operated anillegal business out of that property; and (2) the search was within the emergency and plain view exceptions to the warrant requirement. These contentions were meritless. In Kaiz v. United States (1967) 389 U.S. 347, as articulated in Justice Harlan's concurring opinion, the test for whethera person may invoke the Fourth Amendmentpurposeshas two prongs: (1) a person must demonstrate an actual, subjective expectation of privacy in that whichis searched; and (2)that actual expectation must be one society recognizes to be reasonable. (/d. at p. 361 (conc. opn. of Harlan, J.).) The reasonableness ofa claimed expectation of privacy dependsonthetotality of circumstances presented in each case. (In re Baraka H. (1992) 6 Cal.App.4th 1044.) - Factors to be considered in determining whether a defendant has a legitimate expectation of privacy in a particular place include whether the defendant has a property interest in the place, whether he or she has a night 329 to exclude others from the place, whether he or she has exhibited a subjective expectation that it would remain free from governmental intrusion, whether he or she took normal precautions to maintain his or her _ privacy, and whetherhe or she waslegitimately on the premises. (People Vv. Roybal, supra, 19 Cal.4th at p. 507; People v. Ybarra (1991) 233 Cal.App.3d 1353, 1360.) A person doesnotforfeit his or her Fourth . Amendment rights by using property in which herhershe hasa legitimate expectation of privacy for illegal purposes. (United States v. Vega (Sth Cir. 2000) 221 F.3d 789, 797; see also Minnesota v Carter (1998) 525 U.S. 83, 110 (dis. opn. of Ginsberg, J.) ["[i]f the illegality of the activity made constitutional an otherwise unconstitutional search, such Fourth Amendmentprotection, reserved for the innocent only, would havelittle force in regulating police behavior toward either the innocentor the guilty"].) It is a basic principle of Fourth Amendmentlaw that searches and seizures inside a home without a warrantare presumptively unreasonable. (Payton v. New York (1980) 445 U.S. 573, 586.) As the United States Supreme Court has stated in Coolidge v. New Hampshire (1971) 403 U.S., at 474-475, 477-478: Both sides to the controversy appear to recognize a distinction between searches and seizures that take place on a man's property — his homeoroffice — and thosecarried out elsewhere. It is accepted, at least as a matter of principle, that a search or seizure carried out on a Suspect’s premises without a warrant is per se unreasonable, unless the police.can showthat it falls within one of a carefully defined set of exceptions based on the presence of “exigent circumstances.” * * * It is clear, then, that the notion that the warrantless entry of a man's housein order to arrest him on probable causeis per se legitimate is 330 in fundamental conflict with the basic principle of Fourth Amendmentlaw that searches and seizures inside a man's house without warrant are per se unreasonable in the absence of some one of a numberof well defined “exigent circumstances.” (See also United States v. Shaibu (9th Cir.1990) 920 F.2d 1423, 1425 [warrantless search of a house is per se unreasonable and absent exigency or consent, warrantless entry into the homeis impermissible under the Fourth Amendment].) The Wheeler house wasclearly a private residence, used regularly by appellant, and thus by definition appellant had a reasonable expectation of privacy in the premises. (Ibid.; see also Hoffa v. United States, supra, 385 U.S. 293.) And, as explained below, no exigent circumstancejustified the warrantless search ofthat house. In the alternative, it is clear that, if appellant’s request to compel the testimony of Williams had been granted, appellant would have carried his burdenof showing thata totality of the circumstances supported his claim of standing as to the Wheeler house. As an offer of proofat his suppression hearing, appellant argued that Williams wouldtestify consistent with his prior testimony in six preliminary hearings and one grandjury proceeding relating to the instant charges. In testimonypriorto trial Williamssaid, inter alia, that: he was employed at the Wheeler house, a secured location in which people cameto pay for drugs and to which people workingfor the drug organization cameto be paid; that appellant washis boss anddirected Williams to pay money to people; appellant entered the house whenever he wanted by calling ahead to the premises; appellant parkedhis carin the garage; appellant frequented the house most Sundays when Williams worked there and always broughta briefcase into the house; appellant made calls from the room in the house where the safe was located; appellant directed Williams to use force if necessary to keep out unauthorized 331 intruders; appellant had access to the combination safe and put moneyin and tookit out of that safe; appellant showed Williams howto operate a money counting machine on the premises; and appellant regularly got his hair cut at the house. (See, e.g., CT 834-850, 860-862, 1030, 3474, 3747; 3 SUPP CT 9691-9743.)!° Thus, it was clear that appellant had a subjective expectation of privacy in the Wheeler house: he waslegitimately on the premises; he took precautions to maintain the privacy and security of the premises; he determined who waspermitted on the premises; he employed . people at the house; and he operated the payroll out of that house. All of ~ these factors demonstrate appellant’s subjective expectation of privacy there. Before this house could be searched, a warrant was required. b. The Search Was Not Within The Emergency Exception To The Warrant Requirement Contrary to the prosecution’s contention, the warrantless search of the Wheeler house was not permitted under the emergency exceptionto the '. warrant requirement. The emergency exception was recognized by the United States Supreme Court in Mincey v. Arizona (1978) 437 U.S. 385, . 392 (“Mincey’). The Court reasoned that an entry or search that would '5 Appellant was provided only with the preliminary hearing transcripts of appellant and coappellant Smith, as well as testimony from codefendantSettle’s grand jury proceedings. Appellant requested and was denied transcripts from the other preliminary hearings heldin this case, and has movedthis Court to augmentthe record with those transcripts. (See. Motion to Vacate Certification or, in the Alternative, to Correct, Augment and Settle the Record at pp. 63-71, filed September 13, 2002, in this Court by appellant Bryant.) To the extent this Court finds appellant has not supplied facts sufficient to establish that Williams would havetestified regarding appellant’s expectation of privacy in the Wheeler house, appellant has been denied an adequate record on appeal. (See Argument, XXXIV, post.) 332 otherwise be barred by the Fourth Amendment maybejustified by the need to protect life or avoid serious injury. ([bid.; see also People v. Ramey (1976) 16 Cal.3d 263, 276; People v. Duncan (1986) 42 Cal.3d 91, 104.) The Ninth Circuit recognized the emergency exception to the Fourth Amendment's warrant requirement in United States v. Cervantes (9th Cir. 2000) 219 F.3d 882, 889. In Cervantes, the court set forth the three requirement of the emergency exception doctrine: (1) the police must have reasonable groundsto believe that there was an emergency at hand andthat there was an immediate need for their assistance; (2) the search was not primarily motivated by an intent to arrest and’seize evidence; and (3) the police had a reasonable basis, approximating probable cause, to associate the emergency with the area to be searched. (/d. at pp. 888-91.) If any of these three requirementsis not satisfied, the emergency exception to the Fourth Amendmentis not applicable and the search is unconstitutional. (Id. at p. 890 [holding that this three-part test is a "clear and soundly-crafted formulation of the emergency doctrine's requirements"].) The emergency exception requires that the persons responding to the emergency have a good-faith belief in the existence of what reasonably appears to be an emergency; exigency is determined on the basis of facts and inferences available to the officer in light of his or her training and particular experience; this belief must be objectively reasonable. (People v. Smith (1977) 67 Cal.App.3d 638, 629.) After the emergency has passed,a re- entry to investigate or seize evidence is unlawful in the absence of a search warrant or consent. (People v. Keener (1983) 148 Cal.App.3d 73, 77; People v. Bradley (1989) 132 Cal.App. 737, 744.) Merespeculation is not sufficient to show exigent circumstances. (See United States v. Tarazon (9th Cir.1993) 989 F.2d. 1045, 1049.) Rather, 333 "[t]he governmentbears the burden of showing the existence of exigent circumstancesby particularized evidence." (/bid.) This is a heavy burden and canbesatisfied "only by demonstrating specific and articulable facts to Justify the finding of exigent circumstances." (LaLonde v. County of Riverside (9th Cir.2000) 204 F.3d 947, 954 [internal quotation marks omitted].) Furthermore, "the presence of exigent circumstancesnecessarily implies that thereis insufficient time to obtain a warrant; therefore, the government must show that a warrant could not have been obtained in | time." (United States v. Tarazon, supra, 989 F.2d at p. 1049.) Here, the search of the Wheeler house was not within the emergency exception to the warrant requirementin that Officer Blees testified that, after examining both the Wheeler and Osbourne crimescenes, he gained entry to the house with the assistance of the LAFD, searched the house for other victims, and, finding none, secured the housefor the detectives; thus, officers determined an emergencynolongerexisted andin histrial testimony, which took place years after the suppression motions, Vojtecky affirmedthat, after his initial visits to the Wheeler and Osborne crime scenes, he returned to the Wheeler house and was informed by Officer Blees that Blees had searched the house for additional victims and found none. (RT 8596-8600.) Rather than obtain a warrantto search the | premises, Vojtecky proceeded to enter the home for the explicit purpose of gathering evidence. (/bid.) At the time of the suppression motions the prosecution claimed that Vojtecky had determined that a continuing emergency existed in the Wheeler house. (CT 10562-10563.) However, Vojtecky’strial testimony belies any “good faith” belief that an emergency still existed and demonstrates both that Vojtecky knew from Officer Blees’s searches of the Wheeler house that there were no additional victims in that 334 house and that the purpose of Vojtecky’s entry into the premises wasto gather evidence. (RT 8596-8600.) | The facts of this case mirror closely in key aspects that of Mincey, supra, Where the Court determined that Arizona’s “murder scene exception” to the Fourth’s Amendments warrant requirement was unconstitutional. In Mincey, officers conducted a narcotics raid on the defendant’s apartment by plainclothes and undercoverofficers, during which one of the undercover officers was killed. Thefirst officers to the scene looked through the crime scene for victims of the shooting, made arrangements for medical assistance, and then, pursuant to departmentpolicy prohibiting them from investigating incidents in which they were involved, took no further investigative action. Shortly thereafter, homicide detectives arrivedat the scene and conducted a warrantless search and seized many items. The Court held that the search could notbe justified on the groundthat a possible homicide inevitably presents an emergency situation, especially in light of the fact that officers determined that the emergency had ceased. The seriousness of the offense underinvestigation didnotitself create exigent circumstancesof the kind that under the Fourth Amendment justifies a warrantless search, where there wasno indication evidence would be lost, destroyed or removed during the time requiredto obtain a warrant. (Id. at pp. 392-395.) Similarly, in this case, the Wheeler house had been cleared of victims, the premises secured, and officers posted at the doors. There was no suggestion that a warrant could not have been obtained. 335 c. The “Plain View” Doctrine Does Not Apply Because Law Enforcement WereIllegally In The Wheeler House At The Time The Search And Seizure Was Conducted Nor was the search and seizure of evidence from the Wheeler house admissible under the plain view doctrine. Underthe plain view doctrine, once lawfully present in the home due to exigent circumstances, police may seize incriminating evidence found in plain view within the officer's lawful right of access. (Coolidge v. New Hampshire, supra, 403 U.S.at p. 465.) In this case, while the plain view doctrine might havejustified seizure while Officer Blees conducted his search for other victims in the house, no evidence wasseized by Officer Blees. Vojtecky had no legal right to enter the premises after the emergency had ended, and since he wasin premises unlawfully, the plain view exception does not apply. (/bid.; see also Thompson v. Louisiana (1984)469 U.S. 17, 21-22.) The warrantless search of the Wheeler houseviolated the Fourth Amendment’sprohibition against unreasonable searches and seizures and was not within any exception to its warrant requirement. Asa generalrule, evidence obtained and observations made in violation of the Fourth Amendmentmustbe excluded from a subsequent criminal prosecution. (Mapp v. Ohio, supra, 367 U.S.at p. 655; Silverman v. United States (1961) 365 U.S. 505.) This general rule is applicable to a situation such as the one _ presented in appellant's case, where the conductofthe detectives involved the flagrant disregard ofboth theletter and spirit of the law. Since law enforcement’s warrantless search of the Wheeler residence wasillegal, the evidenceinitially seized therein should have been suppressed becauseit | ret"*ha[d] been comeat by exploitation ofthat illegality."" (Wong Sun v. United States (1963) 371 U.S. 471, 488,[citation omitted].) Because the — 336 affidavit in support ofthe search warrantderived from thatillegally obtained evidence (see CT 10486-10497), the evidence seized at appellant’s home shouldalso have been suppressedas further "fruit of the poisonous tree." (Ibid.) The search and seizure of evidence from appellant’s Judd Street home wasillegal on other groundsas well, as argued in the following _ subsection. 4. The Search WarrantIssued For Appellant’s Home WasIssued Without Probable Cause, Was Based OnStale Information And Was Unconstitutionally Overbroad; The EvidenceIllegally Seized From Appellant’s Home Should Have Been Suppressed a. The Search Warrant Lacked Probable Cause In order for an affidavit to establish probable cause to search a | specific location, the affidavit must demonstrate a reasonable probability that specific property subject to seizure is located at that place. (People v. Cook (1978) 22 Cal.3d 67, 84, fn. 6, superceded on other grounds in Franks v. Delaware (1978) 438 U.S. 154, but approved on this point by Peoplev. Frank (1985) 38 Cal.3d 711, 727.) It is a well-accepted tenet of Fourth Amendmentlaw that the sufficiency of an affidavit is determined by utilizing a commonsense,practical, approachthat looksat the totality of the circumstancesalleged in the affidavit. (/linois v. Gates (1983) 462 U.S. 213, 230; People v. Bradford (1997) 15 Cal.4th 1229, 1297.) Thus,the question becomes whether, after reviewing the information in the affidavit, the totality of this information leads to a reasonable belief that evidence of the homicides at the Wheeler house would be found at appellant's home. The answerto that question is "no." In making this assessment, the affidavit first should be examined for any information that links appellant's homeitself to any evidencerelating to 337 the homicides. Upon such an examination, the only conclusion to be. drawn — is that there is, in fact, no-such information. For example,this is not a case where anyone has provided informationthat fruits or instrumentalities of a crime actually wereseen at appellant's home. (See, e.g., Skelton v. Superior Court (1969) 1 Cal.3d 144, 151-154 [informant had seen stolen items at locale to be searched].) Without this type of information, the only way the affidavit can be foundto set forth the necessary probable cause is to determine that it provides enough facts to infer that appellant committed the homicides andthat there is a reasonable probability that the | . instrumentalities or fruits of those homicides would-befound in his home. In this case, the affidavit that supported the warrant as to appellant’s homereflected a paucity offacts relating to the issue of specific property alleged to have been located there, although some conclusions werealleged. It is a well-settled principle that an affidavit in support of a search warrant must contain statements of fact and that mere conclusions or suspicions are an inadequate basis upon which to establish probable cause. (Peoplev. Smith (1976) 17 Cal.3d 845, 850.) There were no facts alleged in the affidavit that gaverise to the inference that the evidence sought was probably located in appellant’s home. (//inois v. Gates, supra, 462 U.S.at p. 238; People v. Frank, supra, 38 Cal.3d at p. 727.) While the affidavit in the instant case recites a lot of criminalactivity, it is wholly devoid of concrete information about the location of any fruits of the instant crimes. The search warrant therefore issued without probable cause. 338 b. The Information In The Affidavit Is Too “Stale” To Provide The Requisite Probable Cause The informationin the affidavit was too stale to provide the requisite probable cause. Information in an affidavitis worthy of weightin the probable cause determination only whenthe facts set forth are so closely related in time to the issuance of the warrantas to justify a finding of probable cause at the time of issuance. (Sgro v. United States (1932) 287 U.S. 206, 210.) There is no clear-cut rule as to the time period that would be too attenuated. (Alexander v. Superior Court (1973) 9 Cal.3d 387, 393.) Underthe circumstances existing in this case, however the one month gap between the homicides and the issuance of the warrant rendered the information too "stale" to supply the requisite probable cause. The issue here relates to whether the information wastoo "stale"to support a probable cause finding that the search warrant should be issued, notthat it was too "stale" to support a belief that appellant had committed homicides. As this Court has long recognized, "an affidavit in support of a search warrant must provide probable cause to believe the material to be seizedis still on the premises to be searched when the warrantis sought." (People v. Mesa (1975) 14 Cal.3d 466, 470 {information timely where informant observed material on premises in preceding six days].) While the question of whether information is too "stale" to support a search of premises is one that dependson the facts of each case (see People v. Hernandez (1974) 43 Cal.App.3d 581, 586), there are general guidelines that can be gleaned from the cases which have considered this issue. For example, in Sgro v. United States, a 20-day delay between the observation of a sale of contraband on the premises and the issuance of a search warrant 339 for those premises was too lengthy a delay to support a finding of probable cause to believe that contraband was still on the premises. (See Sgro v. United States, supra, 287 U.S. at pp. 211-212.) | As amore general proposition, it has been observed that in the absenceofotherindications, delays exceeding four weeks are uniformly considered too lengthy to permit a finding of present probable cause to search premises. (See Hemler v. Superior Court (1975) 44 Cal.App.3d 430, 434.) The types of indications that could warrant probable cause despite such a delay are factors like extended observations of criminalactivity at the premises ora physical setting strongly indicative of continuingillegal activity. (bid.) The affidavit lacked any evidence of such observations relating to appellant’shome, and wasthustoo stale to support a finding of probable cause. | c. The Search Warrant WasUnconstitutionally Overbroad The general principles governing a person's right to be free from _ unwarranted intrusion are well-understood. (See U.S. Const., Amend. IV; Mapp v. Ohio, supra, 367 U.S.at pp. 654-655 [Fourth Amendment made applicable to the states through the Fourteenth Amendment's Due Process Clause]; Cal. Const., art. I, § 13; see Pen. Code, § 1525.) The Fourth Amendmentalso serves to protect personsagainstall general searches,and requires that a search of a person's homeberestricted to searching for particular items. (Go-Bart Importing Co. v. U.S. (1931) 282 U.S. 344, 357; Marron v. United States (1927) 275 U.S. 192, 196 [particularity requirement "makes general searches under[warrants] impossible"].) The Supreme Court felt that guarding against general searches was critical because historically "such searches have been deemed obnoxiousto 340 fundamental principles ofliberty." (Go-Bart Importing Co. v. U.S., supra, 282 U.S. at p. 357; Coolidge v. New Hampshire, supra, 403 U.S.at p. 467 (plur. opinion of Stewart, J.) ["the problem [with the general warrant] is not that of intrusion perse, but of a general, exploratory rummagingin a person's belongings": particularity requirement prevents "the specific evil [of] the ‘general warrant! abhorred by the colonists"].) The Court also held that "[t]he Amendmentis to be liberally construed and all owe the duty of vigilance for its effective enforcementlest there shall be impairmentofthe rights for the protection of which itwas adopted. [Citations]." (Go-Bart Importing Co. v. U.S., supra, 282 U.S.at p. 357.) In People v. Frank, supra, 38.Cal.3d 711, thisCourt addressed the issue of overbreadth in search warrants. The warrant in Frank contained 16 separate clauses permitting the seizure of a widearray of items. The existence of someof these items could properly be inferred from the information in the affidavit, but the Frank court identified three clauses permitting the examination and seizure of virtually any documentin Frank's residence. (See id. at pp. 722- 723.) At the suppression hearing, it was established by the testimony of law enforcement personnel presentat the warrant's execution that virtually every documentin the residence was indiscriminately seized without regard to the warrant. The lead opinion in Frank indicates the warrant suffered from two species of overbreadth:(1) it did not place a meaningfulrestriction on the things to be seized, and (2)it permitted the seizure of items for which no probable cause was demonstrated in the affidavit. Without a doubt, the warrant in this case failed to place a meaningful restriction on thethings to be seized. The phrase “[a]ny articles or personal property tendingto establish the identity of person who havedominion and 341 control over the premises" could permit the seizure of virtually any document. (See also Aday v. Superior Court (1961) 55 Cal.2d 789, disapproved on another ground in Hicks v. Miranda (1975) 422 US. 332, 346, fn. 15.) For example, there was no indication in the warrant showing why “miscellaneous addressed mail,” which presumably encompasses mail | addressed to “resident” as well as mail mistakenly delivered to that location, would be relevant to the instant homicides. In fact, mail and papers addressed to third parties at locations other than Judd Street, were seized from appellant’s home andused against him attrial which showed his involvementin narcotic sales. (RT 13365-13408.) There simply existed no probable cause in the affidavit or supporting documents to believe that such documents wererelated to the instant homicide. The warrant was unconstitutionally overbroad, and should have been suppressed. D. AsA Result Of The Fourth AmendmentViolations In This Case, Considered Singularly Or Cumulatively, Appellant’s Conviction And Judgment Of Death Must Be Reversed The erroneous admission of evidenceseized in violation of a defendant's Fourth Amendmentrights requires reversal unless the government can prove the error harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S. at p. 24.) The state cannot meet that burden in this case. The illegally seized evidence at theWheeler Avenue and JuddStreet housesconstituted virtually all of the evidence offered to corroborate the _ testimony of accomplice James Williams. Most of the physical evidence . relating to the crime wasrecovered from inside of the Wheeler house, and all of the evidencethat linked appellant to the scene of the instant homicides andto the narcotics business, was recovered either from inside 342 the Wheeler Avenue or Judd Street houses: (1) appellant’s fingerprints were found in the Wheeler house (RT 13258-13287); (2) documents | containing what was opinedto be appellant’s handwriting were recovered from the Wheeler house (RT 11815-11820, 13036-13042, 13272-13274); (3) an exercise bicycle that was purchased by appellant was recoveredin the Wheeler house (RT 12033-12034); (4) a .45 caliber handgun which Williamstestified was taken by appellant from the Wheeler house on the day of the homicides was found in the Judd Street house (RT 12293; CT 10461); and (5) virtually all of the documents connecting appellant to the narcotics sales business were found in a briefcase recovered from the Judd Street house. (RT 12908-12916; 12925-12928; CT 10458-10462.) Without that evidence recovered from those two houses, Williams’s uncorroborated testimony of appellant’s alleged guilt would not have been admissible. Withoutthat evidence, the state cannotcarry its burden of showingthat, in the absence ofthe error, appellant would have been convicted of the instant crimes. (Chapman, supra, 386 U.S. at p. 24.) Thetrial court's error in failing to excludeall of the illegally obtained evidence seized from appellant's home and from the Wheeler house clearly was not harmless beyond a reasonable doubt. Reversal is required. // H/ 343 XIV JAMES WILLIAMS WAS AN ACCOMPLICE AS A MATTER OF LAW AND THE FAILURE OFTHE TRIAL COURT TO SO INSTRUCT REQUIRES REVERSAL; FURTHER, THE TRIAL COURT ERRED PREJUDICIALLY WHENIT , REFUSED TOORDER THE JURY TO RECONSIDER THEIR. VERDICTSAGAINST APPELLANT WHEN IT BECAME CLEAR THAT THEY HAD NOT UNDERSTOOD THE INSTRUCTIONS RELATING TO ACCOMPLICE TESTIMONY Appellant’s confinement and sentenceare illegal and unconstitutional understate statute and constitutionallaw and the due process clausesof the Fifth and Fourteenth Amendments to the United States Constitution because his conviction is based solely on the uncorroborated testimony of James Williams, an accomplice as a matter of law. This outcomewasthe result ofthetrial court’s improperrefusalofthe defense request to instruct the jury that Williams was an accomplice asa matter of law and that his testimony hadto be corroborated. This outcome wasalso the result of the trial court’s improperrefusalto order the jury to reconsidertheir verdicts when it became apparentthat they had not understood their task in several fundamental and critical ways. A. The Facts And Procedural History Asdetailed in the Statement of the Facts, and incorporated herein, the prosecution had only one witness who placed appellant at the place and . time of the homicides, and that was James Williams,a participantin the offenses. Noneofthe three neighbors to the Wheeler Avenue house who testified was able to identify any of the participants, with the exception of Ms. Daniel, whoforthefirst time and nearly seven years after the offenses, identified both appellant and coappellant Wheeler as the driver of the red 344 car that carried the victims, Loretha Anderson and her children.'® No one, including the prosecution, credited Ms. Daniel’s identification of appellant as the driver of the red car. The prosecution argued in both its guilt and penalty phase closing arguments that coappellant Wheeler shotinto that red car, killing Loretha Anderson and Chemise English. (RT 16441, 16469, 16525-16526, 16529-16530, 16785, 16838, 16849, 18451, 18461-18462. 18483.) | : Onthe afternoon of the homicides, by the point at which Williams had allegedly received instructions on his role in the upcoming | confrontation, there are three accounts from Williams in the record on appeal of his own state of mind. Williamsfirst provided an account during his interview with Detective Vojtecky and two Harrisburg, Pennsylvania police officers on October 7, 1988, nine and one-half weeksafter the homicides. (RT 16086-16092, 16561-16562; Wheeler’s exh. 8A, 4 SUPP 24.) In the interview, Detective Vojtecky asked Williams: Did you know what was going down? W: I had anidea. V: How? W: When,uh,first thing, they put gloves on and wentin that backroom and I heard all the guns, people cocking the guns. '06 In 1988, at the preliminary hearing,shetestified that she had not gotten a good look at the driver and was unable to identify him. (RT 11891-11892.) However,in 1995, apparently forthe first timeattrial, she identified a photograph of appellant Wheeler (People’s exh. 1-13, photograph 2) as depicting the driver of the car, but when askedif she saw him in the courtroom,she identified appellant as thedriver. (RT 10539-10544, 11862-11865, 11875-11876, 11892-11893, 11922, 11939-11943, 11951-11953, 11959, 13711-13712.) 345 4 SUPP CT 45.) Williams told them that he assumedthat the reason he was instructed to back the green car into the garage wasso that the bodies could be put in the trunk. (RT 15766-15767.) | The second account Williams provided during his interview by two DDAsKevin McCormickand Bill Seki, and DA Investigator William Duncan on January 25, 1993. (RT 14905, 14907.) The stated purpose of the interview was to review William’s prior statements. (People’s exh. 207, _p. 1.) At the conclusion ofthe interview, Investigator Duncan summarized what waslearned in a five page report. (People’s Exh. 207; RT 14915.) Duncan had 20 years of experienceas a police officer and investigator. (RT 14924.) Williams told them that: appellant removed the moneycounting machine from the house; appellant took the handgun that was normally kept in the living room; Williams heard the sound of a gunshot from a bedroom ‘in the house; appellant asked Williams whether the neighbors could have heard the shot; appellant brought a heavily laden duffle bag into the house; Williams heard the sound of codefendantSettle racking a shotgun; Williams eventually saw coappellants Wheeler and Smith alongside codefendant Settle; coappellant Wheeler had a handgunin his waistband; and Williams _ was told that that “some people were comingto the house.” (People’s exh. 207, pp. 3-4.) Investigator Duncan continued: Williams said that at approximately 4:30 p.m., he looked through the kitchen window and saw a group of people park a red carin front of the count house. Williams saw “Slim” and Don Smith put gloves on their hands. Bryant asked “Slim, Smith and Wheeler if they were ready.” Everyone noddedyes. Williams said that it wasat this time, he believed someone wasgoing to die. Williams did not believe Bryant would kill anyone in the house. Williams was asked why he did not walk away, if he had a strong belief that Bryant was planning to kill someone. Williams explained that he believed that if he did not go along with the group, they would eliminate him as a potential 346 witness. Williams said that he planned to cooperate with Bryantso he could safely get himself out of the house. (People’s exh. 207, p.4; RT 14914-14915.) Investigator Duncantestified that in mid February 1993, DDA McCormick talked with Duncanandtold him “to write anotherreport to clear up the problemsin the first report.” (RT 14916-14918.) McCormick convinced Duncanthat the former’s notes were more accurate than the latter’s notes. (RT 14919-14920.) Duncan’s supplemental report is dated April 22, 1993 and begins with a“synopsis of facts” that states, “Last report February 16, 1993. DDA Kevin McCormick reviewed the report of the James Williams interview and determinedcertain statements made by Williams were omitted.” (People’s exh. 208,p. 1.) The report then added two paragraphsof facts among whichare the following: Leroy Wheeler, Don Smith, John Settles arrived at the count house after Bryant and Williams became suspicious. Bryant’s employees were not permitted at the count house if they were not working.It was Williams understanding that Bryant owned the House on Wheeler Ave. It was Williams belief Bryant would never have permitted anyoneto be killed at the count house because it would have connected the event to Bryant. Bryant told Williams that he was expecting people at the houselater that afternoon. Bryant gave Williams instructions to push the buzzer that opened the front door when the people arrived and he, Bryant, would exit the house. Bryant wasthe boss and Williams had to follow orders. Williams had no idea Bryant and the others were going to kill anyone. Williams had no intention of participating in the murders. Williams gave the same explanation for moving the car from thestreet into the garage. (People’s exh. 208.) | Williams provided the third account of his state of mindat appellant’s trial. Williamstestified that he did not wantto be there (at the house). (RT 12321-12322.) He planned to cooperate only until he could 347 safely get himself out of the house. (RT 14914.) Of course by that point the plan would be substantially executed. And, that, assuming onecredits | Williams’s account, is what he did — he cooperated. Williams watched for and saw Armstrong and Brownarrive (RT 12330-12336), he heard them | buzzed in throughthe first set of doors (RT 12332-12333), and then he listened for and acted upon appellant’s request to let him out of the house by activating the electronic lock. (RT 12334-12336, 12627-12628.) As Williams was walking towards the kitchen door, he heard oneshot, a scream, and then two shots. (RT 12336-12337, 12433.) Williams wentinto ‘the garage. (RT 12337-12338.) The blue Hyundai wasin the garage. (RT 12338.) He continued outside and turnedright to a big, old green car. (RT | 12340-12341,12345) The key wasin the ignition. (RT 12340-12341, 12434.) Williams backed the car into the garage. (RT 12342.) As "Williams got out of the car, he saw appellant standing next to the Hyundai. (RT 12343-12344.) Appellant said, “All right, Jay.” (RT 12344.) Williams then left as he had been told (RT 12346) and walked to the bus stop, while looking about for witnesses to the shooting. (RT 12321.) | On October 3, 1988, a complaintfor four counts of murder and one count of attempted murder werefiled against Williams as well as Anthony Arceneaux, appellants Wheeler and Bryant, Levi Slack, AntonioJohnson, and Tannis Bryant Curry. (RT 15064; CT 4836-4845.) Four dayslater the complaint was amendedto add John [sic] Settle, Nash Newbill, and William Settle as defendants. (CT 4968-4972.) Four days later, Provine McCloria was added as a defendant. (CT 5013-5023.) On November 21, 1988, Williams’s preliminary hearing began, joined with that of appellants Wheeler and Bryant, Antonio Johnson, Tannis Curry, and Nash Newbill. (RT 14447, CT 3380, 3397.) Williams was 348 given a formal grant of immunity from those charges on that date by the Los Angeles Superior Court. The charges against Williams were dismissed on November 30, 1988. (RT 16083,16093-4-5.) ‘The prosecution argued that, according to Williams’ testimony, he did not have sufficient knowledge of what the four defendants were going to do to be an accomplice and that at the most, Williams was an accessory after the fact. (RT 14452.) Alternatively, and in regard to appellant Smith, - the prosecution argued that there would be sufficient corroboration through the telephone records and appellant Smith’s relationship with appellant in that he would attempt a homicide for appellant. (RT 14453.) The court expressed the view that an accomplice is somebody whois guilty for the same offense, not somebody who merely might be guilty. (RT 14448.) The court found no nexusto the issue just because criminal charges had been filed. (RT. 14448-14449.) The court concludedthat it could notbe said that as a matter of law Williams was an accomplice. (RT 14455.) As the court | putit: [T]here is circumstantial evidence from which the jury could find him to be an accomplice, or they could find him to be an innocent dupe who does not quite know what’s going on. He—according to him, he knowsthat there are guns, he does not know the people that are coming over, or what is going to happen, but he knowsit could be dangerous. He knows Mr. Bryantis to leave and hisjob is to buzz him out and then get on backto the poolhall after he brings the car in. Does that add up to he must have known there would be a murderand, therefore, must have aided and abetted in one or more murders and sharedthat intent to kill and soforth? No, that does not necessarily dictate that result.'°” '°7 Three court days later (RT 14331, 14808), came the testimony of District Attorney’s Investigator Duncan with his two 1993 reports of the (continued...) 349 The jury may well find that he is not to be believed and that the knew from the beginning what was goingto happeninthis situation, and he waspart and parcel of planning to kill some people that were coming in. They could very well find that. Why would youlet a guy listen to murders that are going to happen unless you knew quite well this guy was not goingto tell anybody because he waspart of the deal. And I don’t know if the jury will find that or not. But they may believe him; he was up onthe stand for a couple of days. If they believe everything he said, I would submitheis not an accomplice, at least as a matter of law. (RT 14455-14456.) At a later point, the court stated that the substance of Williams’ testimonythat his actions were without the specific intent to kill was “certainly very disputable.” (RT 15953.) At the closeofthe prosecution’s case appellant’s motion to dismiss under section 1118.1 for lack of corroboration of the testimony of Williams was denied. (RT 16154- 16157; CT 15146-15147.) Ultimately, the court refused the defense request to instruct the jury that Williams was an accomplice as a matter of law. (RT 16207-16209.) . At the close of the guilt phase, the jury was instructed on the use that maybe madeofthe testimony of a single witness. Using CALJIC No. 2.27 (1991 rev.) the jury was instructed: ~ You should give the uncorroborated testimonyof a single witness whatever weight-you think it.deserves. However, testimony by one witness which you believe concerning any fact whose testimony about that fact does not require corroboration is sufficient 107(__ continued) | interview he participated in with Williams, recounted above. In that interview Williams admitted that by 4:30 in the afternoon of the homicides, Williams believed by what he had seen and heard in the Wheeler Avenue house that somebody was going to die. (RT 14914, 14919, 14923, 14928-14929.) 350 for the proof of that fact. You should carefully review all the evidence upon which the proof of such fact depends. - (RT 16393; CT 15487.) Williamssaid that he only planned to cooperate until he could safely get himself out of the house. (RT 14914.) In regard to accomplice testimony, the jury was provideda definition of an accomplice using the language of CALJIC Nos. 3.10 and 3.14: An accomplice is a person whois or was subject to prosecution for the identical offense charged against the defendant on trial by reason of aiding and abetting. (RT 16406; CT 15510.) _ Merely assentingto or aidingor assisting in the commission of a crime without knowledge of the unlawful purpose of the perpetrator and withoutthe intent or purpose of committing, encouraging orfacilitating the commission of the crimeis not criminal. Thus’a person whoassentsto, or aids,or assists in, the commission of a crime without such knowledge and without such intent or purpose is not an accomplice in the commission of such crime. (RT 16408-16409, CT 15515.) In regard to the meaning of “aiding and abetting,” the jury was instructed using the language of CALJIC Nos.3.00 and 3.01.'Thereafter '08 The jury was instructed as follows: The persons concerned in the commission orr attempted commission of a crime whoare regarded by law asprincipals in the crime thus committed or attempted and equally guilty thereof include: 1. Those who directly and actively commit or attempt to commit the act constituting the crime, or — 2. Those who aid and abet the commission or attempted commission of the crime. 3. A person aids and abets the commission or attempted (continued...) 351 _ the jury was instructed that an aider and abettor was liable for the natural and probable consequencesof the crime committed bya principal.'” '°8(...continued) commission of a crime whenheor she, (1) with knowledge of theunlawful purposeofthe perpetrator and (2) with the intent or purpose of committing, encouraging,or facilitating the commissionofthe crime, by act or advice aids, promotes, encouragesor instigates the commission of the crime. A person whoaids and abets the commission or attempted commission of a crime need not be personally present at the scene of the crime. Mere presenceat the scene of a crime which doesnotitself assist the commission of the crime doesnotitself assist the commission of the crime does not amountto aiding and abetting, Mere knowledgethat a crime is being committed and the failure to prevent it does not amountto aiding and abetting. (RT16404-16405, CT 15507-15508.) 10° The jury wasinstructed using the language of CALJIC No.3.02: One whoaidsand abets another in the commission of a crime or crimesis not only guilty of that crime, or those crimes, but is also guilty of any other crime committed by a principal whichis a natural and probable consequenceof the crime or crimesoriginally aided and abetted. In orderto find a defendant guilty of a crime underthis theory, you mustbe satisfied beyond a reasonable doubtthat: 1. The crime of murder was committed, 2. The defendant aided and abetted such murder, 3. Thereafter, a co-principal in such crime committed additional charged murders, and 4. Those additional murders were a natural and probable consequence of the commission of the murder or murders which the defendantinitially aided and abetted. Taken together, these instructions mean that a defendant maybe found guilty of a charged offense if the evidence shows beyond a (continued...) 352 In regard to the limitations placed on the use of an accomplice’s testimony the jury was instructed using the language ofCALJIC Nos. 3.11, 3.12, 3.13, 3.18, and 3.19: A defendant cannot be found guilty based uponthe testimony of an accomplice unless such testimonyis corroborated by other evidence which tends to connect such defendant with the commission of the offense. Testimony of an accomplice includes any out-of-court statement purportedly made by an accomplice received forthe purpose of proving that what the accomplice stated was true. To corroborate the testimony of an accomplice there mustbe evidence of someact or fact related to the crime which,if believed, by itself and without anyaid, interpretation or direction from the testimony of the accomplice, tends to connect the defendant with the - commission of the crime charged. However,it is not necessary that the evidence of corroboration be sufficient in itself to establish every element of the crime charged,or that it corroborate every fact to which the accomplicetestifies. In determining whether an accomplice has been corroborated, you mustfirst assume the testimony of the accomplice has been removed from the case. You must then determine whetherthere is any remaining evidence which tends to connect the defendant with the commission of the crime. '(_..continued) reasonable doubtthat said defendant: 1. Actively and directly committed such offense, or 2. Was an aider and abetter of such offense, as those terms are defined in the previous twoinstructions, or 3. Was an aider and abetter in another charged crime or crimes, and the offense under consideration was natural and probable consequence of the commission of that other crime or crimes. (RT 16405-16406; CT 15509.) 353 If there is not such independent evidence which tends to connect defendant with the commission of the crime, the testimony of the accomplice is not corroborated. If there is such independent evidence which youbelieve, then the testimony of the accomplice is corroborated. _ The required corroboration of the testimony of an accomplice may notbe supplied by the testimony ofanyorall of his accomplices, but must come from other evidence. Evidence to corroborate an accomplice may be direct or circumstantial. It is sufficient if it tends to connect the defendant with thecrime even thoughit is slight and entitled,when standing alone,to little consideration. - Corroborative evidence does not need to establish the precise facts testified to by the accomplice. It is sufficient if it tends to connect the defendant with the commission of the offense. A defendant’s own testimony and inferences therefrom maybe sufficient corroboration of an accomplice as to that defendantonly. Likewise, false or misleading statements to authorities regarding the charged offenses may constitute corroborative evidenceor as part of the circumstances supporting a finding of corroboration as to the defendant makingthe false or misleading statement. ...]...- The testimony of an accomplice insofaras it tends to incriminate any defendant ought to be viewed with distrust. This does not mean that you mayarbitrarily disregard such testimony, but . you should give to it the weight to which youfindit to be entitled after examining it with care and caution andin the lightofall the evidencein the case. You must determine whether any witness was an accomplice as I have defined that term. 354 The defendant has the burden of proving by a preponderance of the evidence that such witness was an accomplice in the crimes charged against the defendant. Youshould considerall of the evidence bearing upon this issue, regardless of who producedit. (RT 16406-16410; CT 15511-15514, 15516-15517; CALJIC Nos.3.11, 3.12, 3.13, 3.18, 3.19.) During DDA Davidson’s opening argument, he pressedthat Williams was not an accomplice. Davidson explainedto the jury, “and the reason he is not an-accomplice in this case, and the reason he is not an - accomplice is he has to’ be subject to prosecution for exactly the same ~ crimes, meaninghehasto beguilty of these crimes.” (RT 16505.) This prompted a defense objection that he was misstating the law. The court responded, “Well, he has to be shownto be an accomplice by the evidence, I think within, the confines of the court.” (RT 16505.) Davidson resumed: I tried to explain aiding and abetting. But to be an aider and abettor, you have to have knowledge of the unlawful purpose of perpetrators and know whatis going to happen. Know that somebody in the house is going to be murdered. You haveto have the intent, the intent to encourage,instigate, to aid those murders. You haveto intend to aid those murders, and you have to do so. You haveto aid them. And the problem with Jay Williams while heis technically, legally not an accomplice here, even though he wasthere, he was not privy to the planning ofkillings in the back of the house. (RT 16505-16506.) Asan illustration of Williams lack of knowledge, Davidson argued that Williams believed that he was backing the green garage into the car so that the bodies could be putin the trunk, whereas in fact the bodies were placed in the back seat. (RT 16506-16507.) 355 “ Davidson asked the jury to considerin corroboration of Williams’s testimony: appellant’s alleged admissions to Ladell Player and Alonzo Douglas Smith; the blood found in the blue Hyundai; appellant’s refusal to give a handwriting exemplar as evidence of consciousnessof guilt of the instant homicides; the half a piece of paper from a telephone book | containing what might be appellant’s handwriting found on James Brown’s body; the other half of that paper found on a work table at the Wheeler Avenue house;a shell casing from the .45 caliber handgun seized from appellant’s house foundin the trash at the Wheeler Avenue house; appellant’s use of Western Union to sendmoneyto the malevictims; unspecified telephone records; the “character and quality” of appellant’s own testimony; and codefendant Settle’s testimony. (RT 16493-16501.) The jury began their guilt phase deliberations on May 11, 1995. (CT 15206.) Jurors were excused and alternates substituted on May 17 and May 23, 1995, (CT2 837, CT 15289-15290; RT 16950, 16956-16957.) Each time, the jury was instructed to begin their deliberations anew. (2 SUPP CT2 839, CT 15290; RT 16958,16970.) By June 8, 1995 at 5:05 p.m., after 12 days of deliberation (May 23 through June 8, 1995), the jury had reached. verdicts on all counts charged against appellant and coappellants Wheeler ~ and Smith,” but had not reached agreement on codefendantSettle. (CT 15291, 15295-15296, 15309,15316-15317, 15376-15377, 15381, 15385, 15394, 15403-15406, 16090.) | . | On June 12, 1995, the jury asked the following seven questions: 1° On May 17, 1995, the jury had returned guilty verdicts on counts three andfour against appellant Bryant. (RT 16952-16956.) 356 [1.] Please clarify page 23 ofjurors [sic] instructions [CALJIC No. 2.13], in regards to inconsistent or consistent of a [sic] testimony. (CT 15438; RT 17100-17101.) [2.] If more than one witness has madeinconsistent statements, how do we weightheir “credibility” and “truth of facts”between them? (CT 15439; RT 17101.) [3.] If one is charged with the same crime but not brought to5 trialjis he automatically an accomplice? [4.] Can there be aiding and abetting after the crime was committed? (CT 15440; RT 17101.) | [5.] We would like to have someclarification as to doubt. {Reasonable—Possible—Imagined ... maybe an example of each??? (CT 15442; RT 17101.) [6.] ... Page 56 of the instructions states “A defendant cannot be found guilty based uponthe testimony of an accomplice unless corroborated by other evidence.” Doesn’t this constitute reasonable doubtif there is no corroboration of same in your mind? [7.] ... If you have reasonable doubt, you are required to vote not guilty. Is that the law? (CT 15441; RT 17102.) In discussing the appropriate responses to questions 3 and4, the court stated: It is a fact that if you are charged with a crimeit does not make you an accomplice. I bélieve the law is that one must be properly chargeable with a crime to be an accomplice, which means there has to be someproofof a person’s criminal culpability, certainly not proof beyond a reasonable doubt, but if you are properly chargeable with the crime, then you are an accomplice. Asto the [question 4], you can’t aid and abet a crimeafterit was committed and be guilty of the underlying crime. ... We have to be careful here because as to No. 3, they may be asking whether Mr. Williams—ineffect, could Mr. Williams for example, would be an accomplice simply by driving the green car back into the driveway. That is one way tolookatit. | The otheris, I’m trying to see if they could betrying to apply that to Mr. Settle in some way. Is there any evidence of an 357 accomplice, well, I guess so. It could be this: There is some testimony that Mr. Settle was in one of the vehicles seen leaving the scene, I think the vehicle with two victimsin it. There was some testimony that the jury could find that to be the case, though. They may be wondering, for example, well, would thatact in andofitself make one guilty even though theyare not a hundred percent sure that the guy wasthere firing the shots,let’s say.. (RT 17105-17105a.) The court adjourned and continuedthe discussion the following morming. (RT 17105b-c.) When the court asked for the input from counsel for appellants, Mr. Novotney moved pursuantto section 1161''' that the deliberations be reopened because the jury’s questions demonstrated that they misunderstood the law andthe instructions they had been provided. (RT 17105e.) The Court immediately denied the motion.''? (RT 17105e.) Returning to the appropriate response to question number4,the court pondered: | | In terms of Mr. Williams, ... they may be asking again ina ’ roundabout way, we want to know if Mr. Williamsis a accomplice, and the reason we are asking aboutaiding and abetting is we think he "1 Section 1161 provides in pertinentpart: Whenthere is a verdict of conviction, in whichit appears to the Court that the jury may have mistaken the law, the Court may explain the reason for that opinion and direct the jury to reconsidertheir verdict, andif, after the reconsideration, they returnthe same verdict, it must be entered..... If the jury render a verdict whichis neither general nor special, the Court may direct them to reconsider it, and it cannot be recordeduntil it is rendered in some form from which it can be clearly understood that the intent of the jury is either to render a general verdictor to find the facts specially and to leave the judgment to the Court. "2 This denial discussed in Argument XIV,post. 358 is an aider, Mr. Williams, and therefore, we have worked outin this | circumstanceit is possible that simply by driving the green car in, whichis after the homicide,at least after a couple of homicides, and. arguable even after all four, ... §§j [d]oes that fact make one an aider even though something arguably occurred after the murder. The answeris technically, “NO.” But the answeris “certainly” if he agreed to do it beforehand andthat facilitated and encouragedto get this ball rolling. ne (RT 17105}.) In the court’s responsesto the jury, in regard to question number4, the court provided two hypothetical sets of facts. Inone a defendant agreed before a murder to permit a body to be buried in his yard to facilitate the . commission of a murder. In the second, the defendant agreedafter the murder. The court instructed the jury that in the first scenario, the defendant,“in all likelihood, [is] an aider and abettor in the crime of murder.” In the second scenario he would not be. (RT 17105s-u.) Whereupon,juror 247 inquired, “In that second scenario, would he be an accomplice?” (RT 17105u.) The court clarified that the juror meant an accomplice to murder. (RT 17105u-v.) The court reminded the jurorthat an accomplice “is a person whois a principal or aider and abettor shown by the preponderanceof the evidence in the commission of a crime.” (RT 17105v.) | Shortly thereafter, Juror 113 inquired, “Now,youstill are saying, no, that the juror has the — the final decision as to whetheror not they consider someoneto be an accomplice or an accessory? (RT 17105y.) The court replied that “accessory” is not a word that the court had used. (RT 17105z.) Juror 113 replied, “I think that was part of the problem we were having.” (RT 17105z.) The juror then asked, “What if someone has decidedthat someone is an accomplice? (RT 17105z.) The court then clarified that the 359 Juror’s question was whether it was up to them to determine whether somebodyis or is not an accomplice. (RT17105z.) Immediately thereafter, juror 412 asked, “I also said I wanted to clarify in my mind,if you find a person is an accomplice andhis testimony is not corroborated that goes beyond a reasonable doubt, the law says you cannotfind him guilty.” (RT 17105aa.) Juror 261 then asked, “whatif the Jurors don’t agree whether or not someoneis an accomplice or not? (RT 17105aa.) . At the conclusion ofthis exchange, Mr. Novotney arguedthat it was painfully clear that at the time the jury rendered its verdicts, it did not understand the law of accompliceliability, and again moved pursuant to section 1161 that the deliberations be reopened. (RT 17105bb-cc.) The court denied the motion. (RT17105cc.) The court explained: I don’t see a misunderstanding. WhatI see is the fact as to Mr.Settle, one defendant, one juror is apparently having problems with the issue of whetherthere is sufficient corroboration, assuming Mr.Settle is an accomplice. And that in no way exists with any verdict re [sic] your client’s case, and does not evidence a confusion as to the law regarding accomplices whatever as to render a verdict against your client mildly suspect. . (RT 17105cc-dd.) B. Accomplice Testimony Must Be Viewed With Distrust Distrust of accomplice testimonyis as an important componentof a defendant’s nght to a fair trial andto a reliable jury verdict. (People v. Guiuan (1998) 18 Cal.4th 558, 564-569.) Thus, Penal Code section 1111 proscribes basing a conviction upon the uncorroborated testimony of an accomplice. The section provides in relevant part: 360 A conviction cannot be had-uponthe testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroborationis not sufficient if it merely shows the commission of the offense or the circumstances thereof. (§ 1111.) The due process roots for safeguards in the use of accomplice testimony are deep and well documented. (People v. Guiuan, supra, 18 Cal.4th at pp. 565-567.) As Justice Kennard explained in her concurring opinion: ' “A skeptical approach to accomplice testimonyis a - markofthe fair administration ofjustice. From Crown political prosecutions, and before, to recent prison camp inquisitions, a long history of humanfrailty and governmental overreaching for conviction justifies distrust in accomplice testimony.” (People v. Guiuan, supra, 18 Cal.4th 558, 570, conc. opn. of Kennard, J., quoting Phelps v. United States (Sth Cir. 1958) 252 F.24 49, 52.) There are good reasons for such skepticism. First, accomplices, becausethey are liable for prosecution for the same offense, have a powerful built-in motive to aid the prosecutionin convicting a defendant, with the hopeful expectation that the prosecution will reward the accomplice’s assistance with immunity or leniency. (Id. at p. 572.) “A person arrested in incriminating circumstances hasa strong incentive to shift blame or downplay his own role in comparison with that of others, in hopes of receiving a shorter sentence and leniency in exchangefor cooperation.” (Williamson vy. United States (1994) 512US. 594, 607-608, conc. opn. of Ginsburg, J.) “There is solid historicaljustification for an accomplice’s expectation that, even in the absence of an explicit agreement, the prosecution will reward testimony that results in a conviction by 361 granting the testifying accomplice immunity from prosecution orat least leniency in charging or sentencing.” (People v. Guiuan, supra, 18 Cal.4th at p. 572, conc. opn. Kennard, J.) Accomplices are rarely persons of integrity whose veracity is above suspicion. An accomplice’s participation _ in the charged offenseis itself evidence of bad moral character. (Id. at p. 574.) As the Ninth Circuit put it in Commonwealth ofthe Northern MarianaIslands v. Bowie (9th Cir. 2001) 243F.3d 1109: [B]ecause of the perverse and mercurial nature of the devils with whom the criminal justice system has chosen to deal, each contract for testimonyis fraught with the real peril that the proffered ‘testimony will not be truthful, but simply factually contrived to “get’a target of sufficient interest to induce concessions from the government. (Id. at p. 1124.) The dangerofrelying on testimony from people whoare receiving a deal for that testimony was broughtto light by a study ofthe Actual Innocence Project which illustrated the high incidence ofreliance on informants in cases where the defendantwaslater exonerated as innocent by DNAtests. Ud. at p. 1124, fn. 6.) A second reason for such skepticism is the accomplice’s obvious interest in minimizing his own role in the charged offense. Quite apart from any hopethat the prosecution will grant the accomplice immunity or leniency as a reward for testimony that results in the defendant’s conviction, it is in the accomplice’s interest to persuade the prosecution that the offense is less serious than the charge indicates or that the accomplice’s ownrole in its commissionis relatively insignificant. (See Alarcon, supra, 25 Loyola L.A.L.Rev. 953, 960.) For this reason, accomplice testimony mayfalsely minimize the seriousnessof the crime or the accomplice’s culpability forit. - Testimonyportraying the offense as less serious than charged necessarily 362 would favor the defense, but testimony minimizing the accomplice’srole could favoreither the prosecution (by shifting primary blameto the defendant) or the defense (by shifting primary blameto other individuals). Finally, special caution is warranted because an accomplice’s firsthand knowledge ofthe details of the criminal conduct allows for the construction of plausible falsehoods not easily disproved. This court has previously described the problem in these words: “TA]ccomplice testimony is frequently cloaked with a plausibility which may interfere with the jury’s ability to evaluate its credibility. ‘“[A]n accompliceis not merely a witness with a possible motive to tell lies about an innocent accused but is such a witness peculiarly equipped, by reasonofhis inside knowledgeof the crime, to convince the unwary thathis lies are the truth.”* (Heydon, The Corroboration ofAccomplices (Eng. ed. 1973) Crim.L.Rev. 264,266; see also Note, 54 Colum.L.Rev. 219, 234.)” (People v. Tewksbury [1976] 15 Cal.3d 953, 967 [127 Cal.Rptr. 135]; also Note, Accomplices in Federal Court: A Case For Increased Evidentiary Standards (1990) 100 Yale L.J. 785, 787 [“Since the accomplice alone knowsaboutthe pattern of criminal events, he can manipulate the details of those events without blatant discrepancies.”]; Hughes, [Agreementsfor Cooperation in Criminal Cases (1992) 45 Vand. L.Rev. 1, 33 [“Courts should instruct juries to consider howeasily suspects with inside knowledge can fabricate testimony andthe strong incentive for suspects to do so whentheir liberty may dependonit.”’].) (People v. Guiuan, supra, 18 Cal.4th at p. 575, conc. opn. of Kennard,J.) In People v. Tewksbury (1976) 15 Cal.3d 953, 967, this Court affirmed the Legislature’s mandated skepticism for accomplice testimony: Juries are now compelled rather than cautioned to view an accomplice’s testimonywith distrust, for while his testimonyis always admissible and in some respects competent to establish certain facts (see People v. McRae [(1947)] 31 Cal.2d 184, 157 [187P.2 SUPP CT 741] [probable cause to hold defendant to answer at preliminary hearing]), such testimony hasbeenlegislatively determined neverto be sufficiently trustworthy to establish guilt beyond a reasonable doubt unless corroborated. 363 Thus, whenever an accomplice, or a witness who might be determined by the jury to be an accomplice,testifies, the jury must be instructed, sua sponte, that the accomplice’s testimony should be viewed with caution. (People v. Guiuan, supra, 18 Cal.4th at p. 569.) Where a witness is an accomplice as a matter of law,the trial court must in addition instruct the jury that the accomplice’s testimony must be corroborated. (People v. Robinson (1964) 61 Cal.2d 373; People v. Dailey (1960) 179 Cal.App.2d 482, 485-486.) | —C. James Williams Was An Accomplice As A Matter of Law An accomplice is “one whois liable to prosecution for the identical offense charged against the defendant ontrial in the cause in which the testimony of the accomplice is give.” (Pen. Code, § 1111; accord Witkin, California Evidence, Presentation at Trial 3, supra, § 97, pp. 132-133.) “In order to be chargeable with the identical offense, the witness must be considered a principal under section 31.” (People v. Fauber (1992) 2 Cal.4th 792, 833.) Section 31 defines who principals are. It provides in pertinent part: | All persons concerned in the commission of a crime...whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission... are principals in any.crime so committed. Thus, an accompliceis a principal (§ 1111) and a principal includes an aider and abettor (§ 31; People v. Beeman (1984) 35 Cal.3d 547, 554.) An explication for the latter was provided by this Court in Beeman, supra: [T]he weight of authority and sound law require proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of 364 . encouraging orfacilitating commissionof, the offense. [Emphasis in orig.| (People v. Beeman, supra, at p. 560, citing People v. Terry, supra, at p. 402; People v. Yarber (1979) 90 Cal.App.3d 895, 915-916; People v. Vasquez | (1972) 29 Cal.App.3d 81, 87.) | A defendantneednothimself commit the acts requisite to the crime to be an aider and abettor; his peripheral assistance maybesufficient to make him an accomplice as a matter of law. (See, e.g., People v. Dailey, supra, 179 Cal.App.2d at p. 486.) In addition one does not necessarily have to have the intention of enjoying the fruits of the crimeto be an aider and abettor. (People v. Beeman, supra, at pp. 557 & 560, quoting People Vv. Terry (1970) 2 Cal.3d 362, 401; e.g., People v. Lewis (1952) 113 Cal.App.2d 468 [encouragingstatutory rape].) Furthermore, andaiderandabettoris not only guilty of the offense he intendsto assist, but also of any offense that is a natural, foreseeable, and probable consequenceofthat offense. (People v. Prettyman (1996) 14 Cal.4th 248, 260.) Thus, in Peoplev. Solis (1993) 20 Cal.App.4th 264, the defendant, a gang member,after a confrontation with somerival youths, went driving around the area where the confrontation had occurred. As they drove past some youths, appellant’s accomplice, whom appellant knew was armed, leaned out the window andfired three shots, killing one person. The court found Solis was properly convicted of second degree murder based on a theory ofaiding and abetting, where he admitted knowing that the shooter had a gun, even though Solis denied knowing or expecting that the shooter would use it for any purpose other than to shoot in the air to scare the opposing gang. (/d. at p. 267-269.) 365 Wherethere is no dispute as to either the facts or the inferencesto be drawn therefrom that the witness was an accomplice, the witness is an accomplice as a matter of law and the jury must be instructed that the witness’s testimony must be viewed with distrust and corroborated by other evidence that tends to connect the defendant with the commission ofthe offense. (People v. Robinson, supra, 61 Cal.2d at p. 394; People v. Valerio (1970) 13 Cal.App.3d 912, 924; People v. Fauber, supra, 2 Cal.4th 792, 833-834; People v. Zapien (1993) 4 Cal.4th 929, 982.) Thus, a witness’s extrajudicial confessionto the charged crime makes the witness an accomplice as a matter of law. (People v. Robinson, supra, 61 Cal.2d at p. 394.) So too; a witness who “was the person with whom appellant was charged with conspiring” was “obviously an accomplice”to the crime of conspiracy. (People v. Tatman (1993) 20 Cal.App.4th 1, 12.) - . In the instant case, as detailed above, James Williams was an accomplice as a matter of law. Irrefutably, Williamswas a principalin the target offense of drugs sales from a fortified house, stocked with firearms, and during the course of an upcoming armed confrontation.''? Although fully aware ofall of these factors, he did nothing to extricate himself from the looming events. In fact, he agreed to assumethe role in those events assigned to him. This alone made him liable for murderas a principal to murder underthe natural, foreseeable, and probable consequencesofthe target offense he aided andabetted, narcotic sales. (People v. Solis, supra.) Moreoverand irrefutably, Williams was aidingand abetting the target offense of murder. ByWilliams own account, from the preparations ‘13 Appellants had been jointly charged for conspiracy (§ 182, subd. (1)) to operate a major narcotic sales distribution organization. (CT 4764, 4784, 4865,4879, 4892, 4918, 4928, 4947, 4962, 4965, 4821, 7623.) 366 being made, he knew that someone wasgoing to be killed. He may notof | known whoor why,but the imminent nature of the criminal purpose was clear. Nevertheless, he facilitated the murders by playinghis role as he was instructed. He understood that he was going to backthe green carinto the garage so that the bodies could be putinto the trunk. The prosecution made this very point in their opening argument. (RT 16506-16507.) Williams watched for the arrival of the victims. After they had entered the outermost steel door, Williams electronically reopened the doorandlet appellant out of the front door. Evenifby that point he had had any doubt in what he was aiding and abetting, that doubt was removed bythefirst shots and screams he heard as he walked through the kitchen. Yet, he continued to provide his assistance to the venture and wentout to the street and backed the green car into the garage as the victimsin the car at the curb were shot. Thereafter, he walked to the bus stop, looking about for witnesses to the homicides. The prosecution believed that he wasa principal in the homicides and charged him just as they had appellants and several others. But, that is not the dispositive fact. The dispositive fact is that Williams admitted sufficient facts that collectively confessed his role as a principal to murder under both of the aiding and abetting theories detailed above. Thereis no dispute as to either these facts or the inferences to be drawn therefrom. That is what made him an accomplice as a matter of law. (People v. Robinson, supra, 61 Cal.2d at p. 394; People v. Valerio, supra, 13 Cal.App.3d 912, 924; People v. Fauber, supra, 2 Cal.4th 792, 833-834; People v. Zapien, supra, 4 Cal.4th 929, 982.) Williams’s proffer that he was assisting only because he believed that it was too late for him to back outdid not relieve him of criminal liability for the multiple murders. Not even the threat of future danger of 367 loss of life is a defense (People v. Otis (1959) 174 Cal.App.2d 119, 125-126; People v. Lewis (1963)222 Cal.App.2d 136, 141), and the defense of coercionis not available at all when the chargedoffense is punishable by death. (People v. Petro (1936) 13 Cal.App.2d 245, 248.) The authority for excluding wrongdoers from accompliceliability in the context of a “feigned accomplice” theory is limited to those acting underthe direction of an officer of the law where the accomplice’s feigned complicity in the commission of the crime is merely for the purpose of detecting or prosecuting the perpetrator. (People v. Griffin (1950) 98 Cal.App.2d 1, 22; People v. Hensling (1962) 205 Cal.App.2d 34,39-40; People v. Hoover | (1974) 12 Cal.3d 875, 881; People v. Bohmer (1975) 46 Cal.App.3d 185, 191-193; Witkin, California Evidence 3, supra, § 101, p. 137.) Assetforth above,thetrial court refused appellant’s request that the jury beinstructed that Williams was an accomplice as a matter of law and that his testimony had to be corroborated by other evidence, exclusive of other accomplice testimony. Appellant’s jury was instructed that they could not find appellant guilty based on the testimony of an accomplice unless that testimony was corroborated by other evidence that tended to connect him with the commission of the offense. However, the instructionsleft it to the jury to resolve whether Williams was an accomplice. Moreover,the jury wastold that the burden was on appellant to prove by a preponderance of the evidence that Williams was an accomplice. | AS a result, the jury was permitted to speculate upon whether Williams was an accomplice and thereby impliedly and erroneously authorized to find that he was not an accomplice and to convict appellant on Williams’s uncorroboratedtestimony. In fact, the prosecution argued to the jury that Williams was not an accomplice because “he wasnot privy to the 368 planning of killings in the back of the house.” (RT 16505-16506.) That was not a determinative factor. As detailed in Part A, above, Williams heard codefendantSettle racking the shotgun. Coappellants Wheeler and Smith were alongside Settle, putting on gloves. Coappellant Wheeler had a handgunin his waistband. And Williams wasinstructed that these preparations were for “some people [who] were coming to the house.” He believed that people were going tobe killed and their bodies were going to be putin the trunk of the green car that he was going to back into the garage. Thefailure to instruct that Williams was an accomplice as a matter of law let the jury make a determination it should not have made,i.e., whether Williams was an accomplice, and did not require it to make the essential finding of corroboration. Thefailure to properly instruct the jury to make a factual determination necessary for guilt violated appellant’s Sixth Amendmentright to a jury trial. Un re Winship, supra, 397 U.S.at p. 361.) | | | The failure to instruct on accomplice testimonyis only harmless if there is sufficient corroborating evidencein the record. (People v. Tatman, supra, 20 Cal.App.4th at p. 12; People v. Miranda (1987) 44 Cal.3d 57, 100.) However, as will be demonstrated, below, there was insufficient corroborating evidence that appellant participated in the charged offenses. D. There WasInsufficient Corroborating Evidence That Appellant Was Involved In The Homicides 1. General Principles Of Appellate Review The constitutionally mandated test to determine a claim of insufficiency of the evidence in a criminal case is whether, on the entire record, a rationaltrier of fact could find a defendant guiltybeyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-578; 369 Jackson v. Virginia (1979) 433 U.S. 307, 318-319.) In making this determination the appellate court must view the evidencein the light most favorable to the prosecution and presumein support of the judgment of conviction the existence of every fact the trier of fact could reasonably deduce from the evidence. However, the appellate court must resolve the issueof sufficiency of the evidencein light of the whole record. ' Furthermore, the reviewing court must judge whetherthe evidence of each of the essential elements of the offense of which the defendant stands convicted is substantial and of solid value. (Peoplev. Johnson, supra; People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Hernandez(1988) 47 Cal.3d 315, 345-346; People v. Ochoa (1994) 6 Cal.4th 1199, 1206.) That is, the evidence must reasonably inspire confidence and beofsolid value. (People v. Bassett (1968) 69 Cal.2d 122, 139.) A finding based on conjecture or surmise cannotbe affirmed. (People v. Memro (1985) 38 Cal.3d 658, 695.) This is because suspicion is not evidence;it only raises a possibility, which will not support an inference of fact. Even a strong suspicionis insufficient to support aconviction. (People v. Thompson, supra, 27 Cal.3d at p. 324.) | Furthermore, the evidence must be capable of supporting a finding as to every fact required for conviction beyond a reasonable doubt. “[T]he trier of fact must be reasonably persuaded to anear certainty” (Peoplev. Hall (1964) 62Cal.2d 104, 112) or “evidentiary certainty.” (Cage v. Louisiana (1990) 498 U.S.39, 41.) Itis therefore not enough that there is some evidence based upon whicha trier of fact might speculate that the defendantis in fact guilty. (People v. Thomas, supra, 2 Cal.4th489, 545, dis. opn. of Mosk,J.) 370 These same standards apply to accomplice testimony. (People v. Malone (1947) 82 Cal.App.2d 54, 60; Witkin, California Evidence, Presentation at Trial 3, supra, § 103, pp. 141.) The reviewing court determines whetherthereis any substantial corroborative evidence, and whether, whenerror is found, the error committed has led to the verdict reached, (People v. Malone, supra, at p. 60; People v. Ruscoe (1976) 54 Cal.App.3d 1005, 1012; Witkin, California Evidence, Presentation at Trial 3, § 103, p. 141.) In this process, the Eighth Amendment requires a greater degree of accuracy and fact-finding than in noncapital cases. (Woodson v. North | Carolina, supra, 428 USS. at p. 305; Gilmore v. Taylor (1993) 508 U.S. 333, 334.) 2. The Testimony Of An Accomplice Must Be - Corroborated To prevent convictions from being based solely upon evidence from the inherently untrustworthy source of an accomplice, the legislature enacted section 1111 to require corroboration whenever an accomplice provided the evidence upon which a conviction is sought. (People v. Belton (1979) 23 Cal.3d 516, 525.) It places upon the prosecution the burden of producing independentevidence to corroborate the testimony of an accomplice. (People v. Cooks, supra, 141 Cal.App.3d at p. 258:) The section provides: | | A conviction cannotbe had uponthe testimony of an accomplice unless it be corroborated by such proper evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission ofthe offense or the circumstances. (Pen. Code, § 1111.) 371 To corroborate the testimony of an accomplice, the prosecution must produce independent evidence that, without aid or assistance from the testimony of the accomplice, tends to-connect the defendant with the crime charged. (People v. Bunyard (1988) 45 Cal.3d 1189, 1206.) In this regard, the evidence must connect the defendant with the crime, not simply with its perpetrators. (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543; People v. Robinson, supra, 61 Cal.2d at p. 400; In re Ricky B. (1978) 82 Cal.App.3d 106, 111.) If the corroboration merely raises a suspicion of guilt, howevergrave,it is insufficient. (Peoplev. Robinson, supra, 61 Cal.2d 373, 399; People v. Szeto (1981) 29 Cal.3d 20, 27; Witkin, California Evidence, Presentation at Trial 3, § 103, p. 140.) Likewise,it is insufficient to show mere suspicious circumstances. (People v. Robbins (1915) 171 Cal. 466, 476.) | An accomplice cannot corroborate himself (People v. Andrews (1989) 49 Cal.3d 200, 214), nor can the testimony of one accomplice corroborate another accomplice (CALJIC No. 3.13; People v. Clapp (1944) 24 Cal.2d 835, 837; People v. Dailey, supra, 179 Cal.App.2d atp. 486.) To determineif sufficient corroboration exists, the accomplice’s testimony should be eliminated from the case. The evidence of other witnesses must then be examined to determine if there is any inculpatory evidence tending to connect appellant with the offense. (People v. Shaw (1941) 17 Cal.2d 778, 803-804; People v. Falconer, supra, 201 Cal.App.3d at p. 1543.) 372 3. The Evidence That Appellant Participated InThe Homicides WasInsufficient As A Matter Of Law In the instant case, once James Williams’s testimony is eliminated from the case, there is no evidence that appellant wasat or in the Wheeler Avenue house during the homicides or that he aided or abetted their commission. The prosecution essentially argued to the jury to disbelieve the testimony of appellant and to considerthat disbelief as “evidence” in corroboration of Williams’ testimony. Disbelief does not equate to evidence, however. In addition, the substance found in the blue Hyundai was presumptively positive for blood, but it could have been nonhuman blood or plant material. (RT 12878-12879.) The statements attributed to appellant by Player and A. Smith show knowledgeof the homicidesafter the fact, and an agreementthat the drug organization appellant wasa part of wasbetter off without Armstrong and Brown,but the statements do not showthat appellant planned, authorized aided or committed the killings. Similarly, phone records do not show anything other than the fact that appellant called others involvedin the drug trade. The piece of paper found on Brown’s bodyallegedly containing appellant’s handwriting and moneyappellant allegedly sent to Armstrong and Brownwere of no | significance to the homicides, since appellant admitted working in the drug business. Likewise, since appellant admitted to frequenting the Wheeler Avenuehouse,the fact that a shell casing from his gun was found at the scene is simply not dispositive of involvementin the homicides. And finally, Settle’s testimony could notlegally constitute corroboration of Williams’ testimony, since the testimony of one accomplice cannot corroborate that of another accomplice. (CALJIC No. 3.13; People v. 373 Clapp, supra, 24 Cal.2d at p. 837; People v. Dailey, supra, 179 Cal.App.2d at p.486.) The evidence must connect the defendant with the crime itself, not simply with its perpetrators. (People v. Falconer, supra, 201 Cal.App.3d at p. 1543; see also People v. Robinson, supra, 61 Cal.2d at p. 400; In re Ricky B., supra, 82 Cal.App.3d at p. 111.) Falconer, supra,illustrates the application of this rule. There an accomplicetestified that the defendant was amongfouror five intruders who planned andparticipated in a burglary of a residence to steal marijuana. All the intruders wore stockings, masks ~ and bandanas, and the victim was unable to identify any of the intruders. The accomplice testified that not only did the defendantparticipate, but that the defendant had plannedthe raid, purchased the stockings ahead oftime, and had cased the place the morning before the burglary. (Ud. at p. 1542.) The Court of Appeal found there wasinsufficient corroboration of accomplice testimony. The court emphasized: Excluding [the accomplice’s] testimony weareleft with these pertinent facts established by the evidence: [the defendant] is the father of one of the intruders; that he visited the [victim’s] residence eight or nine months before the incident and knew[the victim] was a marijuana grower. This evidence is not enough to corroborate [the _ accomplice’s] testimony. Although corroborating evidence need only be slight and may beentitled to little consideration when standing alone[citations], it is not sufficient to merely connect a defendant with the accomplice or other persons participating in the crime. Ud. at p. 1543.) Similarly, in People v. Martinez (1982) 132 Cal.App.3d 119, 126-127, an accomplice was the sole witness linking the defendantto an armed robbery. In reversing the defendant’s conviction, the court observed: 374 Althoughcertain testimony by [two police officers] corroborated[theaccomplice’s] testimony,it did nothing more than show “the commission of the offense or the circumstances thereof.” (Id. at p. 133, citations omitted.) All of appellant’s actions after the homicides were equally consistent with his role as an employee of the organization in its drug distribution business. Thus, once William’s testimony is eliminated from the case, there is no evidence, let alone substantial evidence, corroborating his testimony regarding appellant’s involvement in the homicides. | Moreover,from the jury note detailed above,itis certainly clear that the jury was confused about whether Williams was an accomplice as a matter of law and whether appellant could be convicted without substantial evidence corroborating Williams’s testimony. After the jury had returned their verdicts against all capital appellant herein, they continued their deliberations on codefendantSettle’s case. In the process, they submitted seven questions to the court (detailed above.) From their content, it is clear that one or more of the jurors had yet to resolve whether Williams was an accomplice, despite the fact thatit had been part of their charged duty. (RT 17101; CT 15440.) In addition, one or more had not understoodtheir role once they concluded that Williams was an accomplice. (RT 17102; CT 15441.) And, even moretroubling, one or more jurorshad not understood their role once they had arrived at a reasonable doubt ofthe defendant’s | guilt. (RT 17102, RT 1710Saa; CT 15441.) 4, Appellant’s Convictions Must Be Reversed From a review of the entire record and with Williams’s testimony removed,a rationaltrier of fact could not have found appellant guilty beyond a reasonable doubt, and, as a result, appellant’s convictions must be 375 reversed. (Peoplev. Johnson, supra, 26 Cal.3d 557, 576-578; Jackson v. Virginia, supra, 433 U.S. at pp. 318-319.) Furthermore, since double jeopardy considerationsbar a retrial (Burks v. United States (1978) 437 USS.1), the trial court should be directed to dismiss these offenses from the accusatory pleading with prejudice. Theresult here effectively lightened the State’s burden of proof and violated appellant’s constitutional right to federal due process. (Carellav. ‘California (1989) 491 U.S. 263.) 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), violated the DueProcess Clause of the Fourteenth Amendmentto the federal constitution. (Ballard v. Estelle (9th Cir. 1991) 937 F.2d 453, 456.; Vitek v. Jones (1980) 445 U.S. 480; Hicks v. Oklahoma (1980) 447 U.S. 343, 346; People v. Marshall (1996)13 Cal.4th 799, 850-851.) This too was reversible error. (People v. Robinson, supra (1964) 61 Cal.2d 373, 394; | People v. Zapien, supra, 4 Cal.4th 929, 982.) | Forall the foregoing reasons, appellant’s conviction and death judgment must be reversed. H // 376 XV THE TRIAL COURT PREJUDICIALLY ERRED IN DENYING APPELLANT’S REQUEST FOR A PRETRIAL HEARING ON THE ADMISSIBILITY OF OTHER CRIMES EVIDENCE; IN ADDITION, THE INSTRUCTIONS _PREJUDICIALLY FAILED TOPROPERLY LIMIT THE JURY’S CONSIDERATION OF OTHER CRIMES EVIDENCE Thetrial court erred in failing: (1) to afford appellant a full and fair hearing on the admissibility of other crimes evidence; (2) upon appellant’s request, to instruct the jury to find true preliminary facts prior to considering the other crimes evidence; (3) upon appellant’s request, to instruct the jury regarding the proper use of evidencerelating to the uncharged crimes that was introduced during the guilt phase of appellant’s trial; (4) to instruct the jury that the preliminary facts and other crimes evidence had to be found true beyond a reasonable doubtpriorto the _ consideration of other crimes evidence by the jury. These errors deprived appellant of the right to a jury trial, to a fairtrial, to due process of law, toa reliable determination of penalty, and also lighted the prosecution’s burden of proof, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and parallel provisions of the state constitution. As a result, appellant’s conviction must be reversed and his death sentence vacated. A. The Trial Court Erred In Denying Appellant’s Motion For An Evidentiary Hearing On The Admissibility Of Other Crimes Evidence Priorto trial, appellant filed a motion for evidentiary hearing on each uncharged crime the prosecution intended to introduceat the guilt phase of - 377 trial under Evidence Code, section 1101, subdivision (b). (CT 11079- 11092.) Thetrial court denied appellant’s request.''* (RT 18339.) Appellant was improperly denied his right to a hearing on the admissibility of other crimes evidencein the prosecution’s case in chief. (Evid. Code, § 403.) By its express terms, Evidence Codesection 403, subdivision (a) provides that “proffered evidence is inadmissible” unless the court makes preliminary findingsof sufficient foundational facts in the following areas: (1) relevancy; (2) personal knowledge of the witness;(3) the authenticity of a writing: and (4) whetheror not a hearsay statementis - authentic (i.e., actually madeby the person alleged to havemadeit.) Thus, underthe statute, the trial court was required, upon appellant’s request, to determine the admissibility of the evidence in a hearing outside the presence of the jury. (Evid. Code, § 402, subd. (b).) Using this procedure, the jury is- not tainted by evidence which should be excluded for lack of foundation. Whereissues of relevancy and personal knowledgeare in issue, the trial court should grant defendanta hearing upon request to determine the existence of the requisite factual predicate to the admissibility of evidence. In Holt v. Virginia (1965) 381 US 131, 136, the high court concludedthat “(t]he right to be-heard must necessarily embodya right to file motions and pleadings essential to present claimsandraise relevantissues.” In Reecev. Georgia (1955) 350 U.S. 85, 89, the United States Supreme Court held that “the right to object to a grand jury presupposed an opportunity to exercise ''* Trial counsel mentions a denial of this motion that appellant’s counsel cannotlocate in the record provided to appellant. To the extent the relevant record might have been producedhadthe trial court and the instant court granted appellant’s requests to augment andsettle the record on appeal, appellant submits he has been denied the right to an adequate record on appeal. (See Argument XXXIV,post, incorporated by reference herein.) 378 that right.” Implicit within these decisions is the right to anevidentiary hearing to resolve disputed material issues of fact. The right to object and the right to file motions would be useless if the accused is arbitrarily precluded from introducing evidence in support of thosemotions. Dueprocess guarantees the accused the right to access to the courts and the right to a meaningful opportunity to be heard. (See e.g., In re William F. (1974) 11 Cal.3d 249, 255 [due process requires fundamental fairness in the fact finding process]; Payne v. Superior Court (1976) 17 Cal.3d 908, 914; see also People v. Braxton (2002) 103 Cal.App.4th 471 [““justice” requires remand where defendant was improperly denied an opportunity to make motion for newtrial].) Thus, due processprinciples are violated if the jury is permitted to consider other crimes evidence without affording the defense a full and fair hearing on the admissibility of the other crimes evidence. (See People v. Armstead (2002) 102 Cal.App.4th 784, 793-794; People v. Martin (1954) 128 Cal.App. 2d 724 [court first admitted evidence andthen, after the case was argued, instructed the jury not to considerit].) Moreover, the federal constitution (6th and 14th Amendments) gives the defense the nght to compel the attendance of witnesses and confront the prosecution witnesses. (See Chambers v. Mississippi, supra, 410 U.S.at p. 294; Webb v. Texas (1972) 409 U.S. 95; Washington v. Texas, supra, 388 U.S.at pp. 17-19.) The rightto call witnesses is expressly guaranteed under the California Constitution. (See People v. Chavez (1980) 26 Cal.3d 334, 353.) These fundamentalconstitutional rights to be heard andto call witnesses apply to motion hearings as well as to the jury trial itself. (See Holt v. Virginia, supra, 381 U.S. at p. 136; Bell v. Burson (1971) 402 U.S. 535, 541-42.) 379 In short, both the California Constitution and federal Constitution guarantee the defendant a nghtto his day in court (/n re Oliver (1948) 333 U.S. 257, 273), free from arbitrary adjudicative procedures. (Truax v. Corrigan (1921) 257 U.S. 312, 332 [due process clause requires that every man shall have the protection of his day in court, and the benefit of the general law, a law which hears before it condemns, which proceeds not arbitrarily or capriciously but upon inquiry]; Powell v. Alabama (1932) 287 U.S. 45 [the opportunity to be heard is one of the immutable principles of justice which inherein the very idea of free governmentandis a central component ofprocedural dueprocess]; see also People v. Ramirez (1979) 25 Cal.3d 260, 268 [California Due Process Clause protects against arbitrary adjudications].) | Thetrial court’s failure to afford appellant his requested evidentiary hearing denied him the aforementionedrights to his prejudice. Throughout trial, the prosecution soughtto introduce evidence of other crimes evidence over appellant’s objections. (See Argument VII, ante, incorporated by reference herein.) Time andagain the defense heard proffers regarding the relevancy and admissibility of this evidencefor the first time in court, whichthetrial court, with one or two exceptions, accepted without taking evidence. The court’s action denied appellant his right to examine witnessesand challenge the prosecution’s theory and factual support for the admissibility of the other crimes evidence andresultedin the admission of evidence for whichthe factual predicate for its admissibility was absent. For example, with regard to the admissibility of evidence conceming the shootings of Ken Gentry and Renard Goldman,a keyfactor in the court’s ruling was the prosecution’s proffer that further evidence would establish that Armstrong’sthreats to collect from appellant for those 380 ‘shootings were, in fact, communicated to appellant. (RT 8724-8730, 8786-8787.) Appellant also objected to the admission of evidence regarding threats received by Goldmanpriorto his testimony in this case; The courtaccepted the prosecution’s proffer that it would produce evidence that those threats were doneat the behest of‘appellant. (RT 9218-9220, 9226.) Subsequently, no evidence wasintroducedat trial showing either that: (1) Armstrong’s threats to collect from appellant were communicated to appellant; or (2) that appellant directed people to threaten Goldmanprior to his testimony. If appellant’s request for an evidentiary. hearing on these preliminary factshad been granted, the inadmissibility of the evidence would have been established pretrial and the jury never would have heard the prejudicial and inflammatory evidence. Likewise, the prosecution proffered a theory as to a secondary motivefor appellant to have committed the instant homicides: hekilled or . attempted to kill men whoslept with his ex-wife. Regarding that theory of ' admissibility, the trial court ruled that evidence regarding the Keith Curry attacks were relevant and admissible if the prosecution establishedthat: (1) appellant knew ofhis ex-wife’s relationship with Curry and was unhappy aboutit, and (2) appellant knew ofhis ex-wife’s relationship with Armstrong and was unhappyabout it. (RT 11288-11289, 11300-11301.) The prosecution represented that they would prove up the latter point, but never did. Again, if appellant had been granted a hearing, noneofthe extremely prejudicial Curry evidence would have been admissible at appellant’s trial. In sum,the trial court prejudicially failed to grant appellant’s request for an evidentiary hearing to establish the sufficiency of the evidence of predicate facts as required by Evidence Code section 403, subdivision (a). 381 For all the foregoing reasons, appellant was deniedhis constitutional rights under the Sixth and Fourteenth Amendmentsto the United States Constitution; reversal of his conviction and sentenceis required. (Chapman v. California, supra, 386 U.S.at p. 24.) B. — The Trial Court Erred In Denying Appellant’s Request For A Modified CALJIC No. 2.50 Instruction Requiring The Jury To Find Preliminary Facts Prior To Consideration Of Other Crimes Evidence Appellant requested,interalia, the jury be instructed that it was required to find the existence of the various preliminary facts upon which the admissibility of other crimes evidence concerning the Gentry and Goldman shootings, the KeithCurry attacks, the beating of Francine Smith and the bribe of Rhonda Miller depended, citing to Evidence Code section 403, subdivision (c)(1), People v. Simon (1986) 184 Cal.App.3d 125, 129; appellant also claimed that a denial of this instruction would lessen the prosecution’s burden of proof in violation of the Sixth and Fourteenth Amendments to the United States Constitution and parallel provisions of the state constitution. (RT 16325, 16332-16334; CT 14995-14997; see also CT 14993-14994.) Thetrial court denied appellant’s request, and instead gave an edited version of CALJIC No. 2.50 (1994 rev.). (RT 16393-16395; CT 15488-15489.) Appellant also requested the court to modify CALJIC No. 2.50 to instruct the jury that it had to find that appellant caused a witness’s fear before considering that against appellant. (CT 15016-15017.) Evidence Code section 403, subdivision (c) requires thetrial court, upon request, to instruct the jury regarding the necessity of finding preliminary facts where relevancy, personal knowledgeor authenticity is disputed, Thestatutory languageis as follows: 382 (c) Ifthe court admits the proffered evidence underthis section, the court: (1) may, and on requestshall, instruct the jury to determine whetherthe preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary © fact does exist. (2) Shall instruct the jury to disregard the proffered evidence if the court subsequently determinesajury could not réasonably find that the preliminary fact exists. The statutory mandate is clear: wheneverthe relevance of evidenceis dependent upon a preliminary fact, the foregoing instruction must be given when requested.!'* Thetrial court’s failure to grant appellant’s requested instruction wasclear error, and that error was prejudicial. The delivery of CALJIC No. 2.50, which purported to limit the use of other crimes evidence,could only have confused the jury becauseit failed to _ acknowledge the disputed factual issues underlying the admission of the other crimes evidencein this case, thereby suggesting that evidence ofthe other crimes evidence was admissible against appellant regardless of whether the prosecution established the predicate facts upon whichthe admissibility of the evidence depended. (People v. Simon, supra, 184 Cal.App.3d at p. 131.) And as discussed above, the prosecution failed to prove upits proffers regarding the admissibility of much of the other crimes evidence admitted against appellant. (See also Argument VII, ante, incorporated by reference herein.) Considering these circumstances, and "5 This Court has consistently held the trial court has no sua sponte duty to submit an instruction about finding a preliminary fact. (People v. Lewis (2001) 26 Cal.4th 334, 362; People v. Marshall (1996) 13Cal.4th 799, 833.) 383 giventhecritical impact of the other crimes evidence onthistrial, appellant’s conviction must be reversed. C. The Trial Court Erred In Giving CALJIC No. 2.50 Because It Allowed The Jury To Consider Other Crimes - Evidence For Improper Purposes . The jury wasinstructed with a slightly modified version of CALIIC No.2.50 (1994 rev.), as follows: _ Evidence has been introduced for the purpose of showingthat the defendant committed crimes other than that for which he isontrial. . Such evidence,if believed, was not received and may not be considered by you to prove that defendantis a person ofbad characteror that he has a disposition to commit crimes. Such evidence wasreceived and maybe considered by you only for the limited purpose of determiningifit tends to show: A characteristic method, plan or scheme in the commission of criminalacts similar to the method, plan or scheme used in the commission of the offense in this case which would further tend to show the existence ofthe intent whichis a necessary elementof the crime chargedor the identity of the person who committed thecrime,if any, of whichthe defendantis accused; Theexistence of the intent which is a necessary element of the crime charged; The identity of the person who committed the crime,if any, of which the defendantis accused; A motive for the commission of the crime charged; The defendant had knowledgeofthe nature of things foundin his possession; 384 The defendant had knowledgeor possessed the means that might have been useful or necessary for the commission of the crime charged; The crime chargedis part of a larger or continuing plan or scheme. © For the limited purpose for which you may consider suchevidence, you must weighit in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose. However, prior criminal conduct resulting in a felony conviction mayalso be considered on the issue of the credibility of the person suffering the conviction. (RT 16393-16395; CT 15488-15489.) It is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047 [citations omitted].) The Ninth Circuit has explained the need. for complete instructions,stating: A jury cannotfulfill its central role in our criminal justice ' system if it does not follow the law.It is not an unguided missile free according to its own museto do as it pleases. To accomplish its constitutionally mandated purpose, a jury must be properly instructed as to the relevant law andastoits function in the fact-finding process, and it must assiduously follow these instructions. (McDowell v. Calderon (1997)130 F.3d 833, 836.) Thus,it is imperative - that a trial court correctly identify the specific purpose for which other crimes evidenceisbeing offered and instruct the jury as to the correct use of 385 the evidence once it has been admitted. As Justice Jefferson has explained, “t is error for a trial:judge to give CALJIC instruction No. 2.50 andlist four separate issues upon which the evidenceis being received and which the jury may consider unless the evidenceis relevant and admissible with respect to each of such four issues.” (People v. Swearington (1977) 71 Cal.App.3d 935, 947.) Therefore, it is error to give instructions regarding the use of other crimes evidence to prove “identity” when identity is not in dispute. Similarly, it is improper to instruct on motive whenthe proffered evidence is not relevantto that fact. (/d. at p. 848.) Consequently, in giving CALJIC No. 2.50 a court must “be careful to limit the issues upon which such evidenceis relevant and admissible by striking from the instruction those issues upon which the evidenceis not admissible.” (/d. at p. 849.) Similarly, when other crimes evidence is admissible against one defendant, the jury must be instructed that it can only consider that evidence against that defendant, and thejury must be limited from considering it against the other defendants. (People v. Pitts (1990) 223 Cal.App.3d 606, 837.) Thus, it has been stated that in order to ensure ‘“‘a fair hearingortrial,. due process, and the presumption of innocence”thetrial court mustnot only instruct on the relevantprinciples of law, but must equally “refrain from instructing on principles of law which notonly are irrelevant to the issues raised by the evidence butalso havethe effect of confusing the jury or relieving it from making findings on relevant issues.” (People v. Armstead, supra, 102 Cal.App.4th at p. 792, quoting Peoplev. Saddler (1979) 24 | Cal.3d 671, 681 [internal quotation marks omitted].) Furthermore, because evidence of other offenses “is admissible only in certain exceptional situations whereit is relevant to an issue,” comments on such evidence for purposesother than the exception for which it was admitted is “generally 386 improperand highly prejudicial.” (People v. Armstead, supra, 102 Cal.App.4th at p. 793.) Consequently, instructing the jury to use the evidencefor a use other than that for which the evidence was admitted violates the right to due process of law under the Fourteenth Amendment. (id. at p. 788.) Furthermore, it has been recognized that to change the use for which the evidence may be considered betweenthe time that the evidence is introduced and the time ofjury instructionsalso violates the right to effective assistance of counsel, as guaranteed by the Sixth Amendment. (Jbid.) . The delivery of CALJIC No.2.50 in this case allowed the jury the unfettered discretion to use the evidence of other bad acts against appellant in any of the enumerated purposesstated in that instruction, even if the evidence wasnot admitted for such a purpose. For example, the evidence that coappellant Smith shot Keith Curry was admitted to show hisidentity, but not properly admitted to show appellant’s identity as the perpetrator of the instant crimes; rather, the evidence was determined to be admissible against appellant only to as it tended to prove the relationship between appellant and coappellant Smith inthis case. (RT 11297-11301, 11314.) The court not only misinstructed the jury in this regard at thetime the evidence was introduced (see Argument VII, ante, incorporated by > reference herein), but that error was exacerbated to appellant’s detriment by CALJIC No.2.50 as given, which allowed the jury to use improperly that evidence to establish appellant’s identity as a perpetrator in this case. Appellant submits that, after People v. Ewoldt, supra, 7 Cal.4th 380 and People v. Balcom, supra, 7 Cal.4th 414, which set forth the parameters for limited admission of other crimes evidence,the trial court was required 387 to match the prior act evidence with each issue to be proven. (Contra People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1614-1615.) Considering the due process implications involved in the introduction of character evidence combined with the universal recognition of its prejudicial impact, the failure to prevent the improperuse ofthis evidenceclearly deprived appellant of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and parallel provisions of the state constitution. D. As Given, CALJIC Nos. 2.50 And 2.50.1: Unconstitutionally Lessened The Prosecution’s Burden of Proof Due process “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” [Emphasis added.] (in re Winship, supra, 397 U.S. at p. 364.) It requires the State to prove “‘every ingredient of the offense beyond a reasonable doubt.... 442 U.S.at p. 524, quoting Patterson v. New York (1977) 432 U.S. 197, (Sandstrom v. Montana, supra, 215.) Not only does this requirementapply to the evidence as a whole, but also to each fact from which the defendant’s guilt is inferred. This Court explained this principle in People v. Watson, supra, 46 Cal.2dat p. 831: “properly interpreted, [the instruction] applies the doctrine of reasonable doubt not to proof of miscellaneous collateral or incidental facts, but only to proofof ‘each fact whichis essential to complete a chain of circumstances that will establish the defendant’s guilt.’”” Accordingly, the Watson court held that in any case whichrests essentially on circumstantial evidence,it would beerrorto refuse to instruct the jury on this basic principle. Further, in any such case, it would beerror forthe trial court in any way to mislead 388 the jury into thinking that it was not necessary that each fact essential to complete a chain of circumstancesestablishing guilt be proved beyond a reasonable doubt. (People v. Carter, supra, 48 Cal.2d at pp. 758-759, 760-761.) A conviction violates due processif it is based upon an amalgamation of facts none of which have been proven beyond a reasonable doubt. (See People v. Deletto (1983) 147 Cal.App.3d 458, 472; People v. Hefner (1981) 127 Cal.App.3d 88, 96-97.) It is true, of course, that neither the defendant’s guilt of the uncharged offense nor the relevance of prior uncharged offenses needs be proven beyond a reasonable doubt as a prerequisite to the admissibility of the uncharged offense. (See People v. Simon, supra, 184 Cal.App.3d at p. 134, fn. 6 [admissibility of other crimes evidence governed by preponderance standard]; see also People v. Albertson (1944) 23 Cal.2d 550, 557.) However, this rule does not permit the jury to utilize the evidence to convict the defendant without finding that the other crime has been proven unanimously beyond a reasonable doubt. Such a result would violate due process by allowing an “ingredient of the offense”to be proven under a lesser standard. “An essential element of any crime is, of course, that the defendantis the person who committed the offense. Identity as the perpetrator must be proved beyond a reasonable doubt.” (People v. Hogue (1991) 228 Cal.App.3d 1500, 1505.) | Hence, the jury is actually faced with a two-step process regarding other crimes evidence. First, before the evidence may even be considered, ' it must be proven under the preponderancestandard. (See Evid. Code,§ 403.) Second, before the other crime maybeutilized to convict, it must be proven beyond a reasonable doubt. Appellant incorporates by reference herein Argument XVI, post. 389 Accordingly, to avoid unconstitutional use of prior uncharged offenses, the standard CALJIC instruction regarding thestandard of proof as to uncharged offenses should have been be modified to makeit clear to -the jury that: (1) the evidence may not even be considered unlessits relevance and the defendant’s commissionofthe unchargedoffenseis established by a preponderanceofthe evidence (Evid. Code, § 403); and (2) the evidence may not be utilized to convict the defendant unlessits relevance, and the defendant’s commissionofthe offense is proven unanimously and beyond a reasonable doubt. Without such an instruction, appellant’s constitutionalrights to trial byjury and.due process (6th and 14th Amendments) were violated by allowing the jury to convict according to a standard thatis less than the Constitution requires. (Contra People v. Carpenter, supra, 15 Cal.4th at pp. 380-382.) | E. The Multiple Failures Of The Instructions To Properly Limit TheJury’s Consideration Of Other Crimes Evidence Prejudiced Appellant And Requires Reversal Of Appellant’s Conviction Given the recognized, necessary fiction that properinstructions can cure errors that occur at trial, it is imperative that the jurors at least be given correct instructions on how to use evidence. Furthermore,it is presumed that jurors follow instructions. (People v. Murtishaw (1989) 48 Cal.3d_ 1001, 1044: People v. Garcia (1995) 41 Cal.App.4th 1832, 1835.) Thus, when a jury is misdirected as to the use of evidence,the likelihood becomes overwhelmingthat the evidence will be misused. Misleading or ambiguous instructions violate due process where there-is a reasonablelikelihood the jurors misunderstood the applicable law. (Estelle v. McGuire, supra, 502 USS.at p. 72; Boyde v. California (1990) 494 U.S. 370, 381-381.) As stated 390 above, there wasat least a reasonable likelihood that the jurors misapplied the instructions in this case. In so far as these incorrectinstructions violated appellant’s right to due process of law the only proper standard for judging prejudice 1s that standard established by Chapmanv. California, supra, 386 U.S. 18, which provides that reversal is required unless the error was harmlessbeyond a reasonable doubt. That cannot be shownin this case. Instructions “may not be judgedin artificial isolation,” but must be considered in the context of the instructions as a whole andthetrial record. (Estelle v. McGuire, supra, 502 U.S. at p. 72.) The errors set forth above allowedthe jury (1) to consider other crimes evidenceas relevant to the purposes enumerated in CALJIC No. 2.50 without any finding regarding whetherthe predicate facts essential to the admissibility of those crimes were proven by any standard, be it by a preponderanceof the evidence or beyond a reasonable doubt; (2) — the unfettered discretion to use the other crimes evidence for any of the enumerated purposes in CALJIC No.2.50; and (3)to convict appellant on constitutionally insufficient proof. In short, the misdirection of the jury through the faulty instructions must be regarded as prejudicial, thereby requiring a reversal of the conviction and judgmententered below. Ih H/ 391 XVI THE INSTRUCTIONS IMPERMISSIBLY UNDERMINED AND DILUTED THE REQUIREMENT OF PROOF BEYOND A REASONABLE DOUBT Due Process “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (Jn re Winship, supra, 397 U.S.at p. 364; accord, Cage v. Louisiana, supra, 498 U.S.at pp. 39-40; People v. Roder (1983) 33 Cal.3d 491, 497.) “The constitutional necessity of proof beyond a reasonable doubtis not confined to those defendants who are morally blameless.” (Jackson v. Virginia, supra, 433 U.S. at p. 323.) The reasonable doubt standard is the “bedrock ‘axiomatic and elementary’ principle ‘whose enforcementlies at the foundation of the administration of our criminal law’” Un re Winship, supra, 317 U.S.at p. 363) and at the heart ofthe right to trial by jury. (Sullivan v. Louisiana, supra, 508 U.S. at p. 278 (‘the jury verdict required by the Sixth Amendmentis a jury verdict of guilty beyond a reasonable doubt”].) Jury instructions violate these constitutional requirements if “there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proofinsufficient to meet the Winship standard”ofproof beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S.1, 6.) Thetrial court in this case gave a series of standard CALJICinstructions, each of which violated the above principles and enabled the jury to convict appellant on a lesser standardthan is constitutionally required. Because the instructions violated the United States - Constitution in a manner that can never be “harmless,” the judgmentin this case must be reversed. (Sullivan v. Louisiana, supra, 508 U.S.at p. 275.) 392 A. The Instructions On Circumstantial Evidence Undermined The Requirement Of Proof Beyond A Reasonable Doubt (CALJIC Nos. 2.90, 2.01, and 2.02) The jury was instructed that appellant was “presumed to be innocent until the contrary is proved” and that “[t]his presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.” (RT 16401; CT 15502.) Theseprinciples were supplemented byseveral instructions that explained the meaning of reasonable doubt. CALJIC No. 2.90 defined reasonable doubt as follows: It is not a mere possible doubt, because everything relating to human affairs, and depending on moral evidence,is open to some possible or imaginary doubt. It is the state of the case which, after the entire comparison and consideration ofall of the evidence, leaves the mindsofthe jurors in that condition that they cannotsay they feel an abiding conviction of the truth of the charge. (RT 16401; CT 15502.) The jury was given two interrelated instructions — CALJIC Nos.2.01 and 2.02 — that discussed the relationship between the reasonable doubt requirementand circumstantial evidence.''® Except for the fact that they were directed at different evidentiary points, these advised appellant’sjury ' that if one interpretation of the evidence “appears to you to be reasonable [and] the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.” (RT 16382-16384; CT 15466-15467.) These instructions informed the jurors that if appellant reasonably appearedto be guilty, they could find him guilty — even if they "© CALJIC No. 2.01 [circumstantial evidence re: guilt of crimes (RT 16382-16383; CT 15466); CALJIC No. 2.02 [specific intent or mental state re: crimes] (RT 16383-16384; CT 15467).) 393 entertained a reasonable doubtas to guilt. This twice-repeated directive undermined the reasonable doubt requirement in two separate but related ways, violating appellant’s constitutional rights to due process (U.S. Const., Amend. XIV; Cal. Const., art. I, §§ 7 & 15), trial by jury (U.S. Const., Amends. VI and XIV; Cal. Const., art. I, § 16), and a reliable capitaltrial (U.S. Const., Amends. VIII and XIV; Cal. Const., art. I, § 17). (Sullivan v. Louisiana, supra, 508 U.S. at p. 278; Carella v. California (1989) 491 U.S. 263, 265; Beck v. Alabama, supra, 447 U.S.at p. 638.) First, the instructions not only allowed, but compelled, the jury to find appellant guilty on all counts and, therefore, to find multiple murderspecial circumstanceto be true using a standard lower than proof beyond a — reasonable doubt. (Cf. In re Winship, 397 U.S. at p. 364.) The instructions directed the jury to find appellant guilty and the special circumstance true based on the appearance of reasonableness: the jurors were told they “must” accept an incriminatory interpretation of the evidenceifit “appear[ed]”to them to be “reasonable.” An interpretation that appears to be reasonable, however,is not the sameas an interpretation that has been proven to betrue beyond a reasonable doubt. A reasonable interpretation does not reach the “subjective state of near certitude”that is required to find proof beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 315; see Sullivan v. Louisiana, supra, 508 U.S.at p. 278 [“It would notsatisfy the Sixth Amendmentto have a jury determine that the defendant is probably guilty” [italics added].) Thus, the instructions improperlyrequired conviction on a degree of proofless than the constitutionally required standard of proof beyond a reasonable doubt. | Second, the circumstantial evidence instructions were constitutionally infirm because they required the jury to draw an incriminatory inference 394 when such an inference appeared to be “reasonable.” In this way, the instructions created an impermissible mandatory presumption that required -the jury to accept any reasonable incriminatory interpretation of the circumstantial evidenceunless appellant rebutted the presumption by producing a reasonable exculpatory interpretation. “A mandatory presumptioninstructs the jury that it must infer the presumed factif the State provescertain predicate facts.” (Francis v. Franklin (1985) 471 U.S. 307, 314 [italics added, fn. omitted].) Mandatory presumptions, even thosethat | _ are explicitly rebuttable, are unconstitutional if they shift the burden of proof to the defendant on an elementofthe crime. (id. at pp. 3 14-318; Sandstrom v. Montana, supra, 442 U.S. at p. 524.) | Here,the instructions plainly told the jury that if only one interpretation of the evidence appeared reasonable, “you must accept the reasonable interpretation and reject the unreasonable.” (RT 16383.) In Peoplev. Roder, supra, 33 Cal.3d at p. 504, this Court invalidated an instruction that required the jury to presume the existence of a single element of the crime unless the defendant raised a reasonable doubtas to the existence of that element. All the more, this Court should invalidate the instructions given in this case, which required the jury to presumea// elements of the crimes supported by a reasonable interpretation of the circumstantial evidence unless the defendant produced a reasonable interpretation of that evidence pointing to his innocence. These instructions had the effect of reversing the burden ofproof, since it required the jury to find appellant guilty unless he came forward with evidence explaining the incriminatory evidence put forward by the prosecution. Further, the instructions were prejudicial given the context of this case. The prosecution’s theory of guilt was that appellant operated a 395 multi-million dollar drug organization and that he had Armstrong andthe others killed to protect that business. Appellant testified that, while he was involvedin the sale of narcotics, he was not a major player and denied that he had the motive for or that he was responsible for the killings. The erroneousinstructions were prejudicial with regard to guilt in that they required the jury to convict appellant if he “reasonably appeared” guilty, evenif the jurors still entertained a reasonable doubtofhis guilt.. This is the equivalentof allowing the jury to convict appellant because he wasa likely suspect, rather than because they believed him guilty beyond a reasonable doubt. In addition, the constitutionaldefects in the circumstantial evidence instructions were likely to have affected the jury’s deliberations in this case since there was no direct evidence. other than the highly suspect testimony of James Williams. The focus of the circumstantial evidence instructions on the reasonableness of evidentiary inferences also prejudiced appellant by ‘requiring that he provehis defense was reasonable before the jury could deem it credible. Of course, “(t]he accused has no burden of proofor | persuasion, even asto his defenses.” (People v. Gonzales (1990) 51 Cal.3d 1179, 1214-1215, citing In re Winship, supra, 397 U.S.at p. 364, and Mullaney v. Wilbur (1975) 421 U.S. 684; accord, People v. Allison (1989) 48 Cal.3d 879, 893.) Forall these reasons, there is a reasonable likelihood that the jury . applied the circumstantial evidence instructions to find appellant’s guilt on a standardthatis less than constitutionally required. 396 B. Other Instructions Also Vitiated The Reasonable Doubt Standard (CALJIC Nos. 1.00, 2.21.1, 2.21.2, 2.22, 2.27, 2.50, 2.50.1, 2.51 and 8.20) The trial court gave nine other standard instructionsthat individually and collectively diluted the constitutionally mandated reasonable doubt standard: CALJIC No. 1.00, regarding the respective duties of the judge and jury (RT 16377-16378; CT 15456-15457.); CALJIC No.2.21.1, regarding discrepancies in testimony (RT 16391; CT 15482); CALJIC No.2.21.2, regarding willfully false witnesses (RT 16391; CT 15483); CALJIC No. 2.22, regarding weighing conflicting testimony (RT 16391-16392; CT © 15484); CALJIC No.2.27, regarding sufficiency of evidence of one witness (RT 16393; CT 15487); CALJIC No. 2.50, regarding evidence of other crimes (RT 16393-16395; CT 15488-15489), CALIIC No. 2.50.1, regarding proving other crimes by a preponderanceof the evidence (RT 16395; CT 15490), CALJIC No. 2.51, regarding motive (RT 16396; CT 15492) and CALJIC No.8.20, defining premeditation and deliberation (RT 16412- 16413; CT 15524-15525). Each of these instructions, in one way or another, urged the jury to decide material issues by determining which side had presentedrelatively stronger evidence. In so doing,the instructions implicitly replaced the “reasonable doubt” standard with the “preponderance of the evidence”test, thus vitiating the constitutional protections that forbid convicting a capital defendant on any lesser standard of proof. (Sullivan v. Louisiana, supra, 508 U.S. 275; Cage v. Louisiana, supra, 498 U.S. 39; In re Winship, supra, 397 U.S. 358.) Asa preliminary matter, several instructions violated appellant’s constitutional rights as enumerated in section A of this argument by misinformingthe jurors that their duty was to decide whether appellant was 397 guilty or innocent, rather than whether he wasguilty or not guilty beyond a reasonable doubt. For example, CALJIC No. 1.00 told the jury that pity or prejudice for or againstthe defendantandthe fact that he has been arrested, | charged and broughtto trial do not constitute evidence of guilt, “and you must not infer or assume from anyorall of [these circumstances] that heis more likely to be guilty than innocent.” (RT 16377-16378.) CALJIC No. 2.01, discussed previously in subsection A ofthis argument,also referred to the jury’s choice between “guilt” and “innocence.” (RT 16382-16383.) In addition, the jury wasinstructed with former CALJIC No. 2.51 (5th ed.): | . Motive is not an elementof the crimes charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish | guilt. Absence of motive may tend to establish innocence. Youwill, therefore, give its presence or absence, as the case maybe,the weight to which youfindit to be entitled. (RT 16396; CT 15492.) This instruction allowed the jury to determine guilt based on the presence of alleged motive alone and shifted the. burden of proof to appellant to show absence of motive to establish innocence, thereby lessening the prosecution’s burden of proof. As a matter of law, however,it iS beyond question that motive aloneis insufficient to prove guilt. Due process requires substantial evidence of guilt. (Jackson v. Virginia, supra, 443 U.S.at p. 320 [a “mere modicum”of evidenceis not sufficient].) Motive alone does not meetthis standard because a conviction based on such evidence would be speculative and conjectural. (See, e.g., United States v. Mitchell (9th Cir. 1999) 172 F.3d 1104 , 1108-1109 [motive based on poverty is insufficient to prove theft or robbery].) © 398 The motive instruction was in stark contrast to another standard evidentiary instruction, CALJIC No. 2.03, which expressly admonished the jury that a wilfully false or deliberating misleading statement was “not sufficient byitself to prove guilt.” (RT 16384; CT 15469.) The instruction ~ appeared to include an intentional omission allowing the jury to determine guilt based on motive alone. Indeed, the jurors reasonably could have concluded that if motive were insufficient by itself to establish guilt, the instruction obviously would say so. (See People v. Castillo (1997) 16 | Cal.4th 1009, 1020 [conc. opn. ofBrown, J.] [deductive reasoning underlying the Latin phrase inclusio unius est exclusio alterius could mislead a reasonablejuror as to the scopeof an instruction].) This Court has recognizedthat differing standards in instructions create erroneous implications: The failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, whenit had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide,left the instructions with the clearly erroneous implication that the rule requiring a finding of guilt of the lesser offense applied only as betweenfirst and second degree murder. (People v. Dewberry (1959) 51 Cal.2d 548, 557; see also People v. Salas (1976) 58 Cal.App.3d 460, 474 [when.a generally applicable instructionis specifically made applicable to oneaspect of the charge and not repeated with respect to another aspect, the inconsistency may beprejudicial error].) Here, the context highlighted the omission, so the jury would have understood that motive alone could establish guilt. This instruction conflicted with other instructions regarding criminal intent for finding premeditated murder by suggesting to the jurors that they need notfind that 399 premeditation in order to convict appellant of first degree murderor,in turn, to find true a multiple murderspecial circumstance. Even though a reasonable juror could have understood the contradictory instructions to require such specific intent, there is simply no way of knowing whetherany, - muchless all 12, of the jurors so concluded. (See, e.g., Francis v. Franklin, supra, 471 U.S.at p. 322.) With respect to the instant homicides, the jury wasinstructed that “all murder whichis perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murderin the first degree,” and, in relevant part, that “willful” means “intentional” and that intentto kill was an element of premeditated murder. (RT 16412-16413.) By informing the jurors that “motive was not an elementof the crime,” however,the trial court reduced the burden of proving that element of the prosecutor’s case, that is, that appellant had the intent to kill. The instruction violated due process by improperly undermininga correct understanding of how the burden of proof beyond a reasonable doubt was supposedto apply. (See Sandstrom v. Montana, supra, 442 U.S. 510; People v. Lee (1987) 43 Cal.3d 666, 673-674 [conflicting instructions on intent violate due process]; - Baldwin v. Blackburn (5th Cir. 1981) 653 F.2d 942, 949 [misleading and confusing instructions understate law may violate due process where they are “likely to cause an imprecise, arbitrary or insupportable finding of guilt”].) . | Further, CALJIC No. 2.51 informed the jurors that the presence of motive could be used to establish guilt and that the absence of motive could be used to establish innocence. The instruction effectively placed the burden of proof on appellant to show an alternative motive to that advanced by the prosecutor. As used in this case, CALJIC No. 2.51 deprived appellant of his 400 federal constitutional rights to due process and fundamentalfairness. (In re Winship, supra, 397 U.S.at p. 368 [due process requires proof beyond a reasonable doubt].) The instruction also violated the fundamental Eighth Amendmentrequirementfor reliability in a capital case by allowing appellant to be convicted without the prosecution having to presentthe full measure of proof. (See Beck v. Alabama, supra, 447 U.S.at pp. 637-638 [reliability concerns extend to guilt phase].) Similarly, CALJIC Nos. 2.21.1 and 2.21.2"” lessened the _prosecution’s burden of proof. They authorized the jury to reject the testimony of a witness “willfully false in one material part of his or her testimony” unless “from all the evidence, you believe the probability oftruth favorshis or her testimony in other particulars.” (RT 16391 [italics added].) These instructions lightened the prosecution’s burden of proof by allowing the jury to credit prosecution witnesses by finding only a “mere probability of truth” in their testimony. (See People v. Rivers (1993) 20 Cal.-App.4th 1040, 1046 [instruction telling the jury that a prosecution witness’s testimony could be accepted based on a “probability” standard is “somewhat suspect”].)''? The essential mandate of Winship and its progeny — that each '” Appellant’s requested modification to CALJIC No. 2.21.2 to correct the unconstitutional burden shifting discussed herein wasrejected. (RT 16263; CT 14989-14990.) ''8 The court in Rivers nevertheless followed People v. Salas (1975) 51 Cal.App.3d 151, 155-157, wherein the court found no error in an instruction which arguably encouragedthe jury to decide disputed factual issues based on evidence “which appeals to your mind with more convincing force,” because the jury was properly instructed on the general governing principle of reasonable doubt. (But see Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812, 822-825 [CALJIC No. 2.50.01 contrary to Winship and (continued...) 401 specific fact necessary to prove the prosecution’s case be proven beyond a reasonable doubt — is violated if any fact necessary toany element of an offense can be proven by testimony that merely appeals to the jurors as more “reasonable”or “probably true.” (See Sullivan v. Louisiana, supra, 508 U.S. at p. 278; In re Winship, supra, 397 U.S. at p. 364.) Furthermore, CALJIC No. 2.22 provided as follows: You are not bound to decide an issue of fact in accordance with the testimony of a numberofwitnesses which does not convince you, as against the testimony of a lesser number or other evidence, which appeals to your mind with more convincing force. You maynot disregard the testimony of the greater number of witnesses merely from whim orprejudice, or from a desire to favor one side against the other. You must not decide an issue by the simple process of counting the number of witnesses who havetestified on the opposing sides. The final test is not in the relative numberofwitnesses, but in the convincing force of the evidence. (RT 16391-16392.) This instruction informed the jurors, in plain English, that their ultimate concern must be to determine which party has presented evidence that is comparatively more convincing thanthat presented by the other party. It specifically directed the jury to determine each factual issue in the case by deciding which witnesses, or which version, is more credible or more convincing than the other. In so doing, the instruction replaced the constitutionally-mandated standard of “proof beyond a reasonable doubt” with something that is indistinguishable from the lesser “preponderanceof the evidence standard,”1.e., “not in the relative numberof witnesses,but in "8continued). Sullivan and, under Boyde v. California, supra, 494 U.S. at pp. 384-385, error not cured by correct reasonable doubt and presumption of innocence instructions].) . 402 the convincing force of the evidence.” As with CALJIC Nos. 2.21.1 and 2.21.2 discussed above, the Winship requirement of proof beyond a reasonable doubtis violated by instructing that any fact necessary to any element of an offense could be proven by testimony that merely appealed to the jurors as having somewhatgreater “convincing force.” (See Sullivan v. Louisiana, supra, 508 U.S. at pp. 277-278; In re Winship, supra, 397 US.at p. 364.) | CALJIC No. 2.27, regarding the sufficiency of the testimony of a single witness to prove a fact (RT 16393), likewise was flawed in its erroneous suggestion that the defense, as well as the prosecution, had the burden of proving facts. The defendantis only required to raise a reasonable doubt about the prosecution’s case; he cannot be requiredto establish or prove any “fact.” Indeed, this Court has “agree[d] that the instruction’s wording could be altered to have a more neutral effect as between prosecution and defense” and “encourage[d] furthereffort toward the | development of an improvedinstruction.” (People v. Turner (1990) 50 Cal.3d 668, 697.) This Court’s understated observation does not begin to address the unconstitutional effect of CALJIC No. 2.27, and this Court should find that it violated appellant’s Sixth and Fourteenth Amendment _ tights to due processand a fair jury trial. Since the prosecution’s case against appellant was centered on uncharged offenses, perhaps most harmful in the context of this case, were CALJIC Nos. 2.50 and 2.50.1. The jury wasinstructed as follows: Evidence has been introduced for the purpose of showing that the defendant committed crimes other than that for which he is on trial. [§] Such evidence, ifbelieved, was not received and may not be consideredby you to prove that defendantis a person of bad character or that he has a disposition to commit crimes. [{[] Such 403 evidence was received and may be considered by you only for the limited purpose of determiningif it tends to show:... [{] The identity | of the person who committed the crime,if any, of which the defendant is accused... [{] Or the limited purpose for which you may consider such evidence, you must weighit in the same manneras you do all other evidence in the case. [{] You are not permitted to consider such evidence for any other purpose. Within the meaning ofthe preceding instruction,such other crime or crimes purportedly committed by the defendant must be proved by a preponderance of the evidence. You must not consider such evidence for any purpose unless youaresatisfied that the defendant committed such other crime or crimes. [{] The prosecution has the burden of proving these facts by a preponderance of the evidence. (RT 16393-16395.) These instructions told the jury that the appellant’s guilt of the uncharged offenses need only be proven by a preponderance of evidence and that once proven such evidence could be utilized to prove identity. Thus, under these instruction the first prosecution premise—that appellant committed the uncharged offenses — could be satisfied bya preponderance of the evidence, and, that oncesatisfied, the jury could then find appellant guilty of the charged offenses. These instructions clearly violated In re Winship, supra at p. 363 and Sullivan v. Louisiana, supra, 508 USS. at p. 275-278. (See Gibson v. Ortiz, supra, 387 F.3d 812 [CALJIC No. 2.50.01 contrary to Winship and Sullivan].) Finally, CALJIC No. 8.20, defining premeditation and deliberation, misled the jury regarding the prosecution’s burden ofproofbyinstructing that deliberation and premeditation “must have been formed upon pre- existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation ww.” (RT 16412-16413 [italics added].) The use of the word “precluding” could be interpreted to require the 404 defendant to absolutely eliminate the possibility of premeditation, rather than to raise a reasonable doubt about that element. (See People v. Williams (1969) 71 Cal.2d 614, 631-632 [recognizingthat “preclude” can be coe. understood to mean “‘absolutely prevent’”’].) “Tt is critical that the moral force of the criminal law notbe diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.” (Un re Winship, supra, 397 U.S. at p. 364.) Each of the disputed instructions here individually served to contradict and impermissibly dilute the constitutionally-mandated standard that requires the prosecution to prove each necessary fact of each element of each offense “beyond a reasonable doubt.” Taking the instructions together, no | reasonablejuror could have been expected to understand — in the face of so many instructions permitting conviction on a lesser showing — that he or she must find appellant not guilty unless every element ofthe offenses was proven by the prosecution beyond a reasonable doubt. The instructions challenged here violated the constitutional rights set forth in section A of this argument. | C. The Court Should Reconsider Its Prior Rulings Upholding the Defective Instructions. . Although each one of the challenged instructions violated appellant’s federal constitutional rights by lessening the prosecution’s burden and by operating as a mandatory conclusive presumption of guilt, this Court has repeatedly rejected constitutional challenges to many ofthe instructions discussed here. (See e.g., People v. Riel (2000) 22 Cal.4th 1153, 1200 [addressing false testimony and circumstantial evidence instructions]; People v. Crittenden (1994) 9 Cal:4th 83, 144 [addressing circumstantial evidence instructions]; People v. Noguera (1992) 4 Cal.4th 599, 633-634 [addressing 405 | CALJICNo,2.01, 2.02, 2.21, 2:27)]; People y. Jennings (1991) 53 Cal.3d 334, 386 [addressing circumstantial evidence instructions].)''? While recognizing the shortcomings of some ofthe instructions, this Court -consistently has concludedthat the instructions must be viewed “as a whole,” rather than singly; that the instructions plainly meanthat the jury should reject unreasonable interpretations of the evidence and should give the defendant the benefit of any reasonable doubt; and that jurors are not _ misled whentheyalso are instructed with CALJIC No. 2.90 regarding the presumption of innocence. The Court’s analysis is flawed. First, what this Court has characterized as the “plain meaning”of the instructions is not what the instructions say. (See People v. Jennings, supra, 53 Cal.3d at p. 386.) The question is whether there is a reasonable likelihood that the jury applied the challengedinstructions in a waythat violates the Constitution (Estelle v. McGuire, supra, 502 U.S.at p.72), and there certainly is a reasonable likelihood that the juryapplied the challenged instructions according to their express terms. Second, this Court’s essential rationale — that the flawed instructions were “saved”by the language of CALJIC No. 2.90 — requires . -® reconsideration. (See People v. Crittenden, supra, 9 Cal4that p. 144.) An ‘9 Although this Court has not specifically addressed the implications of the constitutional error contained in CALJIC Nos. 2.22 and 2.51, the courts of appeal have echoed the pronouncements by this Court on related instructions. (See People v. Salas, supra, 51 Cal.App.3d at pp. 155- 157 [challenge to former version of CALJIC No. 2.22 “would have e considerable weightif thisinstruction stood alone,”but the trial court properly gave CALJIC No. 2.90]; People v. Estep (1996) 42 Cal.App.4th 733, 738-739 [citing People v. Wilson (1992) 3 Cal.4th 926, 943] [CALJIC No. 2.51 had to be viewedin the context of the entire charge, particularly the languageof the reasonable doubt standard set out in CALJIC No. 2.90].) ® 406 instruction that dilutes the standard of proof beyond a reasonable doubt on a. specific point is not cured by a correctgeneral instruction on proof beyond a reasonable doubt. (United States v. Hall (5th Cir. 1976) 525 F.2d 1254, 1256; see generally Francis v. Franklin, supra, 471 U.S. at p. 322 [““Language that merely contradicts and doesnot explain a constitutionally infirm instruction will not suffice to absolve the infirmity”}; People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1075 [citing People v. Westlake (1899) 124 Cal. 452, 457] [if an instruction states an incorrect rule of law, the error cannotbe cured by giving a correct instruction elsewhere in the charge]; People v. Stewart (1983) 145 Cal.App.3d 967, 975 [specific jury instructions prevail over general ones].) “It is particularly difficult to overcomethe prejudicial effect of a misstatement whenthe bad instruction is specific and the supposedly curative instruction is general.” (Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374,395.) Furthermore, nothing in the circumstantial evidence instructions given in this case explicitly informed the jury that those instructions were qualified by the reasonable doubt instruction.’”° It is just as likely that the jurors concluded that the reasonable doubt instruction was qualified or explained by the other instructions that contain their own independent references to reasonable doubt. Even assuming that the language of a lawful instruction somehow can cancel out the language of an erroneous one — rather than vice-versa — the | principle does not apply in this case. The allegedly curative instruction was overwhelmed by the unconstitutional ones. Appellant’s jury heard nine '20 A reasonable doubt instruction also was given in People v. Roder, supra, 33 Cal.3d at p. 495, butit was not held to cure the harm — created by the impermissible mandatory presumption. 407 separate instructions, each of which containedplain languagethat was antithetical to the reasonable doubt standard. Yet the charge as a whole containedonly one countervailing expression of the reasonable doubt standard: Penal Code Section 1096 as set out in CALJIC No. 2.90. This Court has admonished “that the correctness ofjury instructionsis to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” (People v. Wilson, supra, 3 Cal.4th at p. 943, citations omitted.) Under this principle, it cannot seriously be maintainedthat a single instruction such as CALJIC No.2.90 is sufficient, by itself, to serve as a counterweight to the mass of contrary pronouncements given in this case. The effect of the “entire charge” was to misstate and undermine the reasonable doubt standard, eliminating any possibility that a cure could be realized by a single instruction inconsistent with the rest. . Most recently, the Ninth Circuit Court of Appeals agreed with the foregoing analysis. In Gibson v. Ortiz, supra, the Court found that CALJIC No. 2.50.01 violated Winship and Sullivan, and further held that under Boyde v. California, supra, 494 U.S. at pp. 379-380, the error was not cured by e CALJIC No. 2.90, because “[w]hen a court gives the jury instructions that allow it to convict a defendant on an impermissible legal theory, as well as a theory that meets constitutional requirements, ‘the unconstitutionality of any ® of the theories requires that the convictions be set aside.’” (Gibson v. Ortiz, supra {citation].) D. Reversal Is Required. . e Because the erroneous circumstantial evidence instructions required conviction on a standard of proof less than proof beyond a reasonable doubt, their delivery wasa structural error that is reversible per se. (Sullivanv. ° 408 Louisiana, supra, 508 U.S. at pp. 280-282; Gibson v. Ortiz, supra, 387 F.3d 812.) ° If the erroneousinstructions are viewedonly as burden-shifting instructions, the error is reversible unless the prosecution can show thatthe giving of the instructions was harmless beyonda reasonable doubt. (Carella v. California, supra, 491 U.S. at pp. 266-267.) Here, as set forth above,that showing cannot be made. Further, under CALJIC No.2.51, the prosecutor wasrelieved of proving an elementoffirst degree premeditated murder — rather, theinstructions permitted the prosécution to only establish motive for the jury to conclude that appellant was guilty. The instructional error was particularly prejudicial in this case given literally mostofthe prosecution’s case was devoted to testimonyrelating to the alleged motives for the homicides,i.e:, (1) that appellant and his brother were drug dealers who had paid Armstrong to shoot Ken Gentry and Reynard Goldman, and that when Armstrong wasreleased from prison appellant had him killed to protect a multi-million dollar drug organization and (2) that appellant had his ex- wife’s lovers shot. Exclusive of motive evidence, the prosecution’s evidence against appellant was very weak: there was no eyewitness identification of appellant and no physical evidence linked him to the scene. A very weak circumstantial evidence case against appellant was otherwise propped up by the testimony of a man who had been charged with the homicides and who admitted he had the strongest motive in the world to lie: to save himself from the death penalty. However, the instruction allowed the jury to convict appellant on the motive evidence alone andthis error, alone or considered in conjunction with all the other instructional errors set forth in this brief, requires reversal of appellant’s conviction. 409 The dilution of the reasonable-doubt requirement by the guilt-phase instructions must be deemed reversibleerror no matter what standard of prejudice is applied. (See Sullivan v. Louisiana, supra, 508 U.S.at pp. 278- 282; Cage v. Louisiana, supra, 498 US. at p. 41; People v. Roder, supra, 33 Cal.3d at p. 505.) The instructions also violated the fundamental Eighth Amendmentrequirementforreliability in a capital case by allowing appellant to be convicted without the prosecution having to present the full measure of proof. (See Beck v. Alabama, supra, 447 U.S. at pp. 637-638 [reliability concerns extend to guilt phase].) Accordingly, appellant’s conviction and death sentence must be reversed. / / 410 XVII THE TRIAL COURT ERRONEOUSLY DIRECTED THE JURY TO FOCUS ON ALLEGED ACTS OF APPELLANT AS EVIDENCE OF HIS CONSCIOUSNESS OF GUILT The trial court delivered fourrelated instructions regarding acts the jury could consider as evidence of appellant’s consciousnessof guilt which were misleading, unsupported by the evidence, and constituted improper pinpointinstructions.’”! Thetrial court also gave CALJIC No. 2.05 (Efforts By Other Than Defendant To Suppress Evidence), which stated as follows: If you find that an effort to procure false or fabricated _ evidence was made by another person for the defendant’s benefit, you may not consider that effort as tending to show the defendant’s consciousness of guilt unless you also find that the defendant authorized such effort. If you find defendant authorized the effort, that conduct is not sufficient by itself to prove guilt, and its weight and significance,if any, are matters for your consideration. (RT 16385; CT 15470.) The court also gave a modified version of CALJIC No.2.06 (Efforts To Suppress Evidence), whichstated as follows: . If you find that a defendant attempted to suppress evidence against himself in any manner, such as by intimidation of a witness, by an offer to compensate a witness, by destroying evidence or by concealing evidence, such attempt may be considered by you as a circumstance tending to show a consciousnessof guilt. However, this conductis "21 A fifth related instruction, CALJIC No. 2.03 (Consciousness of Guilt — Falsehood), was given at appellant’s request in modified version and presumably did not apply to appellant, since he gave no statementto police. (See RT 16250-16251, 16384; CT 14979-14980, 15469.) Ai} notsufficient by itself to prove guilt, and its weight and significance, if any, are for your consideration. If you find that such attempt was not made by the defendant, but by someonefor the defendant’s benefit, you may not consider such effort as tending to show the defendant’s consciousnessofguilt unless you find also that the defendant authorized such effort. (RT 16385-16386; CT 15471.) Thetrial court further instructed the jury with the following special instruction: If you find that before this trial any defendant wilfully failed and refused to proved handwriting exemplars, then as to that defendant you may consider such failure as a circumstance tending to prove his consciousnessof guilt as to the fact that his handwriting appears on someorall of the documents admitted into evidence. (RT 16386; CT 15472.)'” Andfinally in this regard, the trial court instructed the jury with a | modified version of CALJIC No. 2.52 (Flight After Crime) as follows: The flight of a person immediately after the commission of a crime, or after he is accused of a crime,is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding the question of his guilt or innocence. Whether or not evidenceofflight shows a consciousness of guilt, and the significance to be attached to such a circumstance, are matters for your determination. (RT16396; CT 15493.)! Evidence of the defendant’s attempts to avoid or obstruct prosecutionis said to constitute circumstantial evidence of guilt on the theory that the inference of consciousness of guilt supports a second ~ '? Upon advice of counsel, appellant refused to provide a handwriting exemplar. (RT 13013-13022.) 3 The prosecution arguedthat appellantfled to a “safe house’after the instant homicide. (RT 16430P-16430Q, 16530, 16883-16838.) 412 MT be Be Ra mb gc tM aa t 9d OR WE BB TE A @I GE g e N m e t inference of guilt in fact. (People v. James (1976) 56 Cal.App.3d 876, 890; see McCormick on Evidence (4th ed. 1992) § 263 at p. 181 [evidence of defendant’s evasive conductafter the crime is recetved “as circumstantial evidence of consciousness of guilt and henceofthe fact of guilt itself’].) In appellant’s case, these instructions permitted the jury to infer appellant’s guilt from unreliable and ambiguous evidence purportedly showing that appellant sought to procure false testtmony as well as from alleged acts of intimidation unrelated to the charged offenses. Where, as here, the question of appellant’s guilt was close and based in large part on - the credibility of witnesses who implicated appellant, delivery of these instructions was prejudicial error. The instructions unfairly highlighted evidence favorable to the prosecution and invited the jury to draw critical but irrational inferences against appellant related directly to the question of guilt. . The instructional errors, especially when considered in combination, deprived appellant of due process, equal protection,a fair jury trial, and a fair and reliable jury determination of guilt, special circumstances, and | penalty. (U.S. Const. Amends. V, VI, VIII, XIV; Cal. Const. art. I, §§ 7, 15, 16, & 17.)'%4 '4 The jury wasalso instructedat the penalty phase with CALJIC Nos. 2.03 (Consciousness of Guilt — Falsehood); 2.04 (Efforts by Defendant to Fabricate Evidence); 2.05 (Efforts Other Than By Defendant To Fabricate Evidence); and 2.06 (Efforts to Suppress Evidence). For the same reasonsdescribed herein, the delivery of these instructionsat the penalty phase pertaining to the finding of aggravating factors undermined the fairness and reliability of the jury’s sentencing determination in violation of appellant’s Fifth, Sixth, Eighth and Fourteenth Amendment nights, and require that the death judgmentbe vacated. 413 ee A. The Consciousness Of Guilt Instructions Improperly Duplicated The Circumstantial Evidence Instruction The instructions under CALJIC Nos. 2.05, 2.06, 2.52 and the special | instruction were unnecessary. This Court hasheld that specific instructions relating to the consideration of evidence which simply reiterate a general principle upon which the jury has already been instructed should not be given. (See People v. Lewis, supra, 26 Cal.4th at pp. 362-363; People v. Ochoa (2001) 26 Cal.4th 398, 444-445.) Here, the trial court instructed the jury on circumstantial evidence with the standard CALJIC Nos. 2.00, 2.01 : e and 2.02. (RT 16381-16384; CT 15465-15468.) These instructions amply | informed the jury thatit could draw inferences from the circumstantial evidence, i.e., thatit could infer facts tending to show appellant’s guilt — e including his state of mind — from the circumstancesof the alleged crimes. | There was no need to repeat this general principle in the guise of permissive inferences of consciousness of guilt, particularly since the trial court didnot: ~ -@ similarly instruct the jury on permissive inferences of reasonable doubt , about guilt. This unnecessary benefit to the prosecution violated both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. | e (See Wardius vy. Oregon (1973) 412 U.S. 470, 479; Lindsay v. Normet (1972) 405 U.S. 56, 77.) B. The Consciousness Of Guilt Instructions Were Unfairly Partisan And Argumentative ° Thetrial court must refuse to deliver any instructions which are argumentative. (People v. Sanders (1995) 11 Cal.4th 475, 560.) The vice of argumentative instructionsis that they present the jury with a partisan © argument disguised as a neutral, authoritative statement of the law. (See People v. Wright (1988) 45 Cal.3d 1126, 1135-1137.) Such instructions e 414 unfairly single out and bring into prominence beforethe jury isolated facts favorable to one party, thereby, in effect, “intimating to the jury that special consideration should be given to those facts.” (Estate ofMartin (1915) 170 Cal. 657, 672.) | Argumentative instructions are defined as those that “invite the jury to draw inferences favorable to one of the parties from specified items of evidence.” (Peoplev. Mincey (1992) 2 Cal.4th 408, 437 [citations omitted].) Even if they are neutrally phrased, instructions which “ask the jury to consider the impact of specific evidence” (People v. Daniels (1991) 52 Cal.3d 815, 870-871), or “imply a conclusion to be drawn from the evidence” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 105, fn. 9), are argumentative and hence must be refused. ([bid.) | Judged by this standard, the consciousness of guilt instructions given in this case are impermissibly argumentative. Structurally, they are almost identical to the defense “pinpoint” instruction whichthis Court foundto be argumentative in People v. Mincey, supra, 2 Cal.4th at p. 437, All five instructionstell the jurors that if they find certain preliminary facts, they mayrely on those facts to find additional facts favorable to one party or the other. Since the instruction in Mincey was held to be argumentative, the four instructions at issue here should be held argumentative as well. In People v. Nakahara (2003) 30 Cal.4th 705, 713, this Court rejected a challenge to consciousness of guilt instructions based on an analogyto People v. Mincey, supra, 2 Cal.4th 408, holding that Mincey was “inapposite for it involved no consciousnessof guilt instruction” but rather a proposed defense instruction which “would have invited the jury to ‘infer the existence of [the defendant’s] version of the facts, rather than his theory 339of defense. [Citation omitted].’”” ) This holding, however, doesnot explain 415 why twoinstructions that are identical in structure should be analyzed differently or why instructions that highlight the prosecution’s version of the facts are permissible while thosethat highlight the defendant’s version are not. | “There should be absolute impartiality as between the People and defendantin the matterofinstructions....” (People v. Moore (1954) 43 Cal.2d 517, 526-527, quoting People v. Hatchett (1944) 63 Cal.App.2d 144, 158; accord Reagan v. United States (1895)157 U.S. 301, 310.) An instructional analysis that distinguishes between parties to the defendant’s detriment deprives the defendant of his due processright to a fair trial (Green v. Bock Laundry Machine Co. (1989) 490 U.S. 504, 510; Wardius v. Oregon, supra, 412 U.S.at p. 474), and the arbitrary distinction between litigants also deprives the defendant of equal protection ofthe law. (Lindsay v. Normet, supra, 405 U.S.at p. 77.) | | The unfairness to appellant in giving the instructions complained of in this argument was exacerbated bythe refusal ofthe trial court to give numerousdefense request “pinpoint”instructions. For example,thetrial court denied appellant’s request that the jury be instructed that efforts of law enforcement to fabricate evidence against a defendant permitted the jury to draw “an inference adverseto the prosecution.” (RT 16251-16252; CT 14981-14982.) The trial court also denied appellant’s request to instruct the jury to view the testimony of immunized witnesses with distrust and to consider a witnesses’s belief as to future benefit or gain in return for testifying against appellant as relevant to that witnesses’s credibility. (RT 16267-16269; CT 15005-15006, 15011-15012.) The trial court further denied appellant’s requests to instruct the jury, pursuant to Evidence Code section 403,to first find the preliminary, foundational facts for the 416 admission of other crimes evidence prior to considering that evidence. (See Argument XV, ante, incorporated by reference herein.) None of these instructions containedincorrect statements of law,but the trial court ruled refused to so direct the jury’s attention. This was neither impartial nor fair to appellant. To insure fairness and equal treatment, this Court should reconsider those cases that have found California’s consciousness of guilt instructions not to be argumentative. Except for the party benefitted by the instructions, there is no discernable difference between the instructions this Court has upheld (see,e.g., People v. Nakahara, supra, 30 Cal.4th at p. 713; People v. Bacigalupo (1991) 1 Cal.4th 103, 123 [CALJIC No. 2.03 “properly advised the jury of inferences that could rationally be drawn from the evidence’’}) and a defense instruction held to be argumentative because it “improperly implies certain conclusions from specified evidence.” (People v. Wright, supra, 45 Cal.3d at p. 1137.) _ _ The argumentative consciousnessof guilt instructions given in this _case invaded the province ofthe jury, focusing the jury’s attention on evidence favorable to the prosecution and placing the trial court’s imprimatur on the prosecution’s theory of the case. They therefore violated appellant’s due processright to a fair trial and his right to equal protection of the laws (U.S. Const., Amends. V and XIV; Cal. Const. art. I, §§ 7 & 15), his right to receive an acquittal unless his guilt was found beyond a reasonable doubt by an impartial and properly-instructed jury (U.S. Const., Amends. VI, XIV; Cal. Const. art. I, § 16), and his nght to a fair and reliable capital trial. (U.S. Const., Amends. VII, XIV; Cal. Const. art. I, § 17.) 417 C. CALJIC Nos. 2.05, 2.06 2.52 And The Special Instruction On Consciousness Of Guilt Each Embody AnIrrational Permissive Inference In this case, the giving of the four instructions referred to above improperly allowed appellant’s jury to make a permissive inference. (See People v. Ashmus, supra, 54 Cal.3d at p. 977.) It permitted the jury to infer one fact, consciousness of guilt, from otherfacts, i.e., appellant’s alleged efforts at witness intimidation to suppress evidence, etc.. Because these inferences lacked a rational basis, however, the giving of this instruction violated the due process guarantees ofthe state and federal Constitutions. (U.S. Const., Amends. V and XIV; Cal. Const. art. I, §§ 7 & 15; Ulster County Court v. Allen (1979) 442 U.S. 140, 157; People v. Castro (1985) 38 Cal.3d 301, 313.) The rational connection required between a fact and permissive inference is not merely a connection that is logical or reasonable; it is rather a connection that is more likely than not. Permissive inferences must satisfy the test stated in Leary v. United States (1969) 395 U.S.6: [A] criminal statutory presumption must be . regarded as “irrational” or “arbitrary” and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to follow from the proved fact on whichit is made to depend. (Ud. at p. 36; see also Ulster County Court v. Allen, supra, 442 U.S. at pp. 165-167, and fn. 28.) | The only “consciousness of guilt” evidence that could be probative in any given caseis evidence of“consciousness of guilt” of the particular offense for which a defendant is being charged and tried. Obviously,ifa defendant acts in a mannerthat demonstrates a guilty mind concerning a 418 particular crime, that does not make it any more likely that he has reason to feel guilty about a different crime. The complained-ofinstructions, however, do not makethis distinction, and indeed suggest to a jury thatifit finds a factor supposedly showing some “consciousness of guilt” of some unstated crime, this is evidence ofguilt of the crime for which the defendantis ontrial. However,as in this case, that is not a logical inference, because a defendant may have “consciousness of guilt” of an uncharged offense just as easily as he might have “consciousness ofguilt” of a charged offense, andit may be impossible to tell which is true because the record shows more than one offense of which the defendant might be feeling guilty. In such circumstances, there is no logical connection between the evidence and the defendant’s guilt of the offense for which heis being charged and tried. The instructions permitted the jury to infer a given mental state from the defendant’s acts, when it was impossible to tell whetherthose acts showed that particular mental state or a different mental state. Any conclusion as to which inference to draw would be speculation, not rational inference. A conviction based on speculation lightens the prosecution’s burden of proving each element of a crime beyond a reasonable doubt, and thereby violates a defendant’s right to due process. (See In re Winship, supra, 397 U.S.at p. 364.) Furthermore, since this presents a situation where there is no rational ~— as opposed to speculative or conjectural ~ connection between the underlying facts and the sought-after inference, instructing the jury thatit may draw the desired inference from the underlying facts is a violation of a defendant’s right to due process of law. (Ulster County Courtv. Allen, supra, 442 U.S.at pp. 157, 165.) : 419 Because the consciousness of guilt instructions permitted the jury to drawirrational inferences of guilt against appellant, the delivery of those instructions undermined the reasonable doubt requirement and denied appellanta fair trial and due process of law (U.S. Const., Amends. V and XIV; Cal. Const. art. I, §§ 7 & 15). It also violated appellant’s right to have a properly instructed jury find that all the elements ofall the charged crimes had been proven beyond a reasonable doubt (U.S. Const., Amends. V, VI, and XIV; Cal. Const.art. I, § 16), and, by reducing the reliability of the jury’s determination and creating the risk that the jury would make erroneous factual determinations,it violated his right to a fair andreliable capital trial. (U.S. Const., Amends. V, VIII, and XIV; Cal. Const.art. I, § 17.) . D. The Giving Of The Pinpoint Instructions On Consciousness Of Guilt Was Not Harmless Beyond A Reasonable Doubt Because the erroneousdelivery of the consciousness of guilt instructions violated several provisions of the federal Constitution, the judgment must be reversed unless the prosecution can show that the error washarmless beyond a reasonable doubt. (Chapman y. California, supra, 386 U.S. at p. 24.) It wasnot. The jury was given not one, but four unconstitutional instructions, which magnified the argumentative nature of the instructions as well as their impermissible inferences. The prosecutor repeatedly elicited evidence of the intimidation and fear purportedly felt by the witnesses, ostensibly to bolster their credibility, as discussed above. However, these instructions permitted the jury to rely on this evidence not merely in assessing credibility, but also as substantive evidence of guilt. 420 The centerpiece of the prosecution’s case was a portrayal of appellant as a violent leader of a vast narcotics sales operation who ordered others to do his bidding andresorted to threats and violence at every opportunity. Instructions whichtold the jury, inter alia, to especially consider appellant’s intimidation of witnesses to either suppress or fabricate evidence thus endorsed the prosecution’s theory of the case, and madeit morelikely that the jury would believe appellant was capable of ordering the murdersin this case, an issue that was strongly contested. In addition, in the context of the weak case against appellant, where there was no physical or eye witness evidencethat tied him to the killings and which turned onthe suspect testimony of James Williams and codefendantSettle, these instructions were extremely prejudicial to appellant’s case. CALJIC No. 2.52 allowed the jury to infer appellant’s guilt of the charged homicides from his alleged flight to the “Family safe house”after the killings, a point the prosecution emphasizedin its closing argument. The prosecution emphatically argued to the jury thatit was appellant who made the telephonecalls from that “safe house”after the homicides, and that he would not have been there if he had not been guilty of the charged offenses. (RT 16835-16838, 18463.) Forall the foregoing reasons, appellant’s conviction must be reversed and his judgment of death vacated. // i 421 Seca —enetenneeneenenaseneacetetaseseteee, XVUI THE TRIAL COURT COMMITTED AN INSTRUCTIONAL ERROR WHICH UNFAIRLY, UNCONSTITUTIONALLY, AND PREJUDICIALLY BOLSTERED THE CREDIBILITY OF NUMEROUS PROSECUTION WITNESSES WHOTESTIFIED AGAINST APPELLANT A. Introduction No fewer than a dozen prior statements of witnesses were introduced 125in the prosecution’s case in chief against appellant.'*? Many of these witnesses had a motive to lie when making those statements: all were « involved in the drug trade and therefore had a vested interest in being helpful to police in the hope ofavoiding prosecution and/or leniency in | sentencing. The delivery of CALIIC No.2.13 (Prior Consistent or | . ® Inconsistent Statements as Evidence), at both the guilt and penalty phases of 2 trial, which directed the jury to considerprior inconsistent or consistent — statements of witnesses as evidence of“the truth,”but not of “the falsity” of . ® such “facts,” unfairly skewed the jury’s credibility determination in favor of the prosecution. The error unfairly affected the jury’s evaluation ofthe prosecution witnesses’ credibility, unfairly strengthened the prosecution’s e case against appellant, and requires reversal of his convictions and the special-circumstance finding. 125 See, e.g., RT 8857-8863 [Michael Flowers]; 8954-8958 [G.T. Fisher]; 8983-8991 and 9003-9006 [Benny Ward]; 9039-9044 and 9045- e 9049 [Barron Ward]; 9336-9343 [John Allen]; 9628-9632 and 9717-9720 [Kenny Reaux]; 10219-10222 [William Johnson];10367-10376 and 10484- 10493 [Ladell Player]; 10681-10684 and 10688-10703 [Laurence Walton];11214-11223 [George Smith]; 11787-11790 [Pierre Marshall]; 13095-13099 [Tannis Curry]. @ 422 B. CALJIC No. 2.13 In Wardius v. Oregon, supra, 412 U.S. 470, the UnitedStates Supreme Court found a violation of due process in a state procedure which unfairly skewed discovery obligations in favor of the prosecution. The high court warnedthat “[t]his Court has .. . been particularly suspicious ofstate trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial.” (id. at p. 475, fn. 6, citing, inter alia, Washington v. Texas, supra, 388 U.S. at p. 22, and Gideon v. Wainwright, supra, 372 U.S.at p. 344.) The Supreme Court explainedthe constitutional underpinnings of its decision as follows: “Although the Due Process Clause has little to say regarding the amountof discovery which the parties must be afforded, . . . it does speak to the balance offorces between the accused and the accuser.” (412 US. at p. 474, citation omitted.) Finally, with respect to the particular issue beforeit, the Court held “that in the absence of a strong showingofstate interests to the contrary, discovery must be a two-waystreet.” (Id. at p. 475, emphasis added.) | California law specifically applies such principles to the giving of one-sided jury instructions. (See, e.g., People v.Moore, supra, 43 Cal.2dat pp. 526-529; People v. Rice (1976) 59 Cal.App.3d 998, 1004 [instructions must “avoid misleading the juryor in any way overemphasizing either party’s theory”]; People v. Mata (1955) 133 Cal.App.2d 18, 21 [instructions must not “strongly present the theory of the prosecution and minimize that of the defense”].) In People v. Moore, supra, this Court, in reversing a manslaughter conviction because of one-sided self-defense instructions, used reasoning aproposofthe instructions challenged by appellant herein: 423 It is true that the four instructions .. . do not incorrectly state the law... , but they stated the rule negatively and from the viewpoint solely of the prosecution. To the legal mind they would imply [their corollary], but that principle should not have been left to implication. .... There should be absolute impartiality as between the People and the defendantin the matter ofinstructions, inclading the phraseology employed in the statement of familiar principles. (43 Cal.2d at pp. 526-527, internal quotation marks omitted, emphasis added.) Here, the delivery of CALJIC No. 2.13 similarly violated the Due Process Clause of the Fourteenth Amendmentand California case law by impermissibly tilting the balance in favor of the prosecution with respect to the jury’s evaluation of the credibility--or lack thereof--of manyofits witnesses. The written instruction givento the jurors at appellant’s trial read as follows: Evidence that on some former occasion, a witness made a statement or statements that were inconsistent or consistent with his or her testimonyin this trial, may be considered by you not only for the purposeoftesting the credibility of the witness, but also as evidenceofthe truth of thefacts as stated by the witness on suchformer occasion. If you disbelieve a witness’ testimony that he or she no longer remembersa certain event, such testimonyis inconsistent with a prior statement or statements by him or her describing that event. (RT 16388, 18421-18422; CT 15478, 15810 [emphasis added].) This instruction, though a standard one, obviously applied to many prosecution witnesses, including Ladell Player, who gave statements to the police indicating that appellant admitted involvement in the homicides, but during his testimony denied any such admission by appellant. The 424 prosecutor vigorously impeached Player with his prior inconsistent . statements on its direct examination as a “hostile” witness and impeached Player with the testimonyof an assistant district attorney who was present for the interview. (RT 10252-10267, 10367-10376.) With regard to many of the other witnesses, the prosecution played audio or video tapes, and introduced into evidence the tapes and transcripts, of the witness’s statements to the police. (See, e.g., People’s Exhibits 57 [G.T. Fisher], 59A. [Benny Ward], 106 [William Johnson], i 10 [Ladell Player], 120 [Laurence Walton].)'*° Later, in its guilt phase rebuttal argument, the prosecution emphasized the importance ofthe prior statements, and argued to the jury that such prior statements could and should be considered truthful. (RT 16783-16783 [expressly referencing CALJIC No. 2.13 and emphasizing the “evidence ofthe truth of the facts” language of that instruction]; see also | RT 16792.) These werecritical witnesses relied upon by the prosecution to convince the jury that appellant was guilty of capital murder. Many ofthese witnesses supplied evidence critical to the prosecution’s ability to establish a motive with regard to appellant. With regard to the prosecution’s theory that appellant had Armstrong killed because Armstrong threatened to collect for his prior services as a hit man for appellant, five of the witnesses testified regarding appellant’s alleged complicity in the shooting of Ken '26 The prosecution asserted oncethat, contrary to Alonzo Smith’s testimony, Detective Vojtecky would testify that Smith told him that appellant responded to Smith’s commentaboutthe death of Brown by saying, “Tommy, yeah, he had to go.” (RT 10914.) However, no such prior inconsistent statement was presented by the prosecution. Therefore, the only testimony in the record regarding appellant’s conversation with Smith regarding the death of Brownis that appellant agreed with Smith that it was “too bad about Tommy”but did not discussit further because appellant was charged with Tommy’s death. (RT (RT 10916, 10980-10981.) 425 Gentry and Renard Goldman(see, e.g., Michael Flowers, G.T. Fisher, Benny Ward, Barron Ward, and John Allen [page citations referencedin the first footnote of this argument]). ; With regard to the prosecution’s theory that appellant had Armstrong killed because appellant hurt men whoslept with his ex-wife, two of the witnesses supplied the factual predicate for the admissionofall of the evidencerelating to this secondary motive theory (see., e.g., Pierre Marshall and Tannis Curry [page citations in thefirst footnote of this argument]; see also Arguments VII and VIII, ante, incorporated by reference herein). In addition, four of those witnesses supplied evidencethat directly contradicted appellant’s testimony in his own defense,i.e., that he did not own or control the drug organization after 1985 (see, e.g., William Johnson, ‘Ladell Player, Laurence Walton and George Smith [page citations in the first footnote of this argument].) . Further, at the penalty phase, the testimony of David Hodnett, who testified that he shot Clarence Johnson in 1985 for personal reasons, was - impeached through Det. Vojtecky, whotestified that Hodnett told him that Jeff Bryant had paid Hodnett to shoot Johnsonfor leaving a rock house unlocked, and that appellant was involved in the hiring of Hodnett. (RT 17619-17625, 17679-17681.) The version of CALJIC No.2.13 given to the jury strongly and unfairly buttressed the prosecution’s contentions and undermined appellant’s case in at least two ways: (1) bytelling the jurors only that they could consider those prior inconsistent statements for their “truth,” but not telling them that they could also consider those statements for their “falsity,” it unfairly skewed those credibility determinations in the prosecution’s favor; and (2) by telling the jurors to consider the prior 426 statements as evidence of the truth of “the facts” as stated by the witnesses on those formeroccasions, by definition it strongly implied to them that the prior statements werefactual. Thus, the use of the two terms“the truth” and “the facts” in the instruction effectively, and prejudicially, constituted the kind of “one-way street” deemed by the Supreme Court in Wardius to be violative of due process, and by this Court to be improperly stated “from the viewpoint solely of the prosecution.” (Moore, supra, 43 Cal.2dat p. 526.) C. The Errors In Instruction Were Prejudicial The instructional error discussed above skewed “the balance of forces between the accused and the accuser” (Wardius, supra, 412 U.S.at p. 474) in favor of the accuser--the prosecution--and against the accused-- appellant. All of the witnesses who were impeached with prior inconsistent statements had serious credibility problems in a numberof significant respects, including the incentive of a reward, their present and past criminality, and their dislike for appellant and his family. The above- discussed instructional error improperly assisted the prosecution in establishing the credibility ofall of these prosecution witnesses, damaged appellant’s vigorous efforts to undermine their credibility in the jurors’ eyes, and prejudicially denied appellant his right to a fair jury trial as well as his night to due process. (U.S. Const., Amends VI and XIV.) The prejudice to appellant was further compounded whenthe prosecution arguedin its guilt-phase summation that all of these witnesses were reluctant to go to the police or tell their stories because they were afraid of appellant and afraid for their safety or the safety of their families. (RT 16459, 16476, 16783-16785.) At penalty, CALJIC No. 2.13 essentially directed the jury to believe as true the prior statement of David Hodnett, an 427 accomplice as a matter of law to the Johnson shooting, and thus find true the aggravating factor that appellant hired Hodnett to shoot Johnson, even though the jury should not have considered Hodnett’s statement true unless they also found it corroborated. (RT 18421-18422,18436-18437.) Since the People cannot establish that, as to the guilt and penalty determinations, these federal constitutional errors in unfairly buttressing the credibility of so many critical prosecution witnesses were harmless beyond a reasonablé doubt (see Chapman vy. California, supra, 386 U.S.at p. 24), the entire judgment must be reversed. (See also Wardius v. Oregon, supra, 412 USS.at p. 479 [conviction reversed because of “a substantial | possibility” that the error “may have infected the verdict”]; People v. Moore, supra, 43 Cal.2d at pp. 530-531; People v. Mata, supra, 133 Cal.App.2d at pp. 21-24.) /I i 428 XIX THETRIAL COURT’S ERRONEOUS RULINGS DURING GUILT PHASE DELIBERATIONS RELATING TO THE - DISCHARGE OF A JUROR AND THE TAKING OF A ~ PARTIAL VERDICT REQUIRES REVERSAL OF APPELLANT’S CONVICTIONS AND SENTENCE _ Thetrial court erroneously allowed a juror it knew wassuffering a disabling medical condition to deliberate and reach a partial verdict against appellant. The court also erred whenit then recordedthe partial verdict taken from thejury before the deliberative process was complete and thereafter substituted the disabled juror with an alternate juror. The court further erred whenit failed to instruct the newly constituted panel to begin deliberations anew asto all counts. In so doing, appellant’s rightsto a jury trial, to a unanimousverdict by 12 jurors, to due process of law andto a reliable judgment of death guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, as well as parallel provisions to the California Constitution, were violated. (Cal. Const., art. 1, § 16; Pen. Code § 1089.) Reversal of his convictions and death sentence is required. | A. Proceedings Below On May 17, 1995,after four days of guilt phase deliberations,the jury resumed their deliberations at 9 am. (CT 15280.) At 9:15 a.m., the _ trial court and counsel discussed a note juror number 77 hadsentto thetrial court uponhis arrival at court that morning, indicating he had been advised by his doctor to take a few days off due to health problems. (RT 16895.) After discussing the note as well as a read back request, the trial court called juror number 77 into the courtroom. (RT 16906-16906.) The trial court did not instruct to remaining jurors to stop deliberations. After 429 questioning juror number77,the trial court told the juror that it would have to give his request some “serious thought.” The court explained that when a juror is replaced during deliberations, a “problem”arises in that the jury has to be instructed to “start all over again” with the new juror on the panel. The trial court then instructed juror number 77 to return to the jury room and continue deliberations while the court spoke with counsel. (RT 16906- 16910.) In the ensuing discussion, the prosecution requested that, should the juror be excused, the court seal any verdicts reached. (RT 16910.) Appellant’s counsel, Mr. Jones, objected to the excusal if any partial verdicts were to be taken. (RT 16911.) Thetrial court found good cause for the excusal. (RT 16911-16913.) The court indicated thatit intended also to inquire about whether anyverdicts had been reached,andthat, if so, it would take further argument on the matter. (RT 16914-16915.) Mr. Jones objected to the inquiry. (RT 16915.) Mr. Jones argued that no verdicts are final until rendered in court, and that the jury should be instructed to begin deliberations anew with the replacementjuror. (/bid.) Mr. Jones also argued that ifa partial verdict was rendered,it would “conflict with the instructions to the jury that they should start deliberations anew”and argued it was unclear legally as to whether the jury should start deliberations anew asto the verdicts already rendered against a particular defendant. (Ibid.) The court overruled counsel’s objection to its inquiry into whether any verdicts had been reached. (RT 16916.) Mr. Jones then clarified that he objected to the excusal of the juror because the inquiry into the verdict status “imparts information to the prosecution that they are not entitled to have.” (/bid.) 430 In the presence of the 12 impaneled jurors, the court informed them that number 77 would be excused because of his medical problems. (RT 16917.) In response to the court’s inquiry, the foreman informed the court ‘that verdicts had been reached on one or more counts as to one defendant, but that they had not yet decided on the degree ofthe crime, andthat verdict forms had beenfilled out reflecting those decisions. (RT 16917-16918.) The court then informed number77 that he was not excused andsentall - jurors back into the jury room,instructing them to “stand by.” (RT 16918.) Both the prosecution and Mr. Jones agreed that there could be no verdict if the jurors had not yet determined degree. (RT 16919-16920.) The court, however, believed it necessary to look at the verdict forms to ensure that, in the event there were verdicts of not guilty, those verdicts be rendered, and ruled it would make the inquiry over Mr. Jones’s objection. (RT 16920-16924.) At the trial court’s request, the clerk instructed the jury to return to the courtroom andto bring the verdict forms with them.’”” (RT 16923- 16925.) Upon review,the court informed counsel that two verdict forms had beenfilled out completely, with degree, and that the verdicts forms were dated that date (May 17, 1995). (RT 16926.) In response to the court’s inquiry, the foreman said those forms had been filled out prior to the court’s first inquiry of the foreman that morning, but that the foreman had forgotten about those verdicts because the jury was deliberating on others. 27 The record does notreflect the times at which the jury was _brought into the courtroom in the morning of May 17, 1995. (CT 15280.) However,as will be explained post, it had to have been before a readback began at 10:35 am. (bid.) 431 (RT 16927-16927.) The jurors were again instructed to return to the jury room and to “stand by.” (RT 16927.) The prosecution urged the court to record the partial verdicts, replace number 77, and instruct the reconstituted panel to deliberate anew on the remaining verdicts. (RT 16928.) All defense counsel objected to rendering a partial verdict, and instead requested number 77 be replaced and the jury instructed to begin deliberations anew asto all counts. (RT 16928-16929.) The court indicated that the defendants had to bebrought into court to discuss matters with their counsel and for the rendering ofthe verdict, and the court further instructed that “the main inquiry” should be between appellant and Mr. Jones. (RT 16929-16930.) Mr. Jones expressed confusion, and the court explained that it believed that Mr. Jones was entitled to know what wason the verdict forms prior to the court’s ruling on his objection to rendering partial verdicts, and he then informed Mr. Jones that appellant had been found guilty of the first degree murders of | Armstrong and Brown (counts 3 and 4). (RT 16930-16931.) The court then ordered all counsel not to discuss the verdict with anyone outside of the legal teams, and expressed an intent to sendall of the verdict forms, including those that had been signed, back into the jury room and allow them to deliberate during the time it took to bring the defendants to court. (RT 16931-16932.) Mr. Jones requested that juror number 77 not be excused, and the court overruled the objection. (RT 16933.) Mr. Jones then argued that deliberations should not continue because number 77 was in pain and did not want to be present; however, the court overruled that objection as well and instructed the court reporter to begin the readback of the testimony of James Williamsthat had been previously requested and 432 agreed upon. (RT 16934-16936.) The readback began at 10:35 a.m. (CT _ 15280.) When the defendants arrived in court, the jurors were listening to the continuing readback in the jury room. (RT 16938.) Mr. Jones again | objected to the taking of any partial verdicts, arguing that such would deny appellant due process. (RT 16938-16939.) The court agreed with coappellant Smith’s argument that the court was not required to render the verdicts. (RT 16940.) However, the court ruled it would accept the guilty verdicts against appellant as to counts 3 and 4 because: (1) it still believed _ juror number 77 neededto be excused; (2) it believed the verdicts were filled out that morning prior to the jury being brought into the courtroom the first time that morning; (3) it could not“imagine any colloquy involving 77 or his impending possible dismissal could have contributed”to the verdict; and(4) it did not knowif there existed a “case or statute” that required “a defendant in a multiple count case . . . to have all verdicts on all counts rendered by the same 12 jurors.” (RT 16490-16492.) Mr. Jones then arguedthat, since juror number 77's medical problems began the previous evening, appellant was deprivedofthat juror’s “full attention” as to the verdicts rendered. (RT 16943.) Whenthe court asked counsel how the court might instruct the jury after the partial verdict, Mr. Jones requested that they be instructed to “set aside the verdicts” and the court denied that request.: (RT 16946-16947.) With regard to CALJIC No. 17.51, the court did not believe it could instruct the jury to disregard any verdict,and instead modified CALJIC No. 17.51, as set forth below. (RT 16947-16949.) The readback was completed at 12:40 p.m. (CT 15280.) Thetrial court then called the jurors into the courtroom, obtained the verdict forms 433 and received an affirmative response from the jury foremanto its question regarding whetherthe verdicts were final. (RT 16951-16953.) The court thenread the verdicts finding appellant guilty of first degree murder of -Armstrong and Brown and polled the jury. (RT 16953-16955.) Both verdicts were dated May 17, 1995, and signed by the jury foreman. ({bid.) The court found good cause to excuse juror number 77 based on the information stated in his note, and replaced him with alternate juror number 247. (RT 16956-16958.) The court then instructed the newly constituted jury with CALIIC No. 17.51 modified to instructthe jury to “set aside all pastdeliberations and tentative conclusions and begin deliberating anew as to the remaining charges.” (RT 16958 [modifications reflected in italics]; CT 15548.) B. The Trial Court Erred In Taking The Verdicts From The Jury Before The Deliberative Process Was Complete The Sixth Amendmentto the federal constitution guarantees the nght of a jury trial to criminal defendants in state courts. (Duncan v. Louisiana (1968) 391 U.S. 145, 149-150.) This right is also secured byarticle I, section 16, of the state constitution. (Cal. Const., art. I, § 16.) This right means more than merely empaneling 12 persons and having them listen to evidence. “[T]he jury’s constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence.” (United States v. Gaudin (1995) 515 U.S. 506, 514.) When a judge rather than a jury reaches the ultimate verdict of guilty, “the wrong entity judge[s] the defendant guilty.” (Sullivan v. Louisiana. supra, 508 US.at p. 281.) Obviously, appellant was accordedthe rightto trial by jury, in that 12 persons were convenedto determine his guilt or innocence. However,it 434 is appellant’s contention that the trial court’s decision to take verdicts from the jury prior to the jury notifying the court that it had unanimously reached its own conclusion regarding the finality of the verdicts constitutes an | interference with the deliberative process and defendant’s right to have the jury render an ultimate finding of guilt. As a mannerofeffecting the constitutional right to trial by jury, there are several state statutes which pertain to the type of situation presented by this case. Penal Code sections 1160 through 1164 deal with the issues of verdicts in multi-count and multi-defendant cases, as well as the procedures for returning a complete verdict and the process of a jury’s reconsideration of a verdict. Appellant contends that the trial court’s actions here also violated one of these statutes. Penal Code section 1164, subdivision (a) provides in relevant part that “[wh]Jen the verdict given is receivable by the court, the clerk shall recordit in full upon the minutes [. . . .]” (Emphasis added.) The question in this case is whether the verdicts against appellant as to counts 3 and 4 werereceivable within the meaning ofthe statute if the jury foreman never informed the court that the jurors had unanimously reached a final verdict on those counts. The trial court solicited the verdicts from the jury in this case, and then asked the jury foreman if the verdicts reached against appellant were final. The foreman answeredin the affirmative, but that answerdid not necessarily reflect: (1) that the foreman knew what the word “final” connoted, that is, that the jury had, as a whole, completed their deliberations as to thosecounts, as opposed to simply casting a preliminary vote thatwas open to more discussion; or (2) the understanding of the rest of the jurors regarding the “finality” of those verdicts. To be sure, when polled, all jurors answeredin the affirmative to the question of whether 435 2 seneae those were their verdicts; however, they were not askedif those verdicts were “final” as opposed to preliminary verdicts, and the difference between ; | those two concepts was never explained to them. (RT 16955.) Therefore, the affirmative responses did not necessarily mean that any of the jurors considered their verdicts “final” as to those counts. A juror note sent outlater in the deliberations reflects a lack of understanding on the part of the jurors about the legal concept of when a verdict is “final.” On June 7, 1995, the jury queried in a note whether a e juror could changehisorher“vote regarding a decisionpriorto a verdict being read.” (CT 15393.) The ensuing colloquy between the juror who wrote that note and thetrial court reflected that the juror did not know | e whether he could change his vote on a count on whichthe jury had completed a verdict form but had not yet submitted that form to the court. (RT 17042-17043.) Therefore, the record reflects that the jurors’ answers to the inquiry at the time verdicts 3 and 4 were recorded against appellant were not informed bylaw orreflective of the fact that all jurors knew they could answer“no” to the question of whetherhis orher verdict was “final” in that sense the individual juror had cometo a final determination,as e opposed to a preliminary vote, regarding appellant’s guilt. Appellant submits thetrial court erred in taking the verdicts from the jury before the jury informed the court that final verdicts had been reached, e and that the error denied appellant his right to a jury trial, infringed upon the jury’s fact-finding role, and undermined the jury’s deliberative process, and denied appellant a reliable judgment of death,in violation of the Sixth, | e Eighth and Fourteenth Amendmentto the United States Constitution and parallel provisions ofthe state constitution. (See Zant v. Stephens, supra, 462 U.S. at p. 885 [although not every imperfection in the deliberative | e 436 process during capital sentencing proceedingis sufficient to set aside a state court judgment, the severity of the sentence mandates careful scrutiny in the review of any colorable claim oferror].) C. Appellant Was Deprived Of His Right To A Unanimous Verdict By 12 Jurors On Counts 3 And 4 Because One Of The Jurors Who Rendered That Verdict Suffered From A Disabling Medical Condition For Which The Trial Court Found Good Cause For Excusal Whentheright to jury trial applies, the jury’s verdict must be unanimous. Theright to a unanimousverdict by 12 jurors in criminalcases is secured bythestate Constitution andstate statutes (Cal. Const., art. I, § 16; Pen. Code, §§ 1163 & 1164; People v. Collins (1976) 17 Cal.3d 687, 693) and protected from arbitrary infringement by the Due Process Clause of the Fourteenth Amendmentto the United States Constitution (Hicks v. Oklahoma, supra, 447 U.S.at p. 346; Vitek v. Jones (1980) 445 U.S. 480, 488). Becausethis is a capital case, the right to a unanimousverdictis also guaranteed by the Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution. The purpose of the unanimity requirementis to ensure the accuracy andreliability of the verdict (Brown v. Louisiana (1980) 447 U.S. 323, 331-334; People v. Feagley (1975) 14 Cal.3d 338, 352), and there is a heightened needforreliability in the proceduresleading to the conviction ofa capital offense (Murray v. Giarratano (1989) 492 U.S. 1, 8-9; Beckv. Alabama, supra, 447 U.S.at p. 638). Therefore, jury unanimity is required in capital cases. | After court in the evening of May 23, 1995, juror number 77 was examined by his doctor, who then told him he had very high blood pressure and severe arthritis, that he needed to keep his feet elevated all the time and 437 that he needed to take a few days off from jury duty. (RT 16895.) After speaking with juror number 77 early in the morning on May 24, 1995 (RT 16905-16910), the trial court expressly found, based on his examination of the juror and the medical evaluation and recommendation the juror had received the previous evening, there existed good cause to excuse the juror gg for medical reasons, saying “[t}he fella is in pain. Hehasa physical _ problem he needsto attend to.” (RT 16911-16913.) After making this finding, the trial court nonetheless required juror number 77 to continue e with deliberations while the court and counsel discussed the propriety of inquiring into verdicts prior to the juror’s excusal. (RT 16906-16910.) The jury, including juror number 77, found appellant guilty of counts 3 and 4 sometime that very date. (RT 16923.) . Penal Code section 1089 provides,in relevant part: If at any time, whether before or after the final submission of the caseto the jury, a juror dies or becomesill, or upon other good - e cause shown to the court is found to be unable to perform his or her duty, or if a juror request discharge and good cause appearstherefor, the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box |... .] There is no statutory procedure for determining the existence of a ground ofjuror discharge. (People v. Dell (1991) 232 Cal.App.3d 232, 256.) In the absence ofa stipulation by counsel, “the judge must act on his own motion, expeditiously. His summary determination on the basis of any evidence .. . will seldom be successfully challenged.” (/bid., quoting 6. Witkin & Epstein, Cal. Crim. Law (2d ed. 1989) Trial, § 2875, p. 3507.) A juror’s disqualification is discretionary with the court andif there is any substantial evidence supporting the decisionit will generally be upheld on appeal. (People v. Farris (1977) 66 Cal.App.3d 376, 386.) However, this 438 Court has recognized that since the substitution ofa jurorafter the jury has retired to deliberate may trench upon a defendant’s nightto trial by jury (U.S. Const., Amend. VI; Cal. Const., art. I, § 16; People v. Collins, supra, 17 Cal.3d at p. 692, fn. omitted), the discharge of a juror during deliberations will be affirmed on appeal if “[the] juror’s inability to perform 999as ajuror... ‘appear[s] in the record as a demonstrable reality.”” (People v. Johnson (1993) 6 Cal4th 1, 21, italics added, quoting People v. Compton (1971) 6 Cal.3d 55, 60; People v. Marshall, supra, 13 Cal.4th at p. 843; see also People v. Cleveland (2001) 25 Cal.4th 466, 488 (conc. opn.of Werdegar,J.) In this case, the trial court found good cause to excuse juror number- 77 under section 1089. Logically then, the court found that juror number 77 wastoo ill to continue deliberations. (See People v. Delamora (1996) 48 - Cal.App.4th 1850, 1855 [jurors cannot be excusedif they are notill or otherwise unable to perform their duties].) Substantial evidence supported the trial court’s ruling, and the juror’s impairment appears in the record to be a demonstrable reality. As the trial court noted, the juror was in much pain and suffered from potentially deadly high blood pressure. The juror should have been excused immediately. Yet, instead of excusing the juror whenit determined the juror wastooill to fulfill his obligations, thetrial ordered the juror to continue deliberating, and essentially warned him his - excusal during deliberations was problematic because the jury would have to begin deliberating anew upon the substitution of a new juror. (RT 16906-16910.) Hiness can affect a juror’s ability to concentrate on and weigh the evidence in a case. An unwell juror may also feel pressured to acquiesce in the conclusions of fellow jurors in order to escape more readily from the discomforts of the jury room. The trial court abusedits discretion 439 tenance,a by forcing juror number 77 to continue to deliberate despite his request to be discharged dueto a disqualifying medical condition and by informing the jurorthat his excusal would be a “problem”unless there were verdicts. (Cf. People v. Beeler (1995) [trial court did not abuse its discretion in requiring juror whose father had died to continue deliberating where juror did not request discharge].) The trial court then compoundedthe error by accepting ; verdicts finding appellant guilty of counts 3 and 4 whenit knew that a juror whom it had expressly determined was unable to perform his duties had participated in those verdicts while $0 impaired. ‘ Since juror number 77 participated in deliberations despite his express desire to be relieved ofjury service on that date due to severe pain e and life-threatening illness, a condition which rendered him legally unable to perform his duties, appellant’s conviction on counts 3 and 4 must be reversed because he was deprived of his right to a jury trial, to a unanimous verdict by 12 jurors, to a fair trial, to due process of law andto a reliable judgment of death. (U.S. Const., Amends. VI, VIII and XIV; Cal. Const., art. I, § 1.) In the alternative, if the Court finds juror number 77 was capable of e@ deliberating, then appellant submits that the trial court necessarily erred in excusing that juror during guilt phase deliberations, thus violating appellant’s right to trial by jury. (People v. Delamora, supra, 48 @ Cal.App.4th at p. 1855; U.S. Const., Amend. VI; Cal. Const., art. I, § 16; People vy. Collins, supra, 17 Cal.3d at p. 692, fn. omitted.) Juror number 77 waseither incapable of deliberating and therefore e should have been immediately excused from his duties as a juror, or he was not subject to discharge and the trial court erred in so doing. Either way, reversal of appellant’s convictions is required. @ 440 D. The Recording Of Partial Verdicts On Counts 3 And 4 Prior To The Substitution OfA Deliberating Juror Requires Reversal Of Appellant’s Convictions On Counts 1,2 And 5, As Well As The Jury’s Special Circumstance Finding And Death Sentence — In People v. Collins, supra, 17 Cal.3d 687, this Court held that, as a matter of state statutory and constitutional law, the rightto a trial by 12 jurors whose verdict must be unanimousincludesthe right to have each Juror engage in all jury deliberations. (17 Cal.3d at pp. 692, fn. 3 [interpreting Pen. Code, § 1089; Cal. Const., art. 1, § 16].) As this Court explained: | The requirement that 12 persons reach a unanimous verdictis not met unless those 12 reach their consensus through deliberations whichare the common experience ofall of them. It is not enough that 12 Jurors reach a unanimousverdictif 1 juror has not had the _benefit of the deliberation of the other 11. Deliberations provide the jury with the opportunity to review the evidencein light of the perception and memory of each member. Equally important in shaping a member’s viewpointare the personal reactions and interaction as any individual juror attempts to persuade othersto accept his or her viewpoint. The result is a balance easily upsetif a new juror enters the decision-making processafter the 11 others have commenced deliberations. The elements of number and unanimity combine to form an essential element of unity in the verdict. Bythis we meanthat a defendant may not be convicted except by 12 jurors who haveheardall the evidence and argument and who together have deliberated to unanimity. (Id. at p. 693.) Therefore, an alternate juror could join the jury after deliberations had begun,but that the jury must be instructed to disregard all past deliberations and begin anew. (/d. at p. 694.) CALJIC No. 17.51 (Sth ed.) embodies theCollins rule, and provides, in relevantpart, that in a panel reconstituted after substitution of an alternate, all jurors “must therefore set aside and disregard all past 44] deliberations and begin deliberating anew. This means that each remaining original juror mustset aside and disregardthe earlier deliberations as if they had not taken place.” Theissue of the propriety of rendering a partial verdict during guilt deliberations followed by the substitution of a juror has not been frequently addressed, and appellant can find no California published case on pointthat addresses the issue in a capital case.'*® However, this issue was addressed in the context oftwo non-capital cases, People v. Aikens (1988) 207 Cal.App.3d 209, review denied March 29, 1989, and People v. Thomas (1990) 218 Cal.App.3d 1477, review denied June 27, 1990. In Aikens, the trial court recorded a verdict on one count of two charged countsprior to the substitution of a juror during guilty deliberations; after replacing the juror, the trial court issued the instruction mandated by the Collins and informedthe jury to begin deliberations on the second countfrom the beginning. (/d. at p. 211.) On appeal, Aikens maintained that once a jurorarrives at a verdict the court may not excuse a juror, insert an alternate, and allow thé reconstituted jury to deliberate regarding other verdicts.'*? (Ibid.) The Aikens court foundthat“[t]he logical extension of this position would be to require an automatic mistrial even if a juror should die or become incapacitated and even if ten fully qualified alternate jurors were available for substitution. However, this '28 The argument appellantpresents herein was considered bythis Court in People v. Fudge (1994) 7 Cal.4th 1075. However, this Court did not address the merits of the issue because it found the claim had been waived forfailing to object to the substitution at trial. (/d. at pp. 1100- 1101.) '29 The opinion doesnotreflect the legal basis for Aiken’s claim. 442 ‘mechanistic approach appearsnot to be consonant with Penal Code section 1089 [. ..].’” (bid. [citation omitted.].) The Court of Appeal affirmed the conviction based on an interplay of factors: First, the Aikens court noted that the trial court judge issued the proper instructions. These instructions, reasoned the court, preserved the defendant’s right to a verdict reached after the full participation in.deliberations of the twelve jurors whoultimately issue the verdict. Next, the court cited the one-sided nature of the case making the possibility of prejudice minimal. Both victims and one independent witness positively identified the defendant, thus negating the only defense asserted--mis-identification. Finally, the court determined that a policy denyingtrial courts the ability to replace jurors with alternates in post-verdict situations would have negative consequences. For instance, the Aikens court explained that trial courts would likely refuse to discharge jurors in these situations, creating the potential for a hurried and dispassionate consideration of the evidence and a rushed judgment. The Aikens court concluded that trial courts should balance the constitutional rights of the accused against the state interest in judicial economy. Recognizing the conflicting interests involved, the court struck the balance in favor ofthe state interest and affirmed the post-verdict substitution. (McDermott, Substitution ofAlternate Jurors During Deliberations and — Implications on the Rights ofLitigants: The ReginaldDenny Trial (1994) 35 B.C. L. Rev. 847, 866-867.) The Court of Appeal in People v. Thomas, supra, 218 Cal.App.3d at pp. 1485-1488,likewise ruledthat, in a non- capital case, it was not error understate law to recorda partial verdict after the trial court had decided good cause existed to substitute a juror during guilt deliberations. However, the heightened needforreliability in capital casestips the balance in favor of a defendant’s constitutional rights versus those ofjudicial economy. In addition, the rigorous dissenting opinion in Aikens argued that where the facts the jury necessarily found in reaching a verdict on one count 443 are essentially the same facts the jury must find on the remaining count, it is error to substitute a new jurorafter a verdict on the first count. (207 4 Cal.App.at p. 215 (dis. opn. of Johnson,J.).) The dissent notedthat the issue of whether it is proper in a criminal case to substitute a juror after a verdict on one count has been returned and allow the reconstituted jury to — r reach averdict on the remaining counts wasoneoffirst impression in California (207 Cal.App.3d at p. 215) and stated: The closest case on point is People v. Fields (1983) 35 Cal.3d 329 in which the court, in dictum, recognized the constitutional problem that would arise if an alternate joins the jury after it has reached a verdict. The defendant, in Fie/ds, claimed excluding persons who would automatically vote against the death penalty from the guilt t phase of his murdertrial denied those persons equal protection of the /@ law. The court rejected the equal protection claim on the ground the : interest of the state in maintaining a unitary jury for both phases of the trial is sufficient to justify the exclusion of death penalty foes from the guilt phase. (/d. at pp. 352-353.) In explaining whythe state had a legitimate interest in maintaining a unitary jury, the court . @ pointed out a new constitutional problem would arise ifjurors opposed to the death penalty were allowed to serve during the guilt phase and then replaced by alternates at the commencementofthe penalty phase. - “We held in People v. Collins ... that if necessary an alternate juror could join the jury after deliberationshad begun, butthat the jury must be instructed to disregard all past deliberations and begin anew. The proposal before us, however, envisions an alternate joining the e jury after it had deliberated on the issues of guilt and special circumstances and reached a verdict. He would be joining a group whichhas already discussed and evaluated the circumstances of the crime, the capacity of the defendant, and other issues which bear both on guilt and on penalty. The resulting deliberations between ®° old members who havealready considered the evidence and may havearrived at tentative conclusions on someaspects ofthe case, and new membersignorant of those discussions and conclusions, would depart from the requirementthat jurors ‘reach their consensus 444 through deliberations which are the common experienceofall of them.’” (35 Cal.3d at p. 351, citations omitted.) (207 Cal.App.3d at pp. 216-217.) The dissent continued that Fields, which involved the substitution of an alternate juror at the penalty phaseoftrial, did not address the issue of the propriety of substituting a juror during guilt deliberationsafter a partial verdict had been recorded (/d. at p. 217), but that Collins should be interpreted and appliedin this situation to bar the substitution ofjurors after a guilt verdict has been recorded: The New Jersey Supreme Court has addressedthe identical issue presented in the case before us and, relying in part on Collins, held it was error to substitute a juror after the return of verdicts on somecounts in order to reach verdicts on the remaining counts when there is a factual overlap between the counts. (State v. Corsaro (1987) 107 N.J. 339.) I believe the reasoning in Corsarois consistent with the reasoning in People v. Collins and thatit should be followed in California. | Defendants in State v. Corsaro weretried on various gambling charges. Before the juror substitution, the original jury convicted two of the defendants of maintaining a gamblingresort, one defendant of promoting gambling and defendant Corsaro of possession of gambling records. The remaining counts charged _ defendant Corsaro with promoting gambling andall defendants with conspiracy to promote gambling. (526 A.2d at pp. 1047-1048.) The verdicts of the original jury bore on the remaining counts because those convictions could haveestablished the overt act requirement for the conspiracy count and the conviction of Corsaro for possession of gambling equipment wasa ““‘strong, perhapsirresistible pull’ toward her conviction for ‘promoting gambling.’” (526 A.2d at p. 1054.) The New Jersey statute on substitution ofjurors is similarto Penal Code section 1089. It provides in relevantpart, “{I]f at any time after submission of the case to the jury, the juror dies or a juror is discharged by the court becauseheis ill or otherwise unable to continue, the court may direct the clerk to draw the nameof an 445 alternate juror to take the place of the juror whois deceased or discharged. When such a substitution of an alternate juror is made, the court shall instruct the jury-to recommence deliberations and shall give the jury such other supplemental instructions as may be appropriate.” (Quoted in State v. Corsaro, supra, 526 A.2dat p. 1052.) The New Jersey high court, like California’s, has imposed a construction on the statute requiring “‘the jury must be instructed in clear and unequivocal termsthatit is to begin its deliberations anew’” not simply pick up from where they left off before the substitution. (/bid.) The trial court in Corsaro,like the trial court in the case before us, gave the reconstituted jury an instruction which arguably at least complied with state decisional law. It instructed the jury, “you are to begin your deliberations anew with respectto the open charges that you are considering.....” (Id. at p. 1050.) The problem in Corsaro was notin the wording of the instruction. (526 A.2d at p. 1053.) The problem in Corsaro,as in the case at bar,was that the original jurors had gone beyond deliberations and actually announced verdicts. (/d. at pp. 1053-1054.) The court concluded it would be unreasonable and untenable to presumetheoriginal 11 jurors would follow an instruction to disregard the findings of fact reflected in their existing verdicts and start from scratch with the new juror. (Cf. People v. Fields, supra, 35 Cal.3d at p. 351.) In reaching this conclusion the Corsaro court interpreted - People v. Collins to mean a “verdict does not satisfy the constitutional requirement of unanimity if the new juror does not have the benefit of the deliberations of the original 11, is pressured to conform to the viewsofthe original 11 and has no meaningful chance to persuade the others to accept his or her viewpoint.” (State v. Corsaro, supra, 526 A.2d at pp. 1052-1053, citing People v. -Collins, supra, 17 Cal.3d at p. 693.) The Corsaro court then explained whya verdict by a reconstituted jury,after the originaljury had reached a related verdict, cannot meet the requirement of unanimity. “Where the deliberative process has progressed for such a length of time or to such a degree thatit is strongly inferable that the jury has madeactual fact-findings or reached determinations of guilt 446 or innocence,the new juroris likely to be confronted with closed or closing minds. In such a situation,it is unlikely that the new juror will have a fair opportunity to express his or her views and to persuade others. Similarly, the new juror may not havea realistic opportunity to understand and share completely in the deliberations thatbrought the other jurors to particular determinations, and may be forced to accept findings of fact upon which he or she has not fully deliberated.” (526 A.2d at p. 1054.) (207 Cal.App.3d at pp. 217-219 (dis. opn. of Johnson,J.).) As the dissentin Aikens further noted, the majority in that case: [...] apparently believes no prejudice to the. defendantarises if the reconstituted jury finds him guilty on a related count because it is probable the original jury would have reached the sameresult. (See, supra, p. 213.) This argument entirely misses the point. What the original jury would have doneis irrelevant. Defendant was not convicted on countII by the original jury. He was convicted by a different jury and as to that jury he hadthe constitutional right “not to be convicted except by 12 jurors ... who together have deliberated to unanimity.” (People v. Collins, supra, 17 Cal.3d at p. 693.) Surely the majority does not mean to say it would have been harmless error not to impanel an alternate jurorat all on the ground the verdict of the remaining 11 jurors is probably the same verdict the original 12 would have reached.. Yet, this would appear to be the logical extension of the majority’s argument. Regardless of the court’s view about the probability of the outcome, a felony defendant cannot be compelled to accept a verdict by less than 12 jurors. (People v. Ames (1975) 52 Cal.App.3d 389, 392; cf. People v. Superior Court (1967) 67 Cal.2d 929, 932.) I recognize dicta in People v. Collins and Griesel v. Dart Industries express our Supreme Court’s view an instruction to the reconstituted jury to disregard all past deliberations and begin anewis sufficient to guarantee the defendant a unanimousverdict. (See Collins, supra, 17 Cal.3d at p. 694; Griesel, supra, 23 Cal.3d at p. 583, fn. 2.) But, in those cases the court was speaking aboutsetting aside deliberations not determinations. As the Corsaro court correctly observed, 447 “The requirement that juries begin deliberations anew after a juror ’ has been substituted would be rendered nugatory if the reconstituted jury is likely to accept, as conclusively established, facts that could underlie, if not necessarily establish, its verdict on the open charges. ... While the jury was not technically required to accept the facts underlying the partial verdict, the likelihood that deliberations would truly ‘begin anew’ was so remote, in our opinion,as to foreclose juror substitution.” (State v. Corsaro, supra, 526 A.2d at p. 1055.) (207 Cal.App.3d at p. 220 (dis. opn. of Johnson,J.).) In the instant case, the jury necessarily made findings with regard to Counts 3 and4 that were inextricably intertwined with the remaining counts. For example, the jury found that appellant was either presentat the ~ scene while the killings occurred and/orthat hedirected the killings be carried out. Giventhe trial court’s instruction that the jury was to begin deliberations anew as to the remaining counts,it is entirely unreasonable to presumethat having finalized those findings offact in the form ofa guilty verdict as to counts 3 and 4, the remaining 11 members of the original jury put those findings aside and considered the facts underlying all the counts anew,includingin their deliberations the perceptions, memory and viewpoint of the new juror. (See People v. Collins, supra, 17 Cal.3d at p. 693; State v. Corsaro, supra, 526 A.2d at p. 1054.) Given the trial court’s instruction and the circumstancesof the crimesin this case, the findings of fact underlying the first-degree murder guilty verdicts on count 3 and 4 necessarily compelled a guilty verdict as to counts 1, 2 and 5, and compelled the jury’s verdict as to the multiple murder special circumstance in this case. Inaddition,the trial court twiceerred in failing to instruct the newly constituted jury to begin deliberations anew. Instead, after both the discharge ofjuror number 77 on May 17, 1995, as well as after the 448 discharge ofjuror number 327 on May 23, 1995, the jury was instructed to begin deliberations as to the remaining counts. (RT 16958, 16970.) This instruction failed to meet the requirementset forth in Collins and CALJIC NO. 17.51 that the jurors “disregard the earlier deliberations as if they had not taken place, ” since they were explicitly instructed to deliberate anew on only the remaining counts: Appellant was therefore denied his right to a unanimous verdict by 12 jurors as to those remaining counts. (People v. Collins, supra, 17 Cal.3d at-p. 692, fn. 3; Cal. Const., art. 1, § 16.) _ The recording ofthe partial guilt verdict against appellant and the erroneous Collins instruction violated both state and federal law, as set forth herein, andrequires that appellant’s conviction on counts 1, 2 and 5, and the multiple murder special circumstance finding, be reversed. E. Conclusion The right to a unanimousjury verdict by 12 jurors in criminal cases is secured by the state Constitution and state statutes (Cal. Const., art. I, § 16; Pen. Code, §§ 1163 & 1164; People v. Collins, supra, 17 Cal.3dat p. 693); all state-created constitutional and statutory rights are protected from arbitrary infringement by the Due Process Clause of the Fourteenth | Amendmenttothe United States Constitution. (Hicks v. Oklahoma, supra, 447 US. at p. 346; Vitek v. Jones, supra, 445 U.S.at p. 488.) The denial of appellant’s right to a unanimousverdict by 12 jurors thus denied appellant due processoflaw. In addition, becausethis is a capital case, the nght to a unanimous verdictis also guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. The purpose of the unanimity requirementis toensure the accuracy andreliability of the verdict (Brownv. Louisiana, supra, 447 U.S. at pp. 331-334; People v. Feagley, supra, 14 449 Cal.3d at p. 352), and there is a heightened need for reliability in the “procedures leading to the conviction of a capital offense (Murrayv. . Giarratano, supra, 492 U.S. at pp. 8-9; Beck v. Alabama, supra, 447 U.S.at p. 638). | Further, the denial of a unanimousverdict by 12 jurors constituted structural error requiring reversal withouta determination of whether the error affected the verdict. Some errors, involving “‘structural defects in the constitution of the trial mechanism . . defy analysis by “harmless-error” standards,’” because they are “necessarily unquantifiable and indeterminate.” (Arizonay. Fulminante, supra, 499 U.S. at p. 309.)'° Such errors always require invalidation of a judgment. (Id. at p. 279.) For the foregoing reasons,the trial court’s multiple errors during guilt phase deliberations violated appellant’s state statutory rights as well as his state and federal constitutional rights. Reversal of appellant’s . | conviction and sentenceis required. // 130 However, regardless ofwhether the error is deemedviolative of the federal Constitution, the error here is structural and requires reversal without analysis of harmless error. As noted by the Court of Appeals in United States v. Curbelo (2003) 343 F.3d. 273, the UnitedStates Supreme Court has clearly held that structural errors need not be of constitutional dimension. (/d. at p. 280, citing Nguyen v. United States (2003) 539 U.S. 69.) In Nguyen, the Supreme Court recognized that when an error “involves a violation of a statutory provision that ‘embodies a strong policy concerning the proper administration ofjudicial business’ courts may vacate the judgment without assessing prejudice.” (Nguyen v. United States, supra, 539 U.S. at p. 81.) Certainly the statutory provisions which govern the numberofjurors required to convict a criminal defendant, especially in a capital case, must be deemed to embody such policy considerations. 450 XX THE TRIAL COURT’S FAILURE TO CONDUCT INDIVIDUAL SEQUESTERED DEATH QUALIFICATION VOIR DIRE, AND ITS UNREASONABLE AND UNEQUAL APPLICATION OF _ CALIFORNIA LAW GOVERNING JUROR VOIR DIRE, VIOLATED APPELLANT’S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS, AND HIS STATUTORYRIGHT: UNDER CODE OF CIVIL PROCEDURE SECTION 223 TO INDIVIDUAL VOIR DIRE WHERE GROUP VOIR DIRE IS NOT PRACTICABLE Giventhe frailty of human institutions and the enormity of the jury’s decision to take or spare a life,trial courts must be especially vigilant to safeguard the neutrality, diversity and integrity of the jury to which society has entrusted the ultimate responsibility for life or death. ~ (Hovey v. Superior Court (1980) 28 Cal.3d 1, 81.) Appellant joined in coappellant Smith’s requestfor sequestered individual voir dire of the prospective jurors, citing inter alia appellant’s federal constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution; appellant also argued that “good cause” within the meaning of Code of Civil Procedure section 223 (as enacted by section 7 of Proposition 115) existed for such examination. (RT 6294; CT 2799-2813.) Thetrial court summarily deniedthe request and conducted non-sequestered voir dire. (RT 6626-6627.) As described below,the trial court’s failure to conduct individual sequestered death qualification voir dire, and its unreasonable and unequal application of state law governing such voir dire, violated appellant’s federal constitutional rights to due process,equal protection,trial by an impartial jury, effective assistance of counsel, and a reliable death verdict, 451 and his nght under California law to individual juror voir dire where group voir dire is not practicable. A. A Voir Dire Procedure That Does Not Allow Individual Sequestered Voir Dire On Death-Qualifying Issues Violates A Capital Defendant’s Constitutional ‘Rights To Due Process, Trial By An Impartial Jury, Effective Assistance Of Counsel, And A Reliable Sentencing Determination A criminal defendant has federal and state constitutional rights to trial by an impartial jury. (U.S. Const., Amends. VI and XIV; Morganv. illinois (1992) 504 U.S. 719, 726; Cal. Const, art. I, §§ 7, 15 & 16.) Whether prospective capital jurors are impartial within the meaning of these rights is determined inpart by their opinions regardingthe death penalty. Prospective jurors whose views on the death penalty prevent or impair their ability to judge in accordance with the court’s instructions are not impartial and cannotconstitutionally remain on a capital jury. (See generally, | Wainwright v. Witt (1985) 469 U.S. 412; Witherspoonv. Illinois (1968) 391 U.S. 510; see also Morgan v.Illinois, supra, 504 U.S. at pp.. 733-734; People v. Cummings, supra, 4 Cal.4th 1233, 1279.) Death qualification voir dire plays a critical role in ferreting out such bias and assuring the criminal defendant that his constitutional right to an impartial jury will be honored. (Morgan v.Illinois, supra, 504 U.S.at p. 729.) To that extent, the right to an impartial jury mandates voir dire that adequately identifies those jurors whose viewson the death penalty render them partial and unqualified. (ibid.) Anything less generates an unreasonable risk ofjuror partiality and violates due process. Ud. at pp. 735-736, 739; Turnerv. Murray (1986) 476 U.S. 28, 37.) A trial court’s insistence upon conducting the death qualification portion of voir dire in the presence of other jurors necessarily creates such an unreasonablerisk. 452 This Court has long recognized that exposure to the death . qualification process creates a substantial risk that jurors will be more likely to sentence a defendant to death. (Hovey v. Superior Court, supra, 28 Cal.3d 1, 74-75.) When jurors state their unequivocal opposition to the death penalty and are subsequently dismissed, the remaining jurors may be less inclined to rely upon their own impartial attitudes about the death penalty when choosing betweenlife and death. (/d. at p. 74.) By the same token,“[j]urors exposed to the death qualification process may also become desensitized to the intimidating duty of determining whether another person should live or die.” (Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1168, 1173.) “What'wasinitially regarded as an onerous choice, inspiring caution and hesitation, may be morereadily undertaken simply because of the repeated exposureto the idea oftaking a life.” (Hovey, supra, at p. 75.) Death qualification voir dire in the presence of other membersofthe jury panel may further cause jurors to mimic responses that appearto please the court, and to be less forthright and revealing in their responses. (dd.at p. 80, fn. 134.) | Given the substantial risks created by exposureto the death qualification process, any restriction on individual and sequestered voir dire on death-qualifying issues — including that imposed by CodeofCivil Procedure section 223, which allows death qualification in the presence of other prospective jurors and abrogates this Court’s mandate that such voir ~ dire be done individually and in sequestration (Hovey v. Superior Court, supra, 28 Cal.3d at p. 80; People v. Waidla (2000) 22 Cal.4th 690, 713) — cannot withstand constitutional principles ofjury impartiality. (See,e.g., Morganv. Illinois, supra, 504 U.S. at pp. 736, citing Turner v. Murray, supra, 476 U.S. at p. 36 [“The risk that . . . jurors [who were not impartial] 453 may have been empaneledin this case and ‘infected petitioner’s capital sentencing[is] unacceptable in light of the ease with which that risk could have been minimized.””].) Norcan suchrestriction withstand Eighth Amendmentprinciples mandating a need for the heightenedreliability of death sentences. (See, e.g., California v. Ramos (1983) 463 U.S. 992, 998-999; Zant v. Stephens, supra, 462 U.S. 862, 884-885; Gardnerv. | Florida, supra, 430 U.S. 349, 357-358; Woodson v. North Carolina, supra, 428 U.S. 280, 305.) Likewise, because the right to an impartial jury guarantees adequate voir dire to identify unqualified jurors and provide sufficient information to enable the defenseto raise peremptory challenges _ (Morgan v. Illinois, supra, 504 U.S.at p. 729; Rosales-Lopez v. United States (1981) 451 U.S. 182, 188), the negative influences of open death qualification voir dire violate the Sixth Amendment’s guarantee of effective assistance of counsel. | Put simply, juror exposure to death qualification in the presence of other jurors leads to doubt that a convicted capital defendant was sentenced to death by a jury empaneled in compliance with constitutionally compelled impartiality principles. Such doubt requires reversal of appellant’s death sentence. (See, e.g., Morganv. Illinois, supra, 504 U.S. at p.739; Turnerv. Murray, supra, 476 U.S. at p. 37.) B. The Superior Court Erred In Denying Appellant’s Request For Individual Sequestered Voir Even assuming individual sequestered death qualification voir dire is not constitutionally compelled in a// capital cases, under the circumstances of this case thetrial court’s insistence upon conducting the death qualification portion of voir dire in the presence of other jurorsstill violated appellant’s constitutional rights to an impartial jury and due process of law. 454 The court’s conductalso violated appellant’s constitutional nght to equal protection of the law, and his federal due process protected statutory right to individual voir dire where group voirdire is impracticable. (See Hicks v. Oklahoma, supra, 447 U.S. at p. 346.) Code of Civil Procedure section 223 veststrial courts with discretion to determine the feasibility of conducting voir dire in the presence of other jurors. (People v. Box (2000) 23 Cal.4th 1153, 1180;People v. Waidla, supra, 22 Cal.4th at p. 713; Covarrubias v. Superior Court, supra, 60 Cal.App.4th at p. 1184.) Underthat codesection, “[v]oir dire of any prospective jurors shall, where practicable, occur in the presence ofthe other jurors in all criminal cases, including death penalty cases.” (Code Civ. Proc., § 223.) However, as this Court recognizes, individual sequestered voir dire on death penalty issues is the “most practical and effective procedure” to minimize the negative effects of the death qualification process. (Hovey v. Superior Court, supra, 28 Cal.3d at p. 80, 81.) The proper exercise of a trial court’s discretion under section 223 therefore must balance competing practicalities. (See, e.g., People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977[“[E]xercises of legal discretion must be . . . guided by legal principles and policies appropriate to the particular matter at issue.”’].) The trial court’s summary denial of appellant’s request simply does not reflect a sound exercise of discretion about whether, in the particular circumstancesofthis case, group voir dire waspracticable. (RT 6626- 6627.) The record fails to show that the court in making its decision “engaged in a careful consideration of the practicability of .. . group voir dire as applied to [appellant’s] case.” (Covarrubias v. Superior Court, supra, 60 Cal.App.4th at p. 1183.) The court’s bald denial of appellant’s 455 request ‘doesnot equate with the kind of “reasoned judgment” this Court | ascribesto judicial discretion. (See People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 977.) Nor doesit equate with a “a careful — consideration” (Covarrubias v. Superior Court, supra, 60 Cal.App.4th atp. 1183) of the practicability of small group voir over individualized sequestered voir dire, “[t]he most practical and effective procedure available to minimize the untoward effects of death-qualification[.]” (Hovey v. Superior Court, supra, 28 Cal.3d at p. 80.) The record reflects that prospective jurors were in fact influenced by the responseselicited during voir dire. Prospective jurors who admitted in their questionnaires that they would automatically impose the death penalty in certain circumstances after exposure to other jurors’ views during the voir dire process changed their responses, and appellant was then forcedto exercise peremptory challenges in order to remove those prospective jurors from the petit jury. (See. e.g., 1 SUPP CT 3237 and RT 6826-6826, 6990 . [prospective juror number 92]; 1 SUPP CT 1574 and RT 7120-7121 [prospective Juror number 180]; 1 SUPP CT 1540 and RT 7270-7274 [prospective juror number179].) Additionally, two prospective jurors were unsuccessfully challenged by the defense for cause, even though they expressed strong automatic death penalty viewsin their juror questionnaires, because they modified their answers during voir dire; the defense was forced to exercise peremptory challenges to ensure they did not remain on the jury. (1 SUPP CT3065-3067 and RT 6852-6855, 6918 [prospective juror no. 82]; 1 SUPP CT 3031-3033 andRT 6870-6872, 6954 [prospective juror no. 80]; see also Argument XXII, post, incorporated byreference herein.) 456 Further, twositting jurors in this case, numbers 59 and 73, who declared in their questionnaires they strongly agreed that anyone who intentionally kills more than one person without legal justification and not in self defense should automatically receive the death penalty (1 SUPP CT 6804 and 2897, respectively), after hearing the “correct” responses in voir dire, said they would not impose the death penalty automatically. (RT 6969-6971 and6919-6925, respectively.) | Moreover, the record showsthat, as a result of the trial court’s denial of sequestered voir dire, a portion of the venire that includedatleast three of the petit jurors heard thetrial court ask prospective juror number217,if, in a hypothetical case, “Whatif there was somebody who wasso bad and so dangerous that nobody couldtestify against him unless they got something in return for it? Doyou think that might be an appropriate time to give somebody immunity to get them into court?”(RT 7596-7597.) Appellant later challenged for cause not only prospective juror number 217, but the entire venire who was present for the court’s questions, arguing that appellant was prejudiced because thequestionsled all the jurors who heard them to believe that appellant was the type of person suggested by the questions. (RT 7605-7606.) The court denied appellant’s challenge. (RT 7606.) The question to which appellant objectedwas madein front of prospective jurors from whom thealternate jurors were selected. Although the original twelve jurors were selected from amongthefirst 200 prospective jurors; due to the dismissal of numeroussitting jurors during the course ofthetrial, three of the alternates who were biased by the court’s improper question took part in deciding appellant’s fate. (RT 7230-7231, 7245, 7313, 7327, 7420, 7608, 7655, 7670, 7735, 7743, 7747 [Juror Nos. 247, 220, 261].) The presence of three biased jurors denied appellant his 457 right to a verdict by an impartial jury. (Irwin v. Dowd (1961) 366 U.S. 717, 722; Tumey v. Ohio (1927) U.S. 273 U.S. 510, 532; Dyer v. Calderon (9th Cir. 1998) 151 F.3d 970, 973 [bias or prejudice of even a single juror violates a defendant’s right to a fairtrial].) Under these circumstances,the trial court clearly committed error of federal constitutional magnitude in denying appellant’s request for individual sequestered voir dire as well as appellant’s cause challenge to the venirepersons who heard the court’s prejudicial question. (U.S. Const., Amends. V, VI, VIII and XIV.) . C. The Trial Court’s Unreasonable And Unequal Application . Of The Law Governing Juror Voir Dire Requires Reversal Of Appellant’s Death Sentence Under Code of Civil Procedure section 223, reversal is required wherethe trial court’s exercise of discretion in the manner in which voir dire is conducted results in a “a miscarriage ofjustice,as specified in Section 13 of Article VI of the California Constitution.” However, section 223 must be viewed as providing appellant an important procedural protection andliberty interest (namely, the right to individual juror voir dire on death penalty issues where group voir dire is impracticable) that is protected underthe federal due process clause. (See Hicks v. Oklahoma, supra, 447 U.S. at p. 346.) Accordingly, the trial court’s unreasonable application of section 223 in appellant’s case must be assessed underthe Chapman standard of federal constitutional error. In practical terms, any differences between the two standards is academic, for whether viewed as a _ “miscarriage ofjustice,” or as an error that contributed to appellant’s death verdict (Chapman v. California, supra, 386 U.S. at p. 24), the trial court’s 458 failure to conduct individual, sequestered juror voir dire on death penalty issues requires reversal of appellant’s death sentence. | The group voir dire procedure employedby thetrial court created a substantial risk that appellant was tried by jurors who were not forthright and revealing oftheir true feelings and attitudes toward the death penalty (Hovey v. Superior Court, supra, 28 Cal.3d at p. 80, fn. 134), and who had become “desensitized to the intimidating duty” of determining whether appellant would live or die (Covarrubiasv. Superior Court, supra, 60 Cal.App.4th at p. 1173) because oftheir “repeated exposure to the idea of taking a life.” (Hovey, supra, at p. 75.) Accordingly, the trial court’s failure to carefully consider the practicability of group voir dire as applied to appellant’s case led to a voir dire procedure that denied appellant the opportunity to adequately identify those jurors whose viewson the death penalty rendered them partial and unqualified, and generated a dangerthat appellant was sentenced to die by jurors who were influenced toward returning a death sentence by their exposure to the death qualification process. (See Hovey v. Superior Court, supra, 28 Cal.3d at pp. 74-75.) These hazards infringed upon appellant’s rights to due process and an impartial jury (see Morgan v. Illinois, supra, 504 U.S.at p. 729), and cast doubt on whether the Eighth Amendmentprinciples mandating a need for the heightened reliability of death sentences is satisfied in this case. By their very nature, these are rights that are so importantas to constitute an “essential part ofjustice” (People v. O'Bryan (1913) 165 Cal. 55, 65) for whichthe risks of deprivation must be regarded as a miscarriage ofjustice, Indeed,errors that infringe on these rights are “the kindsoferrorsthat, regardless of the evidence, may result in a ‘miscarriage ofJustice’ because they operate to deny a criminal defendantthe constitutionally required 459 LL ‘orderly legal procedure’ (or, in other words, a fair trial)[.]” (Peoplev. Cahill (1993) 5 Cal.4th 478, 501; see also People v. Diaz (1951) 105 Cal.App.2d 690, 699 [“‘The denial of the right of trial by a fair and impartial jury is, in itself, a miscarriage ofjustice.”].) . Moreover, because the voir dire procedure employed bythe trial court was inadequate to identify those jurors whose views on the death penalty rendered them partial and unqualified,it is impossible for this Court to determine from the record whetherany of the individuals who were - ( ultimately seated as jurors held disqualifying views on the death penalty that prevented or impairedtheir ability to judge appellant in accordance with the court’s instructions. The trial court’s use ofthis procedure cannot, etherefore, be dismissed as harmless. (People v. Cash (2002) 28 Cal.4th 703, 723.) Stated simply, the jurors’ exposure to death qualification of other jurors leads to doubt that appellant was sentenced to death by a jury empaneled in compliance with constitutional impartiality principles, and e that doubt requires reversal of appellant’s death sentence. (Morganv. _ Illinois, supra, 504 U.S.at p. 739: People v. Cash, supra, 28 Cal.4th at p. 723.) . e if if e @ e 460 XXI THE TRIAL COURT’S UNLAWFUL EXCLUSION OF THREE PROSPECTIVE JURORS FOR CAUSE REQUIRES REVERSAL OF APPELLANT’S CONVICTION AND DEATH SENTENCE Over appellant’s objection, the trial court granted the prosecution’s challenge for cause and excused three prospective jurors whostated that, despite their general opposition to the death penalty, they would follow the law and would be able to impose a death sentence, if warranted, in this case. Because the record does not show these prospective jurors feelings about the death penalty substantially impaired their ability to sit as impartial jurors, their dismissal violated appellant’s rights to an impartial jury, a fair capital sentencing hearing, and due process of law under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution andarticle I, sections 7, 15, 16, and 17 of the California Constitution. Reversal of appellant’s conviction and death judgmentis required. A. The Trial Court Erroneously Sustained The Prosecution’s Cause Challenge To Prospective Juror Number 56, Despite Her Unequivocal Promise To Follow The Law In | Determining Sentence In This Case The trial court conductedall voir dire in this case; attorneys were not permitted to directly question prospective jurors.’?’ (RT6293-6294; CT 2770-2781, 2799-2813, 2877-2888.) Among the potential jurors called in the case was prospective juror number 56. Although she said she was '3) At the time oftrial in this case, Code of Civil Procedure section 223 provided for court-conducted voir dire, with participation from the parties only upon showing of “good cause.” As amended in 2001, section 223 now provides for counsel to have the right to question prospective Jurors after the court’s voir dire. 461 opposed to the death penalty and would not wantto impose a death sentence, she repeatedly said she could and would do what the law required in this case. Nevertheless, the prosecutor moved to discharge her for cause, and thetrial court sustained the challenge. As morefully discussed below, the trial court erred. Reversal of appellant’s death sentence is required. 1. The Voir Dire Of Prospective Juror Number 56 Prospective juror number 56 was a 50-year-old grandmother (1 SUPP CT 6718-6722) whosaid during voir dire that she did not think she could befair in this case because one of the victims was a baby who was about her grandchild’s age. (RT 6746.) When she informed the court that she had already been a juror on a murdertrial and did not wantto do so again, the court informedher that she could be dismissed only if she said - her mind was made up about penalty or if she said she could not be fair because there was a child involved. (RT 6747.) She thereafter repeatedly said that she could be fair to both the prosecution and the defendants, and that she would follow the court’s instructions. (RT 6747-6748.) When specifically asked if, since she indicated in her questionnaire that a basis for her opposition to the death penalty was religious in nature, whether those — beliefs would preclude her from imposinga death sentence, she said she could put her personal views aside and make a decision based on the facts because it was her civic duty to do so, although she said it was “not something I would be overjoyed in doing.” (RT 6749-6750.) In response to the court’s questions, she stated that she had changed her view from the questionnaire, in which she stated she would vote for life without the possibility of parole no matter what the evidence, because of the court’s “ittle speech this morning about weighing the good and the bad and the evidence that comes in before that.” (RT 6750-6751.) Lastly, she said she 462 honestly did not believe her feelings would influence the manner in which she judged this case (RT 6751), that she preferred life in prison as a penalty but could apply the evidenceto the law and decide for either penalty. (RT 6819-6820.) The prosecution challenged her for cause, arguing that the answers on her questionnaire to questions 65, 87, 88C, 88d, 88E, 89, 94 and 98'” "2 Since the court’s ruling was based onthe contentportionsof number56’s questionnaire, both the questions and her answers that were cited by the prosecution and the court as the basis for the challenge are set forth herein: Question 65. Would yourreligious preferenceorbeliefs makeit difficult or impossible to sit in judgment of another person? (If yes, please explain) Answer: If death pen [sic] was involved. — Question 87. What are your general feelings about the death penalty? Answer:I believe in life in prison without parole. Question 88C. Are your views on the death penalty based on - religious conviction? (If yes, please indicate what those viewsare) Answer: Yes. No one hasthe right to take a life. Question 88D. Do you feel California should have the death penalty? (Please explain) Answer: No. Question 88E. Regardless of your views on the death penalty, would you as a juror, be able to vote for the death penalty on another personifyou believed, after hearing all the evidence, that the penalty was appropriate? Answer: No. (continued...) 463 reflected that she was incapable of imposing the death penalty and that she had been influenced to change her opinion by the voir dire process. (RT 6933-6934.) The defenseargued that under United States Supreme Court precedent, a prospective juror could not be removed for cause because they opposed the death penalty, and that number 56 said she would temporarily. set aside her own beliefs in deferenceto the rule oflaw. (RT 6934-6935.) The court ruled the issue as follows: Giventhe totality of her answer, is there really a reasonable likelihood she could choose conscientiously between the penalties based onthe evidence and so forth. The answeris clearly no, in the court’s opinion. I don’t believe it is a close credibility call at all. I don’t believe the womanis trying to mislead the court, but when youlookat the terms in which she answered, and in the questionnaire she said she could never imposethat penalty. She is dead set on religious grounds and that nobody has got a right to that power, over and over and over, eight or nine or ten times in the questionnaire. For some reason yesterday she had this awakening that the court is not convinced1s reflective ofher true feelings, frankly. So, yes, the court feels that - her ability would be substantially impaired to be a juror, not on the guilt phase, but the penalty phase ofthe trial the [sic] reasons stated in her questionnaire. That challenge will be allowed. mCcontinued) Question 94: If the trial reached the penalty phase would you automatically, in very case, regardless of the evidence, vote for life in prison without the possibility of parole? . Answer: Yes. Question 98. Do you believe you would consider the costs of imprisoning a defendantfor life without thepossibility of parole in deciding what the punishmentof a defendant should be? Answer: No. Please explain: I don’t believe in the death penalty. 464 (RT 6837.) As appellant will show below,the trial court was wrong. 2. Because The Voir Dire Of Prospective Juror Number 56 Established That Her Position On The Death Penalty Would Neither Prevent Nor Substantially Impair Her Ability To Follow The Court’s Instructions, Apply The Law To The Facts, Or Impose A Sentence Of Death, The Trial Court Committed Reversible Error Discharging Her For Cause The Sixth and Fourteenth Amendments guarantee a criminal defendanta fair trial by a panel of impartial jurors. (Duncanv. Louisiana, supra, 391 U.S. at pp. 149-150; Irvin v. Dowd (1961) 366 U.S. 717, 722.) ‘In capital cases, this right applies to the determinations of both guilt and penalty. (Morganv.Illinois, supra, 504 U.S.at p. 727; Turner v. Murray, supra, 476 U.S.at >. 36, fn. 9.) This right also is protected by the California State Constitution. (See Cal. Const., art. I, § 16.) The United States Supreme Court has enacted a process of “death qualification” for capital cases. (See Witherspoon v.Illinois, supra, 391 U.S.at p. 522); Wainwrightv. Witt, supra, 469 U.S.at p. 421.) Appellant maintains that this process produces “juries more predisposedto find a defendant guilty than would a jury from which those opposedto the death penalty had not been excused”in violation of the Sixth and Fourteenth Amendmentright to a fair trial by an impartial jury. (Witt v.. Wainwright, (1985) 470 U.S. 1039 (Marshall, J., dissenting from denial ofcertiorari); Grigsby v. Mabry (8th Cir. 1985) 758 F.2d 226, revd. sub nom, Lockhart v. McCree (1986) 476 U.S. 162, 176.) The reasons supporting this claim are set forth in Justice Marshall’s dissenting opinions in Witt, supra, at pp. 1040-1042, and in McCree, supra, at pp. 184-206, whichare incorporated herein to preserve the issue for federal habeas corpus review,if necessary. 465 Even with a death qualification process, the Supreme Court has held that prospective jurors do not lack impartiality, and thus may not be excused for cause, “simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples againstits infliction.” (Witherspoonv. Illinois, supra, 391 U.S. at pp. 520-523, fns. omitted.) Such an exclusion violates the defendant’s rights to due process and an impartial jury “and subjects the defendantto trial by a jury ‘uncommonly willing to condemn a man to die.” (People v. Hayes (1999) 21 Cal.4th 1211, 1285, quoting Witherspoonv. Illinois, supra, 391 U.S.at p. 521.) Rather, under the federal Constitution, “{a] juror may not be challenged for cause based onhis views about capital punishmentunless | those views would preventor substantially impair the performanceof his duties as a juror in accordance with his instructions and oath.” (Wainwright v. Witt, supra, 469 U.S.at 421, quoting Adamsv. Texas (1980) 448 U.S. 38, 45.) The focus on a prospective juror’s ability to honorhis or her oath as a juror is important: [T]hose whofirmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law. (Lockhart v. McCree, supra, 476 U.S. at p. 176; see also Witherspoon, supra, 391 U.S. at p. 514, fn. 7 [recognizing that a juror with conscientious scruples against capital punishment“could nonetheless subordinate his personal views to what he perceived to be his duty to abide by his oath as a juror and to obey the law ofthe State.”].) Thus, all the State may demandis “that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.” (Adams v. Texas, supra at p. 45.) The samestandard is applicable under the California 466 Constitution. (See, e.g., People v. Guzman (1988) 45 Cal.3d, 915, 955; People v. Ghent (1987) 43 Cal.3d 739, 767.) In applying the Adams- Witt standard, an appellate court determines whether the trial court’s decision to exclude a prospective juror is supported by substantial evidence. (People v. Ashmus (1991) 54 Cal.3d 932, 962); see also, Wainwright v. Witt, supra, 469 U.S.at p. 433 [ruling that the question is whether the trial court’s finding that the substantial impairment standard was metis fairly supported by the record considered as a whole].) As this Court has explained: On appeal, we will upholdthe trial court’s ruling if it is fairly supported by the record, accepting as binding the tnal court’s determination as to the prospective juror’s true state of mind whenthe prospective juror has made statementsthatare conflicting or ambiguous. ~ (People v. Heard (2003) 31 Cal.4th 946, 958, quoting Peoplev. Cunningham (2001) 25 Cal.4th 926, 975, citations omitted.) The burden of proof in challenging a juror for anti-death penalty viewsrests with the prosecution. “As with any othertrial situation where an adversary wishesto exclude a juror because ofbias, then,it is the adversary seeking exclusion who must demonstrate, through questioning, that the potential juror lacks impartiality.” (Witt, supra, 469 U.S. at p. 424; accord, Morganv. Illinois, supra, 504 U.S.at p. 733.) The exclusion of even a single prospective juror in violation of Witherspoon and Witt requires automatic reversal of a death sentence. (Gray v. Mississippi (1987) 481 U.S. 648, 668.). | Moreover, given the per se standard of reversal for Witherspoon- Witt errors,the trial court bears a special responsibility to conduct adequate death qualification voir dire. As this Court recently emphasized, when a prospective juror’s views appear uncertain,the trial court must conduct 467 careful and thorough questioning, including follow-up questions,to determine whether his “views concerning the death penalty would impair his ability to follow the law or to otherwise perform his duties as a juror.” (People v. Heard, supra, 31 Cal.4th at p. 965.) In short, the trial courts must “proceed with greatcare, clarity, and patience in the examination of potential jurors, especially in capital cases.” (Jd. at p. 968.) Mostrecently in People v. Stewart (2004)33 Cal.4th 425, 440-455, this Court held that thetrial court had committed reversible error by excusing five prospective jurors for cause based solely upon their written answers on a jury questionnaire. In answering the questionnaire,the five Jurors had expressed general objections to the death penalty. However, this Court held that their answers to the questionnaire did not establish that they would be unable to set aside their own beliefs and apply the instructions given to them by the court. This Court reiterated the United States Supreme Court’s holding that personal objection to the death penalty is not a | sufficient basis for excluding a person from jury service in a capital case: Notall those who opposethe death penalty are subjectto removalfor cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they clearly state that they are willing to temporarily set aside their ownbeliefs in deference to the rule of law. (People v. Stewart, supra, 33 Cal.4th at p. 446, quoting Lockhartv. McCree, supra, 476 U.S.at p. 176.) Relying also on its own opinion in People v. Kaurish (1990) 52 Cal.3d 648, 699, this Court held that particularly in California, those who are opposed to the death penalty are legally qualified to serve as jurors: Becausethe California death penalty sentencing process contemplates that jurors will take into account their own 468 values in determining whether aggravating factors outweigh mitigating factors such that the death penalty is warranted, the circumstance that a juror’s conscientious opinionsor beliefs conceming the death penalty would makeit very difficult for the juror ever to impose the death penalty is not equivalentto a determination that such beliefs will “substantiallyimpair the performance ofhis [or her] duties as a juror” under Witt, supra, 469 U.S. 412, ... A juror mightfind it very difficult to vote to impose the death penalty, and yet such a juror’s _ performancestill would not be substantially impaired under Witt, unless he or she were unwilling or unable to follow the trial court’s instructions by weighing the aggravating and mitigating circumstancesof the case and determining whether death is the appropriate penalty underthe law. (People v. Stewart, supra, 15 Cal.Rptr.3d at p. 675. [emphasis in original].) And as this Court reaffirmed in People v. Heard, supra, 31 Cal.4th 946, 958, ““The real question is whether the juror’s views about capital . punishment would prevent or [substantially] impair the juror’s ability to return a verdict of death in the case before thejuror.’” (Citations and internal quotation marks omitted, emphasis added.) Application of these standards to the voir dire of number 56 shows that the trial court plainly erred in discharging her for cause. To be sure, the questionnaire supports a conclusion that number 56 was opposedto capital punishment. (See 1 SUPP CT 6729-6730, 6734-6737.) But as the cases cited above held, mere opposition to capital punishment is an insufficient basis on whichto discharge a prospective juror for cause. (Adamsv. Texas, supra, 448 U.S. at p. 45; see also People v. Stewart, supra, 33 Cal.4th atp. 449 [“Disagreement with the currentstate of the law is not disqualifying by itself [. . .].”) Instead, the State must go further and carry its burden of proving that the juror’s views on capital punishment would “prevent or substantially impair” the juror’s ability to perform his duties as a juror and 469 follow the law in the case at hand. (Adams v. Texas, supra, 448 U.S. at pp 45,48; People v. Stewart, supra, 33 Cal.4th at p. 445.) Here, the State did not comecloseto satisfying this burden. The prosecution did not and could not rely on number 56’s in-court answers as a basis for the challenge, because she said she could follow the law and impose death if it was warranted in this case. The prosecution’s basis for the challenge was instead the answers she providedin her questionnaire. An examination of the sevenquestions objected to in her questions show that five reflected only that she was opposed to the death penalty, which, as set forth above,is not a legal basis for sustaining a causechallenge. . Two of her answersdid reflect her then-held view that: (1) she did not believe she would be able to vote for the death penalty “on anotherperson if [she] believed, after hearing all the evidence, that the penalty was appropriate” (see answerto question 88E); and (2) that she would “automatically, in every case, regardless of the evidence, vote forlife in prison withoutthe possibility of parole” (see answerto question 94).'*? However, after being instructed as to the law requiring her to weigh the aggravating and mitigating factors, and after being informed ofthefacts ofthis case, she unequivocally andrepeatedly said she would considerdeath as an option. In fact, the record reflects a case-based reason for her willingness to considerthe death penalty: this case involved the death of a baby about her grandchild’s age, and number 56 wentso far as to say that she was | '33 These two questionsfail to determine accurately whether a prospective juror’s views on the death penalty would prevent or substantially impair his or her ability to follow the law, since neitherposits the question of whetherthe juror could follow the law as applied to this case. (See People v. Stewart, supra, 676, fn. 12.) 470 uncertain if she could befair to the defendants because ofthat fact. (RT 6290-6291, 6746-6747.) In view of number 56's clarification of her views during voirdire, her earlier juror questionnaire responses, given without the benefit of the trial court’s explanation of the governing legal principles, does not provide an adequate basis to support her excusal for cause. | (People v. Heard, supra, 31 Cal.4th a p. 964.) In sustaining the prosecution’s challenge for cause, the trial court ruled that number 56’s answers in her questionnaire provided the bases for sustaining the challenge, andthat the court was not convinced by herin- court answersthat shewould follow the Jaw and could impose the death penalty in this case if the facts so warranted. The trial court incorrectly framed the issue when it ruled the question was whether there was “ really a reasonable likelihood she could choose conscientiously between the penalties based on the evidence andso forth.” (RT 6837.) As discussed above, the question is whether her opposition to the death penalty would “prevent or substantially impair the performanceofhis duties as a juror in accordance with his instructions and his oath.” (Adams v. Texas, supra, 448 U.S.at p. 45.) Applying the correct standard, the record simply does not contain substantial evidence that number 56 was “substantially impaired.” Despite her general opposition to the death penalty, and her inability to envision herself voting for death in the abstract, she stated unequivocally in voir dire that, now that she understood the law andgiven the facts of this case, that is, where one of the victims was a baby, she would consider imposing the death penalty in this case. Number 56 recognized whatthe trial court did not: that, despite her viewson the death penalty and her unwillingness to serve again as a juror on a murdercase, she was obliged to do her “civic duty.” 471 This Court expressly recognized the ability ofjurors like number 56 to serve on capital juries in People v. Stewart, supra, 33 Cal.4th at pp. 674- 675: Inlight of the gravity of that punishment, for many members of society their personal and conscientious views concerning the death penalty would makeit “very difficult” ever to vote to impose the death penalty [. . . .] [H]owever, a prospective juror who simply would find it “very difficult” ever to impose the death penalty is entitled — indeed, duty-bound ~ to sit on a capital jury. The record in this case suggests the trial court “erroneously equated (1) the nondisqualifying conceptof a very difficult decision by a jurorto impose a death sentence, with (2) the disqualifying concept of substantial impairment ofajuror’s performanceofhis or her legal duty” (People v. Stewart, supra, 33 Cal.4th at p. 676) and failed to recognize that a prospective juror’s - Opposition to the death penalty, religious or otherwise, does not, standing alone, constitute a disqualifying bias underthe law.'™ Number56 is precisely the type ofjuror which the Sixth and Fourteenth Amendments do not allow to be excused from a capital case for cause: a juror that has promised to set aside her views and render a judgmentbased on the facts of a particular case and the law presented to her. The erroneous granting of even a single challenge for cause requires reversal of appellant’s judgment of death. (Gray v. Mississippi, supra, 481 U.S. at p. 660 [improper exclusion of a single juror warrants reversal; error '34 Thetrial court’s use of the term “substantially impaired” does not salvage its ruling (RT 6837) becausethetrial court explicitly relied on an incorrect standard. . 472 not subject to harmless error analysis]; accord People v. Heard, supra, 31 Cal.4th at p. 966.) B. The Trial Court Erroneously Excused Prospective Juror Number 52, Who Was Equivocal About Whether His Attitudes About The Death Penalty Would Effect His Penalty Phase Deliberations After being subjected to repeated questioning bythetrial court, | prospective juror number 52, who otherwise said he would follow the law, expressed a doubt as to whetherhis views on the death penalty would impair his ability to impose a death sentence in this case. However, he did not state with anything approaching the requisite degree of certitude that he wouldnot consider death as an option in this case under properinstructions from the trial court. Reversal ofappellant’s death judgment is required. 1. Voir Dire Of Prospective Juror Number 52 Prospective juror number 52 was a 52-year-old palletizer, Army veteran,father of six and long-timeresident of Crenshaw. (1 SUPP CT 6650-6654.) Answers in his questionnaire reflect no particular opposition to the death penalty; rather, his lack of responses to many questions indicate that he had not formulated an opinion regarding the death penalty. (1 SUPP CT 6650-6683.) On the one hand, he “agreed somewhat”with the statement that anyone whointentionally kills more than one person without legal justification and not in self defense should automatically get the death penalty; he said that he “didn’t know” if he would automatically find a special circumstancetrue in order to be able to consider the death penalty or | if he would automatically vote for the death penalty. (1 SUPP CT 6668.) On the other hand, he also “didn’t know”if he would automatically vote for | life in prison withoutthe possibility of parole and that he did not know if he had any conscientious objections to the death penalty which would impair 473 his ability to be fair and impartial in seeking the death penalty. (1 SUPP CT 6668-6669.) During voir dire he said he was “very opposed”to the death penalty, that he had been studying “that” recently and that the death penalty “bother[ed] his conscious.” (RT 7017-7018.) But, in response to the court’s question about whether his views would prevent him from imposing one of the sentences provided by the lawin this case, hereplied, “Like I say, your honor, I have no quarrel with the law. I could follow the law. But I could not say that it would not — it —-I couldn’t say it would not be against my conscious.” (RT 7017-7018.) He further stated that he would not | automatically vote for either sentence and that he wassure he could vote for either sentence in this case, depending on the evidence. (RT 7020-7021.) Despite his clear response that he could follow the law,the trial court — continued to question number 52 regarding his conscientious objections to the death penalty, until number 52 agreed that he did not think he could be “a fair judge of the penalty and vote for death if he felt it was appropriate” given the facts of this case. (RT 7021.) When specifically asked if he had religious beliefs that would “makeit difficult to sit in judgment on a case ~ like this,” number 52 replied: “As I say, I have been studying aboutit lately and from whatI learn, this is where it comes into play. Now 10 years ago I would have no quarrel with that, but since what I have learnedin the past few years, I can’t honestly say that.” (RT 7022.) The prosecution challenged number 52 for cause, arguing that number 52's answers were based on “somesort of religious enlightenment” and that his ability render a death verdict was substantially impaired by those beliefs. (RT 7022-7023.) Appellant argued that number 52's conscientious objection likely made him a “walking peremptory”for the 474 prosecution, but since he consistently indicated his willingness to follow the law, a cause challenge should not be allowed. (RT 7024.) The trial court sustained the challenge “based on the total of his answers including the quite clear one the gave about two minutes ago.” (RT 7024.) 2. A Prospective Juror In A Capital Case May Not Be Excused For Cause Based On Opposition To The Death Penalty Unless The Voir Dire Affirmatively Establishes The Juror Will Not Follow The Law Or Consider Death As An Option Asnoted above, this Court has held that reviewing courts must apply | the Adams/Witt standard in evaluating a trial court’s decision to discharge jurors because of opposition to the death penalty. (See, e.g., People v. Holt (1997) 15 Cal.4th 619, 650.) As also noted above, under Adams a prospective juror who opposescapital punishment may be discharged for cause only wherethe record showsthe juror is unable to follow the law as set forth by the court. (Adams v. Texas, supra, 448U.S.at p. 48.) Witt establishesthat if the State seeks to exclude a juror under the Adams ‘standard, it is the State’s burden to prove the juror meets the criteria for dismissal. (Wainwright v. Witt,supra, 469 U.S. at p. 423.) With all due respect, this Court has taken a wrong turn. In applying these cases, the Court has held that where the record shows a prospective juror is equivocal abouthis or her ability to vote for death, (1) a trial court may decide to discharge the juror and (2) that decision is binding on the reviewing court. (See, e.g., Peoplev. Mincey, supra, 2 Cal.4th at p. 456; People v. Breaux, supra, 1 Cal.4th at pp. 309-310; People v. Frierson (1991) 53 Cal.3d 730, 742; People v. Cox, supra, 53 Cal.3d at p. 646.) Ultimately, these casesall rely for this proposition on People v. Ghent, ~ supra, 43 Cal.3d at p. 768. In turn, Ghent relied on People v. Fields (1984) 475 35 Cal.3d 329 at 355-356 for this proposition, whichitself relied on this Court’s 1970 decision in People v. Floyd (1970) 1 Cal.3d 694 at 724. Whatthis history showsis that the current rule which the Court applies — holding that a trial court may rely on a prospective juror’s equivocal responses to discharge that juror in a capitalcase -- is based ona 1970 precedent which pre-dates the Adamscase by nearly a decade. In fact, an analysisof the actual voir dire in Adams, as well as in cases the Supreme Court has decided since Adams, showsthat the United States Supreme Court embraces precisely the opposite rule. In this regard, in addition to modifying the Witherspoon standard, Adams went on to apply the modified standard to several prospective jurors. Ultimately, Adams held that a numberofthese jurors had been improperly excused for cause in that case, precisely because the State had not carried its burden of proving that the jurors’ views “would prevent or substantially impair the performanceof[their] duties as . . . juror[s] in accordance with [their] instructions and [their] oath.” (Adams v. Texas, supra, 448 U.S.at p. 45.) An analysis of the voir dire of several of these jurors showsthat this Court’s rule deferring to trial court’s treatment ofjurors who give equivocal responses is fundamentally contrary to Adams. The voir dire in Adams involved several jurors who were equivocal about whether their penalty phase deliberations would be affected by the fact that death was an option. For example, prospective juror Francis Mahon was unable to state that her feelings about the death penalty would not impact her deliberations. Instead, she admitted that these feelings “could effect me and | really cannot say no, it will not effect me, I’m sorry. I cannot, no.” (Adams v. Texas, No. 79-5175, Brief for Petitioner, 476 Appendix (“Adams App.”) at p. 3, 8.)'*° Prospective juror Nelda Coyle . expressed the same concern. She too was equivocal whenaskedif her feelings about imposing the death penalty would affect her deliberations. (Adams App.at p. 23-24.) She too admitted she was unable to say her deliberations “would not be influenced by the punishment... .” (Adams App.at p. 24.) | Similarly, prospective juror Mrs. Lloyd White was not entirely sure, but believed her aversion to imposing death would “probably”affect her deliberations. (Adams App. at pp. 27, 28.) She “didn’t think” she could vote for death. (Adams App. at pp. 27-28.) Prospective juror George Ferguson admitted that opposition to capital punishment “might” impact his deliberations, while prospective juror Forrest Jenson admitted that his views on the death penalty would “probably”affect his deliberations. (Adams App.at p. 12, 17.) | : In connection with each of these five jurors expressing equivocal comments,the trial court resolved the ambiguity in the State’s favor, discharging them all for cause. Significantly, the Supreme Court did not defer to any of these five conclusions; instead, the Court ruled that the record contained insufficient evidenceto justify striking any of these jurors for cause. (448 U'S. at pp. 49-50.) The Supreme Court held that jurors | could not be discharged “because they were unable positively to state whetheror not their deliberations would in any way be affected.” (448 U.S. at pp. 49, 50.) In other words, when a juror gives conflicting or equivocal responses-- as did jurors Mahon, Coyle, White, Ferguson and Jenson in '° The Appendixto Brief of Petitioner in Adamsis a transcript of the voir dire examination of prospective jurors. 477 Adams-- the trial court is not free to simply assume the worst and discharge the jurors for cause. The reasonis simple; whena prospective juror gives equivocal responses, theState has not carried its burden of proving that the juror’s views would “prevent or substantially impair the performance ofhis duties asa juror....” (Adams v. Texas, supra, 448 U.S.at p. 45.) Seven years after Adams the Supreme Court addressed this same issue, again holding unconstitutional trial court’s exclusion of a juror who __ had been equivocal about her ability to serve. (See Gray v. Mississippi, supra, 481 U.S. 648.) There, defendant was charged with capital murder. During voir dire, prospective juror H.C. Bounds was questioned. According to the state supremecourt, this voir direwas “lengthy and confusing” and resulted in responses from Ms. Bounds which were “equivocal.” (Gray v. State (Miss. 1985) 472 So.2d 409, 422.) As the actual voir dire shows,the state supreme court’s characterization was entirely correct. Whenaskedif she had any “conscientious scruples” against the . death penalty, Ms. Boundsreplied “I don’t know.” (Gray v. Mississippi, No. 85-5454, Joint Appendix at 16.) When asked if she would automatically vote against imposition of death, she first explained she would “try to listen to the case” and then-respondedthat “I don’t think I would.” (/d. at p. 17, 18.) When pressed by the trial court to committo a | position, she agreed that she did not have scruples against the death penalty _ where it was “authorized by law.” (Jd. at p. 18.) But whendirectly asked by the prosecutor whether she could vote for death, she said “I don’t think I could.” (Ud. at p. 19.) The prosecutor movedto strike Ms. Bounds for cause. Thetrial court noted that “I don’t know whethershe could or couldn’t [vote for 478 death]. She told me she could, a while ago.” (/d. at p. 20.) Seeking to ~ resolve this, the court asked Ms. Bounds whether she could vote for the death penalty and she responded“I think I could.” (Ud. at p. 22.) When the prosecutor again challenged Ms. Bounds,the trial court found that “she can’t make up her mind.” (/d. at p. 26.) The trial court then resolved the ambiguity by discharging Ms. Boundsfor cause. | Before the United States Supreme Court, the State “devoted a significant portion ofits brief to an argument based on the deferencethis Court owesto findings of fact made bya trial court.” (Gray v. Mississippi, supra, 481 U.S.at p. 661, n.10.) In fact, the State explicitly made the very argument this Court has repeatedly embraced, arguing that a conclusion Ms. Bounds was improperly excused for cause “refuse[s] to pay the deference due thetrial court’s finding that juror Bounds was not qualifiedto sit as a juror.” (Gray v. Mississippi, No. 85-5454, Respondent’s Brief at 15-16.) Noting that the trial court found Ms. Bounds to have given equivocal _ responses, and that“the trial judge was left with the definite impression that juror Bounds would be unable to faithfully and impartially apply the law,” the State urged the Supreme Court to give the trial judge’s conclusion “the deference that it was due....” (dd. at pp. 22, 23.) In his reply,petitioner conceded that Ms. Bounds had “equivocated”in her responses, but argued that under this circumstance “the prosecutor, the party that requested Mrs. ' Bounds’s excusal, had notcarried its burden.” (Gray v. Mississippi, No. 85-5454, Petitioner’s Reply Brief at 22.) | Of course, the State’s position in Gray represents the precise view this Court adopted in 1970. (People v. Floyd, supra, 1 Cal.3dat p. 724.) Asnoted above,it is a view this Court has continuedto follow since F.loyad. (People v. Mincey, supra, 2 Cal.4th at p. 456; People v. Breaux, supra, 1 479 Cal.4th at pp. 309-310; People v. Frierson, supra, 53 Cal.3d at p. 742; People v. Cox, supra, 53 Cal.3d at p. 646; People v. Ghent, supra, 43 Cal.3d at p. 768; People v. Fields, supra, 35 Cal.3d at pp. 355-356.) Significantly, however, it is also the same position the Supreme Court rejected, not only inAdams, but in Gray as well. Just as Adamsdid, Gray rejected the State’s arguments that (1) the trial court wasfree to discharge equivocal jurors for cause and(2) a reviewing court was required to pay deference to such a discharge. In fact, not only did the Supreme Court refuse to afford any deferenceto thetrial court’s finding in Gray, but it concluded that the discharge of prospective juror Boundsviolated the © federal constitution. (Gray v. Mississippi, supra, 481 U.S.at p. 661, n.10.) As the Court held, “the trial court was not authorized . . to exclude venire member Boundsfor cause.” (Ibid.) The treatment of equivocal jurors in both Adams and Gray was compelled by developments in the high court’s capital case jurisprudence. In the years between the Court’s landmark decision in Furman v. Georgia (1972) 408 U.S. 238 andits later decisions in Adams and Gray, the Court repeatedly recognized that death was a unique punishment, qualitatively different from all others. (See, e.g., Gregg v. Georgia (1976) 428 U.S. 153, 181-188; Woodson v. North Carolina, supra, 428 U.S. at p. 305; Gardnerv. Florida, supra, 430 U.S. at p. 357; Lockett v. Ohio, supra, 438 USS.at p. 604; Beck v. Alabama, supra, 447 U.S.at p. 638.) Relying on this fundamental premise, the Court held there was a corresponding need for procedures in death penalty cases whichincreasethereliability of both the guilt and penalty phase processes. (See, e.g., Beck v. Alabama, supra, 447 U.S. 625; Gardner v. Florida, supra, 430 U.S.at p. 357.) 480 Asthe Court later recognized,the rule set forth in Adams“dealt with the special context of capital sentencing, where the range ofjury discretion necessanily gave rise to... great[] concern overthe possible effects of an . ‘imbalanced’ jury.” (Lockhart v. McCree, supra, 476 U.S.at p. 182.) The rule in Adams -- designed to minimize the risk of an “imbalanced jury”-- was appropriate precisely becauseof “the discretionary nature of the [sentencing] jury’s task [in a capital case].” Cd. at p. 183.) In fact, the Court specifically noted that the Adams rule would not apply “outside the special context of capital sentencing.” (Ibid.) In other words, howeverthe standard of proof for a cause challenge is properly applied in non-capital cases (where the jury is simply makinga . binary determination offact), the standard applied in capital cases 1s different. In the “special context of capital sentencing” -- where the jury is making a largely discretionary decision as to whether a defendant should live or die -- there is a greater concern over the impact of an “imbalanced jury” on the reliability of the judgment, as well as with ensuring that the State not seat juries predisposed to a death verdict. Accordingly,in both Adamsand Gray, the Supreme Court made clear that when a prospective capital-case juror gives equivocal responses, the State has not carried its burden ofproving that the juror’s views would “preventor substantially impair the performanceofhis duties as a juror.” (Adams v. Texas, supra, 448 US.at p. 45.) In light of the actual voir dire in both Gray and Adams, this Court must reconsider the 1970 precedent which formsthe basis for the rule currently applied in all California capital cases. The current California rule — which permits the State to satisfy its burden of proofby eliciting equivocal answers from prospective jurors — cannot be squared withthe rule 431 applied in either Adamsor Gray, or the Eighth Amendment developments on which they were based. | The difference between the tworules is important in this case. Applying the actual Adams standard(in light of its application) to the voir dire of number 52 compels a finding that the trial court in this case erred. Prospective juror number 52 expressed somelevel of concern that his views on the death penalty would affect his deliberations. As discussed above, however, the teaching ofAdams and Gray is that a prospective juror’s equivocal or contradictory responses do notsatisfy the State’s burden of proving impairment. Absent an affirmative showing that a juror’s views would either preclude death as an option, or otherwise prevent him from | following the law, the juror may notbe excluded for cause. Indeed, a comparison of the responses of prospective juror number 52 with the jurors held to have been improperly excluded in Adams removesany doubtthat his exclusion in this case was improper. | 3. Prospective Juror Number 52 Was Not Substantially Impaired under Adams/Witt Number 52’s responses during voir dire reflected in large part nondisqualifying opposition to the death penalty and a willingness to follow the law. However, he did say he did not think he would impose the death penalty in this case; to that extent, his views mirrored those of prospective juror White in the Adams case. Just like White, number 52 did not think he could consider deathas an option. (Compare RT 7021 with Adams App.at pp. 27-28.) Like White, number 52 should not have been excluded. Once again, the Sixth Amendment does not permit for-cause exclusion ofjurors because they are “unable positively to state whether or not their 482 deliberations would in any way be affected.” (Adams v. Texas, supra, 448 USS.at p. 50.) A comparison between prospective juror McDonald from Adams and number 52 further establishes thattrial court erred. Prospective juror McDonald said that although she could consider death in a “very, very aggravated case,” she would not vote for death in a case involving murder of a police officer -- the exact crime for which defendant was ontrial in that case. (Adams App.at p. 42.) She was unable to guarantee that she could set aside her feelings in deliberations. (App. at p. 48.) In this situation too the Court held discharge was improper because McDonald was “unable positively to state whether or not their deliberations would in any way be affected.” (Adams v. Texas, supra, 448 U.S. at p. 50.) Ifthe McDonald voir dire in Adams wasinsufficient to uphold a discharge, the same result is compelled with respect to number 52in this case. In short, the voir dire responses of number 52 evidenced no disqualifying bias under the law. Number 52 affirmatively stated he could follow the law in this case despite his reservations about the death penalty. (RT 7017-7022.) Because this juror merely gave, after very suggestive questioning by the trial court, one equivocal response abouthis ability to serve, the State did not carry its burden justifying its cause challenge, and the exclusion of number 52 thus violated the Sixth, Eighth and Fourteenth Amendments. As noted above,the erroneous granting of even a single challenge for cause requires reversal. (Gray v. Mississippi, supra, 481 U.S. at p. 660; People v. Heard, supra, 31 Cal.Ath at p. 966.) Appellant’s jadgment of death must be reversed. Further,the unlawful exclusion of a prospective juror who is opposedto capital punishmentconstitutes | structural error resulting in automatic reversal of the guilt phase as well, 483 because the error infects the entire trial process. (Brecht v. Abrahamson, supra, 507 U.S.at pp. 629-630; Arizona v. Fulminante, supra, 499 U.S.at p. 310.) | C. Because The Voir Dire Of Prospective Juror Number 204 Established That Her Position On The Death Penalty Would Neither Prevent Nor Substantially Impair Her Ability To Follow The Court’s Instructions, Apply The Law To The Facts, Or Impose A Sentence Of Death, The Trial Court Committed Reversible Error Discharging Her _ For Cause 1. The Voir Dire of Prospective Juror Number 204 Prospective juror number 204 was a 66-year-old retired secretary - from Santa Monica. (RT 1 SUPP CT 4272.) In her questionnaire she said she was against the death penalty in part becauseshefelt it hadlittle deterrent effect and becauseshe did not like violence; she further stated that she could imposethe death penalty if she found it appropriate after hearing all of the evidence, and indicated that she would not automatically vote either for or against the death penalty if the defendants were convicted of a capital crime. (1 SUPP CT 4288-4292.) During voir dire she repeated her opposition tothe death penalty, and repeated that she could rendera death verdict in a case “if she had to [.. . .] If the facts were there.” (RT 7388- 7389.) Shesaid that she could not really see herself voting for death in a case, but said she would try to be fair in this case, and believed that she could succeed in being fair in this case, and that she could render a death verdict, although she believed that “would be very difficult” to do. (RT 7391.) Whenspecifically asked if she could vote for the death penalty in this case, as opposed to some hypothetical case, she said that she could do so. (RT 7392.) Thetrial court asked her to explain how “difficult” she would find it to impose the death penalty and askedherif it would be “asif 484 you wereliterally pulling the trigger on somebody?” (RT 7393.) She agreed, and also agreed that she could neverpull a trigger on someone, and agreed to the leading question of whether she would equate serving on a penalty case with that situation. (/bid.) However, she also agreed that her guilt phase vote would notbe influenced by the fact that her vote would determine whether there was a penalty phase, and she said she understood the evidence she would have to consider inorder to determine penalty. (RT 7395.) | | Thetrial court remained unsatisfied, and categorized her answers as “tentative” and if she could look someonein the eye andtell them that she had sentencedthem to death; she replied in the negative. (RT 7395-7396.) The court then invited a stipulation from counsel. (RT 7396.) Instead, counsel for Wheeler argued the court’s questioning had determined only that number 204 would not wantto look a defendantin the eye and sentence them to death, and noted that the court’s question in that regard seemed to overwhelm the prospective juror. (RT 7396-7397.) Counsel argued the questioning showed that number 204 was opposed to the death penalty, but could impose that sentence if the law so required. (RT 7397.) The prosecution challenged the juror for cause, appellant joined in the objection, and the trial court sustained the challenge without further questioning or comment, (RT 7397-7398.) | 2. — Prospective Juror Number 204 Was Not Substantially Impaired under Adams/Witt Prospective juror number 204 stated that: she was philosophically opposed to the death penalty; she believed it would be difficult to impose a death sentence, but that she could do so; despite her opposition to the death penalty, she would consider imposingit “if the facts were there.” (RT 485 7388-7389.) While she said she could “not really” envision herself - decidingto vote for death generally (RT 7391), when asked if she could vote for death in this case and not some hypothetical case, she said she could do so. (RT 7392.) Again, facts of this case suggest the reasonfor the discrepancy: oneofthe victims was an infant. In responseto very leading and provocative questioning from thetrial court, prospective juror number 204 agreed that she could not imagine herself pulling a trigger on an other human being (RT 7393) andthat she did not wantto look the defendants in the eye when sentencing them to death. (RT 7395.) However, the inability to do either of those things is not legal grounds excluding a juror based on substantial impairment under Adams and Witt. And herstated inability to do either of those things simply does not subtract from herstated ability to follow the law in this case and impose the death penalty if the evidence so warranted. Because a prospective juror in a capital case may not be excused for cause based on opposition to the death penalty unless the voir dire affirmatively establishes that juror will not follow the law or consider death as on option,the trial court erred discharging prospectivejuror number 204 for cause and thus violated the Sixth, Eighth and Fourteenth @ Amendments. As noted above, the erroneous granting of even a single | challenge for cause requires reversal. (Gray v. Mississippi, supra, 481 U.S. at p. 660; People v. Heard, supra, 31 Cal.4th at p. 966.) Appellant’s e judgment of death must be reversed.: Hf Hf @ 486 XXII THE TRIAL COURT VIOLATED APPELLANT’S SIXTH, EIGHTH AND FOURTEENTH AMENDMENTRIGHTS, AND COMMITTED REVERSIBLE ERROR, BY APPLYING A MORE LENIENT DEATH-QUALIFICATION STANDARD TO PROSECUTION THAN DEFENSE CHALLENGES TO PROSPECTIVE JURORS A. Introduction In Wainwright v. Witt, supra, 469 U.S. 412, the United States Supreme Court madeclear that a prospective juror in a capital trial may be excluded for cause whenhis or her views on capital punishment would “prevent or substantially impair the performanceofhis duties as a juror in accordance with his instructions and his oath.” (Ud. at p. 424.) In essence, the Witt court held that challenges for cause based upon a juror’s views regarding capital punishment were to be governed by the samestandard as any challenge for cause of a juror in a criminal case. (/d. at pp. 423-424.) Logic and fundamentalfairness dictate that this standard must apply as well to defense challenges for cause of any juror whose viewsin favor of the death penalty “prevent or substantially impair the performanceofhis duties”as well as to prosecution challenges to jurors whose views against the death penalty likewise prevent or substantially impair the performance of their duties. (Cf. Ross v. Oklahoma, supra, 487 U.S. 81, 85.) Application of a lesser standard to pro-death jurors would produce “a jury ‘uncommonly willing to condemn a manto die”(Witherspoon v. Illinois, | supra, 391 U.S.at pp. 520-521), in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. In People v. Coleman (1988) 46 Cal.3d 749, this Court essentially held that the standard for deciding challenges for cause on death- qualification applies equally to the prosecution and defense: 487 Although neither Witherspoon, supra, 391 U.S. 510, nor Witt, supra, 469 U.S. 412, on its face concerns exclusion of a prospective juror for cause dueto his or her view favoring the death penalty, we think Witt makesclear that a challenge onthe basis of bias meeting the Witherspoon standard is no different from any other challenge for cause, wherethetrial court is asked to determine whether the juror lacks impartiality on an issue relevant to the case. (See Witt, supra, at p. 423.) When the adversary seeking exclusionis the People, and the basis for exclusion is an inability to conscientiously consider all of the sentencing alternatives, Witt offersparticular guidance as to when the People have shownthat partiality. We conclude that the same standard of partiality would also have to be shown when the defendant asks the state to exclude aprospectivejurorfor cause, based on a view of the death penalty. A defendant seeking to exclude a prospective juror for cause, based on the person’s viewsof the death penalty, must therefore demonstrate that those views “would prevent or substantially impair the performanceofhis duties as a juror in accordance with his instructions and his oath... .” (Witt, supra, 469 U.S.at p. 424; see also Ross v. Oklahoma[, supra] [applying Witt in such a case].)’” . (46 Cal.3d at p. 765 [emphasis added].) Application of the same standard to both “pro-death” and “pro-life” jurors should producea similarity in result where jurors with equal difficulties vis-a-vis particular penalties are challenged. Evidencethat the court below treated pro-death jurors more leniently than pro-life jurors — 1e., excusing pro-life jurors who exhibited no more bias than did pro-death jurors whom the court retained — would compel the conclusionthatthetrial court’s rulings employed an unacceptable double standard, requiring appellant to be tried by a jury “uncommonlywilling to condemn [him]to die.” (Witherspoon, supra, 391 U.S.at p. 521.) 488 _ Areviewof the voir dire of the relevant jurors clearly reveals just such a double standard in the instant case and compels the conclusion that appellant’s jury was selected by procedures which violate the Sixth, Eighth and Fourteenth Amendments. B. The Excusal Of “Pro-Life” Jurors The voir dire of three of the “pro-life” jurors excused by the court upon prosecution challenge — i.e., numbers 52, 56 and 204 — is reviewed in Argument XXI, ante, and is incorporated by referenceat this point. C. The Refusal to Excuse “Pro-Death” Jurors A review of the voir dire of the relevant “pro-death”jurors follows: 1. Prospective Juror Number 82 In his questionnaire, number 82 indicated that he “strongly agreed” that anyone whointentionally kills more than one person should automatically get thedeath penalty; and that he would automatically vote for the death penalty “if the circumstances are multiple murders.” (1 SUPP CT 3067.) Additional answersin his questionnairereflect his strong support for the death penalty. (1 SUPP CT 3065-3068.) In voir dire, both the prospective juror and the trial court took great painsto articulate a reason other than prejudgmentfor the juror’s expressed intent to sentence all multiple murders to death, regardless of the evidence. (RT 6733-6736.) In the end, number 82 said he wouldfollow the court’s | instructions and that he could vote for either penalty. (RT 6736, 6820.) After the prosecution’s challenge to prospective juror number 56 was sustained (see Argument XXI, ante), the defense reopened their challenge for cause as to prospective juror number 82. Counsel arguedthatthetrial court sustainedthe challenge as to number 56, despite her in-court answers that she would in this case follow the law and be opento either penalty, 489 ee because the court determined that her answers in her questionnaire indicated otherwise. (RT 6852.) Counsel argued that if the court sustained the prosecution’s challenge because a juror’s in-court answers were - contradicted by answers in his or her questionnaire, then the court must sustain the defense challenge to prospective juror number 82. (RT 6853- 6854.) The court disallowed the defense challenge, relyingon “the sum total of responses, demeanor, appearance, et cetera, of the juror while answering questions.” (RT 6854-6855.) The court found number 82’s - answers “quite rational,” unlike yuror number56’s answers. (RT 6855.) The defense used a peremptory challenge to remove number82 from the jury. (RT 6918.) 2. Prospective Juror Number80 | In her questionnaire, prospective juror number80said that “If someone kills someone kills someone,I think he ought to get the death penalty.” (1 SUPP CT 3031.) She thought the death penalty was not used enough,that it was warranted “if you have been proven [sic] without a | doubt that they killed someone,” and thatif “they tooka life,theirlife should be taken.” (1 SUPP CT 3032-3033.) She reiterated her belief in an e “eye for an eye” when she wrote in that phrase on the lines provided for explaining why she “strongly agreed”that “anyone whointentionally kills more than one-person without legal justification and not in self-defense ®@ should automatically get the death penalty. (Ibid.) In voir dire, and after listening to the court’s questions of numerous prospective jurors, juror number 80 changed her answers from thosein her e questionnaire, stating that the changes werein part due to the fact she was in a hurry to finish it and in part because she did not understand the questions. (RT 6863-6864.) e 490 The defense challenged her for cause, arguing that, the reasoning used bythe trial court to excusing prospective juror number 56 applied to number 80, in that her answers in her questionnaire contradicted her in- court answers, given after being educated as to the “correct” answers through the voirdire process. (RT 6870-6872.) Counsel argued that herin- court answersbelied her beliefs as stated in the questionnaire: she clearly indicated several times in her questionnaire that she believed anyone who kills someone ought to receive the death penalty, regardless of the evidence, and that those responsesindicated “a deep-seeded impairmenton herpart to impose the death penalty across the boardin all murder cases.” (RT 6871.) 7 Thetrial court disallowed the challenged, ruling: She is what I would call a supporter of the death penalty law, no question about that. And sheis a juror that probably the defense would wish to utilize a peremptory challenge on. But in terms of cause, she is not indicating, even in the answersthat you point out, that she would automatically vote a certain wayor that she is strongly favoring a particular route in this “case. It is different asking somebodyif they think what purpose does a death penalty serve and we have one and whyand then ask them let’s talk about this case and what you are going to do. Insofar as her answerson this behavioron this particular case, both her questions and her answers in court are not lending credence to the idea that she will automatically proceed in a particular way. (RT 6873-6874 [emphasis added].) The defense used a peremptory challenge to remove number 80 from the jury. (RT 6954.) 491 AARTtA D. The Court Treated “Pro-Life” And “Pro- Death” Jurors Disparately In Ruling On Challenges For Cause A careful and objective review of the voir dire of all of the above- cited prospective jurors plainly reveals the court’s unfairly disparate treatment of those jurors challenged by the defense vis-a-vis those | if challenged by the prosecution. At the outset, two general conclusions are | readily apparent and highly significant. | First, whilethe trial court nominally applied the standard of | « Wainwright v. Witt, the courtinfact applied two different standards: (1) : with regard to two jurors who demonstrated a strong bias against the lesser sentence of life imprisonment withoutthe possibility of parole, the court | e found them acceptable unless they said that they would “automatically” vote for the death penalty; (2) with regard to the three jurors who demonstrated a strong bias against imposition of the death penalty, but who e said they would not automatically vote for the lesser sentence, the trial court nonetheless found them unfit. Clearly, pro-life jurors who were “relatively marginal,” gave “contradictory” answers, may not have fully understood the questioning, or wouldlikely be subject to other challenges later on, did not ° pass this trial court’s peculiar and uneven application of the Witt standard, while pro-death jurors with identical or substantially similarqualities did pass muster. Appellant submitsthat thetrial court’s erroneoususe of a ° double standard in evaluating and ruling upon defense and prosecution ‘challenges for cause, whetherit acted to improperly exclude qualified pro- e life jurors or to improperly include unqualified pro-death Jurors, intolerably distorted the entire death-qualification process and thereby prejudicially violated appellant’s Sixth, Eighth and Fourteenth Amendment rights. (See 492 Gray v. Mississippi, supra, 481 U.S. 648, 664-668; compare Ross v. Oklahoma, supra, 487 U.S.at p. 91, fn. 5.) The exercise of peremptory challenges wasinsufficient to adequately counter the effect of the trial court’s error. As in Gray, supra, where qualified jurors were erroneously stricken from the jury, “the relevant inquiry is ‘whether the composition ofthejury panel as a whole could possibly have been affected by the trial court’s error.’” (481 U.S.at p. 665 [citation omitted]; original emphasis.) In the instant case, the trial court’s fundamentally inconsistent and unfair treatment of defense and prosecution challenges so adulterated the jury selection process as to completely distort the composition of the jury panel (see Morganv.Illinois, supra, 504 U.S.at pp. 735-736), depriving appellant of any reasonable confidence that the jury wastruly a fair cross-section of | the community rather than a jury “organized to return a verdict of death.” (Witherspoon, supra, 391 U.S. at pp. 521-522.) Reversal of the death judgmentis therefore compelled. (Gray v. Mississippi, supra, 481 U.S.at p. 668; see Morganv.Illinois, supra, 504, U.S.at p. 739, citing Turner v. Murray, supra, 476 U.S. at p. 37.) Further, the denial of appellant’s constitutional rights as set forth above constitutes structural error resulting in automatic reversal of the guilt phase as well, becausethe error infects the entire trial process. (Brecht v. Abrahamson, supra, 507 US. at p. 629-630; Arizona v. Fulminante, supra, 499 U.S.at p. 310.) . // // 493 _ XX THE TRIAL COURT ERRED IN ALLOWING THE JURY TO CONSIDER IMPROPER AGGRAVATING CIRCUMSTANCES The trial court committed several statutory and constitutional errors in admitting and instructing upon evidence in aggravation at the penalty phase. First, the court erroneously admitted evidence that appellant | allegedly solicited two prior attempted homicides as factor (b) evidence despite the prosecution’sfailure to corroborate accomplice testimonythat — appellant was involved in each act, and thenfailed to instruct correctly on the need for corroboration of accomplice testimonypriorto the jury’s consideration of such testimony. Second, the court delivered an instruction to the jurors that essentially directed them to find that such evidence constituted a crime. Third, the court delivered an instruction to the jurors that erroneously allowed them to consider the facts and circumstances underlying appellant’s prior non-violent felony conviction as factor (b) evidence. These evidentiary and instructional errors regarding the consideration of aggravating evidence violated appellant’s Sixth, Eighth and Fourteenth Amendmentrights and, whether considered individually or in combination, require reversal of the death judgment. ‘A. The Trial Court Erred In Refusing To Strike The Evidence Presented In Aggravation Against Appellant Asset forth in the Statement of Facts, ante, at the penalty phase the prosecution presented evidence that attempted to show that: (1) appellant took part in hiring Walter Comptonto kill Sofinia Newsome, who was a witness to the Ken Gentry shooting; and (2) David Hodnett was hired by appellant to shoot Clarence Johnson. 494 With regard to the Newsomeincident, Walter Comptontestified that appellant told Compton he wanted Sophinia Newsome, a woman who was speaking to police about the KenGentry homicide, killed. Hetestified that Jeff Bryant gave Compton a gun and a getawaycar and said he would pay _ Compton $10,000 if he carried out that plan. (RT 17587-17590.) Compton ultimately backed out of the plan and instead was himself arrested for. possessing the handgun. (RT 17591-17593.) With regard to the Johnson shooting, the prosecution called David Hodnett, who admitted that he shot Johnson, but said he did so for personal reasons. (RT 17619-17625.) Detective Vojtecky testified that he arrested Hodnett for the Johnson shooting; that Hodnett told him that Jeff Bryant had hired him to shoot Johnson; and that appellant also was involved. (RT 17679-17681.) Hodnett pled guilty shooting Johnson, who survived, and while in prison Hodnett received thousands of dollars from appellant. (RT 17633-17634, 17683.) Appellant movedto strike both incidents from the jury’s consideration, arguing that the prosecution failed to corroborate the _ testimonyofthe accomplice witnesses to both incidents. (RT 18402.) The prosecution conceded that Compton and Hodnett were accomplices as a matter of law (RT 18107), but argued that Compton was corroborated by: (1) the taped statement of Andre Armstrong, in which he claimed appellant told Armstrong appellant would “take care” of witnesses to the Ken Gentry shooting; (2) similar attempts to silence witnesses to the Gentry shooting by bribing them; and (3) Ladell Player’s statement, introduced through DDA Maurizi, that if appellant had a problem with someone, he would smile, shake their hand, and then have them killed. (RT 18106-18107.) With regard to the Johnson shooting, the prosecution argued 495 appellant’s payments to Hodnett while Hodnett was in prison corroborated appellant’s involvementin the Johnson shooting. (RT 18403.) Thetrial court ruled that there was sufficient corroboration asto the Johnson shooting, but found it a close case as to the Newsomeincident. (RT 18404.) The court had stated several times during the penalty phase that it did not see evidence of corroboration as to the solicitation to kill or the attempted murder of Newsome. (RT 17937-17941, 18109-18111.) The trial court nonetheless denied appellant’s motionto strike, ruling that the following evidence established appellant’s involvementin the hiring of Compton: the obtaining of the firearm, the fact that Compton wentto the location, and the lack of evidence that appellant called off the crime. (RT 18403-18404.) Thetrial court was incorrect with regard to both aggravators: neither was admissible because there was no evidence, independentofthe testimony of an accomplice, that tended to connect appellant with the commission of the offense. (See, e.g., CALJIC No.3.11.) With regard to the Newsomeincident, the trial court seemed to be focused on whether there was independentevidencethat the crime occurred, rather then that appellant took part in that crime. There was none. The only evidence proffered bythe prosecution of appellant’s alleged involvementin the solicitation to kill Newsome wasthe taped statement of Armstrong, which appellant has shown wasinadmissibleat trial (see Argument IX, ante, incorporated by reference herein), and the statement of Player described above. Thelatter statementattributed to appellant, which appellant also argues was inadmissibleattrial (see Argument VII, ante, incorporated by reference herein)was clearly insufficient to prove any “crime”other than nefarious boastfulness. 496 With regard to the Johnson shooting, evidence that appellant sent Hodnett money while Hodnett was serving his prison sentence for the shooting may very well evidence that appellant was involved in paying off Hodnett after the fact, but it does not establish that it was appellant who solicited the crime. There simply was evidence, absent Hodnett’s statement, that appellant was that person. At the penalty phase of a capital case, the jury is directed to consider evidence “of criminal activity by the defendant which involvedthe use or attempted use of force or violence or the express or implied threat to use force or violence.” (§ 190.3, factor (b).) This Court has consistently held “that evidence of other criminal activity” under factor (b) “must be limited to evidence of conductthat demonstrates the commission of an actual crime, specifically, the violation of a penal statute.” (People v. Phillips (1985) 41 Cal.3d 29, 72; accord, e.g., Peoplev. Wright (1990) 52 Cal.3d - 367, 426.) Because of the requirement of reasonable-doubtinstructions for proof of uncharged chargesat the penalty phase (see People v. Robertson. (1982) 33 Cal.3d 21, 53-55), the trial court may “not permit the penalty jury 66666to consider an uncharged crime as an aggravating factor unless a ““““rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’” (People v. Boyd (1985) 38 Cal.3d 762, 778, quoting Jackson v. Virginia, supra,443 U.S. at pp. 318-319, and People v. Johnson (1980) 26 Cal.3d 557, 576.) Under these standards,thetrial court erroneously denied appellant’s motionto strike evidence relating to the Newsomeor Johnsonincidents due to the prosecution’s complete failure to corroborate the testimony ofthe accomplice witnesses who implicated appellant. 497 The trial court’s error was compoundedbyits failure to instruct correctly on the need for corroboration of an accomplice’s testimony. The trial court instructed the jury as follows: In determining whether an accomplice has been corroborated, you mustfirst assume the testimony of the accomplice has been removed from the case. You must then determine whetherthereis any remaining evidence which tends to connect the defendant with the commission of the crime, the testimony of the accompliceis not corroborated. If there is such independent evidence which you believe, then the testimony of the accomplice is corroborated. (RT 18436-18437.) The instruction should have read: In determining whether an accomplice has been corroborated, you mustfirst assume the testimony of the accomplice has been removed from the case. You must then determine whetherthereis any remaining evidence which tends to connect the defendant with the commissionofthe crime alleged. Ifthere is not such independent evidence tending to connect defendantwith the commission ofthe crime, the testimony of the accomplice is not corroborated. If there is such independent evidence which you believe, then the testimony of the accomplice is corroborated. . (CT 15834 [omitted words emphasized].) The erroneous instruction _ essentially guaranteed that the jury did not understandits obligation to find the testimony of an accomplice corroborated by independent evidence prior to considering the alleged act as a factor in aggravation. The failure to correctly instruct on the requirement of corroboration denied appellant due process anda reliable judgment of death. (U.S. Const., Amends. V, VIII | and XIV.) Absent aggravating evidence complained of herein, the prosecution would have had no additional aggravating evidence against appellant other than the facts of the crime and alleged other crimes evidenceintroduced at the guilt phase. Appellant was not the actual shooter in this case. Given 498 that the jury clearly struggled with the sentence of coappellant Smith, whom the juryclearly believed pulled the trigger on Armstrong and Brown and who had a considerable history of committing violentacts, or there was a reasonable probability that, absent the additional aggravating evidence improperly admitted against appellant, at least one juror would have decided that death was not the appropriate penalty for him. (Wiggins v. Smith (2003) 539 U.S.510, 537.) Appellant’s death judgment must be vacated. B. The Trial Court’s Instructions Erroneously Directed The Jury That Appellant Committed Prior Criminal Acts The jury wasinstructed with CALJIC No.8.87 (1989 revision), in relevant part, as follows: Evidence has been introduced for the purpose of showing that the defendant Stanley Bryant has committed the following criminalacts: [seven acts enumerated, omitted here] Before a juror may consider any of such criminal acts as an aggravating circumstancein this case, a juror mustfirst be satisfied beyond a reasonable doubt that the defendant, Stanley Bryant, did in fact commit such criminal acts. A juror may not consider any evidence of any other criminal acts as an aggravating circumstance. It is not necessary forall jurors to agree. If any juroris convinced beyond a reasonable doubtthat such criminal activity occurred, that juror may considerthat activity as a fact in aggravation. If a juror is not so convinced, that juror must not consider that evidence for any purpose. (RT 18429-18430; CT 15826.) . This instruction improperly decided against appellant the issue of whetherornothis threats violated a penalstatute under factor (b), and . thereby deprived him of a jury determination of whetherthe threat evidence was properly to be considered as aggravation. Before prosecution evidence 499 may be considered in aggravation underfactor (b), the jurors must find beyond a reasonable doubt that the defendant’s conduct constituted commission of an actual crime. (People v. Phillips, supra, 41 Cal.3d at pp. 65-72; People v. Robertson, supra, 33 Cal.3d at pp. 53-55.) Thus, the jury mustfind not only that the defendant committed a particular act and thatit involved the express or implied threat to use force or violence (§ 190.3, factor (b)), but also that the conduct “violate{d] a penalstatute.” (People v. Wright, supra, 52 Cal.3d at p. 425, original emphasis.) Appellant had a dueprocessright to be sentenced under California’s statutory guidelines that require the jury to determine the applicable aggravating and mitigating factors. (U.S. Const., Amend. XIV; see Hicks v. Oklahoma, supra, 447 U.S. at p. 346; Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295, 1300.) The instruction here violated that constitutional mandate, as well as appellant’s Sixth and Fourteenth Amendmentdue process and jury trial rights (see In re Winship, supra, 317 U.S.at p. 364 [due process “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged”]), and his Eighth and Fourteenth Amendmentright to a reliable penalty determination, by effectively creating a mandatory presumption that the threat evidence wasin fact criminal activity. By thrice using the term “such criminalacts”(or “activity”), the instruction plainly implied that theenumerated acts were in fact crimes and that the jurors did not have to decide that question. This implication was especially strong because the immediately-preceding special instruction regarding factor (c) 500 evidenceby stark contrast used the language “alleged crimes” (RT 18429; CT 15825) — even thoughfactor (c) applies to actual convictions.'** The only question the jurors were told to decide, beyond a reasonable doubt, was whether “the defendant, Stanley, did in fact commit such criminal acts.” (CT 15826.) Thus, the second sentence of the instruction focused the jurors on deciding whether appellant had “committed”the acts in question without also requiring that they find beyond a reasonable doubt that those acts were in fact criminal ones. Rather, once the jury found that appellant had committed those acts, they were to presume that they were “criminal acts”or “criminalactivity” and apply the aggravating factor against appellant. (See Francis v. Franklin, supra, 471 U.S. at p. 314 [“A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts.”]; People v. Figueroa (1986) 41 Cal.3d 714, 734 [instruction that promissory notes were “securities” underthe relevant law was tantamountto a directed verdict on that offense]; People v. Vanegas (2004) 115 Cal.App.4th 592, 598-602 [instruction requiring the jury to find “dangerousness to humanlife” upon proof of violation of basic speed law is unconstitutional].).) This “foreclosed independent jury consideration” of all of the required elements of the aggravating factor. (Carella vy. California, supra, 491 U.S.at p. 266.) “The prohibition against directed verdicts ‘includes perforce. situations in whichthe judge’s instructionsfall short of directing a guilty verdict but which nevertheless have the effect of doing so by eliminating 999other relevant considerations if the jury finds one fact to be true.’” (People '6 After appellant’s trial, CALJIC No. 8.87 was revisedto entirely eliminate use of the word “such” as a modifier to “criminal acts” or “criminal activity.” (See CALJIC No. 8.87 (6th ed. 1996).) 501 v. Figueroa, supra, 4) Cal.3d at p. 724, quoting United States v. Hayward (D.C. Cir. 1969) 420 F.2d 142, 144.) That was the precise situation here. As shown above, this Court has repeatedly found evidence of non- criminal threats inadmissible underfactor (b). However, the faulty jury instruction precluded any defenseto the allegation that appellant’sthreats — which he never disputed having “committed’— were in fact “criminal acts” or “criminal activity,” and directed the jury to infer that those allegations were true once it was inevitably provedthat appellant had committed them. The instruction therefore improperly removedthe factual issue of “criminal activity” from the jury’s consideration in violation of appellant’s statutory and constitutional due process and jury-trial rights. (See Figueroa, supra, 41 Cal.3d at pp. 725-726.) The resultant improper finding and consideration of a statutory aggravating factor denied appellanthis constitutional right to a reliable penalty determination and requires reversal of the death judgment. (See Johnson v. Mississippi (1988) 486 U.S. 578, 590; Woodson v. North Carolina, supra, 428 U.S. at p. 305.) Moreover, the mere possibility that an instruction created a mandatory presumption is federal constitutional error. (Sandstrom v. Montana, supra, 442 U.S. at p. 519.) Because the instructional error violated due process and the Eighth Amendment, at a minimum it requires reversal unless it can be shown to be harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S. at p. 24; see People v. Brown (1988) 46 Cal.3d 432, 448.) The prosecution cannot meetthis burden with respect to either the constitutionally-erroneous instruction or the constitutionally-improper consideration by the jury of appellant’s juvenile threats in the first instance. The death judgment must therefore be reversed. 502 C. The Trial Court’s Erroneous Instruction Allowed The Jury To Consider Improperly The Circumstances Underlying Appellant’s Prior Conviction At the guilt phase of appellant’s trial, the prosecution introduced evidence that appellant had been convicted of the conspiracy to possess cocaine for the purpose of sale. (RT 9730.) The overt acts admitted during appellant’s plea included: “recruiting Kenny Reauxto workin the rock house that he and Jeff Bryant were running:”offering Reaux $200 pereight hour shift for selling cocaine at 11442 Wheeler Avenue; Reaux having 137 gramsof cocaine in his possession at 11442 Wheeler Avenue on March 22, 1985, while working for appellant; and that Reaux attempting to destroy the cocaine by putting it into a crock pot containing hot cooking oil. (RT 9730.) In the penalty phase of appellant’s trial, the evidence ofthe fact of appellant’s conviction was admissible under Penal Code section 190.3, factor (c), which provided that the jury could consider in determining penalty the presence or absenceof any prior felony convictionsif satisfied beyond a reasonable doubt that such conviction(s) occurred. (CT 15820, 15825.) In its penalty phase instructions to.the jury, the trial court instructed the jury that it could consider the following factors, in relevant part, in determining which sentence to impose: (b) The presence or absence of criminal activity by the defendant, other than the crimes for which the defendant has been tried in the present proceedings, which involved the use or attempted use of force or violence or the express or implied threat to use force or violence. (c) The presence or absence of criminal activity [sic] by the defendant, other than the crimes for which the defendant has been trial in the present proceedings. (RT 18426 [emphasis added].) The jurors should have beeninstructed that they could consider “[t]he presence or absenceof any prior felony conviction [... .]” (Pen. Code, § 190.3, factor (c).) Appellant submits that the trial court’s erroneousinstruction to the jury failed to limit the jury’s consideration to the fact of appellant’s prior conviction itself, and instead allowed the jury to consider improperly the facts and circumstance of a non-violent drug crime as aggravating factors. The jury’s consideration of such non-statutory aggravation violated California law. (People v. Boyd, supra, 38 Cal.3d at p. 777; Peoplev. Tuilaepa (1992) 4 Cal.4th 569, 590.) Its use arbitrarily deprived appellant of his right to have his sentence determined without consideration of such evidencein violation of due process. (U.S. Const., Amends. V and XIV; see, €.g., Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) Moreover, the jury’s consideration of “factors that are constitutionally impermissible or totally irrelevant to the sentencing process” (Zant v. Stephens, supra, 462 U.S.at p. 885) underminedthe heightenedneedforreliability in the determination that death is the appropriate penalty (U.S. Const., Amends. V, Vill and XIV.) and requires reversal of the death judgment. (See,e.g., Johnson v. Mississippi, supra, 486 US.at p. 585.) HI /I 504 XXIV THE TRIAL COURT ERRED BY REFUSING SEVERAL DEFENSE PENALTY PHASE INSTRUCTIONS AND BY GIVING ITS OWN INCORRECT ANTI-SYMPATHY INSTRUCTIONS The trial court refused several specially-tailored instructions appellant requested that would have helpedto alleviate confusion engenderedbythe instructions that were given, and would have informed the jury about how to evaluate mitigation in this case. None of these instructions was argumentative, or contained incorrect statements of law, and they were not properly refused on either of those grounds. (See People v. Sanders (1995) 11 Cal.4th 475, 560; People v. Mickey (1991) 54 Cal.3d 612, 697 (1991).) Moreover, the instructions were offered to pinpoint appellant’s theory of the case, rather than specific evidence, and were thus proper. (See People v. Kraft (2000) 23 Cal.4th 978,1068 (2000); People v. Adrian (1982) 135 Cal.App.3d 335, 338.) Refusing to deliver the requested instructions wasreversible error. A criminal defendantis entitled upon request to instructions that either relate the particular facts of his case to any legal issue, or pinpoint the crux of his defense. (People v. Sears (1970) 2 Cal.3d 180, 190); People Vv. Rincon-Pineda (1975) 14 Cal.3d 864, 865; see Penry v. Lynaugh, supra, 492 U.S. 302.) Accordingly, “in considering instructions to the jury [the judge] shall give no less consideration to those submitted by attorneys for the respective parties than to those containedin the latest edition of... CALJIC....” (Cal. Stds. Jud. Admin., § 5.) It is equally well-established that the nght to request specially-tailored instructions appliesat the penalty phase of a capital trial. (People v. Davenport (1985) 41 Cal.3d 247, 281-283.) 505 Thetrial court’s refusal to give the instructions at issue here deprived appellant of the right recognized in the above-cited cases, as well as his rights to a fair and reliable penalty determination, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and the applicable sections of the California Constitution. A. The Trial Court Erred By Rejecting Appellant’s Requests To Instruct The Jury That The Absence Of A Mitigating | Factor Could Not Be Considered To Be An Aggravating Factor And That The Aggravating Factors Are Limited To Those Specified In The Instructions Appellant objected to the inclusion of inapplicable factors (d), (e), (f), (g), (h), (i) and (j) in CALJIC No. 8.85. (CT 15645; see CT 15820- 15821.) Appellant requested that, should the trial court overrule appellant’s _ objection and include those factors in CALJIC No.8.85, that the following paragraph be addedto that instruction: | Only those factors which are applicable on the evidence adducedattrial are to be taken into accountin the penalty determination. All factors may not be relevant and a factor whichis not relevant to the evidence in a particular case should be disregarded. The absenceofa statutory mitigating factor does not constitute an aggravating factor. (CT 15644-15645.) In refusing the defense requested instruction,thetrial court acknowledgedthat the request was supported by case law,but ruled it wasnot required to give the instruction,that it believed the instruction was not needed becausethe issues were addressed in CALJIC No.8.85, and that it would give theentire list of factors “absent a stipulation from all parties that a certain factor does not apply.” (RT 17957-17964.) Appellant also requested that the jurors be instructed that factors in aggravation are limited to those enumerated in the CALJIC No.8.85: 506 The factors in the above list which you determineto be aggravating circumstancesare the only ones which the law permits you to consider. You are not allowed to consider the other facts or circumstancesas a basis for deciding that the death penalty would be an appropriate punishmentin this case. (RT 15646-15647.) The court took ruled that the inclusion of “facts or circumstances”in the instruction renderedit an incorrect statement of law, but that it was a correct statementoflaw to instructthe jury that aggravating factors were limited to those set forth in CALJIC No. 8.85. (RT 17964- 17965.) Thetrial court nonetheless did not givethis instruction. The instructions were properto inform the jury regarding the applicable law. It is improperfor the State to argue to the jury that the lack of evidence in support of oneofthe statutory mitigating factors convertsit into an aggravating factor. (People v. Davenport, supra, 41 Cal.3dat pp. 288-290; see People v. Edelbacher (1989) 47 Cal.3d 983, 1034 [improper for state to imply that each enumeratedfactoris either aggravating or mitigating and that if not shownto be mitigating it must be considered aggravating].) Therefore, the only basis for declining to provide the instruction would be if the court was correct that an instruction pursuant to CALJIC No. 8.85 rendered.the requested instruction duplicative. It did not. Thetrial court did instruct the jury pursuant to CALJIC No.8.85. The jury was instructed as follows: In determining which penalty is to be imposed on the defendant, you shall considerall of the evidence which has been received during anypart of the trial of this case. You shall consider, take into account and be guided by the following factors, if applicable: (a) The circumstancesof the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances foundto betrue. 507 (b) The presence or absence of criminal activity by the defendant, other than the crimes for which the defendant has been tried in the present proceedings, which involved the use or attempted use of force or violence or the express or implied threat to use force or violence. (c) The presence or absence of any criminalactivity (sic), other than the crimes for which the defendant has been tried in the present proceedings. (d) Whetheror not the offense was committed while the defendant was underthe influence of extreme mental or emotional disturbance. (e) Whetheror not the victim was a participantin the defendant’s homicidal conduct or consented to the homicidal act. (f) Whetheror not the offense was committed under circumstances which the defendant reasonably believed to be a moraljustification or extenuation for his conduct. (g) Whether ornot the defendant acted under extreme duress or under the substantial domination of another person. (h) Whetherornot at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conductto the requirements of law was impaired as a result of mental disease or defect or the effects of intoxication. (i) The age of the defendantat the time of the crime. (j) Whetheror not the defendant was an accomplice to the offense and his participation in the commission ofthe offense wasrelatively minor. (k) Any other circumstance which extenuates the: gravity of the crime even thoughit is not a legal excuse for the crime and any sympathetic or other aspect of the 508 defendant’s characteror record that the defendantoffers as a basis for a sentence less than death, whetheror not related to the offense for which heis on trial. You mustdisregard any jury instruction given to you in the guilt or innocence phaseof this trial which conflicts with this principle. (CT 15820-15821.) This instruction does not convey the same information as the instruction requested by appellant. It may appearthat this instruction conveys the same information because of its language that the jury should be guided by “the following factors, if applicable” and lists the aggravating and mitigating factors. This might suggest that a jury would not be guided by factors that were absent, and thus not applicable. However,this misleading approach examinesthe instruction in isolation and apart from the overall penalty determination that the jury must make. The harm in not explicitly instructing the jurors that they cannot considerthe absence of a mitigating factor to be aggravating comes when they engage in the weighing process to determine the appropriateness of the death penalty. At that point, there is a strong likelihood that the absence of a mitigating factor will be turned into a de facto aggravating factor. CALJIC No. 8.85 does not address this concern, but appellant’s requested instruction, by explicitly pointing outto the jury this danger, would have created a safeguard against this improper method of engaging in the weighing process. Appellant sought to emphasize for the jury that there were only specific factors, if proven, that could be considered aggravating enoughto be used to warrant consideration of the death penalty. This point was madeby pointing out that no other factors than those listed could be considered in aggravation, and that the defendant’s failure to adduce evidence on mitigating factors could not be used against him. 509 Thefailure to give the requested instruction left the jury without the guidance necessary for it to properly makeits penalty assessment. Asa result, appellant was denied a reliable penalty determination, the right to be free from the arbitrary and capricious imposition of the death penalty, and the right to the heightenedprotections of dueprocess that are required in the penalty phase of a capital case. (See Godfrey v. Georgia (1980) 446 U.S. 420, 428; Beck v. Alabama, supra, 447 U.S. at p. 637-638.) B. The Trial Court Erred In Refusing Appellant’s Special Instruction Regarding The Scope and Proof Of Mitigation Appellant requested the following special instruction at the penalty phase: The mitigating circumstancesthat I have read for your consideration are given merely as examples of someofthe factors that a juror may take into account as reasons for deciding not to impose a death sentence in ths case. A juror should pay careful attention to each of those factors. Any one of them maybe sufficient, standing alone, to support a decision that death is not the appropriate punishmentin this case. But a juror should notlimit his or her consideration of mitigating circumstance to these specific factors. A juror may also consider any other circumstancesrelating to the case or to the defendant as shown bythe evidence as reasonsfor not imposing the death penalty. A mitigating circumstance does not have to be proved beyond a reasonable doubt. A juror mayfind that a mitigating circumstance exists if there is any evidence to support it no matter how weak the evidenceis. - Any mitigating circumstance may outweigh all the aggravating factors. A juror is permitted to use mercy, sympathy or sentiment in deciding what weight to give each mitigating factor. © 510 (CT 15636-15637.) Thetrial court denied appellant’s request, ruling that the requested instruction was: (1) argumentative in the sense that it did not also instruct the jury that it could vote for death if it found any one. aggravating factor substantially outweighed the mitigating factors; and (2) an incorrect statement of law inthatit “invited the jury to go forward without any guidanceas to the criteria they ought to employ.” (RT 17952- 17954.) The trial court was wrongin both respects. This instruction should have been given because it contained proper ~ statements of law. Rejecting it denied appellant his Eighth and Fourteenth Amendmentrightsto a fair, non-arbitrary and reliable sentencing determination, to have the jury considerall mitigating circumstances (see e.g., Skipper v. South Carolina (1989) 476 USS.1, 4; Lockett v. Ohio, supra, 438 U.S. at p. 604), and make anindividualized determination whether he should be executed, underall the circumstances. (See Zant v. Stephens, supra, 462 U.S.at p. 879.) Thetrial court erred in refusing appellant’s proposedinstruction in that it would have informedthe jury that each member may assign whatever weight to the factors in aggravation and mitigation each deems appropriate. This instruction was an accurate statement of law which pinpointed a crucial fact in mitigation, and should have been given. (People v. Sears, supra, 2 Cal.3d at p.190.) “The jury must be free to reject death ifit decides on the basis of-any constitutionally relevant evidence or observation that [death] is not the appropriate penalty.” (People v. Brown (1985) 40 Cal.3d 512, 540.) The jury must be given that freedom, because the penalty determination is a “moral assessmentof [the] facts as they reflect on whether defendant should be put to death.” (People v. Easley, supra, 34 Cal.3d at p. 889; People v. Haskett (1982) 30 Cal.3d 841, 863.) Since that 511 assessmentis “an essentially normative task,” no juror is required to vote for death “unless, as a result of the weighing process, [he or she] personally determinesthat death is the appropriate penalty underall the circumstances.” (People v. Edelbacher, supra, 47 Cal.3d at p. 1035.) The proposedinstruction would haveclarified for the jury the nature of the process of moral weighing in which they were to engage by demonstrating that any single factor in mitigation might provide a sufficient reason for imposing a sentence other than death. People v. Sanders, supra |1 Cal.4th at 557, noted with approval an instruction that “expressly told the jury that penalty was not to be determined by a mechanical process of counting, but rather that the jurors were to assign a weightto each factor, and thata singlefactor could outweigh all otherfactors.” (People v. Sanders, supra, 1 Cal.4th at p. 557, quoting People v. Cooper (1991) 53 Cal.3d-771, 845, emphasis added.) This Court indicated that such an instruction helps eliminate the possibility that the jury will “misapprehend[] the nature of the penalty determination process or the scope oftheir discretion to determine [the appropriate penalty] through the weighing process....” (d. at p. 557; see also People v. Anderson, supra, 25 Cal.4th at pp. 599-600 [approvingan instruction that “any one mitigating factor, standing alone,”cansuffice as a basis for rejecting death].) . | In addition, all non-trivial aspects of a defendant’s character or circumstances of the crime constitute relevant mitigating evidence. (Tennardv. Dretke (2004) _ U.S. __ [124'S. Ct. 2562, 2571].) The requested instruction would haveclarified for the jury that they were not limited in their consideration of mitigating factors to those enumerated by the trial court. 512 Without proper guidanceas to the broad scope ofavailable mitigating factors and how to weigh aggravating and mitigating circumstances,it is unlikely the jurors realized that just one mitigating factor could outweigh all the aggravating factors. This was a real danger in appellant’s case wherelittle mitigating evidence waspresented and therefore, the jury had few options to consider. Consequently, the court’s refusal to give the proposedinstruction violated appellant’s rights to a fair trial and a reliable, non-arbitrary and individualized penalty determination underthe Fifth, Sixth, Eighth, and Fourteenth Amendments. C. The Trial Court Erred By Refusing Appellant’s Special Requested Instruction That Sympathy AloneIs Sufficient To Reject Death As A Penalty Appellant also requested the following special instruction at the penalty phase: | If the mitigating evidence gives rise to compassion or sympathy for the defendant, the jury may, based upon such sympathy or compassion alone, reject death as a penalty. A mitigating factor does not have to be proved beyond a reasonable doubt. A juror may find that a mitigating circumstance exists if there is any evidence to support it no matter how weak the evidenceis. (CT 15638-15639.) A verdict based upon the jury’s decision to exercise sympathy or mercy is an appropriate verdict. The law contemplates that in a capital case the jury will return a verdict that reflects its “personal view as to the appropriate sentence.” (People v. Allen (1986) 42 Cal.3d 1222, 1277.) The instructions given to the jury by the courtdid notfully inform the jury ofits ability to do this, but the instruction requested by appellant would have done so. 513 CALJIC No. 8.85 advises the jury that it may consider any sympathetic aspect of the defendant’s characteror record as a mitigating circumstance. (CALJIC No.8.85, factor (k).) Therefore, that instruction does advise the jurors that sympathyis a legitimate factor to consider. However,it advises the jury only that sympathy may be considered a circumstance in mitigation. Otherinstructions then advise the jury that whenarriving at a penalty verdict they should balance the mitigating factors against the aggravating factors in arriving at its verdict.’ Consequently, the jury is effectively being told that they may only consider sympathy for the defendantas oneofthe factors to balance in arriving at the appropriate punishment. ; Appellant’s requested instruction would have explicitly advised the jury that it was appropriate to return a verdict of life without the possibility of parole based on feelings of sympathy and compassion the mitigating evidence evoked. This instruction directly deals with the situation where the jury has found that aggravation outweighs mitigation, but because of sympathy or compassion for the defendant, the jury wishes to impose a sentence oflife without the possibility of parole. The general instructions provided by the court did not address that situation and relegated the concept of sympathy or compassionto a single factor in the overall penalty determination. This is workable as along as the jury finds the circumstances in mitigation outweigh the circumstances in aggravation, because then the | jury need not act out of sympathy or compassion. However, when the converseis true, then this instruction is neededfor the jurors to be able to exercise the full range of factors open to them. This Court has madeclear that a jury’s determination of penalty is not a “mere mechanical counting of factors on each side of the imaginary 514 scale.” (People v. Brown, supra, 40.Cal.3d at p. 541.) “[O]ur statute and instruction give the jury broad discretion to decide the appropriate penalty by weighingall the relevant evidence. The jury may decide, even in the absence of mitigating evidence, that the aggravating evidenceis not comparatively substantial enough to warrant death.” (Peoplev. Duncan (1991) 53 Cal.3d 955, 979.) Thus, a jury mayselect life over death even if the aggravating factors outweigh the mitigating factors. Sympathy or compassion for the defendantis the most likely reason a jury would dothis. The wayto effectuate these principles is to provide the instruction requested by appellant and it waserrorto fail to do 50. Enabling the jury to accord the consideration of the sentence in a capital case individualized consideration goesto the heart of the role the Eighth Amendmentplays in capital sentencing. The Eighth Amendment requires an individualized capital sentencing determination. (Zantv. Stephens, supra, 462 U.S. at p. 879.) That is assured by the instruction requested by appellant, but is not assured by the generalized instructions given by the trial court. Thus, the failure to give appellant’s requested instruction violates appellant’s right to a fair and reliable penalty determination underthe federal constitution. D. The Trial Court Erred By Failing To Instruct The Jury That It Could Return A Verdict Of Life Imprisonment Without The Possibility Of Parole Even IfIt Failed To Specifically Find The Presence Of Any Mitigating Factors Appellant requested that the court instruct the jury as follows: A jury may decide, even in the absence of mitigation evidence,that the aggravating evidence is not comparatively substantial enough to warrant death. 515 (CT 15640-15641.) Thetrial court denied the request, stating that the requested instruction was confusing and that the jurors were adequately instructed by the standard CALJIC instructions that they do not needto find the existence of mitigating circumstance in orderto choosethe lesser sentence. (RT 17954-17956.) Appellant acknowledgesthat this Court has found that appellant’s requestedinstruction is implicit in what is now CALJIC No. 8.88."” This Court has held that in reading what is now CALJIC No.8.88, “[n]Jo reasonable juror would assumehe or she was required to impose death despite insubstantial aggravating circumstances merely because no - mitigating circumstances were foundto exist.” (People v. Johnson, supra, 6 Cal.4th at p. 52.) This finding begs the real question, which is whether a reasonable juror would believe that his or her options were restricted in some fashion when considering the appropriate punishment. If so, then appellant has been denied his right to an individualized sentencing determination. The proper question is not whether a juror would assume that death had to be imposed evenif there were insubstantial aggravating circumstances, but whether a juror would feel free to return a verdict oflife imprisonment without parole in the face of substantial aggravating circumstances and no mitigating circumstances. (People v. Duncan, supra, 53 Cal.3d at p. 979.) That is what is implicit in appellant’s requested | instruction, and what a juror has a right to do. However,this concept is not properly conveyedin the instruction given by the court. Thefailure to give '57 CALIJIC No. 8.88 was provided to appellant’s jury. (RT 18433- 18438.) : 516 o appellant’s special instruction arbitrarily deprived him ofa liberty interest . created by state law —1.e., the right to a penalty phase instruction that either relates the particular facts of his case to anylegal issue or pinpoint the crux of his defense (People v. Sears, supra, 2 Cal.3d at p. 190; People v. Duncan, supra, 53 Cal.3d at p. 979) and deprived appellant of due process of law under the Fourteenth Amendmentto the United States Constitution (Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) Further, without the aid of appellant’s special requested instruction, the jurors were not able to fully engagein the type of individualized consideration the Eighth Amendment requires in a capital case. (SeeZant v. Stephens, supra, 462 U.S.at p. 879.) Thus,the failure to give appellant’s requested instruction requires reversal ' of appellant’s death judgment. E. The Trial Court Erred By Refusing To Instruct On — Lingering Doubt | . Appellant requested twoinstructions on lingering doubt. Thefirst instruction follows: The adjudication of guilt is not infallible and any lingering doubts you entertain on the question of guilt may be considered by you in determining the appropriate penalty, including the possibility that some time in the future, facts may cometo light that have not yet been discovered. It may be considered by you as a factor in mitigation if you have a lingering doubtas to the guilt of the defendant. (CT 15650.) The secondinstruction was specific to appellant: A juror who voted for conviction at the guilt phase maystill have a lingering or residual doubtas to either Defendant Bryant’s precise role in the crimes of which he has been convicted oras to the truth of the “other crimes” evidence which was adduced both at guilty and at penalty. 517 Lingering or residual doubt, although notsufficient to raise a reasonable doubt a the guilt phase, maystill be considered as a mitigating factor at the penalty phase. Each individual juror may determine whether any lingering or residual doubt is a mitigating factor any mayassign it whatever weight the juror feels is appropriate. (CT15651.) The trial court refused to give this instruction on the basis that there _ was no casethat required the court to give the instruction, and thatit doubted the need for it. (RT 17970-17974; see also RT 18298-18299 [trial court refused appellant’s request to modify CALJIC No. 8.80 to include instruction that lingering doubt maybe considered a mitigating factor].) Appellant wasentitled to an instruction that the jurors may consider lingering doubt as to appellant’s guilt as a factor in mitigation, and the trial court committed prejudicial error by refusing to grant appellant’s requests in this regard. A capital defendant has the right to have the penalty phase jurors consider any-residualor lingering doubtas to his guilt. (See, e.g., People v. DeSantis (1992) 2 Cal.4th 1198, 1238; People v. Coleman (1969) 71 Cal.2d 1159, 1168; People v. Terry (1964) 61 Cal.2d 137, 145-147.) A jury that determines both guilt and penalty may properly conclude that the prosecution has discharged its burden of proving the defendant’s guilt beyond a reasonable doubt, but maystill demand a greater degree of certainty of guilt for the imposition of the death penalty. (See People v. Terry, supra, 61 Cal.2d at pp. 145-146.) Clearly, this Court has recognized the principle that lingering doubt can play a part in the penalty determination andthat defense counsel has a rightto argue lingering doubt to the jury as a consideration in determining 518 ¢@ punishment. (See People v. Cox, supra, 53 Cal.3d at pp. 677-678.) However, the Court has also found that a lingering doubtinstruction is not required byeither the state or federal constitutions. (People v. Berryman (1994) 6 Cal.4th 1048, 1104.) Nonetheless, this Court has recognized that a lingering doubt instruction may becalled for by the evidence in any particular case. (See People v. Fauber, supra, 2 Cal.4th at pp. 863-865: People v. Cox, supra, 53 Cal.3d at p. 678, fn. 20.) Appellant submits that this Court is incorrect in holding that a lingering doubtinstruction is not constitutionally required, and that in any event the instruction was required in this case. This Court’s rejection of a constitutional right to an instruction on — lingering doubt has essentially been based upon the conclusion that CALJIC No. 8.85 includes factors that adequately alert the jury that it can consider lingering doubt in reaching its penalty determination. (People v. Osband (1996) 13 Cal.4th 622, 716.) Specifically, this Court has held that factors (a) and (k) are adequate enough for a jury to give effect to lingering doubt. | Ibid.) Notwithstanding the Court’s ruling, the wording of factors (a) and (k) would not lead a reasonablejuror to understandthat any residual doubt the juror hasas to guilt can be given effect throughfactors(a) and (k). This question should be analyzed through the prism ofBoydev. California, supra, 494 U.S. 370. In Boyde, the Supreme Court held that an — instruction is unconstitutional if there was a reasonablelikelihood that the jury applied the instruction in a way that prevents the consideration of constitutionally relevant evidence. (/d. at p. 380.) Although appellantis not challenging the constitutionality of an instruction, by analogy Boyde would seem to be saying that for an instructionto fulfill its purpose, a _ reasonable juror should belikely to interpret it in a manner that would 519 enable that jurorto utilize constitutionally relevant evidence. That is where factors (a) and (k) fail in this situation. Factor(a) directs itself to circumstances of the crime. A reasonable juror would believe that this relates to the mannerin whichthe crime itself was effectuated, and not necessarily the defendant’s involvementin the crime. Factor (a) encouragesajuror to focus on the crimeitself and not the relative culpability or guilt of the persons who may have committed the crime. This does not lenditself to consideration of a lingering doubt of guilt. | Factor (k) directs the jury to consider any circumstance which may extenuate the gravity of the crime. Once again, this focuses on the nature of the crime and not any lingering doubt that the jury may have about a defendant’s participation in the crime. This factor also directs the jury to consider any aspect of the defendant’s character or record,but this relates not at all to residual doubt of guilt. In fact, it steers the jury in exactly the opposite direction, since an aspect of the defendant’s character or record, by its own terms, has nothing to do with the crime. Factors (a) and (k) do not readily give the jury a way to address residual doubts regarding the defendant’s guilt of the offense. While the Court may be able to envision that some juror might view these factors and decide it to be appropriate to utilize them as a way to consider residual doubt of guilt, it cannot be said there is a reasonable likelihood that a juror would have used these factors to give effect to such doubt. Becauseofthis, appellant’s requested instruction, which provided a methodfor the Jury to give effect to such residual doubt, should have been given by the trial court. The thoughtthat the standard instruction does not provide a framework for jurors to give effect to residual doubt of a defendant’s guilt 520 @ has been recognized bytrial courts across the state. It is not unusualfor this Court to see records wheretrial judges have found the evidence warranted providing the jury with this type of instruction. (See, e.g., People v. Cain (1995) 10 Cal.4th 1, 66, fn. 23 [jury instructed on lingering doubt as mitigating circumstance]; People v. Morris (1991) 53 Cal.3d 152, 218-219 [jury given instruction similar to that requested by appellant]; People v. Kaurish, supra, 52 Cal.3d at pp. 705-706 [jury given lingering doubt instruction].) Giving this type of instructionis also in accord with Penal Codesections 1093, subdivision (f), and 1127, which both dictate that a trial court charge the jury on points of law that are both correct and pertinent to the issues before the jury. California law recognizes that a lingering doubtinstruction should be given whenpertinent to the case. All appellant was seeking in this instance was an instruction “intended to supplement or amplify more general instructions.” (People v. Tihompkins (1987) 195 Cal.App.3d 244, 257; see _ Carter v. Kentucky (1981) 450 U.S. 288, 302 [“Jurors are not experts in legal principles; to function effectively, and justly, they must be accurately instructed in the law.”].) California law authorizes this type of instruction and other capitally charged defendants across the state have received this type of instruction. Appellant should have been accorded the same protection. Thetrial court’s refusal to give the instruction not only waserror understate law,it also violated appellant’s federal constitutional rights to due process, equal protection,a fair trial by jury and a reliable and non-arbitrary penalty determination. (U.S. Const., Amends. VI, VIIand XIV.) By refusing to specifically instruct on lingering doubt, the trial court failed to give guidanceto the jury with respect to all potential mitigating 521 factors presentedattrial, in violation of the Eighth and Fourteenth Amendments. (See, e.g., Eddings v. Oklahoma, supra, 455 U.S.at p. 110; Lockett v. Ohio, supra, 438 U.S.at p. 604.) Thetrial court’s refusal to instruct appellant’s jury concerning the conceptof lingering doubtalso violated the Due Process Clause ofthe Fourteenth Amendment by arbitrarily depriving him ofhis state-created liberty interest not to be sentenced to death by a jury that did not consider lingering doubt under appropriate instructions as a basis for a lesser . sentence. (See Hicks v. Oklahoma, supra, 447 U.S. at p. 346; Fetterley v. Paskett (9th Cir. 1993) 997 F.2d 1295, 1300-1301.) California law 7 mandatesthat lingering doubt be considered as mitigation when warranted by the evidence. (People v. Terry, supra, 61 Cal.3d at pp. 145-147; see also People v. Cox, supra, 53 Cal.3d at pp. 677-678; People v. Thompson (1988) 45 Cal.3d°86, 134.) The denial to appellant of a state-created nght granted to other capital defendants further violated the Equal Protection Clause of the Fourteenth Amendment. (Cf. Myers v. Yist (9th Cir. 1990) 897 F.2d 417, 425.) | Appellant wasprejudiced by the failure to providethis instruction. The highly-suspecttestimony of James Williams playeda significantrole in appellant’s conviction in this case. There was no physical evidencelinking appellant to the homicides, nor was there any eyewitnessidentification that placed appellant at the scene of the homicides. The jury could have harbored a lingering doubt as to whether appellant was involved in the instant homicides. Thetrial court’s refusal to instruct appellant’s jury on _ the concept oflingering doubt cannot be deemed harmless under any appropriate standard of review. Accordingly, the death judgment must be reversed. (See People v. Brown, supra, 46 Cal.3d at pp. 446-448.) 522 o @ F. The Trial Court Erred In Failing To Grant Appellant’s Request To Strike The Non-Unanimity Provision Of CALJIC No. 8.87; In The Absence Of A Separate Instruction Highlighting The Non-Unanimity Requirement For Finding Mitigating Circumstances, The Inclusion Of That Paragraph Rendered TheInstruction Partisan And Deprived Appellant Of His Constitutional Rights CALJIC No. 8.87 (1989 rev.) provides in part that before a juror can consider aggravating evidence under Penal Codesection 190.3, factor(b), the juror mustbesatisfied beyond a reasonable doubtthat the defendant committed the allegedcriminal acts.(CT 15827.) The last paragraph of CALJIC No. 8.87 further provides that the jurors need not unanimously agree on whether the defendant committed the alleged criminalact: It is not necessary for all jurors to agree. If any juror is convinced beyond a reasonable doubt that such criminalactivity occurred, that juror may considerthat activity as a fact in aggravation. Ifa juror is not so convinced, that juror must not consider that evidence for any purpose. (CT 15826.) Appellant requested that this provision be stricken, arguing that because People v. Breaux, supra, | Cal.4th atp. 3 14, precluded a | defendant from obtaining a specific non-unanimity instruction as to mitigation, the prosecution should not be permitted to obtain such an instruction in the context of other crimes aggravation.'’** (CT 15659.) The trial court denied appellant’s request, ruling that the standard CALJIC instruction was a correct statement of law which it would not modify 8 In People v. Breaux, supra, | Cal.4th at pp. 314-315, this Court approved the rejection attrial of a defense proposedinstruction that unanimity was not a requisite to consideration of mitigating evidence on groundsthe instruction was confusing and adequately covered in other instructions. 523 without explicit authority for the modification. (RT 17975-17977.) Later, during discussion of coappellant Wheeler’s requests for specialinstructions, the trial court modified the defense request for a non-unanimity instruction as to mitigating factors: Nodecision regarding the existence or nonexistence of any aggravating or mitigating circumstance in this case, or the weightto be assigned to such circumstance, need be reached unanimously. Only the final penalty decision must be unanimousin orderto arrive at a verdict. (RT 18428; CT 15822.) Appellant maintains that, given the context of the penalty phase instructions, the inclusion of the last paragraph of CALJIC No.8.87 renderedthe instruction partisan and argumentative, andthetrial court’s refusal to strike that paragraph denied appellant his deprived . appellant of due process, equal protection, and a fair and reliable jury determination of penalty. (U.S. Const. amends. V, VI, VIII, XIV; Cal. - Const. art. I, 8§ 7, 15, 16, & 17.) | Asset forth in Argument XVII, ante, this Court has held that specific © instructions relating to the consideration ofevidence that simply reiterate a _general principle upon which the jury has already been instructed should not be given. (See People v. Lewis, supra, 26 Cal.4th at pp. 362-363; People v. Ochoa, supra, 26 Cal.4th at pp. 444-445.) Further, the trial court must refuse to deliver any instructionsthat are argumentative. (People v. Sanders, supra, 11 Cal.4th at p. 560.) The vice of argumentative instructionsis that they present the jury with a partisan argument disguised as a neutral, authoritative statement of the law. (See People v. Wright, supra, 45 Cal.3d at pp. 1135-1137.) “There should be absolute impartiality as between the People and defendant in the matterof instructions...” 524 (People v. Moore, supra, 43 Cal.2d at pp. 526-527 [citation omitted]; accord Reagan v. United States, supra, 157 U.S. at p. 310.) Here, thetrial court instructed the jury of the non-unanimity requirement with regard to aggravating and mitigating factors. (RT 18428.) There was no needto repeat this general principle as applied to factor (b) evidence,particularly since the trial court refused the defense request to separately instruct the jury regarding the non-unanimity requirement with regard to mitigating factors. Thestandard instruction in this case amounted to an unfair “pinpoint” instruction for the prosecution with regard to aggravating factors. Aside from the other constitutional defects inherent in factor (b), discussed at length, post, the instructions distinguished between parties to the appellant’s detriment, depriving him of his due process right to a fair trial (Green v. Bock Laundry MachineCo., supra, 490 U.S.at p. 510; Wardius v. Oregon, supra, 412 U.S.at p. 474); in addition, the | arbitrary distinction betweenlitigants also deprived appellant of equal protection of the law. (Lindsay v. Normet, supra, 405 U.S. at p. 77.) G. The Trial Court Erred In Refusing To Instruct That Aggravating Factors Are Limited To Those Enumerated And That Appellant’s Background May Be Considered Only In Mitigation Appellant requested the following instruction: The permissible aggravating factors are limited to those aggravating factors upon which you have been specifically instructed. Therefore, the evidence which has been presented ~ regarding the defendant’s background mayonly be considered by you as mitigating evidence. (CT 15656.) Thetrial court refused appellant’s request, ruling that the instruction would havethe effect of directing the jury to find appellant’s ~ 325 drug dealing mitigating because it was non-violent, and that it was “nonsense.” (RT 17975.) Asthis Court affirmed in People v. Hardy, supra, 2 Cal.4th at p. 207, evidence of a capital defendant’s “background can be only a mitigating factor because the permissible aggravating factors are limited to thoselisted in section 190.3. [citations omitted].) In that case, defendant Reilly complained that the trial court should have instructed the jury that evidence of his background could be considered as mitigating evidence only,and that the court’s failure to do so prejudiced him because there was much evidence presented atthe guilt phase that he was frequently unemployed, often abused alcoholandillegal drugs, and in general led a dissolute and aimless life. (Ibid.) The Court founderrorin the failure to so instruct, but found the error harmless where the prosecution did not urge the jury to find the case was aggravated by Reilly’s unemployment, drug use, or aimless life-style. The prosecution in this case presented extensive evidence regarding the sale of narcotics. Appellant admitted that he was involved in selling drugs for a living for years. In the penalty phase, the prosecution urged the jury to judge appellanton his “lifelong commitment to destroying society” (RT 18450) and urged the jury to question whether appellant deserved mercy given his lifestyle choice (RT 18494) and his “life of crime.” (RT 18495.) Thejury instructions failed to adequately direct the jury that they could not consider such illegal non-violent activity as aggravation. In the context of this case, then, the trial court’s error was not harmless. 526 H. ‘The Trial Court Erred In Refusing Appellant’s Requested Sympathy Instructions AndIn Instructing, Over Defense Objection, That Sympathy For Appellant’s Family Could Not Be Considered A Factor In Mitigation Midwaythrough the penalty phaseofthe trial, the trial court expressed its intention to instructthe jury that they could not consider their sympathy for the defendant’s family members or friends in weighing the sentencealternatives. (RT 17941-17942.) Appellant had requested that the court instruct the jury that they could consider such sympathy and had proposed the following special instruction: In arriving at your verdict, you may consider, take into account, and be guided by sympathy for family membersor friends of the defendantor by the effect your verdict may have on any such person. (CT 15850.) The court asked the parties to ponderits contrary proposal. (RT 17944.) A weeklater, the court returned to the issue. (RT 18293.) The court stated that as of the date of this pointin the trial, July 1995, the California Supreme Court had not ruled on whether sympathy for a family memberwasan appropriate mitigating factor.'*” (RT 18293-18296, 18379, 18386-18387.) The court postulated that since the prosecution was permitted to introduce victim impact evidence, there may come a time when the federal courts would find that the defendantis similarly entitled to introduce evidence about how his family and friends would be impacted by the outcomeof the jury’s penalty selection. (RT 18296, 18299-18301, 18387-18390.) Yet, the court concludedthat although the defendant’s '39 Three monthsearlier, this Court in People v. Beeler (1995) 9 Cal.4th 953, 991-992 recognized, but did not decide, the question of whether the impact of the death penalty upon the defendant’ s family would be “constitutionally pertinent mitigation.” 527 character was appropriate for the jury’s consideration, the character of his family and friends was not. (RT 17944, 18378-18381, 18386-18389.) The defense objected to the court’s proposal. (RT 17941-17942, 17952-17953, 18380-18381, 18385, 18390, 18404-18405.) Nevertheless, the trial court instructed the jury: You may not consider mere sympathy for a family memberor friend of a defendant, or the opposite feelings, or the effect that your verdict may have on anyone other than the defendant, except to the extent that such matters may bear upon your determination of any sympathetic or other aspect of the character and backgroundofthe defendant himself. (RT 18428; CT15823.yi During the prosecution’ S argument to the jjury, the jjury was repeatedly implored that any sympathythey felt should be limited to the victims andtheir families. (RT 18455-18456, 18469-18470, 18494-18495.) Appellant moved for a newtrial based, in part, on thetrial court’s error in giving the anti-sympathy instructions. (CT 15884-15900.) Thetrial court denied that motion. (RT 18780.) The Eighth and Fourteenth Amendmentsprovidethat a sentencing authority in a capital case may not be precluded from “considering, as a mitigating factor,” or from “giving independent mitigating weight to,” any “aspects of the defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” (Lockett v. Ohio, supra, 438 U.S. at pp. 604-605 (plur. opn. of 1° The instruction was promulgated by thetrial court on its own motion, and only subsequently requested by the prosecution. (CT 15895.) 528 @ @ Burger, C.J.); Eddings v. Oklahoma, supra, 455 U.S. at p. 110.) It includes both “mitigating aspects of the crime” (Lowenfield v. Phelps (1988) 484 U.S. 231, 245) and mitigation that is unrelated to the crime. (Lockett, supra, 438 U.S. at p. 605.) The Constitution prohibits limiting the scope of mitigating evidence to only that evidence which relates specifically to the defendant’s culpability for the crime he or she has committed. It requires that a defendant be allowed to present any relevant mitigating evidence, and that a sentencer be allowed to listen and consider that evidence. (Sumnerv. Shuman (1987) 483 U.S. 66, 76.) “Evidence extraneousto the crimeitself is deemedrelevant and indeed, constitutionally so,” (South Carolinav. Gathers (1989) 490 U.S. 805, 817 [dis. Opn. of O’Connor, J.]'*"),in that Eighth and Fourteenth Amendmentjurisprudence requires that a defendant be given the opportunity to present any reason whythe death penalty should | not be imposed. California Penal Code section 190.3 also commandsajury to considerall relevant mitigating evidence. Section 190.3, subdivision (k), © requires consideration of “any other circumstances which extenuates the gravity of the crime even thoughit is not a legal excuse for the crime.” In compliance with Lockett and its progeny, this Court has interpreted this statutory provision to allow a jury to consider, as a mitigating factor, any aspect of the defendant’s character, or record, and any of the circumstances of the offense that a defendant proffers, as a basis for a sentence less than death. (People v. Easley (1983) 34 Cal.3d 858, 878; see CALJIC No. 8.85 (Sth ed. 1988).) And this Court has ruled that a capital defendant’s family ‘4. Overruled on other grounds in Payne v. Tennessee (1991) 501 U.S. 808, 830. 529 members may offer testimony of the impact of an execution on them if by so doing they illuminate somepositive quality of the defendant's background or character. (People v. Ochoa (1998) 19 Cal.4th 353, 456; People v. Smithey, supra, 20 Cal.4th at p. 1000.) Appellant argues that rule should be extended as suggested herein for the following reasons. In Payne v. Tennessee (1991) 501 U.S. 808, the prosecutor introducedto the jury, during sentencing, testimony from the murder | victim’s mother about the impact the murder of her daughter and granddaughter had upon hersurviving grandson. (Id. at pp. 814-815.) In affirming the Tennessee Supreme Court’s decision to permit the introduction of victim impact evidence for aggravating purposes,the Supreme Court found that “the sentencing authority has always beenfree to consider a wide range of relevant material” (Payne v. Tennessee, supra, at pp. 820-821), and that “if the State chooses to permit the admission of victim impact evidenceand prosecutorial argument on that subject, the Eighth Amendment erects no per se bar.” (/d. at p. 827.) The Court went on to say that “a State may legitimately conclude that evidence about the impact of the murderon the victim’s family is relevant to the jury’s decision as to whetheror not the death penalty should be imposed.” (Jbid.) California courts have permitted the introduction of victim impact evidence for aggravating purposes. (People v. Edwards (1991) 54 Cal.3d 787, 833.) In Edwards this Court held that victim impact evidenceis evidence of the circumstances of the crime and is admissible under California Penal Codesection 190.3, subdivision (a). A year later in People v. Pinholster (1992) 1 Cal.4th 865, 959, this Court held that no error was committed by the trial court by permitting the victim’s mother, who wept openly in front of the jury, to identify her deceased son through photographs 530 which had been taken of him. This Court held that such testimony was properly admitted evidence of the impact on the family ofthe victim. | (Ibid.) — _ Payne and Edwardsestablish that sympathy for a victim’s family is relevant evidence, and may be considered by the jury for aggravating purposes. As the Court observed in Payne, “There is no reason to treat such evidence differently than other relevant evidenceis treated.” (Payne, at p. 827.) Such inquiry does not even require that the victim’s family’s sympathy be rationally based. (People v. Boyette (2002) 29 Cal.4th 381, 444-445.) Sympathy is the byproduct of the empathy a jury developsfor the impactthat the offense had onthe lives of the families involved. Telling the jury to ignore mere sympathy for appellant’s family members would be interpreted as an admonition to ignore the emotional responses that are rooted in the aggravating and mitigating evidence introduced during the penalty phase. (California v. Brown, supra, 479 US. at p. 542.) Given the fact that sympathy for a victim’s family is relevant and may be used by a prosecutor for aggravating purposes,a point the prosecutor here made tothe court (RT 17980), so too should sympathy for a defendant’s family be considered relevant andweighedbythe jury as mitigating evidence. Due process requires a balance of forces between the accused and his accuser. (Wardius v. Oregon, supra, 412 U.S.at p. 473, fn 6.)'” i/ | | /I ' Here,thetrial court rejected appellant’s requestthat the jury be instructed that they could not base their decision upon sympathyforthe victims’ families. (CT 15762, RT 17941-17944, 17980-17981.) 531 Appellant Bryant’s penalty phase encompassedlittle else other than the testimony of friends and family membersthat they loved and cared for appellant. The trial court’s instruction had the effect of striking appellant’s entire penalty phase from the jury’s consideration. This was error. The jury should have been allowed to weigh the affection family members and friends had for appellant as an individual whom they knew,perhapsbetter than anyone else. Their testimony regarding the effect appellant has had upontheir lives comments upon his character and background,andthis evidence is what the jury wasinstructed to disregard. The Payne and Edwards line of cases demonstrates that the relationship of a victim with his or her family is compelling; it generates a strong emotionalresponse from a jury and is a powerfully persuasive tool. Because such evidenceis so compelling, the Eighth and Fourteenth Amendmentsdictate that a defendant be permitted to present to the jury and to have the jury consider, the relationship that a defendant has with his family and friends and the impact that his death would have upon them. A contrary rule would result in the jury imposing the death penalty without considering all relevant mitigating evidence proffered as a basis for a sentence less than death,in violation of a defendant’s rightto fair trial, to a reliable determination of sentence, due - process, equal protection, and fundamental fairness under the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution. (Lockett v. Ohio, supra, and Eddingsv. Oklahoma, supra.) The constitutional mandate requires that a jury may consider sympathy for a victim’s family whenit is introduced for mitigating purposes. Sympathy for appellant’s family was a substantial reason why the death penalty should not have been imposedinthis case. Had the jury not been instructed to ignore such 532 ® @ sympathy, it is reasonably probable that they would have reacheda verdict of less than death. (Chapman v. California, supra, 386 U.S. at p. 24.) Theerror in refusing the proffered instruction resulted in a fundamentally unfair and unreliable death sentence. For this reason, appellant’s death sentence must be reversed.'? I.‘ The Denial Of All Of The Above Requested Instructions Combined To Deny Appellant A Fair And Reliable Penalty Determination Appellant believes that each of the requested instructions should have been given,and the failure to give any one ofthe instructions discussed above constitutes reversible error. However, even if the denial of each instruction individually would not be considered to be reversibleerror, the cumulative effect ofthe trial court’s failureto giveall of the instructions denied appellant a fair penalty determination. | Each ofthe instructions above was designedto addressall of the considerations that the jurors could bring to bear in making the determination between life and death. Noneofthe instructions is an _ Incorrect statement of the law or improperin its mannerof presentation. © All of the principles embraced bythe instructions have been endorsed by this Court. In short, all of these instructions presented to the jurors — informationthat is an accepted part of death penalty jurisprudenceinthis state. Yet, the trial court refused to give any of these instructions. ‘8 This Court has rejected claims similar to that raised herein. (People v. Ochoa (1998) 19 Cal.5th 353, 456; People v. Smithey, supra, 20 Cal.4th at p. 1000; People v. Bemore (2000) 22 Cal.4th 809, 855-856.) Appellant asserts these claims to give this Court an opportunity to reconsiderits prior rulingsin light of the facts of appellant’s case and to © permit him to preserve the claims for federal review. 533 The basic reasonsthat the trial court refused all of appellant’s special requested instructions were that they were either duplicative of instructions already being given or that this Court had found they did not need to be given. However, the almost uniform reason given by this Court as to why these instructions were unnecessary. was that the standard instructions implicitly provided the same information. Although this Court continually finds that explicit instructions need not be given because a juror mayfind the same information tobe implicitly stated in a differently-phrased instruction, when the decision is between life and death, the instructions Should be explicit. | This Court’s continued practice of finding thatinstructions which are supposedto provide guidance for jurors as they attempt to determine the appropriateness of a death sentence are sufficient because a reasonable juror may be able to divine whatthe instructions really mean, regardless of how inaptly they may be phrased,is a constitutionally unacceptable practice. The Eighth Amendmentto the federal constitution demandsa practice that will guarantee more regularity in death decisions, and the combinedfailure to give all of these instructions—which would have provided this certainty-resulted in a penalty trial that did not have sufficient indicia of trustworthiness to guarantee a constitutionally acceptable result. Appellant’s death judgment must be vacated. // // 534 @ THE FAILURE TO PROVIDE INTERCASE PROPORTIONALITY REVIEW VIOLATES APPELLANT’S CONSTITUTIONAL RIGHTS California does not provide for intercase proportionality review in capital cases, althoughit affords such review in noncapital criminalcases. As shown below,the failureto conduct intercase proportionality review of death sentences violates appellant’s Eighth Amendment and Fourteenth Amendmentrights to be protected from the arbitrary and capricious imposition of capital punishment. A. The Lack OfIntercase Proportionality Review Violates The Eighth AmendmentProtection Against The Arbitrary And Capricious Imposition Of The Death Penalty The Eighth Amendmentto the United States Constitution forbids punishments that are cruel and unusual. The jurisprudence that has emerged applying this ban to the imposition of the death penalty has required that death judgments be proportionate and reliable. The notions of reliability and proportionality are closely related. Part of the requirement of acereliability, in law as well as science,is ““‘that the [aggravating and mitigating] reasons present in one case will reach a similar result to that 299reached undersimilar circumstances in anothercase.’” (Barclay v. Florida (1976) 463 U.S. 939, 954 (plurality opinion, alterations in original) (quoting Proffitt v. Florida (1976) 428 U.S. 242, 251 [opinion of Stewart, Powell, and Stevens,JJ.]).) . | The United States Supreme Court has lauded comparative proportionality review as a method for helping to ensurereliability and proportionality in capital sentencing. Specifically, it has pointed to the proportionality reviews undertaken by the Georgia and Florida Supreme 535 Courts as methods for ensuring that the death penalty will not be imposed on a capriciously selected group of convicted defendants. (See Gregg v. Georgia, supra, 428 U.S.at p. 198; Proffitt v. Florida, supra, 428 U.S.at p. 258.) Thus, intercase proportionality review can be an important toolto ensure the constitutionality of a state’s death penalty scheme. Despite recognizing the value of intercase proportionality review, the United States Supreme Court has held that this type of reviewis not. necessarily a requirementfor finding a state’s death penalty structure to be constitutional. In Pulley v. Harris (1984) 465 U.S. 37, the United States _ Supreme Court ruled that the California capital sentencing scheme was not “so lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review.” (Id. at p. 51.) Accordingly, this Court has consistently held that intercase proportionality reviewis not constitutionally required. (See People v. Farnam (2002) 28 Cal.4th 107, 193.) As Justice Blackmun has observed, however, the holding in Pulley v. Harris was premisedupon untested assumptions about the California death penalty scheme: [I]n Pulley v. Harris, 465 U.S. 37, 51 [], the Court’s conclusion that the California capital sentencing scheme was not “so lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review” wasbasedin part on an understanding that the application of the relevant factors “‘provide[s] jury guidance and lessen[s] the chance of arbitrary application of the death penalty,’” thereby “‘guarantee[ing] that the jury’s discretion will be guided andits consideration deliberate.’” Id. at 53, [], quoting Harris v. Pulley, 692 F.2d 1189, 1194, 1195 (9th Cir. 1982). Aslitigation exposes the failure of these factors to guide the jury in makingprincipled distinctions, the 536 @ | Court will be well advised to reevaluate its decision in Pulley v. Harris. (Tuilaepa v. California (1994) 512 U.S. 967, 995 (dis. opn. of Blackmun, J.).) The time has come for Pulley v. Harris, to be reevaluated since, as this case illustrates, the California statutory schemefails to limit capital punishmentto the “most atrocious” murders. (Furman v. Georgia, supra, 408 U.S. at p. 313 (conc. opn. of White, J.).) Comparative case review is the mostrational — if not the only — effective means by whichto ascertain whether a scheme as a whole is producingarbitrary results. Thus, the vast majority of the states that sanction capital punishment require comparative or intercase proportionality review.’ _ 4 See Ala. Code § 13A-5-53(b)(3) (1982); Conn. Gen. Stat. Ann.§ 53a-46b(b)(3) (West 1993); Del. Code Ann.tit. 11, § 4209(g)(2) (1992); Ga. Code Ann. § 17-10-35(c)(3) (Harrison 1990); Idaho Code § 19- 2827(c)(3) (1987); Ky. Rev. Stat. Ann. § 532.075(3) (Michie 1985); La. Code Crim. Proc. Ann.art. 905,9.1(1)(c) (West 1984); Miss. Code Ann. § 99-19-105(3)(c) (1993); Mont. Code Ann. § 46-18-310(3) (1993); Neb. Rev. Stat. §§ 29-2521.01, 29-2522(3) (1989); Nev. Rev. Stat. Ann § 177.055 (d) (Michie 1992); N.H. Rev. Stat. Ann. § 630:5(XD(c) (1992); N.M.Stat. Ann. § 31-20A-4(c)(4) (Michie 1990); N.C. Gen. Stat. § 15A- 2000(d)(2) (1983); Ohio Rev. Code Ann. § 2929.05(A) (Baldwin 1992); 42 Pa. Cons. Stat. Ann. § 9711(h)(3)(iii) (1993); S.C. Code Ann. § 16-3- 25(c)(3) (Law. Co-op. 1985); S.D. Codified Laws Ann. § 23A-27A-12(3) (1988); Tenn. Code Ann. § 13-206(c)(1)(D) (1993); Va. Code Ann. § 17.110.1C(2) (Michie 1988); Wash. Rev. Code Ann. § 10.95.130(2)(b) (West 1990); Wyo. Stat. § 6-2-103(d)(iii) (1988). Manystates have judicially instituted similar review. See State v. Dixon, 283 So.2d 1, 10 (Fla. 1973); Alford v. State, 307 So.2d 433, 444 (Fla. 1975); People v. Brownell, 404 N.E.2d 181, 197 (Ill. 1980); Brewerv. State, 417 NE.2d 889, 899 (Ind. 1980); State v. Pierre, 572 P.2d 1338, 1345 (Utah 1977); State v. Simants, 250 N.W.2d 881, 890 (Neb. (continued...) 537 The capital sentencing schemein effect at the time of appellant’s trial was the type of schemethat the Pulley Court had in mind whenit said that “there could be a capital sentencing system so lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review.” (Pulley v. Harris, supra, 465 U.S.at p. 51.) Penal Code section 190.2 immunizes few kindsoffirst degree murderers from death eligibility, and Penal Codesection 190.3 provides little guidance to juries in making the death-sentencing decision. In addition, the capital sentencing scheme lacks other safeguards as discussed in the arguments following this one. Thus,the statute fails to provide any method for ensuring that there will be some consistency from jury to jury whenrendering capital sentencing verdicts. Consequently, defendants with a wide range ofrelative culpability are sentenced todeath. California’s capitalsentencing scheme does not operate in a manner that ensures consistency in penalty phase verdicts, nor doesit operate in a mannerthat prevents arbitrariness in capital sentencing. Therefore, California is constitutionally compelled to provide appellant with intercase proportionality review. The absenceof intercase proportionality review violates appellant’s Eighth and Fourteenth Amendmentright notto be arbitrarily and capriciously condemned to death, and requires the reversal of his death sentence. /I /I '4__.continued) 1977)(comparison with other capital prosecutions where death has and has not been imposed); Collins v. State, 548 S.W.2d 106, 121 (Ark. 1977). 538 @ XXVI THE CALIFORNIA DEATH PENALTY STATUTE AND INSTRUCTIONS ARE UNCONSTITUTIONAL BECAUSE THEY FAIL TO SET OUT THE APPROPRIATE BURDEN OF PROOF The California death penalty statute fails to provide any of the safeguards commonto other death penalty sentencing schemesto guard against the arbitrary imposition of death. Juries do not have to make written findings or achieve unanimity as to aggravating circumstances. As discussed herein, they do not haveto find beyond a reasonable doubtthat aggravating circumstancesare proved,that they outweigh the mitigating circumstances, or that death is the appropriate penalty. In fact, exceptas to the existence of other criminalactivity and prior convictions, juries are not instructed on any burdenofproofat all. Not only is intercase proportionality review not required; it is not permitted. (See Argument XXV,ante.) Undertherationale that a decision to impose death is “moral” and “normative,” the fundamental components of reasoned decision-making that apply to all other parts of the law have been banished from the entire process of making the most consequential decision a juror can make — whetheror not to impose death. These omissions in the California capital- sentencing scheme, individually and collectively, run afoul of the Fifth, | Sixth, Eighth, and Fourteenth Amendments. 539 A. The Statute AndInstructions Unconstitutionally Fail To Assign To The State The Burden Of Proving Beyond A Reasonable Doubt The Existence Of An Aggravating Factor, That The Aggravating Factors Outweigh The Mitigating Factors, And That Death Is The Appropriate Penalty In California, before sentencing a person to death, the jury must be persuadedthat “the aggravating circumstances outweigh the mitigating circumstances” (Cal. Penal Code § 190.3) andthat“death is the appropriate penalty underall the circumstances.” (People v. Brown, supra, 40 Cal.3dat p. 541, rev’d on other grounds, California v. Brown, supra, 479 U.S. 538; see also People v. Cudjo (1993) 6 Cal.4th 585, 634.) Under the California scheme, however, neither the aggravating circumstancesnor the ultimate determination of whether to impose the death penalty need be provedto the jury’s satisfaction pursuantto any delineated burden of proof.’*° The failure to assign a burden of proof renders the California death penalty scheme unconstitutional, and renders appellant’s death sentence unconstitutional and unreliable in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. | This Court has consistently held that “neither the federal northe state Constitution requires the jury to agree unanimously as to aggravating factors, or to find beyond a reasonable doubtthat aggravating factors exist, [or] thatthey outweigh mitigating factors....” (People v. Fairbank(1997) '*° There are two exceptions to this lack of a burden of proof. The special circumstances (Cal. Penal Code § 190.2) and the aggravating factor ofunadjudicated violent criminalactivity (Cal. Penal Code § 190.3(b)) must be proved beyond a reasonable doubt. Appellant discusses the defects in Penal Code section 190.3(b), post. 540 16 Cal.4th 1223, 1255: see also People v. Stanley (1995) 10 Cal.4th 764, 842; People v. Ghent, supra, 43 Cal.3d at pp.773-774.) However, this Court’s reasoning has been squarely rejected by the United States Supreme Court’s decisions in Apprendi.v. New Jersey (2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S. 584, and Blakely v. Washington (2004) _—_—saUSS. ___[124S. Ct. 2531]. Apprendi considered a New Jersey state law that authorized a maximum sentence of ten years based on a jury finding of guilt for second degree unlawful possession of a firearm. A related hate crimes statute, however,allowed imposition of a longer sentence ifthe judge found, by a preponderance of the evidence, that the defendant committed the crime with the purpose of intimidating an individual or group of individuals on the basis of race, color, gender, or other enumerated factors. In short, the New Jersey statute considered in Apprendi required a jury verdict on the elements of the underlying crime, but treated the racial motivation issue as a ~ sentencing factor for determination by the judge. (Apprendi v. New Jersey, supra, 530 U.S.at pp. 471-472.) The United States Supreme Court found that this sentencing scheme violated due process, reasoning that simply labeling a particular matter a “sentence enhancement”did not provide a “principled basis” for distinguishing between proof of facts necessary for conviction and _ punishment within the normal sentencing range, on one hand, andthose _ facts necessary to prove the additional allegation increasing the punishment beyondthe maximum that the jury conviction itself would allow, on the other. (/d. at pp. 471-472.) The high court held that a state may not impose a sentence greater than that authorized by the jury’s simple verdict of guilt unless the facts supporting an increased sentence (other than a prior 541 conviction) are also submitted to the jury and proved beyonda reasonable doubt. (/d. at pp. 478.) In Ring v. Arizona, the Court applied Apprendi’s principles in the context of capital sentencing requirements, seeing “no reason to differentiate capital crimes from all others in this regard.” (Ring v. Arizona, supra, 536 U.S. at p. 607.) The Court considered Arizona’s capital sentencing scheme, which authorized a judgesitting without a jury to sentence a defendantto death if there was at least one aggravating circumstance and no mitigating circumstances sufficiently substantialtocall for leniency. (Id. at p. 593.) Although the Court previously had upheld the Arizona scheme in Walton v. Arizona (1990) 497 U.S. 639, the Court found Walton to be irreconcilable with Apprendi. While Ring dealt specifically with statutory aggravating circumstances, the Court concluded that Apprendi was fully applicable to all factual findings necessary to put a defendantto death, regardless of whether those findings are labeled sentencing factors or elements of the offense. (Ring v. Arizona, supra, 536 U.S. at p. 609.)'** The Court observed: “The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant’s sentence by twoyears, but not the factfinding necessary to put him to death. We hold that the Sixth Amendmentapplies to both.” (d.) 6 Tustice Scalia distinctively distilled the holding: “All facts essential to the imposition of the level of punishmentthat the defendant . receives — whetherthe statute calls them elements ofthe offense, sentencing factors, or Mary Jane — must be madebythe jury beyond a reasonable doubt.” (Ring v. Arizona, supra, 536 U.S. at p. 610 (conc. opn. of Scalia, J). 542 InBlakely, the Court considered the effect ofApprendi and Ring ina case where the sentencing judge was allowed to impose an “exceptional” sentence outside the normal range uponthe finding of“substantial and compelling reasons.” (Blakely v. Washington, supra, 124 S.Ct. at p. 2535.) The State of Washingtonset forth illustrative factors that included both aggravating and mitigating circumstances; one of the former was whether the defendant’s conduct manifested “deliberate cruelty”to the victim. (Ibid.) The Supreme Court ruled that this procedure was invalid becauseit did not comply with the right to a jury trial. (/d. at p. 2543.) . In reaching this holding, the Supreme Court stated thatthe governing rule since Apprendiis that other than a prior conviction, any fact that increasesthe penalty of the crime beyondthe statutory maximum must be submitted to the jury and found beyond a reasonable doubt; “the relevant ‘statutory maximum?’is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” (Blakely v. Washington, supra, 124 S.Ct. at p. 2537, originalitalics.) Twenty-six states require that factors relied on to impose death in a penalty phase must be proven beyond a reasonable doubt by the prosecution, and three additional states have related provisions.'*” Only '47 See Ala. Code, § 13A-5-45(e) (1975); Ark. Code Ann., § 5-4-603 (Michie 1987); Colo. Rev. Stat. Ann., § 16-11-104-1.3-1201(1)(d) (West 2002); Del. Code Ann.tit. 11, § 4209(c)(3)a.1. (2002); Ga. Code Ann., § 17-10-30(c) (Harrison 1990); Idaho Code, § 19-2515(3)(b) (2003); ILL. Ann. Stat. ch. 38, para. 9-1(f) (Smith-Hurd 1992); Ind. Code Ann., §§ 35-50-2- 9(a), (e) (West 1992); Ky. Rev. Stat. Ann., § 532.025(3) (Michie 1992); La. Code Crim. Proc. Ann., art. 905.3 (West 1984); Md. Ann. Code, art. 27, §§ 413(d), (f), (g) (1957); Miss. Code Ann., § 99-19-103 (1993); Neb. Rev. \ (continued...) 543 California and four other states (Florida, Missouri, Montana, and New Hampshire) fail to statutorily address the matter. California law as interpreted by this Court does not require that a reasonable doubt standard be used during any part of the penalty phase of a defendant’strial, except as to proofofprior criminality relied upon as an aggravating circumstance — and evenin that context the required finding need not be unanimous. (People v. Fairbank, supra, 16 Cal.4th at p. 1255; see also People v. Hawthorne, supra, 4 Cal.4th at p. 79 [penalty phase . determinations are “moral and .. . not factual,” and therefore not “susceptible to a burden-of-proof quantification”].) '47(._ continued) Stat., § 29-2520(4)(f)(2002) ; Nev. Rev. Stat. Ann., § 175.554(3) (Michie 1992): N.J.S.A. 2C:11-3c(2)(a); N.M. Stat. Ann., § 31-20A-3 (Michie 1990); Ohio Rev. Code, § 2929.04 (Page’s 1993); Okla.Stat. Ann., tit. 21, § 701.11 (West 1993); 42 Pa. Cons. Stat. Ann., § 9711(c)(1)(ii1) (1982); S.C. Code Ann., §§ 16-3-20(A), (C) (Law. Co-op (1992); S.D. Codified Laws Ann., § 23A-27A-5 (1988); Tenn. Code Ann.,§ 39-13-204(f) (1991); Tex. Crim. Proc. Code Ann., § 37.071(c) (West 1993); State v. Pierre (Utah 1977) 572 P.2d 1338, 1348; Va. Code Ann., § 19.2-264.4(C) (Michie 1990); Wyo.Stat., §§ 6-2-102(d)(i)(A), (e)() (1992). Washingtonhas a related requirementthat, before making a death judgment, the jury must makea finding beyond a reasonable doubt that no mitigating circumstancesexist sufficient to warrant leniency. (Wash.Rev. Code Ann. § 10.95.060(4) (West 1990).) And Arizona and Connecticut require that the prosecution prove the existence of penalty phase aggravating factors, but specify no burden. (Ariz. Rev. Stat. Ann. § 13-703 (1989); Conn. Gen. Stat. Ann. § 53a-46a(c) (West 1985).) On remand in the Ring case, the Arizona Supreme Court found that both the existence of one or more aggravating circumstances andthe fact that aggravation substantially outweighs mitigation were factual findings that must be made by a jury beyond a reasonable doubt. (State v. Ring (Az. 2003) 65 P.3d 915.) 544 ® California statutory law and jury instructions, however, do require fact-finding before the decision to impose death or a lesser sentenceis finally made. As a prerequisite to the imposition of the death penalty, section 190.3 requiresthe “trier of fact” to find thatat least one aggravating factor exists and that such aggravating factor (or factors) substantially outweigh any andall mitigating factors.'“* As set forth in California’s “principal sentencing instruction” (People v. Farnam, supra, 28 Cal.4th at p. 177), which wasread to appellant’s jury, “an aggravating factor is any fact, condition or event attending the commission of a crime which increasesits guilt or enormity, or adds to its injurious consequences which is‘above and beyond the elements ofthe crimeitself.” (RT 18444; CT 15846; CALJIC No.8.88.) | . Thus, before the process of weighing aggravating factors against mitigating factors can begin, the presence of one or more aggravating factors must be found by the jury. And before the decision whether or not to impose death can be made, the jury mustfind that aggravating factors substantially outweigh mitigating factors. These factual determinationsare essential prerequisites to death-eligibility, but do not mean that death is the '48 In Johnson v. State (Nev. 2002) 59 P.3d 450, the Nevada Supreme Court found that under a statute similar to California’s, the requirementthat aggravating factors outweigh mitigating factors was a factual determination, and not merely discretionary weighing, and therefore “even though Ring expressly abstained from ruling on any ‘Sixth Amendmentclaim with respect to mitigating circumstances, ’(fn. omitted) we conclude that Ring requires ajury to makethis finding as well: ‘If a State makes an increase in a defendant’s authorized punishment contingent on the finding ofa fact, that fact — no matter how the State labelsit — must be found by a jury beyond a reasonable doubt.’” (/d. at p. 460.) 545 inevitable verdict; the jury can still reject death as the appropriate punishment notwithstanding these factual findings.'” In People v. Anderson, supra, 25 Cal.4th at p. 589, this Court held "that since the maximum penalty for one convicted of first degree murder | | with a special circumstanceis death (see Penal Code 190.2(a)), Apprendi does not apply. After Ring, the Court repeated the sameanalysis. (See e.g., People v. Prieto (2003) 30 Cal.4th 226, 263 [“Because any finding of aggravating factors during the penalty phasedoes not ‘increase the penalty for a crime beyondthe prescribed statutory maximum’[citation omitted], ‘Ring imposes no new constitutional requirements on California’s penalty phase proceedings”]; see also People v. Snow (2003) 30 Cal.4th 43.) This holding in the face of the United States Supreme Court’s recent decisions is simply no longer tenable. Read together, the Apprendiline of cases render the weighing of aggravating circumstances against mitigating circumstances “the functional equivalent of an element of [capital murder].” (See Apprendi v. New Jersey, supra, 530 U.S.at p. 494.) As stated in Ring, “If a State makesan increase in a defendant’s authorized punishment contingent on the finding ofa fact, thatfact — no matterhow the State labels it — must be found by a jury beyond a reasonable doubt.” (Ring v. Arizona, supra, 536 U.S. at p. 586.) As Justice Breyer, explaining the holding in Blakely, points out, the Court madeit clear that “a jury mustfind, not only the facts that make up the crime of which the offender is charged, butalso '® This Courthas held that despite the “shall impose” language of section 190.3, even if the jurors determine that aggravating factors outweigh mitigating factors, they maystill impose a sentenceoflife in prison. (People v. Allen, supra, 42 Cal.3d at pp. 1276-1277; People v. Brown, supra, 40 Cal.3d at p. 541.) 546 (all punishment-increasing) facts about the way in which the offender ° carried out that crime.” (Blakely v. Washington, supra, 124 S.Ct. at p. 2551, (dis. opn. of Breyer, J.), original italics.) Thus, as stated in Apprendi, “the relevant inquiry is one_not of form, but of effect — does the required finding expose the defendantto a greater punishment than authorized by the jury’s guilt verdict?” (Apprendi v. New Jersey, supra, 530 U.S. at p. 494.) The answerin the California capital sentencing schemeis “yes.” In this state, in order to elevate the punishment from life imprisonment to the death penalty, specific findings must be made that (1) aggravation exists, (2) aggravation outweighs mitigation, and (3) death is the appropriate punishment underall the circumstances. Under the California sentencing scheme, neither the jury nor the court may impose the death penalty based solely upon a verdict offirst degree murderwith special circumstances. Whileit is true that a finding of a special circumstance, in addition to a conviction of first degree murder, Carries a maximum sentence of death (Cal. Pen. Code § 190.2), the statute. “authorizes a maximum punishment of death only in a formalsense.” (Ring v. Arizona, supra, 536 U.S.at p. 604 [quoting Apprendi v. New Jersey, supra, 530 U.S.at p. 541 (dis. opn. of O’Connor, J.)].) In order to impose the increased punishment of death, the jury must make additional findings at the penalty phase — that is, a finding of at least one aggravating factor plus findings that the aggravating factor or factors outweigh any mitigating ~ factors and that death is appropriate. These additional factual findings eeincrease the punishment beyond“‘‘that authorized by the jury’s guilty verdict’” (Ring v. Arizona, supra, 536 U.S.at p. 604 [quoting Apprendiv. New Jersey, supra, 530 U.S.at p. 494).) and are “essential to the imposition of the level ofpunishmentthat the. defendantreceives.” (Ring v. Arizona, 547 supra, 536 U.S. at p. 610 (conc. opn. of Scalia, J.).) They thus trigger the . requirements of Blakely-Ring-Apprendithat the jury be instructed to find the factors and determine their weight beyond a reasonable doubt. This Court has recognized that fact-finding is one of the functions of the sentencer; California statutory law, jury instructions, and the Court’s previous decisions leave no doubtthat facts must be found before the death penalty may be considered.'*° The Court held that Ring does not apply, however, because the facts found at the penalty phase are “facts which bear upon, but do not necessarily determine, which of these twoalternative penalties is appropriate.” (People v. Snow, supra, 30 Cal.4th at p.126, fn. 32, citing People v. Anderson, supra, 25 Cal.4th at pp. 589-590, fn.14.) The Court has repeatedly soughtto reject Ring’s applicability by comparing the capital sentencing process in California to “a sentencing court’s traditionally discretionary decision to impose one prison sentence rather than another.” (People v. Prieto, supra, 30 Cal.4th at p. 275; People v. Snow, supra, 30 Cal.4th at p. 126, fn. 32.) | The distinction between facts that “bear on” the penalty determination and facts that “necessarily determine” the penalty is a distinction without a difference. There are nofacts in Arizonaor California that are “necessarily determinative” of a sentence — in bothstates, the sentenceris free to impose a sentence of less than death regardless of the aggravating circumstances. In both states, any one of a numberofpossible ‘°° This Court has acknowledgedthat fact-finding is part of a sentencing jury’s responsibility, even if not the greatest part; its role “is not merely to find facts, but also — and most important — to render an individualized, normative determination about the penalty appropriate for the particular defendant. ...” (People v. Brown, supra, 46 Cal.3d at p. 448.) 548 aggravating factors may be sufficient to impose death — no single specific factor must be found in Arizona or California. In both states, the absence of an aggravating circumstance precludesentirely the imposition of a death sentence. And Blakely makes crystal clear that, to the dismayofthe dissent, the “traditional discretion”of a sentencing judge to impose aharsher term based on facts not found by the jury or admitted by the defendant does not comport with the federal Constitution. In Prieto, the Court summarized California’s penalty phase procedure as follows: Thus, in the penalty phase, the jury merely weighs the factors enumeratedin section 190.3 and determines ‘whether a defendanteligible for the death penalty should in fact receive that sentence.’ (Tuilaepa v. California, supra, 512 U.S.at p. 972). No single factor therefore determines which penalty — death or life without the possibility of parole — is appropriate. (People v. Prieto, supra, 30 Cal.4th at p. 263 (italics 1s added).) This summary omits the fact that death is simply not an option unless and until at least one aggravating circumstance is found to have occurredor be present — otherwise, there is nothing to put on the scale in support ofa death sentence. (See People v. Duncan, supra, 53 Cal.3d at pp. 977-978.) A California jury must first decide whether any aggravating circumstances, as defined by section 190.3 and the standard penalty phase instructions, exist in the case before it. Only after this initial factual determination has been made canthe jury moveon to “merely” weigh those factors against the proffered mitigation. Further, the Arizona Supreme Court has foundthatthis weighing process is the functional equivalent of an — element of capital murder, and is therefore subject to the protections of the Sixth Amendment. (See State v. Ring, supra, 65 P.3d at p. 943 [“Neither a 549 judge, underthe supersededstatutes, nor the jury, under the newstatutes, can imposethe death penalty unless that entity concludes that the mitigating factors are not sufficiently substantial to call for leniency’); accord, State v. - Whitfield (Mo. 2003) 107 S.W.3d 253; Woldt v. People (Colo.2003) 64 P.3d 256; Johnson v. State (Nev. 2002) 59 P.3d 450.)'5! It is true that a sentencer’s finding that the aggravating factors substantially outweigh the mitigating factors involves a mix of factual and normative elements, but this does not makethis finding any less subjectto ‘the Sixth and Fourteenth Amendment protections applied in Apprendi, Ring, and Blakely. In Blakely itself the State of Washington argued that Apprendi and Ring should not apply becausethe statutorily enumerated grounds for an upward sentencing departure wete illustrative only, not exhaustive, and henceleft the sentencing judge free to identify and find an aggravating factor on his own — finding which, appellant submits, must inevitably involve both normative (“what would makethis crime worse”) and factual (“what happened”) elements. The high court rejected the State’s contention, finding Ring and Apprendi fully applicable even wherethe sentencer is authorized to make this sort of mixed normative/factual finding, as long as the finding is a prerequisite to an elevated sentence. (Blakely, supra, 124 S. Ct. at p. 2538.) Thus, under Apprendi, Ring, and Blakely, whetherthe finding is a Washington state sentencer’s discernment 'S!_ See also Stevenson, The Ultimate Authority on the Ultimate Punishment: The Requisite Role ofthe Jury in Capital Sentencing (2003) 54 Ala L. Rev. 1091, 1126-1127 (noting that all features that the Supreme Court regarded in Ring as significant apply not only to the finding that an aggravating circumstanceis present but also to whether mitigating circumstancesare sufficiently substantialto call for leniency since both findings are essential predicates for a sentence of death). 550 of a non-enumerated aggravating factor or a California sentencer’s determination that the aggravating factors substantially outweigh the mitigating factors, the finding must be made by a jury and must be made beyond a reasonable doubt.!” 'S? In People v. Griffin (2004) 33 Cal.4th 536, in this Court’s first post-Blakely discussion of the jury’s role in the penalty phase, the Court — cited Cooper Industries, Inc. v. Leatherman Tiool Group, Inc. (2001) 532 U.S. 424, 432, 437, for the principle that an “award ofpunitive damages does not constitute a finding of‘fact[ ]’”: “imposition of punitive damages” is not “essentially a factual determination,” but instead an “expressionof... moral condemnation.” (People v. Griffin, supra, 33 Cal.4th at p. 595.) In Leatherman, however, before the jury could reach its ultimate determination of the quantity of punitive damages,it had to answer “Yes” to the following interrogatory: . Has Leatherman shownbyclear and convincing evidence that by engaging in false advertising or passing off, Cooper acted with malice, or showed a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to Leatherman’srights? (Leatherman, supra, 532 U.S. at p. 429.) This finding, which was a prerequisite to the award of punitive damages, is very like the aggravating factors at issue in Blakely. Leatherman was concerned with whether the Seventh Amendment’s ban on re-examination ofjury verdicts restricted appellate review of the amountof a punitive damages awardto a plain-error standard, or whether such awards could be reviewed de novo. Although the court foundthat the ultimate amount was a moral decisionthat should be reviewed de novo, it madeclear that all findings that were prerequisite to the dollar amount determination werejury issues. (/d. at pp. 437, 440.) Leatherman thus supports appellant’s contention that the findings of one or more aggravating factors, and that aggravating factors substantially outweigh mitigating factors, are prerequisites to the determination of whether to impose death in California, and are protected by the Sixth Amendmentto the federal Constitution. 551 The appropriate questions regarding the Sixth Amendment’s application to California’s penalty phase, according to Apprendi, Ring and Blakely are: (1) What is the maximum sentence that could be imposed without a finding of one or more aggravating circumstances as defined in CALJIC No. 8.88? The maximum sentence would belife without possibility of parole; (2) Whatis the maximum sentencethat could be imposed during the penalty phase based on findings that one or more _ aggravating circumstances are present? The maximum sentence, without any additional findings, namely that aggravating circumstances substantially . outweigh mitigating circumstances, would be life without possibility of parole. | | | Finally, this Court hasrelied on the undeniable fact that “death is different” as a basis for withholding rather than extending procedural protections. (People v. Prieto, supra, 30 Cal.4th at p. 263.) In Ring, Arizonaalso soughtto justify the lack of a unanimous jury finding beyond a reasonable doubt of ageravating circumstances by arguing that “death is different.” This effort to turn the high court’s recognition of the irrevocable nature of the death penalty to its advantage was rebuffed: Apart from the Eighth Amendment provenance of aggravating factors, Arizona presents “no specific reason for excepting capital defendants from the constitutional protections.. . extend[ed] to defendants generally, and noneis readily - apparent.” [Citation.] The notion “that the Eighth Amendment's restriction on state legislature's ability to ' define capital crimes should be compensated for by permitting States more leeway underthe Fifth and Sixth Amendments in proving an aggravating fact necessary to a capital sentence... is without precedentin our constitutional jurisprudence.” (Ring v. Arizona, supra, 536 US.at p. 606 (quoting with approval Apprendi v. New Jersey, supra, 530 U.S.at 539 (dis. opn. of O’Connor,J.)).) 552 @ Nogreater interest is ever at stake than in the penalty phase ofa capital case. (Mongev. California (1998) 524 U.S. 721, 732 [“the death penalty is unique in its severity andits finality”].) As the high court stated in Ring: Capital defendants, noless than noncapital defendants,. . . are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment .... Therightto trial by jury guaranteed by the Sixth Amendment would be senselessly diminishedifit encompassedthe fact-finding necessary to increase a defendant’s sentence by two years, but not the fact-finding necessary to put him to death. (Ring v. Arizona, supra, 536 U.S. at p. 589.) The final step of California’s capital sentencing procedure, the. decision whether to impose death orlife, is a moral and a normative one. This Court errs greatly, however, in using this fact to eliminate procedural protections that would renderthe decision a rational and reliable one andto allow the findingsthat are prerequisite to the determinationto be uncertain, undefined, and subject to dispute not only as to their significance, but as to their accuracy. This Court’s refusal to accept the applicability of Ring to any part of California’s penalty phase violates the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution.. B. The State And Federal Constitutions Requires That The Jurors Be Instructed That They May Impose A Sentence of Death Only If They Are Persuaded Beyond A Reasonable Doubt That The Aggravating Factors Outweigh The Mitigating Factors And That Death Is The Appropriate Penalty 1. Factual Determinations The outcomeof a judicial proceeding necessarily depends on an appraisal of the facts. “[T]he procedures by whichthe facts of the case are 553 determined assume an importancefully as great as the validity of the substantive rule of law to be applied. And the more important the rights at stake the more important must be the procedural safeguards surrounding those rights.” (Speiser v. Randall (1958) 357 U.S. 513, 520-521.) The primary procedural safeguard implanted in the criminaljustice system relative to fact assessment is the allocation and degree of the burden of proof. The burden of proof represents the obligation of a party to | establish a particular degree of belief as to the contention soughtto be proved. In criminal cases the burdenis rooted in the Due Process Clause of the Fifth and Fourteenth Amendment. (In re Winship, supra, 397 U.S. at p. 364.) In capital cases “the sentencing Process,as well as thetrial itself, mustsatisfy the requirements of the due process clause.” (Gardnerv. Florida, supra, 430 U.S. at p. 358; see also Presnell v. Georgia (1978) 439 US. 14.) Aside from the question of the applicability of the Sixth Amendmentto California’s penalty phase proceedings, the burden of proof for factual determinations during the penalty phaseof a capital trial, when life is at stake, must be beyond a reasonable doubt. This is required by both. | the Due Process Clause of the Fourteenth Amendmentand the Eighth Amendment. 2. Imposition Of Life Or Death The requirements of due processrelative to the burden of persuasion generally depend uponthe significance of what is at stake and the social goal of reducing the likelihood of erroneousresults. (In re Winship, supra, 397 U.S.at pp. 363-364; see also Addington v. Texas (1979) 441 US. 418, 423.) The allocation of a burden of persuasion symbolizes to society in general and the jury in particular the consequences of whatis to be decided. In this sense,it reflects a belief that the more serious the consequences of 554 the decision being made, the greater the necessity that the decision-maker reach “a subjective state of certitude”that the decision is appropriate. (In re Winship, supra, 397 U.S.at p. 364.) Selection of a constitutionally appropriateburden of persuasion is accomplished by weighing “three distinct factors ... the private interests affected by the proceeding; the risk of error created by the State’s chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure.” - (Santosky v, Kramer (1982) 455 US. 745, 755; see also Matthewsv. | _ Eldridge (1976) 424 U.S. 319, 334-335.) | Looking at the “private interests affected by the proceeding,”it is impossible to conceive of an interest more significant than humanlife. If personalliberty is “an interest of transcending value” (Speiser v. Randall, supra, 375 U.S. at p. 525), how much moretranscendent is humanlife itself. Far less valued interests are protectedby the requirement of proof beyonda reasonable doubt before they may be extinguished. (See In re Winship, supra, 397 U.S. 364 [adjudication ofjuvenile delinquency]; People v. Feagley, supra, 14 Cal.3d 338 [commitment as mentally disordered sex offender]; People v. Burnick (1975) 14 Cal.3d-306 [same]; People v. Thomas (1977) 19 Cal1.3d 630 [commitment as narcotic addict]; Conservatorship ofRoulet (1979) 23 Cal.3d 219 [appointmentof conservator].) The decision to take a person’s life must be made under no less demanding a standard. Due process mandates that our social commitmentto the sanctity of life and the dignity of the individual be incorporated into the decision-making process by imposing uponthe State the burden to prove beyond a reasonable doubtthat death is appropriate. 555 Asto the “risk of error created by the State’s chosen procedure,” Santosky v. Kramer, supra, 455 U.S. at p. 755, the United States Supreme Court reasoned: [I]n any given proceeding, the minimum standard of proof tolerated by the due process requirementreflects not only the weight of the private and publicinterests affected, but also a societal judgment about howtherisk of error should be distributed betweenthe litigants.... When the State brings a criminal action to deny a defendantliberty orlife, ... “the interests of the defendantare of such magnitudethat historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.” [citation] The stringency of the “beyond a reasonable doubt” standard bespeaks the “weight and gravity” of the private interest affected[citation], society’s interest in avoiding erroneous convictions, and a judgmentthat those interests together require that“society impos[e] almostthe entire riskof error upon itself.” (Santosky v. Kramer, supra, 455 U.S. at p. 755 (quoting Addington v. Texas, supra, 441 U.S.at pp. 423, 424, 427).) Moreover, there is substantial room for error in the proceduresfor | - deciding betweenlife and death. The penalty proceedings are muchlike the child neglect proceedings dealt with in Santosky. They involve “imprecise substantive standards that leave determinations unusually opento the subjective valuesof the [jury].” (Santosky v. Kentucky, supra, 455 U.S.at p. 763.) Nevertheless, imposition of a burden of proofbeyond a reasonable doubt can be effective in reducing this risk of error, since that standard has long proven its worth as “a prime instrumentfor reducingthe risk of convictions resting on factual error.” (dn re Winship, supra, 397 U'S.at p. 363.) 556 The final Santosky benchmark,“the countervailing governmental interest supporting use of the challenged procedure,” also calls for imposition of a reasonable doubt standard. Adoption of that standard would not deprive the State of the power to impose capital punishment; it would merely serve to maximize“reliability in the determination that death is the appropriate punishmentin a specific case.” (Woodson v. North Carolina, supra, 428 U.S.at p. 305.) The needforreliability is especially compelling in capital cases. (Beck v. Alabama, supra, 447 U.S. at pp. 637-638.) No greater interestis ever at stake. (See Mongev. California, supra, 524 U.S.atp. 732.) In Monge, the Supreme Court expressly applied the Santosky rationale for the beyond-a-reasonable-doubt burden of proof requirementtocapital sentencing proceedings: “[/]n a capital sentencingproceeding, as in a criminaltrial, ‘the interests of the defendant [are] of such magnitudethat... they have been protected by standards of proof-designed to exclude as 999_ nearly as possible the likelihood of an erroneous judgment.’” (Monge v. California, supra, 524 U.S. at p. 732 (quoting Bullington v. Missouri (1981) 451 U.S. 430, 441 [emphasis added].) The sentencer of a person facing the death penalty is required by the due process and Eighth Amendment constitutional guarantees to be convinced beyond a reasonable doubt not only that the factual bases forits decision are true, but also that death is the appropriate sentence. | | This Court has long held that the penalty determination in a capital case in California is a moral and normative decision, as opposed to a purely factual one. (See e.g., People v. Griffin, supra, 33 Cal.4th at p. 595.) Other states, however, have ruled that this sort of moral and normative decision is. not inconsistent with a standard based on proof beyond a reasonable doubt. 557 This is because a reasonable doubt standard focuses on the degree of certainty needed to reach the determination, whichis something not only applicable butparticularly appropriate to a moral and normative penalty | decision in a death penalty case. As the Connecticut Supreme Court recently explained whenrejecting an argumentthat the jury determination in the weighing process is a moral judgment inconsistent with a reasonable doubt standard: . Wedisagree with the dissent of Sullivan, C.J., suggesting that, because the jury’s determination is a moral judgment,it is somehow inconsistent to assign a burden of persuasionto that determination. The dissent’s contention relies on its understanding of the reasonable doubt standard as a quantitative evaluation of the evidence. Wehavealready explained in this opinionthat the traditional meaning of the ‘reasonable doubt standard focuses, not on a quantification of the evidence, but on the degreeofcertainty of the fact finder or, in this case, the sentencer. Therefore, the nature of the jury’s determination as a moral judgmentdoesnot render the _ application ofthe reasonable doubt standardto that . determination inconsistent or confusing. On the contrary,it makes sense, and, indeed, is quite common, when making a moral determination, to assign a degree ofcertainty to that judgment. Put another way, the notion of a particular level of certainty is not inconsistent with the process of arriving at a moral judgment; our conclusion simply assigns the law’s most demandinglevel of certainty to the jury’s most demanding and irrevocable moral judgment. (State v. Rizzo (2003) 266 Conn. 171, 238, fn. 37.) In sum,the need forreliability is especially compelling in capital cases. (Beck v. Alabama, supra, 447 U.S. at pp. 637-638; Mongev. | California, supra, 524 U.S.at p. 732.) Consequently, under the Eighth and | Fourteenth Amendments, a sentence of death may not be imposedunless the 558 sentencer is convinced beyond a reasonable doubtnot only that the factual bases for its decision are true, but that death is the appropriate sentence. C. The Sixth, Eighth, And Fourteenth Amendments Require That The State Bear Some Burden Of Persuasion At The Penalty Phase In addition to failing to impose a reasonable doubt standard on the prosecution, the penalty phaseinstructions failed to assign any burden of persuasion regardingthe ultimate penalty phase determinationsthe jury had to make. Although this Court has recognized that “penalty phase evidence may raise disputed factual issues” (People v. Superior Court (Mitchell) (1993) 5 Cal.4th 1229, 1236), it also has held that a burden of persuasion at the penalty phase is inappropriate given the normative nature of the determinations to be made. (See People v. Hayes (1990) 52 Cal.3d 577, 643.) Appellant urges this Court to reconsider that ruling becauseitis constitutionally unacceptable underthe Sixth, Eighth, and Fourteenth Amendments. First, allocation of a burdenofproofis constitutionally necessary to avoid the arbitrary and inconsistent application of the ultimate penalty of death. “Capital punishment must be imposedfairly, and with reasonable consistency, or not at all.” (Eddings v. Oklahoma, supra, 455 U.S.at p. 112.) With no standard of proofarticulated, there is a reasonable likelihood that different juries will impose different standards of proof in deciding whether to impose a sentence of death. Who bears the burden of persuasion as to the sentencing determination also will vary from case to case. Such arbitrariness undermines the requirementthat the sentencing scheme provide a meaningfulbasis for distinguishing the few cases in which the death penalty is imposed from the manyin whichit is not. Thus, evenifit 559 were not constitutionally necessary to place such a heightened burden of persuasion on the prosecution as proof beyond a reasonable doubt, some burden of proof mustbe articulated, if only to ensure that juries faced with similar evidence will return similar verdicts, that the death penalty is evenhandedly applied from case to case, and that capital defendants are treated equally from case to case. It is unacceptable under the Eighth and Fourteenth Amendments that, in cases where the aggravating and mitigating evidence is balanced, one defendantshould live and anotherdie simply because one jury assigns the burden of proof and persuasionto the State while anotherassignsit to the accused, or because one juror applied a lower standard and found in favorofthe State and another applied a higher standard and found in favorof the defendant. (See Proffitt v Florida, supra, 428 U.S.at p. 260 [punishment should not be “wanton”or “freakish”; Mills v. Maryland, supra, 486 U.S. at p. 374 [impermissible for punishment to be reached by “height of arbitrariness”].) Second, while the schemesets forth no burden of persuasion for the prosecution,the prosecution obviously has some burden to show that the aggravating factors are greater than the mitigating factors, as a death sentence may not be imposed simply by virtue of the fact that the jury has ~ found the defendant guilty of murder and has found at least one special circumstance true. The jury must impose a sentence of life without possibility of parole if the mitigating factors outweigh the aggravating circumstances (see Cal.Penal Code §190.3), and may impose such a _ sentence even if no mitigating evidence waspresented. (See Peoplev. Duncan, supra, 53 Cal.3d at p. 979.) In addition, the statutory language suggests the existence of some sort of finding that must be “proved”by the prosecution and reviewed by 560 the trial court. Penal Code section 190.4, subdivision (e) requires thetrial judge to “review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstancesreferred to in Section 190.3,” and to “make a determination as to whetherthe jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented.”'** | A fact could not be established — i.e., a fact finder could not make a finding — without imposing somesort of burden onthe parties presenting the evidence upon whichthe finding is based. The failure to inform the jury of how to make factual findingsis inexplicable. Third, in noncapital cases, the state of California does impose on the prosecution the burden to persuade the sentencer that the defendant should ‘receive the most severe sentence possible. (See Cal. Rules of Court, Rule 420(b) [existence of aggravating circumstances necessaryfor imposition of upper term must be proved by preponderance of evidence]; Cal. Evid. Code § 520 (“The party claiming that a person is guilty of crime or wrongdoing has the burdenof proof on that issue”’].) There is no statute to the contrary. In any capital case, any aggravating factor will relate to wrongdoing; those that are not themselves acts of wrongdoing (such as, for example, age, when it is counted as a factor in aggravation)arestill deemed to aggravate other | -wrongdoing by a defendant. Section 520 is a legitimate state expectation in adjudication and is thus constitutionally protected under the Fourteenth — Amendment. (Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) '? As discussed below, the Supreme Court consistently has held that a capital sentencing proceedingis similarto a trial in its format and in the existence of the protections afforded a defendant. 561 Thefailure to articulate a proper burdenof proofis constitutional error underthe Fifth, Sixth, Eighth, and Fourteenth Amendments. In addition, as explained in the preceding argument, to provide greater - protection to noncapital than to capital defendants violates the Due Process, Equal Protection, and Cruel and Unusual Punishment Clausesof the Eighth and Fourteenth Amendments. (See, e.g., Mills v. Maryland, supra, 486 USS. at p. 374; Myers v. YIst, supra, 897 F.2d at p. 421.) It is inevitable that one or more jurors on a given jury will find themselves torn betweensparing and taking the defendant’s life, or between finding andnotfinding a particular aggravator. A tie-breakingruleis needed to ensure that such jurors — and the juries on whichthey sit — respond in the same way,so the death penalty is applied evenhandedly. “Capital punishment [must] be imposedfairly, and with reasonable consistency, or notat all.” (Eddings v. Oklahoma, supra, 455 U.S.at p. 112.) It is unacceptable — “wanton” and “freakish” (Proffitt v. Florida, 428 U.S. at 260) and the “height of arbitrariness” (Mills v. Maryland, supra, 486 U.S.at p. 374) — that one defendant should live and another die simply because onejurororjury can breaka tie in favor of a defendant and another can do so in favorofthe State on the samefacts, with no uniformly | applicable standards to guide either. If, in the alternative, it were permissible not to have any burden of proofat all, the trial court erred prejudicially by failing to articulate that to the jury. | The burden of proof in any case is one of the most fundamental concepts in our system ofjustice, and anyerror in articulating it is automatically reversible error. (Sullivan v. Louisiana, supra, 508 U.S. 275.) © The reason is obvious. Without an instruction on the burden ofproof, 562 jurors maynotuse the correct standard, and each may instead apply the standard he or she believes appropriate in any given case. The sameistrue if there is no burden of proofbut the jury is not so told. Jurors who believe the burden should be on the defendant to prove mitigation in penalty phase would continueto believe that. Such jurors do exist. This raises the constitutionally unacceptable possibility that a juror would vote for the death penalty because of a misallocation of whatis supposed to be a nonexistent burden of proof. That renders the failure to give any instructionat all.on the subject a violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments, becausetheinstructions given fail to provide the jury with the guidance legally required for administration of the ~ death penalty to meet constitutional minimum standards, Theerror in failing to instruct the jury on what the proper burden of proofis — or, as the case maybe,is not — is reversible per se. (Sullivan v. Louisiana, supra, 508 - U.S. 275.) D. The Instructions Violated The Sixth, Eighth And Fourteenth Amendments To The United States Constitution By Failing To Require Juror Unanimity On Aggravating Factors The jury wasnotinstructed that its findings on aggravating circumstances needed to be unanimous. Thetrial court failed to require even that a simple majority of the jurors agree on any particular aggravating factor, let alone agree that any particular combination of aggravating factors warranted a death sentence. Asa result, the jurors in this case were not required to deliberate at all on critical factual issues. Indeed, there is no reasonto believe that the jury imposed the death sentencein this case based on any form of agreement, other than the general agreement that the aggravating factors were so substantial in relation to the mitigating factors 563 that death was warranted. Asto the reason for imposing death,a single _ Juror may have relied on evidence that only he or she believed existed in imposing appellant’s death sentence. Such a processleads to a chaotic and unconstitutional penalty verdict. (See, e.g., Schad v. Arizona (1991) 501 U.S. 624, 632-633 (plur. opn. of Souter, J.).) . Appellant recognizes that this Court has held that when an accused’s life is at stake during the penalty phase, “there is no constitutional requirementfor the jury to reach unanimous agreement on the circumstances in aggravation that support its verdict.” (See People V. Bacigalupo, supra, | Cal.4th at p. 147; see also People v. Taylor (1990) 52 Cal.3d 719, 749 [“unanimity with respect to aggravating factors is not required by statute or as a constitutional procedural safeguard”].) . Nevertheless, appellant asserts that the failure to require unanimity as to aggravating circumstances encouraged the jurors to act in an arbitrary, capricious and unreviewable manner,slanting the sentencing process in favor of execution. The absence of a unanimity requirementis inconsistent with the Sixth Amendmentjury trial guarantee,the Eighth Amendment requirement of enhancedreliability in capital cases, and the Fourteenth . Amendment requirements of due process and equal protection. (See Ballew v. Georgia (1978) 435 U.S. 223, 232-234; Woodson v. North Carolina, supra, 428 U.S.at p. 305.)'™ | With respect to the Sixth Amendment argument, this Court’s reasoning and decision in Bacigalupo — particularly its reliance on Hildwin 4 The absence ofhistorical authority to support such a practice makesit further violative of the Sixth, Eighth, and Fourteenth Amendments. (See e.g., Murray’s Lessee (1855) 59 U.S. (18 How.) 272; Griffin v. United States (1991) 502 U.S. 46, 51.) 564 v. Florida (1989) 490 U.S. 638, 640 — should be reconsidered. In Hildwin, the Supreme Court noted that the Sixth Amendmentprovidesnoright to jury sentencing in capital cases, and held that “the Sixth Amendment does not require that the specific findings authorizing the imposition ofthe sentence of death be made by the jury.” (/d. at pp. 640-641.) Thisis not, however, the same asholding that unanimity is not required. Moreover, the Supreme Court’s holding in Ring makes the reasoning in Hildwin questionable, and thereby, undercuts the constitutionalvalidity of this Court’s ruling in Bacigalupo.'» . Applying the Ring reasoning here, jury unanimity is required under ‘the overlapping principles of the Sixth, Eighth, and Fourteenth Amendments. “Jury unanimity ... is an accepted, vital mechanism to ensure that real and full deliberation occurs in the jury room, and that the jury’s ultimate decision will reflect the conscienceof the community.” (McKoy ve North Carolina (1990) 494 U.S. 433, 452 (conc. opn. of Kennedy,J.).) Indeed, the Supreme Court has held that the verdict of even a SixX-person jury ina non-petty criminal case must be unanimousto “preserve the substance ofthe jury trial right and assurethe reliability ofits verdict.” (Brown v. Louisiana, surpa, 447 U.S.at p. 334.) Given the “acute need for reliability in capital sentencing proceedings” (Mongev. California, 524 U.S. at p. 732; accord Johnsonv. Mississippi, surpa, 486 U.S.at p. 584; ~ © Appellant acknowledges that the Court recently held that Ring does not require a California sentencing jury to find unanimously the existence of an aggravating factor. (People v. Prieto,supra, 30 Cal.4th at 265.) Appellant raises this issue to preserve his rights to further review. - See Smith v. Murray (1986) 477 U.S. 527 [holding that even issuessettled -under state law must be reasserted to preserve the issue for federal habeas corpus review].) 565 Gardnerv. Florida, supra, 430 U.S.at p. 359; Woodson vy. North Carolina, 428 U.S. at p. 305), the Sixth and Eighth Amendmentsare likewise not satisfied by anything less than unanimity in the crucial findings ofa capital jury. In addition, the Constitution of this state assumes jury unanimity in criminaltrials. The first sentenceofarticle I, section 16 of the California Constitution provides that “[t]rial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a ' verdict.” (See also People v. Wheeler, supra, 22 Cal.3d at p. 265 [confirming inviolability of unanimity requirement in criminaltrials].) The failure to require that the jury unanimously find the aggravating factors true also stands in stark contrast to rules applicable in California to ~ noncapital cases.'5® For example, in cases where a criminal defendant has been charged with special allegations that may increasethe severity of his sentence, the jury must render a separate, unanimousverdict on the truth of such allegations. (See, e.g., Cal. Penal Code § 1158(a).) Since capital '°6 The federal death penalty statute also provides that a “finding with respect to any aggravating factor must be unanimous.” 21 U.S.C.§ 848(k). In addition, at least 17 death penalty states require that the jury unanimously agree on the aggravating factors proven. See Ark. Code Ann., § 5-4-603(a) (Michie 1993); Ariz. Rev. Stat., § 13-703.01(E) (2002); Colo. Rev.Stat. Ann., § 18-1.3-1201(2)(b)(D(A) (West 2002); Del. Code Ann., tit. 11, § 4209(c)(3)b.1. (2002); Idaho Code, § 19-2515(3)(b) (2003);IIL. Ann.Stat., ch. 38, para. 9-1(g) (Smith-Hurd 1992); La. Code Crim. Proc. Ann.art. 905.6 (West 1993): Md. Ann. Code,art. 27, § 413() (1993); Miss. Code Ann., § 99-19-103 (1992); Neb. Rev.Stat., § 29-2520(4)(f) (2002); N.H.Rev.Stat. Ann., § 630:5(IV) (1992); N.M.Stat. Ann., § 31-20A-3 (Michie 1990); Okla. Stat. Ann., tit. 21, § 701.11 (West 1993); 42 Pa. Cons. Stat. Ann., § 9711(c)(1)(iv) (1982); S.C. Code Ann., § 16-3-20(C) (Law. Co-op. 1992); Tenn. Code Ann., § 39-13-204(g) (1993); Tex. Crim. Proc. Code Ann., § 37.071 (West 1993). 566 defendants are entitled to more rigorous protections than those afforded noncapital defendants (see Monge v. California, supra, 524 U.S.at p. 732; Harmelin v. Michigan (1991) 501 U.S. 957, 994) — and, since providing more protection toa noncapital defendant than a capital defendant would violate the equal protection clause of the Fourteenth Amendment(see, e.g., Myers v. YIst, supra, 897 F.2d at p. 421) — it follows that unanimity with regard to aggravating circumstancesis constitutionally required. To apply the requirement to an enhancementfinding that may carry only a maximum punishmentof one yearin prison, but not to a finding that could have “a substantial impact on the jury’s determination whetherthe defendant should live or die” (People v. Medina (1995) 11 Cal.4th 694, 763-764), would by” its inequity violate the equal protection clause and by its irrationality violate both the due process and cruel and unusual punishmentclauses of the state and federal Constitutions, as well as the Sixth Amendment’sguarantee of a trial byjury. In Richardson vy. United States (1999) 526 US. 813, 815-816, the United States Supreme Court interpreted 21 U.S.C. § 848(a), and held that the jury must unanimously agree on whichthree drug violations constituted the “continuing series of violations” necessary for a continuing criminal enterprise [CCE] conviction. The high court’s reasonsforthis holding are instructive: The statute’s word “violations” covers many different kinds of behavior of varying degrees of seriousness.... At the same time, the Government in a CCE case may well seek to prove that a defendant, charged as a drug kingpin, has been involved in numerous underlying violations. The first of these considerations increases the likelihood that treating violations simply as alternative means, by permitting a jury to avoid discussion of the specific factual details of each violation, will 567 cover up wide disagreement amongthe jurors about just what the defendant did, and did not, do. The second consideration significantly aggravates the risk (present at least to a small degree whenever multiple meansare at issue) that jurors, unless required to focus upon specific factual detail, will fail to do so, simply concluding from testimony, say, of bad reputation, that where there is smoke there mustbefire. (Ud. at p. 819.) These reasonsare doubly applicable whenthe issue is life or death. Wherea Statute (like California’s) permits a wide range of possible aggravators and the prosecutor offers up multiple theories or instances of alleged aggravation, unless the jury is required to agree unanimously as to the existence of each aggravator to be weighed on death’sside ofthescale, there is a grave risk (a) that the ultimate verdict will cover up wide disagreement amongthe jurors aboutjust whatthe defendant did and didn’t do; and (b) that the jurors, not being forced to do so, will fail to focus upon specific factual detail and simply conclude froma widearrayofproffered agegravators that where there is smoke there mustbefire, and on that basis concludethat death is the appropriate sentence. The risk of such an inherently unreliable decision-making processis unacceptable in a capital context. The ultimate decision of whetheror not to impose death is indeed a “moral” and “normative”decision. (People v. Hawthorne, supra, 4 Cal.4th at p. 79; People v. Hayes, supra, 52 Cal.3d at p. 643.) However, Ring and Blakely make clear that the finding of one or more aggravating circumstances, and the finding that the aggravating circumstances outweigh mitigating circumstances, are prerequisite to considering whether deathis the appropriate sentence in a California capital case. These are precisely — 568 the type of factual determinations for which appellantis entitled to unanimousjury findings beyond a reasonable doubt. E. The Instructions Violated The Sixth, Eighth And Fourteenth Amendments By Failing To Inform The Jury Regarding The Standard Of Proof And Lack Of Need For Unanimity As To Mitigating Circumstances Compounding the error from the failure of the jury instruction to inform the jurors about the burden of proof (see Argument XXIV,ante) was the trial court’s rejection of the defense’s requested instructions. This impermissiblyforeclosed the full consideration of mitigating evidence required by the Eighth Amendment. (See Mills v. Maryland, supra, 486 U.S. at p. 374; Lockett v. Ohio, supra, 438 U.S.at p. 604; Woodson v. North Carolina, supra, 428 U.S. at p. 304.) | “There is, of course, a strong policy in favor of accurate determination of the appropriate sentence in a capital case.” (Boydev. California, supra, 494 U.S. at p. 380.) Constitutional error thus occurs when “there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” (Ibid.) That likelihood of misapplication occurs when,as in this case, the jury is left with the impression that the defendant bears some particular burden in proving facts in mitigation. Asthe Eighth Circuit has recognized, “Lockett makesit clear that the defendant is not required to meet any particular burden of proving a mitigating factorto any specific evidentiary level before the sentenceris permitted to considerit.” (Lashley v. Armountrout (8th Cir. 1992) 957 F.2d 1495, 1501, rev'd on other grounds (1993) 501 U.S. 272.) However, this 569 concept was neverexplainedto the jury, which would logically believe that the defendant bore some burdenin this regard. | Under the worst case scenario, since the only burden of proof that was explained to the jurors was proof beyonda reasonable doubt, that is the standard they would likely have applied to mitigating evidence. (See Eisenberg & Wells, Deadly Confusion: Juror Instructions in Capital Cases (1993) 79 Cormell L. Rev.1, 10.) | | A similar problem is presented bythe lack of instruction regarding jury unanimity. Appellant’s jury was told in the guilt phase that unanimity wasrequired in order to convict appellant of any charge or special ‘circumstance. Similarly, the jury was instructed that the penalty determination had to be unanimous. In the absence of an explicit instructionto the contrary, there is a substantial likelihood that the jurors believed unanimity wasalso required for finding the existence of mitigating factors. A requirement of unanimity improperly limits considerationof- mitigating evidencein violation of the Eighth Amendmentof the federal Constitution. (See McKoy v. North Carolina, supra, 494 US.at pp. 442-443.) Had the jury been instructed that unanimity was required before mitigating circumstances could be considered, there would be no question that reversal would be required. (Ibid.; see also Mills v. Maryland, supra, 486 U.S.at p. 374.) Because there is a reasonablelikelihood that the jury erroneously believed that unanimity was required, reversal is also required here. | The failure of the California death penalty scheme to require instruction on unanimity and the standard of proofrelating to mitigating circumstancesalso createsthe likelihood that differentjuries will utilize 570 different standards. Sucharbitrariness violates the Eighth Amendment and the equal protection and due process clauses of the Fourteenth Amendment. In short, the failure to provide the jury with appropriate guidance was prejudicial and requires reversal of appellant’s death sentence since he wasdeprived ofhis rights to due process, equal protection and a reliable capital-sentencing determination, in violation of the Sixth, Eighth, and Fourteenth Amendments, as well as his corresponding rights underarticleI, sections 7, 17, and 24 of the California Constitution. F. The Penalty Jury Should Also Be Instructed On The Presumption Of Life In noncapital cases, where only guilt is at issue, the presumption of innocenceis a basic componentofa fairtrial, a core constitutional and adjudicative valuethat is essential to protectthe accused. (See Estelle ve Williams (1976) 425 U.S. 501, 503.) In the penalty phase of a capital case, the presumption oflife is the correlate of the presumption of innocence. Paradoxically, however, althoughthe stakes are muchhigherat the penalty phase, there is no statutory requirementthat the jury be instructedasto the presumptionoflife. (See Note, The Presumption ofLife: A Starting Point Jor Due Process Analysis ofCapital Sentencing (1984) 94 Yale L.J. 35 1; cf. Delov. Lashley (1983) 507 U.S. 272.) Appellant submits that the trial court’s failure to instruct the jury that the law favors life and presumeslife imprisonment without parole to be the appropriate sentence violated appellant’s right to due process of law (U.S. Const. Amend. XIV; Cal. Const., art: I, §§ 7 & 15), his right to be free from cruel and unusual punishmentand to have his sentence determined in a reliable manner (U.S. Const. Amends. VII & XIV; Cal. Const. art. I, § 17), 57] and his right to the equal protection of the laws. (U.S. Const. Amend. XIV; Cal. Const., art. I, § 7.) In People v. Arias, supra, 13 Cal.4th 92, this Court held that an instruction on the presumptionoflife is not necessary in California capital cases, in part because the United States Supreme Court has held that “the state may otherwisestructure the penalty determinationas it sees fit,” so | long as state law otherwise properly limits death eligibility. (Id.at p. 190.) However, as the other subsections of this argument demonstrate, this state’s death penalty law is remarkably deficient in the protections neededto insure the consistent and reliable imposition of capital punishment. Therefore, a ‘ presumption oflife instruction is constitutionally required. G. . Conclusion Asset forth above,the trial court violated appellant’s federal | constitutional rights by failing to set out the appropriate burden ofproof and the unanimity requirement regarding the jury’s determinationsat the penalty phase. Therefore, his death sentence mustbe reversed. / // 572 XXVII THE INSTRUCTIONS DEFINING THE SCOPE OF THE JURY’S SENTENCING DISCRETION AND THE NATURE OF ITS DELIBERATIVE PROCESS VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS The trial court’s concludinginstruction in this case, a modified version of CALJIC No. 8.88 [Penalty Trial — ConcludingInstruction] (1989 rev.), read as follows: It is now your duty to determine which of the two ‘penalties, death or confinementin thestate prisonforlife without possibility of parole, shall be imposed on each defendant for each countoffirst degree murder. After having heard all the evidence, and after having heard and considered the arguments of counsel, you shall consider, take into account and be guided bythe applicable factors of aggravating and mitigating circumstances upon which you havebeeninstructed. An aggravating factor is any fact, condition or event attending the commission of a crime whichincreasesits guilt or enormity, or adds to its injurious consequences which is above and beyond the elements of the crimeitself. A mitigating circumstanceis any fact, condition or event which as such does not constitute a justification or excuse for the crime in question but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty. The weighing of aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginary scale, or the arbitrary assignment of weights to any of them. To return a judgment of death, each of you must be persuadedthat the aggravating circumstances are so substantial in comparison with the mitigating circumstancesthat it warrants death instead of life withoutparole. . 573 In this case you must decide separately the question of the penalty as to each of the defendants and each countoffirst degree murder. If you cannot agree upon the penalty to be inflicted on all defendants orall counts, but do agree on the penalty as to one or more of them, you must render a verdict as to the one or more on which you do agree. You will soon retire and select one of your numberto act as foreperson, who will preside over your deliberations. In order to make a determination asto the penalty, all twelve jurors mustagree. Anyverdict that you reach must be dated and signed by your foreperson on a form that will be provided and then you shall return with it to this courtroom. (RT 18443-18445; CT 15846-15847.) | This instruction, which formedthe centerpiece of the trial court’s. description of the sentencing process, was constitutionally flawed. The instruction did not adequately convey severalcritical deliberative principles and was misleading and vaguein crucial respects. The flawsin this pivotal instruction violated appellant’s fundamental rights to due process (U.S. Const., Amend. XIV),to a fair trial by jury (U.S. Const., Amends. VI and XIV), and to a reliable penalty determination (U.S. Const., Amends. VI, VIII and XIV) and require reversal of his sentence. (See¢.g., Mills v. Maryland, supra, 486 U.S.at pp. 383-384.) A. The Instructions Caused The Jury’s Penalty Choice To Turn On An Impermissibly Vague | And Ambiguous Standard That Failed To Provide Adequate Guidance And Direction Pursuantto the CALJIC No.8.88 instruction, the question of whether to impose a death sentence on appellant hinged on whether the jurors were “persuadedthat the aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death 574 instead of life without parole.” The words “so substantial,’ however, providedthe jurors with no guidanceas to “what they haveto find in order to imposethe death penalty. . . .” (Maynard v. Cartwright (1988) 486 U.S. 356, 361-362.) The use ofthis phrase violates the Eighth and Fourteenth Amendments because it creates a standard that is vague, directionless and impossible to quantify. The phrase is so varied in meaning andso broad in usage that it cannot be understood in the context of deciding betweenlife and death and invites the sentencer to impose death through the exercise of “the kind of open-ended discretion which was held invalid in Furman v. Georgia ....” (Id. at p. 362.) The Georgia Supreme Court found that the word “substantial” causes vagueness problems when used to describe the type of prior criminal history jurors may consideras an aggravating circumstanceina capital case. Arnold v. State (Ga. 1976) 224 S.E.2d 386, 391, held that a statutory aggravating circumstance which asked the sentencer to consider whether the accused had “a substantial history of serious assaultive criminal convictions” did “not provide the sufficiently ‘clear and objective | standards’ necessary to control the jury’s discretion in imposing the death penalty. [Citations.]” (See Zant v. Stephens, supra, 462 U.S.at p. 867,fn. 5.) In analyzing the word “substantial,” the Arnold court concluded: Black’s Law Dictionary defines “substantial” as “of real worth and importance,” “valuable.” Whether the defendant’s prior history of convictions meets this legislative criterion 1s highly subjective. While we might be more willing to find such language sufficient in another context, the fact that we 575 are here concerned with the imposition of the death penalty . compels a different result.(224 S.E.2d at p. 392,fn. omitted.)!°’ Appellant acknowledges that this Court has opined, in discussing the constitutionality of using the phrase “so substantial” in a penalty phase concludinginstruction, that “the differences between [Arnold] and this case are obvious.” (People v. Breaux, supra, | Cal.4th at p. 316, fn. 14.) However, Breaux’s summary disposition ofArnold does not specify what those “differences” are, or how they impactthe validity of Arnold's analysis. While Breaux, Arnold,and this case,like all cases, are factually different, their differences are not constitutionally significant and do not undercut the Georgia Supreme Court’s reasoning. All three cases involve claimsthat the language of an important _penalty phase jury instruction is “too vague and nonspecific to be applied evenly by a jury.” (Arnold, supra, 224 $.E.2d at p. 392.) The instruction in Arnold concerned an aggravating circumstance that used the term “substantialhistory of serious assaultive criminal corivictions” (ibid., italics © added), while the instant instruction, like the one in Breaux, uses that term to explain how jurors should measure and weigh the “aggravating evidence” in deciding on the correct penalty. Accordingly, while the three cases are different, they have at least one commoncharacteristic: they all involve | penalty-phase instructions which fail to “provide the sufficiently ‘clear and objective standards’ necessary to control the jury’s discretion in imposing the death penalty.” Cd. at p. 391.) ‘87 The United States Supreme Court hasspecifically recognized the portion of the Arnold decision invalidating the “substantial history” factor on vagueness grounds. (See Gregg v. Georgia, supra, 428 U.S. at p. 202.) . 576 In fact, using the term “substantial” in CALJIC No.8.88 arguably gives rise to more severe problems than those the Georgia Supreme Court identified in the use of that term in Arnold. Theinstruction at issue here — governs the very act of determining whether to sentence the defendant to death, while the instruction at issue in Arnold only defined an aggravating circumstance, and wasat least one step removed from the actual weighing process used in determining the appropriate penalty. — In sum,there is nothing about the language ofthis instructionthat “implies any inherentrestraint on the arbitrary and capricious infliction of the death sentence.” (Godfrey v. Georgia, supra, 446 U.S. at p. 428.) The words“so substantial” are far too amorphousto guide a jury in deciding whether to impose a death sentence. (See Stringer v. Black (1992) 503 U.S. 222.) Because theinstruction renderedthe penalty determination unreliable (U.S. Const., Amends. VII and XIV), the deathjudgment mustbe reversed. iB. The Instructions Failed To Inform The Jurors That The Central Determination Is Whether The Death Penalty Is The Appropriate Punishment, Not Simply An Authorized Penalty, For Appellant The ultimate question in the penalty phase of any capital case is whetherdeath is the appropriate penalty. (Woodson v. North Carolina, supra, 428 U.S.at p. 305; People v. Edelbacher, supra, 47 Cal.3d at p. 1037.) Indeed, this Court consistently has held that the ultimate standard in California death penalty cases is “which penalty is appropriate in the particular case.” (People v. Brown, supra, 40 Cal.3d at p. 541[jurorsare not required to vote for the death penalty unless, upon weighing the factors, they decide it is the appropriate penalty underall the circumstances]; accord, People v. Champion, supra, 9 Cal.4th at p. 948; People v. Milner (1988) 45 Cal.3d 227, 256-257; see also Murtishaw v. Woodford (9th Cir 577. 2001) 255 F.3d 926, 962.) However,the instruction under CALJIC No. 8.88 did not make clear this standard of appropriateness. Bytelling the jurors that they could return a judgmentof death if the aggravating evidence “warrants” death instead oflife without parole, the instruction failed to inform the jurors that the central inquiry was not whether death was “warranted,” but whether it was appropriate. Those two determinations are not the same. A rational juror could find in a particular case that death was warranted, but not appropriate, because the meaning of “warranted”is considerably broader than that of “appropriate.” Merriam-Webster’s Collegiate. Dictionary (10th ed. 2001) defines the verb “warrant”as, inter alia, “to give warrant or sanction to” something,or “to serve as or give adequate ground for” doing something. (Id. at p. 1328.) By contrast, “appropriate” is defined as “especially suitable or compatible.” (/d. at p. 57.) Thus, a verdict that death is “warrant[ed]” might mean simply that the jurors found, upon weighing the relevant factors, that such a sentence was permitted. Thatis a far different determination than the finding the jury is actually required to make: that death is an “especially suitable,” fit, and proper punishment,i-e., thatit is appropriate. | Because the terms “warranted”and “appropriate” have such different meanings,it is clear why the Supreme Court’s Eighth Amendment | jurisprudence has demandedthat a death sentence must be based on the conclusion that death is the appropriate punishment, not merely thatit is warranted. Tosatisfy “[t]he requirement of individualized sentencing in capital cases” (Blystone v. Pennsylvania (1990) 494 U.S. 299, 307), the punishment mustfit the offender and the offense;i.e., it must be appropriate. To say that death must be warranted is essentially to return to 578 | the standardsof theearlier phase of the California capital-sentencing scheme in which death eligibility is established. | - Jurors decide whether death is “warranted”by finding the existence of a special circumstance that authorizes the death penalty in a particular case. (See People v. Bacigalupo, supra, 6 Cal.4th at pp. 462, 464.) Thus, just because death may be warranted or authorized does not meanitis appropriate. Using the term “warrant”at the final, weighing stage of the penalty determination risks confusing the jury by blurring the distinction between the preliminary determination that death is “warranted,”i.e., that the defendantis eligible for execution, and the ultimate determination thatit is appropriate to execute him orher. Theinstructional error involved in using theterm “warrants”here wasnot curedbythetrial court’s earlier reference to the appropriateness of the death penalty. (RT 18444.) That sentence did nottell the jurors they could only return a death verdict if they found it appropriate. Moreover, the sentence containing the “appropriateness of the death penalty” language wasprefatory in effect and impact; the operative language, which expressly delineated the scope of the jury’s penalty determination, came at the very end ofthe instruction, and told the jurors they could sentence appellant to death if they foundit “warrant[ed].” The crucial sentencing instructions violated the Eighth and Fourteenth Amendments by allowing the jury to impose a death judgment withoutfirst determining that death was the appropriate penalty as required by state law. The death judgmentis thus constitutionally unreliable (U.S. Const., Amends. VIII and XIV) denies due process (U.S. Const., Amend. XIV; Hicks v. Oklahoma, supra, 447 U.S. at p. 346) and must be reversed. 579 C. ‘The Instructions Failed To Inform The Jurors That If They Determined That Mitigation Outweighed Aggravation, They Were Required To Return A Sentence Of Life Without The Possibility Of Parole California Penal Code section 190.3 directs that after considering aggravating and mitigating factors, the jury “shall impose” a sentence of confinementin state prison for a term of life without the possibility of parole if “the mitigating circumstances outweigh the aggravating circumstances.” (Pen. Code, § 190.3.)'°8 The United States Supreme Court has held that this mandatory languageis consistent with the individualized consideration of the defendant’s circumstances required underthe Eighth Amendment. (See Boyde v. California, supra, 494 U.S.at p. 377.) This mandatory languageis not included in CALJIC No. 8.88. CALJIC No. 8.88 only addresses directly the imposition of the death penalty and informsthe jury that the death penalty may be imposedif aggravating circumstancesare “‘so substantial” in comparison to mitigating circumstancesthat the death penalty is warranted. While the phrase “so substantial” plainly implies some degree of significance,it does not properly convey the “greater than” test mandated by Penal Code section 190.3. The instruction by its terms would permit the imposition of a death penalty whenever aggravating circumstances were merely “of substance” or - “considerable,” even if they were outweighed by mitigating circumstances. '58 Thestatute also states that if aggravating circumstances outweigh mitigating circumstances, the jury “shall impose” a sentence of death. This Court has held, however, that this formulation of the instruction improperly misinformed the jury regarding its role, and disallowedit. (See Peoplev. Brown, supra, 40 Cal.3d at p. 544, fn. 17.) . 580 Byfailing to conform to the specific mandate of Penal Code section 190.3, the instruction violated the Fourteenth Amendment. (See Hicks v. Oklahoma, supra, 447 U.S. at p. 346.) In addition, the instruction improperly reduced the prosecution’s burden of proof below that required by Penal Code section 190.3. An instructional error that misdescribes the burden of proof, and thus “vitiates all the jury’s findings,” can never be harmless. (Sudlivan v. Louisiana, supra, 508 U.S.at p. 281, originalitalics.) | This Court has found the formulation in CALJIC No. 8.88 permissible because “[t]he instruction clearly stated that the death penalty could be imposed only if the jury found that the aggravating circumstances outweighed [the] mitigating.” (People v. Duncan, supra, 53 Cal.3d at D. 978.) The Court reasonedthat since the instruction stated that a death | verdict requires that aggravation outweigh mitigation, it was unnecessary to instruct the jury of the converse. The Duncan opinion cites no authority for this proposition, and appellant respectfullyasserts that it conflicts with numerous opinions that have disapproved instructions emphasizing the prosecution theory of a case while minimizing or ignoring that of the defense. (See e.g., People v. Moore, supra, 43 Cal.2d at pp. 526-529; People v. Costello (1943) 21 Cal.2d 760; People v. Kelley (1980) 113 Cal.App.3d 1005, 1013-1014; People v. Mata, supra, 133 Cal.App.2d 18, 21; see also People v. Rice, supra, 59 Cal.App.3d at p. 1004 [instructions required on “every aspect” of case, and should avoid emphasizing either party’s theory]; Reagan v. United States, supra, 157 U.S.at p. 310.)'® '° There are due process underpinnings to these holdings. In Wardius v. Oregon, supra, 412 U.S.at p. 473, fn. 6, the United States (continued...) 581 People v. Moore, supra, 43 Cal.2d 517, is instructive on this point. There, this Court stated the following about a set of one-sided instructions on self-defense: | It is true that the ... instructions ... do not incorrectly state the _ law ..., but they stated the rule negatively and from the viewpointsolely of the prosecution. To the legal mind they would imply [their corollary], but that principle should not have beenleft to implication. The difference between a negative and a positive statement of a rule of law favorable to - one orthe other of the parties is a real one, as every practicing _ lawyer knows... . There should be absolute impartiality as between the People and the defendantin the matter of instructions, including the phraseology employed in the - statement of familiar principles. (Ud. at pp. 526-527, internal quotation marks omitted.) In other words, contrary to the apparent assumption in Duncan, the law doesnotrely on jurors to infer one rule from the statementofits opposite. Nor is a pro-prosecution instruction saved by the fact that it does notitself misstate the law. Even assuming theywere a correct statement of continued) Supreme Court warnedthat “state trial rules which provide nonreciprocal benefits to the State whenthe lack of reciprocity interferes with the defendant’s ability to secure a fair trial” violate the defendant’s due process rights under the Fourteenth Amendment. (See also Washington v. Texas, supra, 388 U.S. at p. 22; Gideon v. Wainwright, supra, 372 U.S.at p. 344; Izazaga v. Superior Court (1991) 54 Cal.3d 356, 372-377; cf. Goldstein, The State and the Accused: Balance ofAdvantage in Criminal Procedure (1960) 69 YALE L.J. 1149, 1180-1192.) Noting that the due process clause “does speak to the balance of forces between the accused andhis accuser,” Wardius held that“in the absence of a strong showingofstate interests to the contrary” ... there “must be a two-waystreet” as between the prosecution and the defense. (Wardius v. Oregon, supra, 412 U.S. atp. ~ 474.) Though Wardius involved reciprocal discovery rights, the same principle should apply to jury instructions, 582 law, the instructions at issue here stated only the conditions under which a death verdict could be returned and contained no statementof the conditions under whicha verdict of life was required. Thus, Mooreis squarely on point. It is well-settled that courts in criminal trials must instruct the jury on | any defense theory supported by substantial evidence. (See People v. Glenn (1991) 229 Cal.App.3d 1461, 1465; United States v. Lesina (9" Cir. 1987) 833 F.2d 156, 158.) The denialof this fundamental principle in appellant’s case deprived him of due process. (See Evitts v. Lucey (1985) 469 USS. 387, 401; Hicks v. Oklahoma, supra, 447 U.S. at p..346.) Moreover, the instruction given hereis not saved bythe fact that it is a sentencing instruction as opposed to one guiding the determination of guilt or innocence,since any reliance on such a distinction would violate the equal protection clause ofthe Fourteenth Amendment. Individuals convicted of capital crimesare the only class of defendants sentenced byjuriesin this state, and they-are as entitled as noncapital defendants — if not more entitled — to the protectionsthe law affordsin relation to prosecution-slanted instructions. Indeed, appellant can conceive of no governmentinterest, muchless a compelling one, served bydenying capital defendants such protection. (See U.S. Const., Amend. XIV; Cal. Const., art. 1, §§ 7 & 15; Plyler v. Doe (1982) 457 U.S.202,216-217.) a Moreover,the slighting of a defense theory in the instructions has been held to deny not only due process, but also the rightto a jury trial becauseit effectively directs a verdict as to certain issues in the defendant’s case. (See Zemina v. Solem (D.S.D. 1977) 438 F.Supp. 455, 469-470, aff'd and adopted, Zemina v. Solem (8" Cir. 1978) 573 F.2d 1027, 1028; cf. Cool v. United States (1972) 409 U.S. 100 [disapprovinginstruction placing 583 unauthorized burden on defense].) Thus,the defective instruction violated appellant’s Sixth Amendmentrights as well. Reversal of his death sentence is required. D. The Instructions Failed To Inform The Jurors _ That Appellant Did Not Have To Persuade Them The Death Penalty Was Inappropriate The sentencing instruction also was defective because it failed to inform the jurors that, under California law, neither party in a capital case bears the burden to persuade the jury of the appropriateness or | inappropriateness of the death penalty. (See People v. Hayes, supra, 52 Cal.3d at p. 643 [“Because the determinationofpenalty is essentially moral and normative ... there is no burden of proof or burden of persuasion”].) Thatfailure was error, because no matter what the nature of the burden, and even where no burden exists, a capital sentencing jury must be clearly informed of the applicable standards, so that it will not improperly assign that burden to the defense. Asstated in United States ex rel. Free v. Peters (N.D.Ill. 1992) 806 F.Supp.705 , 721-728, revd. Free v. Peters (7" Cir. 1993) 12 F.3d 700: To the extentthat the jury is left with no guidanceasto(1) who, if anyone, bears the burden of persuasion, and (2) the nature of that burden, the [sentencing] scheme violates the Eighth Amendment’s protection against thearbitrary and capricious imposition of the death penalty. [Citations omitted.] linois, like California, did not place the burden of persuasion on either party in the penalty phase of a capital trial. (Jd. at p. 727.) Nonetheless, Peters heldthat the Illinois pattern sentencing instructions were defective becausetheyfailed to appraise the jury that no such burden is imposed. 584 The instructions given in this case suffer from the same defect, with the result that capital juries in California are not properly guided onthis crucial point. The death judgment must therefore be reversed. E. Conclusion | Asset forth above, thetrial court’s main sentencing instruction, CALJIC No. 8.88, failed to comply with the requirements of the due process clause of the Fourteenth Amendment and with the cruel and unusual punishmentclause of the Eighth Amendment. Therefore, appellant’s death judgment mustbe reversed. // // 585 XXVIUI - THE INSTRUCTIONS ABOUT THE MITIGATING AND AGGRAVATING FACTORSIN PENAL CODE SECTION 190.3, AND THE APPLICATION OF THESE SENTENCING FACTORS, RENDER APPELLANT’S DEATH SENTENCE UNCONSTITUTIONAL The jury wasinstructed on Penal Code section 190.3 pursuant to CALJIC No. 8.85 [Penalty Trial - Factors For Consideration], the standard instruction regarding the statutory factors that are to be considered in determining whether to impose a sentence of death or life without the possibility of parole (RT 18426-18428; CT 15820-15821) and pursuantto a modified CALJIC No. 8.88 [Penalty Trial - Concluding Instruction], the standard instruction regarding the weighing of these aggravating and mitigating factors.' (RT 18443-18445; CT 15846-15847) These instructions, together with the application of these statutory sentencing factors, render appellant’s death sentence unconstitutional. First, the application of Penal Code section 190.3, subdivision (a) resulted in arbitrary and capricious imposition of the death penalty on appellant. Second, the introduction of evidence under Penal Code section.190.3, subdivision (b) violated appellant’s federal constitutional rights to due process, equal protection and a reliable penalty determination. Even if this evidence were permissible, the failure to instruct on the requirement ofjury unanimity with regard to such evidence denied appellant his federal constitutional rights to '© CALJIC No. 8.88 was modified to instruct jurors that they had to determine penalty as to each defendant “for each countof first degree murder’ and that they had to decide separately the question of penalty as to each of the defendants “and each countoffirst degree murder.” 586 a jury trial and to a reliable penalty determination. Third, the failure to delete inapplicable sentencing factors violated appellant’s constitutional rights underthe Sixth, Eighth and Fourteenth Amendments. Fourth,the failure to instruct that statutory mitigating factors are relevantsolely as mitigators precluded the fair, reliable, and evenhanded application of the death penalty. Fifth, the restrictive adjectives used in the list of potential mitigating factors unconstitutionally impeded the jurors’ consideration of mitigating evidence. Sixth, the failure of the instruction to require specific, written findings bythe jury with regard to the aggravating factors found and considered in returning a death sentence violates the federal constitutional rights to meaningful appellate review and equalprotection of the law. Seventh, and finally, even if the procedural safeguards addressedin this argument are not necessary to ensure fair and reliable capital sentencing, denying them to capital defendants violates equal protection. Because these essential safeguards were not applied to appellant’s penalty trial, his death judgment mustbe reversed. A. The Instruction On Penal CodeSection 190.3, Subdivision (a) And Application Of That Sentencing Factor Resulted In The Arbitrary And Capricious Imposition Of The Death Penalty Penal Codesection 190.3, subdivision (a), permits a jury deciding whether a defendantwill live or die to consider the “circumstancesofthe- crime.” The jury in this case was instructed to consider and take into account “[t]he circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstance foundto be true.” (RT 18426; CT 15820.) In 1994, the United States Supreme Court rejected a facial Eighth Amendment vaguenessattack on this section, concluding that — at least in the abstract — 587 it had a “commonsense core of meaning”that juries could understand and apply. (Tuilaepav. California, supra, 512 U.S. at p. 975.) However, an analysis of how prosecutors actually use section 190.3, subdivision (a) showsthat they have subverted the essence of the Court’s judgment. In fact, the extraordinarily disparate use of the circumstances-of- the-crime factor shows beyond question that whatever “commonsense core of meaning”it once may have hadis long since gone. As applied, the California statute leads to the precise type ofarbitrary and capricious decision making that the Eighth Amendment condemns. The governing principles are clear. When a state chooses to impose capital punishment, the Eighth Amendmentrequires it to “adopt procedural safeguards against arbitrary and capricious imposition of the death penalty.” ' (Sawyer v. Whitley (1992) 505 U.S. 333, 341.) A state capital punishment scheme must comply with the Eighth Amendment's “fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and capricious action” in imposing the death penalty. (Maynardv. : Cartwright, supra, 486 U.S.at p. 362.) As applied in California, however, section 190.3, subdivision (a) not only fails to “minimiz[e] the risk of wholly arbitrary and capricious action” _ in the death process,it affirmatively institutionalizes such risk. Prosecutors throughout California have argued that the jury could weigh in aggravation almost every conceivable circumstance of the crime, even those that — from case to case — reflect starkly opposite circumstances. Thus, prosecutors have arguedthat “circumstances of the crime”is an aggravating factor to be weighed on death’s side ofthescale: 588 ° because the defendant struck many blowsandinflicted multiple wounds,'*' or because the defendantkilled with a single execution-style wound;'™ ° because the defendant killed the victim for some purportedly aggravating motive (money, revenge, witness-elimination, avoiding arrest, sexual gratification),'* or because the defendant killed the victim without any motiveatall;' * __ because the defendantkilled the victim in cold blood,'® or because the defendantkilled the victim during a savage frenzy;'© 11 See, e.g., People v. Morales, Cal.Sup.Ct. No. (hereinafter “No.”) S004552, RT 3094-3095 (defendantinflicted many blows); Peoplev. Zapien, No. S004762, RT 36-38 (same); People v. Lucas, No. 8004788, RT 2997-2998 (same); People v. Carrera, No. 8004569, RT 160-161 (same). '@ See, e.g., People v. Freeman, No. 8004787, RT 3674, 3709 (defendant killed with single wound); People v. Frierson, No. S004761, RT 3026-3027 (same). 18 See, e.g., People v. Howard, No. S004452, RT 6772 (money); People v. Allison, No. 8004649, RT 968-969 (same); People v. Belmontes, No. S004467, RT 2466 (eliminate a witness); People v. Coddington, No. S008840, RT 6759-6760 (sexual gratification); People v. Ghent, No. $004309, RT 2553-2555 (same); People v. Brown, No. S004451, RT 3543- 3544 (avoid arrest); People v. McLain, No. S004370, RT 31 (revenge). '®* See, e.g., People v. Edwards, No. 004755, RT 10,544 (defendant killed for no reason); People v. Osband, No. S005233, RT 3650 (same); People v. Hawkins, No. S014199, RT 6801 (same). '® See, e.g., People v. Visciotti, No. S004597, RT 3296-3297 (defendant killed in cold blood). ' See, e.g., People v. Jennings, No. S004754, RT 6755 (defendant killed victim in savage frenzy). 589 ° because the defendant engaged in a cover-up to concealhis crime,'®’ or because the defendant did not engage in a cover-up and so must have been proud ofit;'® * because the defendant madethe victim enduretheterror of anticipating a violent death,'® or becausethe defendantkilled instantly without any warning;’”” , . because the victim had children,!”’ or because the victim had not yet had a chanceto have children;'” '7 See, e.g., People v. Stewart, No. S020803, RT 1741-1742 (defendant attempted to influence witnesses); People v. Benson, No. 5004763, RT 1141 (defendantlied to police); People v. Miranda, No. S004464, RT 4192 (defendant did not seek aid for victim). '88 See, e.g., People v. Adcox, No. S004558, RT 4607 (defendant freely informs others about crime); People v. Williams, No.S004365, RT 3030-3031 (same); People v. Morales, No. S004552, RT 3093 (defendant failed to engage in a cover-up). ' See, e.g., People v. Webb, No. S006938, RT 5302; People v. Davis, No. 814636, RT 11, 125; People v. Hamilton, No. 8004363, RT 4623. '7° See, e.g., People v. Freeman, No. S004787, RT 3674 (defendant killed victim instantly); People v. Livaditis, No. S004767, RT 2959 (same). '! See, e.g., People v. Zapien, No. S004762, RT 37(Jan 23, 1987) (victim had children). '? See, e.g., People v. Carpenter, No. $004654, RT 16,752 (victim had not yet had children). 590 . becausethe victim struggled prior to death,'” or becausethe victim did not struggle;'” ° because the defendanthad a prior relationship with the victim,'’° or because the victim was a complete strangerto the defendant.!” These examples showthat although a plausible argument can be madethat the circumstances-of-the-crime aggravating factor once may have had a “commonsense core of meaning,” that position can be maintained only by ignoring how the term actually is being used in California. In fact, - prosecutors urge juries to find this aggravating factor and place it on death’s side of the scale based on squarely conflicting circumstances. Of equal importanceto the arbitrary and capricious use of contradictory circumstances of the crime to support a- death sentenceis the use of the circumstances-of-the-crime aggravating factor to embrace facts whichcoverthe entire spectrum offacts inevitably present in every homicide: | | ° The age of the victim -- Prosecutors have argued, and juries werefree to find, that factor (a) was an aggravating 13 See, e.g., People v. Dunkle, No. S014200, RT 3812 (victim struggled); People v. Webb, No. S006938, RT 5302 (same); Peoplev. Lucas, No. S004788, RT 2998 (same). '™ See, e.g., People v. Fauber, No. 005868, RT 5546-5547 (no evidenceof a struggle); People v. Carrera, No. S004569, RT 160 (same). See, e.g., People v. Padilla, No. S014496, RT 4604 (prior relationship); People v. Waidla, No. S020161, RT 3066-3067 (same); People v. Kaurish (1990) 52 Cal.3d 648, 717 (same). '7 See, e.g., People v. Anderson, No. S004385, RT 3168-3169 (no priorrelationship); People v. McPeters, No. 004712, RT 4264 (same). 591 circumstance because the victim wasa child, an adolescent, a young adult, in the primeoflife, or elderly;’”’ ° The methodof killing -- Prosecutors have argued, and juries were free to find, that factor (a) was an aggravating circumstance because the victim wasstrangled,. bludgeoned, shot, stabbed, or consumedbyfire;'” ° The motive for the killing -- Prosecutors have argued, and juries werefree to find, that factor (a) was an aggravating circumstance because the defendant killed for money, to eliminate a witness, for sexual gratification, to avoid arrest, for revenge, or for no motiveatall;!” '” See, e.g., People v. Deere, No. S004722, RT 155-156 (victims were young, ages 2 and 6); People v. Bonin, No. 004565, RT 10,075 (victims were adolescents, ages 14, 15, and 17); People v. Kipp, No. S009169, RT 5164 (victim was a young adult, age 18); People v. Carpenter, No. 8004654, RT 16,752 (victim was 20), People v. Phillips, supra, 41 Cal.3d at p. 63 (26-year-old victim was“in the prime ofhis life”); Peoplev. Samayoa, No. S006284, XL RT 49 (victim wasan adult “‘in her prime”); People v. Kimble, No. 8004364, RT 3345 (61-year-old victim was“finally ina position to enjoy the fruits ofhis life’s efforts”); People v. Melton, No. 5004518, RT 4376 (victim was 77); People v. Bean,No. 8004387, RT 4715-4716 (victim was “elderly’’). '8 See, e.g., People v. Clair, No. S004789, RT 2474-2475 (strangulation); People v. Kipp, No. 8004784, RT 2246 (same); People v. Fauber, No. S005868, RT 5546 (use of an axe); People v. Benson, No. S004763, RT 1149 (use of a hammer); People v. Cain, No. S006544, RT 6786-6787 (use of a club); People v. Jackson, No. S010723, RT 8075-8076 (use of a gun); People v. Reilly, No. S004607, RT 14,040 (stabbing); People -v. Scott, No. 8010334, RT 847(fire). ' See, e.g., People v. Howard, No. 8004452, RT 6772 (money); People v. Allison, No. 004649, RT 969-970 (same); People v.Belmontes, No. S004467, RT 2466 (eliminate a witness); People v. Coddington, No. $008840, RT 6759-6761 (sexual gratification); People v. Ghent, No. 5004309, RT 2553-2555 (same); People v. Brown, No. S004451, RT 3544 (continued...) 592 ° The timeof the killing -- Prosecutors have argued, and juries werefree to find, that factor (a) was an aggravating circumstance because the victim was killed in the middle of the night, late at night, early in the morning,or in the middle of the day;'®° ° Thelocation of the killing -- Prosecutors have argued, and juries were free to find, that factor (a) was an aggravating circumstance becausethe victim waskilled in her own home, in a public bar, in a city park, or in a remote location.'* The foregoing examples of how the factor (a) aggravating circumstanceactually is being applied establish thatit is used as an aggravating factor in every case, by every prosecutor, without any limitation whatsoever. Asa consequence, from case to case, prosecutors turn entirely opposite facts — or facts that are inevitable variations of every homicide — into aggravating factors that they argue to the jury as factors weighing on death’s side of thescale. The circumstances-of-the-crime aggravating factor licenses indiscriminate imposition of the death penalty upon no basis other than 179continued) (avoid arrest); People v. McLain, No. S004370, RT 31 (revenge); Peoplev. Edwards, No. S004755, RT 10,544 (no motiveatall). , 189 See, e.g., People v. Fauber, No. S005868, RT5777 (early morning); People v. Bean, No. S004387, RT 4715 (middle of the night); People v. Avena, No. $004422, RT 2603-2604 (late at night); People v. Lucero, No. S012568, RT 4125-4126 (middle of the day). '8! See, e.g., People v. Anderson, No. $004385, RT 3167-3168 (victim’s home); People v. Cain, No. S006544, RT 6787 (same); People v. Freeman, No. 8004787, RT 3674, 3710-3711 (public bar); People v. Ashmus, No. S004723, RT 7340-7341 (city park); People v. Carpenter, No. S004654, RT 16,749-16,750 (forested area); People v. Comtois, No. S017116, RT 2970 (remote, isolated location). 593 “that a particular set of facts surrounding a murder, ... were enoughin themselves, and without some narrowing principles to apply to those facts, to warrant the imposition of the death penalty.” (Maynard v. Cartwright, supra, 486 U.S. at p. 363.) That this factor may have a “common sense core of meaning”in the abstract should not obscure what experience and reality both show. This factor is being used to inject the precise type of arbitrary and capricious sentencing the Eighth Amendmentprohibits. As a result, the California schemeis unconstitutional, and appellant’s death sentence must be vacated. B. ‘The Instruction On Penal CodeSection 190.3, Subdivision (b) And Application Of That Sentencing Factor Violated Appellant’s Constitutional Rights To Due Process, Equal Protection, Trial By Jury And A Reliable Penalty Determination 1. Introduction Factor (b), which tracks Penal Code Section 190.3(b), permitted the jury to consider in aggravation “[t]he presence or absence of criminal activity by the defendant, other than the crimes for which the defendanthas been tried in the present proceedings, which involve the use or attempted useofforce or violence or the express or implied threat to use force or violence.” Pursuant to that factor, the prosecution in this case presented evidence of seven prior acts of alleged violence. (RT 18429-18430; CT 15826.) . The jurors were told they could rely on this aggravating factor in the weighing process necessary to determineif appellant should be executed. (RT 18426; CT 15820.) The jurors properly were told that before they could rely on this evidence, they had to find beyond a reasonable doubt that appellant did in fact commit the criminal acts alleged. (RT 18430; CT 594 15826.) Although the jurors weretold that all 12 must agree on the final sentence (RT 15822), they were not told that during the weighing process, before they could rely on the alleged unadjudicated crimes as aggravating evidence, they had to unanimously agree that, in fact, appellant committed those crimes. On the contrary, the jurors were explicitly instructed that such unanimity was not required: It is not necessary for all jurors to agree. If any juroris convinced beyond a reasonable doubt that such criminal activity occurred, that juror may consider that activity as a factor in aggravation. (RT 18430; CT 15826.) The court further gaveits special instructionno.3: “No decision regarding the existence or nonexistence of any aggravating or mitigating circumstancein this case, or the weight to be assigned to such circumstances, need be reached unanimously. Only the final penalty | decision must be unanimous.” (RT 18428; CT 15822.) Thus, the sentencing instructions contrasted sharply with those received at the guilt phase, where the jurors were told they had to unanimously agree on | appellant’s guilt, the degree of the homicide, if any, and the special circumstance allegations. Asset forth below, the unadjudicated crimes evidence should not have been admitted. But even assuming the evidence was constitutionally permissible, the aspect of Penal Code section 190.3, subdivision (b), which allows a jury to sentence a defendant to death by relying on evidence on | whichit has not agreed unanimously violates both the Sixth Amendment right to a jury trial andthe Eighth Amendment’s ban on unreliable penalty phase procedures. 595 2. The Use Of Unadjudicated Criminal Activity As Aggravation Renders Appellant’s Death Sentence Unconstitutional The admission of evidence of previously unadjudicated criminal conduct as aggravation violated appellant’s rights to due process underthe Fourteenth Amendment,trial byan impartial jury under the Sixth Amendment and a reliable determination of penalty under the Eighth . Amendment. (See, e.g., Johnson v. Mississippi, supra, 486 U.S.at pp. 584- 587; State v. Bobo (Tenn. 1987) 727 S.W.2d 945, 954-955 [prohibiting use of unadjudicated crimes as aggravating circumstance understate constitution including rights to due process and impartial jury]; State v. McCormick (Ind. 1979) 397 N.E.2d 276 [prohibiting use of unadjudicated crimes as aggravating circumstances under Eighth and Fourteenth Amendments].) Thus, expressly instructing the jurors to consider such evidence in aggravation violated those sameconstitutional rights. In addition, because California does not allow unadjudicated offenses to be used in noncapital sentencing, using this evidencein a capital proceeding violated appellant’s equal protection rights under the state and federal Constitutions. (Myers v. Yist, supra, 897 F.2d at p. 421.) And because the State applies its law in anirrational manner, using this evidence in a capital sentencing proceedingalso violated appellant’s state and federal rights to due process of law. (Hicks v. Oklahoma, supra, 447 U.S.at p. 346; U.S. Const., Amend. VI; Cal. Const., art. I, §§ 7 and 15.) 596 3. The Failure To Require A Unanimous Jury Finding on the Unadjudicated Acts Of Violence Denied Appellant’s Sixth AmendmentRight To A Jury Trial And Requires Reversal Of His Death Sentence Even assuming, arguendo,that the evidence of the prior unadjudicated offenses was constitutionally admissible at the penalty phase, the failure of the instructions pursuant to Penal Code section 190.3, subdivision (b) to require juror unanimity on the allegations that appellant committed prior acts of violence renders his death sentence unconstitutional. The Sixth Amendment guarantees the nghtto a jury trial in all criminal cases. The Supreme Court has held, however, that the Sixth Amendmentapplied to the states through the Fourteenth Amendment does not require that the jury be unanimousin non-capital cases. (Apodacav. Oregon (1972) 406 U.S. 404 [upholding conviction bya 10-2 vote in non-capital case]; Johnson v. Louisiana (1972) 406 U.S. 356, 362, 364 [upholding a conviction obtained by a 9-3 vote in non-capital case].) Nor doesit require the states to empanel12 jurors in all non-capital criminal cases. (Williams v. Florida (1970) 399 U.S. 78 approving the use of six- person juries in criminal cases].) 7 The United States Supreme Court also has madeclear, however,that even in non-capital cases, when the Sixth Amendment doesapply,there are limits beyond which the states may not go. For example, in Ballew v. Georgia, supra, 435 U.S. 223, the Court struck down a Georgia law allowing criminal convictions with a five-person jury. Moreover, the Court also has held that the Sixth Amendment does not permit a convictionbased on the vote of five of six seated jurors. (Brown v. Louisiana, supra, 447 U.S. 323; Burch v. Louisiana (1978) 441 U.S. 130.) Thus, when the Sixth 597 Amendmentapplies to a factual finding — at least in a non-capital case — although jurors need not be unanimousasto the finding, there must at a minimum besignificant agreement among the jurors." Prior to June of 2002, none of the United States Supreme Court’s law on the Sixth Amendment applied to the aggravating factors set forth in section 190.3. Prior to that date, the Sixth Amendmentrightto jury trial did not apply to aggravating factors on which a sentencer could rely to impose a sentence of death in a state capital proceeding. (Walton v. Arizona, supra, 497 U.S. at p. 649.) In light of Walton,it is not surprising that this Court had, on many occasions, specifically rejected the argument that a capital defendant had a Sixth Amendmentright to a unanimousjury in connection with the jury’s findings as to aggravating evidence. (See, e.g., People v. Taylor (2002) 26 Cal.4th 1155, 1178; People v. Lines (1997) 15 Cal.4th 997, 1077; People v. Ghent, supra, 43 Cal.3d at p. 773.) In Ghentfor example, the Court held that such a requirement was unnecessary under “existing law.” (People v. Ghent, supra, 43Cal.3d at p. 773.) On June 24, 2002, however, the “existing law” changed. In Ringv. Arizona, supra, 536 U.S. 584, the United States Supreme Court overruled — Walton andheld that the Sixth Amendment rightto a jury trial applied to '8? The Supreme Court often has recognized that because death is a unique punishment, there is a corresponding need for procedures in death . penalty cases that increase the reliability of the process. (See, e.g., Beck v. Alabama, supra, 447 U.S. 625; Gardner v. Florida, supra, 430 U.S. at p. 357.) It is arguable, therefore, that where the State seeks to impose a death sentence, the Sixth Amendment does not permit even a super-majority verdict, but requires true unanimity. Because the instructionsin this case did not even require a super-majority ofjurors to agree that appellant committed the alleged act of violence, there is no need to reach this . question here. 598 “ageravating circumstance[s] necessary for imposition of the death penalty.” (/d. at p. 609; accord id. at p. 610 (conc. opn. of Scalia, J.) [noting that the Sixth Amendmentrightto jury trial applies to “the existence of the fact that an aggravating factor exists]”].) In other words, . absent a numerical requirement of agreement in connection with the aggravating factor set forth in section 190.3, subdivision (b), this section violates the Sixth Amendmentas applied in Ring. Here, the error cannotbe deemed harmless because, on this record, there is no way to determineif all 12 jurors would have agreed that - appellant committed the alleged prior offenses. (See People v. Crawford (1982) 131 Cal.App.3d 591, 599 [instructional failure which raises | possibility that jury was not unanimousrequires reversalunless the reviewing court cantell that all 12 jurors necessarily would have reached a unanimous agreementon thefactual point in question]; People v. Decliner (1985) 163 Cal.App.3d 284, 302 [same].)'® 4. Absent A Requirement Of Jury Unanimity On The Unadjudicated Acts Of Violence, The Instructions On Penal Code Section 190.3, Subdivision (b) Allowed Jurors To Impose TheDeath Penalty On Appellant Based On Unreliable Factual Findings That Were Never Deliberated, Debated Or Discussed The United States Supreme Court has recognized that “death is a different kind of punishment from any other which may be imposedin this '8 This assumesthat a harmless error analysis can apply to Ring error. In Ring, the Supreme Court did not reach this question, but simply remanded the case. Becausetheerroris not harmless here under Chapman v. California, supra, 386 U.S.at p. 24, there is no need to decide whether Ring errors are structural in nature. . 599 country.” (Gardnerv. Florida, supra, 430 U.S.at p. 357.) Because death is such a qualitatively different punishment, the Eighth and Fourteenth Amendments require “agreater degree of reliability when the death sentence is imposed.” (Lockett v. Ohio, supra, 438 U.S.at p. 604.) For this reason, the Court has not hesitated to strike down penalty phase procedures that increase the risk that the factfinder will make an unreliable determination. (Caldwell v. Mississippi, (1985) 472 U.S. 320, 328-330; Green v. Georgia, supra, 442 U.S. 95; Lockett v. Ohio, supra, 438 US.at pp. 605-606; Gardnerv. Florida, supra, 430 U.S. at pp. 360-362.) The Court has made clear that defendants have“a legitimate interest in the character of the procedure whichleads to the imposition of sentence even if [they] may have noright to object to a particular result of the sentencing process.” (Gardner v. Florida, supra, 430 U.S.at p. 358.) The California Legislature has providedthat evidence ofa defendant’s act which involved the use or attempteduse of force or violence can be presented during the penalty phase. (Pen. Code, § 190.3,- subd. (b).) Before the factfinder may consider such evidence, it must find that the State has proven the act beyond a reasonable doubt. The jurors also are instructed, however, that they need not agree onthis, and that as long as any one juror believes the act has been proven, that one juror may consider the act in aggravation. (CALJIC No. 8.87.) This instruction was given here. (CT 545; RT 2553.) Thus, as noted above, members of appellant’s jury were permitted individually to rely on this — and any other — aggravating factor any one of them deemed properaslongasall the jurors agreed on the ultimate punishment. Becausethis proceduretotally eliminated the deliberative function of the jury that guards against unreliable factual.determinations,it 600 is inconsistent with the Eighth Amendment’s requirement of enhanced reliability in capital cases. (See Johnson v. Louisiana, supra, 406 U.S.at pp. 388-389 (dis. opn. of Douglas, J.); Ballew v. Georgia, supra, 435 U.S. 223; Brown v. Louisiana, supra, 447 U.S. 323.) | In Johnson v. Louisiana, supra, 406 U.S. at pp. 362, 364, a plurality “of the United States Supreme Court held that the jury trial right of the Sixth Amendmentthat applied to the states through the Fourteenth Amendment did not require jury unanimity in state criminaltrials, but permitted a conviction based on a vote of 9 to 3. In dissent, Justice Douglas pointed out that permitting jury verdicts on less than unanimous agreement reduced deliberation between thejurors and thereby substantially diminished the — reliability of the jury’s decision. This occurs, he explained, because “nonunanimousjuries need not debate and deliberate as fully as must unanimousjuries. As soon as the requisite majority is attained, further consideration is not required ... even though the dissident jurors might, if given the chance,be able to convincethe majority.” (Id. at pp. 388-389 (dis. opn. of Douglas, J.).) | a The Supreme Court subsequently embraced Justice Douglas’s observations aboutthe relationship between jury deliberation and reliable factfinding. In striking down a Georgia law allowing criminal convictions with a five-person jury, the Court observed that such a jury wasless likely “to foster effective group deliberation. At some pointthis decline [in jury number] leads to inaccurate factfinding a (Ballew v. Georgia, supra, 435 U.S. at p. 232.) Similarly, in precluding a criminal conviction on the vote of five out of six jurors, the Court has recognizedthat “relinquishment of the unanimity requirement removes any guarantee that the minority voices will actually be heard.” (Brown v. Louisiana, supra, 447 U.S.at p. 601 333; see also Allen v. United States (1896) 164 U.S. 492, 501 [“The very object of the jury system is to secure uniformity by a comparison of views, and by arguments amongthe jurors themselves.”].) The Supreme Court’s observations about the effect ofjury unanimity on group deliberation and factfinding reliability are even more applicable in this case for two reasons. First, since this is a capital case, the need for reliable factfinding determinationsis substantially greater. Second, unlike the Louisiana schemesat issue in Johnson, Ballew, and Brown,the . California scheme does not require even a majority ofjurors to agree that an | act which involved the use or attempted use of force or violence occurred before relying on such conductto impose a death penalty. Consequently, “no deliberation at all is required” on this factual issue. (Johnsonv. Louisiana, supra, 406 U.S.at p. 388, (dis. opn. of DOUGLAS,J.).) Given the constitutionally significant purpose served by jury deliberation on factual issuesand the enhancedneed for reliability in capital sentencing, a procedure that allows individual jurors to impose death on the basis of factual findings that they have not debated, deliberated or even discussed is unreliable and, therefore, constitutionally impermissible. A new penalty trial is required. (See Johnsonv. Mississippi, supra, 486 U.S. at p. 586 [harmless error analysis inappropriate whentrial court introduces evidence that violates Eighth Amendment’s reliability requirementsat defendant’s capital sentencing hearing].) C. ‘The Failure To Delete Inapplicable Sentencing Factors Violated Appellant’s Constitutional Rights Mostofthefactorslisted in CALJIC No. 8.85 were inapplicable to the facts of this case. However,thetrial court did not delete those inapplicable factors from the instruction. Including these irrelevant factors 602 in the statutory list introduced confusion, capriciousness and unreliability into the capital decision-makingprocess, in violation of appellant’s rights underthe Sixth, Eighth and Fourteenth Amendments. Appellant recognizes that this Court has rejected similar contentions previously (see, e.g., People v. Carpenter, supra, 21 Cal.4th at p. 1064), but he requests reconsideration for the reasons given below. In addition, appellant raises the issue to preserveit for federal review. | Including inapplicable statutory sentencing factors was harmful in a numberofways. First, only factors (a), (b), and (c) may lawfully be considered in aggravation. (See People v. Gurule, supra, 28 Cal.4th at p. 660; People v. Montiel (1993) 5 Cal.4th 877, 944-945.) However, the “whether or not” formulation used in CALJIC No. 8.85 givenin this case suggested that the jury could consider the inapplicable factors for or against appellant. Moreover, instructing the jury on irrelevant matters dilutes the jury’s focus, distracts its attention from the task at hand and introduces confusion into the process. Suchirrelevantinstructionsalso create a grave risk that the death penalty will be imposedon the basis of inapplicable factors. Finally, failing to delete factors for whichthere was no evidenceat all inevitably denigrated the mitigation evidence which was presented. The jury waseffectively invited to sentence appellant to death because there was evidence in mitigation for “only” two or three factors, whereas there was either evidence in aggravation or no evidenceat all with respect to all the rest. In no otherarea of criminal law is the jury instructed onmatters unsupported by the evidence. Indeed, this Court has said thattrial courts have a “duty to screen out factually unsupported theories, either by appropriate instruction or by not presenting them to the jury in the first 603 place.” (People v. Guiton (1993) 4 Cal.4th 1116, 1131.) The failure to screen out inapplicable factors here required the jurors to make an adhoc determination on the legal question of relevancy and undermined the reliability of the sentencing process. The inclusion of inapplicable factors also deprived appellant of his right to an individualized sentencing determination based on permissible factors relating to him and to the crime. In addition, that error artificially inflated the weight of the aggravating factors andviolated the Sixth, Eighth, and Fourteenth Amendment requirements of heightenedreliability in the penalty determination. (Ford v. Wainwright (1986) 477 U.S. 399, 411, 414; Beck v. Alabama, supra, 447 U.S. at p. 637.) Reversal of appellant’s death judgmentis required. D. Failing To Instruct That Statutory Mitigating Factors. Are Relevant Solely As Mitigators Precluded The Fair, Reliable And Evenhanded Application Of The Death Penalty In accordance with customary state court practice, the trial court did not give the jury any instructions indicating which ofthe listed sentencing factors were aggravating, which were mitigating or which could be either aggravating or mitigating depending upon the evidence. Yet, as a matterof state law, each of the factors introduced by a prefatory “whetheror not” — in this case factors (d), (e), (f), (g), (h) and (j) — was relevant solely as a possible mitigator. (People v. Hamilton (1989) 48 Cal.3d 1142, 1184; People v. Edelbacher, supra, 47 Cal.3d at p. 1034.) Without guidance of which factors -could be consideredsolely as mitigating, the jury wasleft free to conclude that a “not” answer toany of those “whether or not” sentencing factors could establish an aggravating circumstance, and wasthus invited to aggravate appellant’s sentence upon 604 the basis of nonexistentor irrational aggravating factors, which precluded the reliable, individualized capital sentencing determination required by the Eighth and Fourteenth Amendments. (Woodson v. North Carolina, supra, 428 U.S. at p. 304; Zant v. Stephens, supra, 462 U.S. at p. 879.) Failing to provide appellant’s jury with guidance on this point was reversible error. E. Restrictive Adjectives Used In The List Of Potential Mitigating Factors Impermissibly Impeded The Jurors’ Consideration Of Mitigation The inclusioninthelist of potential mitigating factors read to appellant’s jury of such adjectives as “extreme”(see factors (d) and (g); RT 18427), and “substantial” (see factor (g); [bid.), acted as a barrier to the consideration of mitigation, in violation of the Sixth, Eighth and Fourteenth Amendments. (Mills Vv. Maryland, supra, 486 U.S. 367; Lockett v. Ohio, supra, 438 U.S. 586.) | F. The Failure To Require The Jury To Base A Death Sentence On Written Findings Regarding The Aggravating Factors Violated Appellant’s Constitutional Rights To Meaningful Appellate Review And Equal Protection Of The Law Theinstructions given in this case under CALJIC No.8.85 and No. 8.88 did not require the jurors to make written or other specific findings about the aggravating factors they found and considered in imposing a death sentence. The failure to require such express findings deprived appellant of his Fourteenth Amendment due process and Eighth Amendment rights to meaningful appellate review as well as his Fourteenth Amendment right to equal protection of the law. (California v. Brown, supra, 479 U.S. at p. 543; Gregg v. Georgia, supra, 428 U.S. at p. 195.) Because California juries havetotal, unguided discretion on how to weigh aggravating and mitigating circumstances (Tuilaepa v. California, supra, 605 512 U.S. at pp. 979-980), there can be no meaningful appellate review unless they make written findings regarding those factors, becauseit is impossible to “reconstruct the findings ofthe state trier of fact.” (See Townsendv. Sain (1963) 373 U.S. 293, 313-316.) Written findings are essential for a meaningful review of the sentence imposed. Thus, in Mills v. Maryland, supra, 486 U.S. 367, the requirement of written findings applied in Maryland death cases enabled the Supreme Court to identify the error committed underthe priorstate procedure and to gauge the beneficial effect of the newly-implementedstate procedure. (/d. p. 383, fn. 15.) | | . While this Court has held that the 1978 death penalty schemeis not unconstitutional in failing to require express jury findings (People v. Fauber, supra, 2 Cal.4th at p. 859), it has treated such findings as so fundamental to due processas to be required at parole suitability hearings. A convicted prisoner whoalleges that he was improperly denied parole must proceed by a petition for writ of habeas corpus and mustallege the State’s wrongful conduct with particularity. (Jn re Sturm (1974) 11 Cal.3d 258.) Accordingly, the parole board is required to state its reasons for denying parole, because “[i]t is unlikely that an inmate seeking to establish that his application for parole wasarbitrarily denied can make necessary allegations with the requisite specificity unless he has some knowledge of the reasonstherefor.” (11 Cal.3d at p. 267.) The same reasoning must apply to the far graver decision to put someone to death. (See also People v. Martin (1986) 42 Cal.3d 437, 449-450 [statement of reasonsessential to meaningful appellate review].) Further, innoncapital cases the sentencer is required by California law to state on the record the reasons for the sentence choice. (Ibid.; Pen. 606, Code, § 1170(c).) Under the Sixth, Eighth and Fourteenth Amendments, capital defendants are entitled to more rigorous protections than noncapital defendants. (Harmelin v. Michigan, supra, 501 U.S.at p. 994.) Since providing more protection to noncapital than to capital defendants violates . the equal protection clause of the Fourteenth Amendment(see generally Myers v. Yist, supra, 897 F.2d at p. 421), the sentencer in a capital case is constitutionally required to identify for the record in some fashion the aggravating circumstances found. The merefact that a capital-sentencing decision is “normative” (People v. Hayes, supra,.52 Cal.3d at p. 643), and “moral” (Peoplev. Hawthorne, supra, 4 Cal.4th atp. 79), does not mean its basis cannot be articulated in written findings. In fact, the importance of written findings in capital sentencing is recognized throughout this country. Of the 34 post- Furmanstate capital sentencing systems, 25 require some form of written findingsspecifying the aggravating factors the jury relied on in reaching a death judgment. Nineteen of those states require written findings regarding all penalty aggravating factors found true, while the remaining seven require a written finding as to at least one aggravating factorrelied on to 607 impose death.’ California’s failure to require such findings rendersits death penalty procedures unconstitutional. G. Even If The Absence Of The Previously Addressed Procedural Safeguards Does Not Render California’s Death Penalty Scheme Constitutionally Inadequate To Ensure Reliable Capital Sentencing, Denying Them To Capital Defendants Like Appellant Violates Equal Protection Asnoted previously, the United States Supreme Court repeatedly has asserted thatheightenedreliability is required in capital cases and that | courts mustbe vigilant to ensureprocedural fairness and accuracy in factfinding. (See, e.g., Monge v. California, supra, 524 U.S.at pp. 731- | 732.) Despite this directive, California’s death penalty scheme affords significantly fewer procedural protections to defendants facing death senténces than to those charged with noncapital crimes. This differential '84 See Ala. Code, §§ 13A-5-46(f) and 47(d) (1982); Ariz. Rev. Stat. Ann., § 13-703.01(E) (2002); Ark. Code Ann., § 5-4-603(a) (Michie 1987); Colo. Rev.Stat., § 18-1.3-1201(2)(b)dD and § 18-1.3-1201(2)(c) (2002); Conn. Gen. Stat. Ann., § 53a-46a(e) (West 1985); State v. White (Del. 1978) 395 A.2d 1082, 1090; Fla. Stat. Ann., § 921.141(3) (West 1985); Ga. Code Ann., § 17-10-30(c) (Harrison 1990); Idaho Code, § 19-2515(8)(a)-(b) (2003); Ky. Rev.Stat. Ann., § 532.025(3) (Michie 1988); La. Code Crim. Proc. Ann., art. 905.7 (West 1993); Md. Ann. Code,art. 27 § 413(1) (1992); Miss Code Ann., § 99-19-103 (1993); Mont. Code Ann., § 46-18-305 (1993); Neb. Rev.Stat., § 29-2521(2) and § 29-2522 (2002); Nev. Rev. Stat. Ann., § 175.554(3) (Michie 1992); N.H. Rev. Stat. Ann., § 630:5 (IV) (1992); N.M.Stat. Ann., § 31-20A-3 (Michie 1990); Okla. Stat. Ann., tit. 21, § 701.11 (West 1993); 41 Pa. Cons. Stat. Ann., § 9711 (1982); S.C. Code Ann. § 16-3-20(C) (Law. Co-op. 1992); S.D. Codified Laws Ann., § 23A-27A-5 (1988); Tenn. Code Ann., § 39-13-204(g) (1993); Tex. Crim. Proc. Code Ann., § 37.07(c) (West 1993); Va. Code Ann., § 19.2-264(D) (Michie 1990); Wyo.Stat. § 6-2-102(e) (1988). 608 treatment violates the constitutional guarantee of equal protection of the laws. Equal protection analysis begins with identifying the interestat stake. Chief Justice Wright wrote for a unanimous Court that “personal liberty is a fundamentalinterest, second only to life itself, as an interest protected under both the California and the United States Constitutions.” (People v. Olivas (1976) 17 Cal.3d 236, 251.) “Aside from its prominent place in the Due Process Clause, the rightto life is the basisof all other rights: . . It encompasses, in a sense, ‘the night to have rights’ (Trop v. Dulles (1958) 356 U.S. 86, 102... .” (Commonwealth v. O'Neal (Mass. 1975) 327 N.E.2d 662, 668.) In the case of interests identified as “fundamental,” courts have “adopted an attitude of active andcritical analysis, subjecting the classification to strict scrutiny.” (Westbrook v. Milahy (1970) 2 Cal.3d 765, 784-785.) A state may not create a classification scheme affecting a fundamental interest without showing that a compelling interest justifies the classification and that the distinctions drawn are necessary to further that , purpose. (People v. Olivas, supra; Skinner v. Oklahoma (1942) 316 U.S. 535, 541.) . | The State cannot meetthat burden here. In the context of capital punishment, the equal protection guarantees of the state and federal Constitutions must apply with greater force, the scrutiny of the challenged classification mustbe strict, and any purported justification of the discrepant treatment must be even more compelling, becausetheinterestat stake is not simply liberty, but life itself. The differences between capital defendants and noncapital felony defendants justify more, not fewer, procedural protections, in order to make death sentences morereliable. 609 In Argument XXV,ante, appellant explained whythe failure to provide intercase proportionality review violated his right to equal protection under the Fourteenth Amendment. He reasserts that argument here with regard to the denial of other safeguards such the requirement of written jury findings, unanimous agreementon violent criminal acts under Penal Code.section 190.3, subdivision (b) and on other particular aggravating factors, and the disparate treatment of capital defendantsas set forth in this argument. The procedural protections outlined in these arguments but denied capital defendants are especially importantin insuring the needfor reliable and accurate factfinding in death sentencingtrials. (Mongev. California, supra, 524 U.S. at pp. 731-732.) Withholding them on the basis that a death sentenceis a reflection of community standards or any other groundis irrational and arbitrary and cannot withstand the close scrutiny that should apply when the most fundamentalinterest — life — is at . Stake. | H. Conclusion Forall the reasons set forth above, appellant’s death sentence must be reversed. /} // 610 XXIX THE TRIAL COURT ERREDPREJUDICIALLY BY REPEATEDLY INFORMING THE JURY THAT THE COST OF THE INSTANT TRIAL WAS “ASTRONOMICAL" _ Thetrial court erred in telling the jury that the cost of the trial was "astronomical." Informing the jury asto the costoftrial has the effect of creating pressure on the jury to convict so as not to waste public resources, regardless of the fact that the cost oftrial is not a factor that is relevant to the guilt or innocence of a defendantor to the jury’s determination of punishment. This served to deny appellant the right to a jury trial, to a fair trial, to due processof law and to the right to a reliable determination in a capital case underthe Fifth, Sixth, Eighth and Fourteenth Amendmentsto - the United States Constitution andto parallel provisions in the state constitution. A. TheTrial Court’s References To The High Cost Of Trial Priorto trial, out of the presenceof the parties, the court addressed the jury regarding the security measures that were in effect. At that time, in cautioning the jury about contact with outside sources, the court informed the jury that the cost of this trial was "astronomical." (RT 8059.) Later, the court again explained to the jury that the arrangements that had been made for getting them into the building and for other arrangements were doneat considerable expense. (RT 9567.) The court stated that it was not taking these measures lightly and that “we certainly do not need to get into any more expense than we haveto but it is appropriate for the reasonsthat [the court] stated earlier.” (RT 9567.) The expenseofthe trial to taxpayers was again broughtto the jurors’ _ attention at a later hearing. Because evidence had been introducedthat the Family had hired attorneys when employees werearrested, the court 611 ‘instructed the jury that the then-current defense attorneys were court appointed. (RT 11356.) Finally, in answerto a jury question, the court again explained an admonition regarding the attorneys not being hired by the family telling jury that: “Nobody can hire a lawyer in a death penalty case. I don’t care who you are, it costs too much money.” The court then remindedthejurors that the attorneys in this case were being paid by the State of California. (RT 11363-11365.) . B. The Relevant Law In People v. Gainer (1977) 19 Cal.3d 835, this Court held that reference to the expense and inconvenienceofa retrialis irrelevant to the issue of a defendant's guilt or innocence andis thus impermissible. (/d. at p. 852, fn. 16.) The impropriety of the jury being informedofthe costs of trial arises frequently in the context of cases in whichthetrial court is attempting to extract a verdict from a deadlocked jury. (See,e.g., Allen v. United States, supra, 164 U.S. 492.) Thereasoning ofthis ruling on the | impropriety of informing thejury ofthe costoftrial, and the effect of - giving that information to the jury, applies with equal forceto the issue in the context ofthis case. Thecostoftrial has no tendency to prove any disputed fact, and is . therefore irrelevant. (Evid. Code, § 210.) In People v. Barraza (1979) 23 Cal.3d 675, 685, this Court noted that, with regard to a jury charge which referred to the expense involvedin retrying a case: Weobserved in Gainer that reference to the expense and inconvenienceofa retrial is irrelevant to the issue of a defendant's guilt or innocenceandis thus impermissible. (Gainer, at p. 852, fn. 16.) That the reference here did not link the notion of expense to a prospectiveretrial is immaterial, for the link is obvious and will naturally be 612 inferred by the jurors once the subject is introduced. It is not so muchthe irrelevance of such a referencethatis troubling, however, as the additional pressure to decide thus created. Consideration of expense “may have an incalculably coercive effect on jurors reasonably concerned aboutthe spiraling costs of government.” (Note, The Allen Charge: Recurring Problems and Recent Developments (1972) 47 N.Y.U.L.Rev. 296, 304.) | In United States v. Seawell (9th Cir. 1977) 550 F.2d 1159, 1163 (“Seawell’), the Court stated that other courts have looked at the content, timing, and circumstances of an Allen charge. However, Seawell stated that “even in its most acceptable form,” the Allen charge "approaches the ultimate permissible limits." (Jd. at p. 1162 [citing Sullivan V. United States (9th Cir. 1969) 414 F.2d 714, 716].) The court then concludedthat permitting the instruction to be given twice “would be an unwarranted expansionofits use.” (Jbid.) As noted,in this case, the jury wastold on multiple occasions, ina variety of ways, how expensivethis trial was. By analogy, the test for whether a jury instruction is coercive also informsthe instant issue. The United States Supreme Court had held that the test is whether, in its context and under all the circumstances ofthe case, the statement was coercive. (Jenkins v. United States (1965) 380 U.S. 445, 446; Marsh v. Cupp (9th Cir. 1976) 536 F.2d 1287, 1290.) Courts have held that one relevantcircumstanceis the timing of theinstruction. Certainly, one that comes at a stage when the jury appears to be on the verge of deadlock is more likely to coerce the jury than one given during the trial: however,this factor is not dispositive. In People v. Pitts, supra, 223 Cal.App.3d 606 (“Pitts”), after a lengthytrial, the Court of Appeal labeled as the “most egregioussingle act of misconduct”the prosecution’s argumentto the jury that one vote for the defense would “wipe out six 613 monthsof trial.” (/d. at pp. 694-695.) Pitts held although this was not a direct reference to costs of retrial per se, it was still improper, because “[t]he idea was planted in the jurors’ minds that anyone not voting for conviction would be nullifying a great deal of hard work and rendering vain the personalsacrifice of all.” (Id. at pp. 694-696.) Furthermore, becausethe jurors were California and Los Angeles County taxpayers, the expense ofretrial would fall on them directly. In United States v. Trutenko (7th Cir. 1973) 490 F.2d 678 the prosecutor in an insurance fraud case had noted the effect on insurance premiums of such crimes. The court held: “[T]he comment wasan appealto the pecuniary interest of the jurors, unquestionably an unacceptable predicate for an argument in acriminaltrial.” (Id. at 679.) Similar arguments were condemned in United States v. Smyth (5th Cir. 1977) 556 F.2d 1179 (fraud against the United States) and United States v. Blecker (4th Cir. 1981) 657 F.2d 629, 635-636 (presentation of false claims to government agency). Andin State v. Majors (Kan.1958) 323 P.2d 917,the conviction was reversed for improper arguments including reference to the county's financial investment in the case: "[The prosecutor] should not appeal to the self-interests of the jurors including their social, class and business prejudices [citation] and neither should he appealto their self-interests as taxpayers. [Citations omitted].” (/d. at p. 920 [italics added].) Likewise, in condemnation cases, the California courts have recognized the impropriety of remindingjurorsit is their moneythatis being spent. “(T]he vice [is] the appeal to self-interest, which violates the fundamental concept of an objective trial by an impartial jury.” (People ex rel. Dept. ofPublic Works v. Graziadio (1964) 231 Cal.App.2d 525, 533- 534, see also Garden Grove SchoolDist. v. Hendler (1965) 63 Cal.2d 141, 614 143; cf. Hart v. Wielt (1970) 4 Cal.App.3d 224, 234 [improperto suggest award to plaintiff would prevent plaintiff from being a “burden on the taxpayers”’].) ‘ In sum,the trial court improperly pressured the jurors to convict appellant by repeatedly reminding them ofthe cost ofthe instant trial. This violated appellant’s rightto a jury trial, to a fair trial, to due process of law and to a reliable judgmentof death in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and parallel provisions of the state constitution. | C. The Trial Court’s Error In Informing The Jury Of The High Cost Of TheInstant Trial Was Prejudicial Since informing the jury of the costof trial was substantially likely to improperly pressure the jury into convicting appellant regardless of any doubt about his guilt, this error must be judged underthe standard of Chapmanv. California, supra, 386 U.S. 18, requiring reversal unless the error was harmless beyond a reasonable doubt. . Appellant is aware of the case ofPeople v. Andrews, supra, 49 Cal.3d 200, wherein this Court affirmed the conviction where the jury had been informed ofthe. expense of trial, stating that the comments “merely constituted an attemptbythetrial court to stress the importance of obeying the court's admonitions.” (Jd. at pp. 220-221.) However, the instant case should be distinguished from Andrewsfor several reasons. First, this case involved more frequentreferencesto thecosts oftrial, with the jury being told of that fact in the early, middle, and late stages of trial. Second, from the outset the expense of this trial would be greater, and more apparently so, than any other case in Criminal Courts Building at the time. Apart from the unusual security measures taken, which the jury knew 615 about, the monthsoftrial itself, with six defense attorneys and two prosecuting attorneys would makeit obviousto the jury that this was no ordinary trial at no ordinary expense. Thus, the need nof to draw their attention to this matter would be greater than normal. Third, Andrews involved a much stronger case against the defendant. In Andrews,this Court found “ample corroboration” in that the defendant admitted killing the victim, and his palm prints were found on the floor next to the body of another victim. This is in contrast to this case where the prosecution presented no evidence of an explicit admission and where appellant testified and denied complicity in the instant crimes, and where there was no physical evidence linking him to the killings as opposedto the sale of drugs outof the house in whichthekillings tookplace. In this case, the fact that the mention ofa retrial was not expressly madeis not important issue because the obvious reason whythe juryis being informed as to the expenseofthe trial is to impress upon the jury the danger of anything happening that would mandate starting the process over again from the beginning. Although the jury may never hear the word “re- trial,” the obvious implication is sure to hang overthetrial. = Consequently, it cannot be concludedthat informing of the jury of the cost ofthe trial did not have an effect on the jury’s decision to convict. Therefore, appellant’s conviction and death sentence must be reversed. H // 616 XXX THE TRIAL COURT ERRONEOUSLY EXCLUDED APPELLANT AND HIS COUNSEL FROM TRIAL PROCEEDINGS; REVERSAL IS REQUIRED The trial court erroneously held ex parte proceedings from which both appellant and his counsel were excluded. In addition, appellant’s absence from other critical stages of the proceeding was prejudicialerror. These errors denied appellant his right to counsel, to confront witnesses against him,to be presentat all critical stages of the proceedings against him,to a fair trial, to due process of law andto a reliable judgmentof death in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the _ United States Constitution, parallel provisionsofthe state constitution, and — State statutory and decisional law. Reversal of his conviction is required. A. The Applicable Law The right of a criminal defendant to an adversary proceedingis fundamental to our system ofjustice. (See Nix v. Williams (1984) 467 U.S. . 431, 454-55 (conc. opn. of Stevens,J.)); see also Pointer v. Texas, supra, 380 U.S. at pp. 404-405 [discussing right of confrontation and cross-examination].) This includes the right to be personally present and to be represented by counselat critical stages during the course of the prosecution. (United States v. Wade(1967) 388 U.S. 218, 224-225.) Our system is groundedon the notion that truth will most likely be served if the decision maker — judgeorjury — has the benefit of forceful argument by both sides. (Herring v. NewYork (1975) 422 U.S. 853, 862.) Ex parte proceedings thus are anathemain our system ofjustice and, in the context of a criminaltrial, may amount to a denial of due process. (United States v. Thompson (9th Cir. 1987) 827 F.2d 1254, 1258-1259.) 617 A person charged with a felony has “a fundamental rightto be present at.every stage of thetrial.” (Campbell v. Wood (9th Cir. 1994) 18 F.3d 662, 671 [citations omitted].) This right derives from the Confrontation Clause of the Sixth Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendments. (United States v. Gagnon (1985) 470 U.S. 522, 526 (per curiam); Pointer v. Texas, supra, 380 US.at p. 403; Bustamante v. Eyman (9th Cir. 1972) 456 F.2d 269, 273, overruled onother grounds, Campbell v. Wood, supra, 18 F.3d at p. 672, fn.2.) It includesall proceedings at which the defendant’s presence “hasa relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” (United States Vv, Gagnon, supra, 470 U.S.at p. 526 [quoting Snyder v. Massachusetts, supra, 291 U.S. at pp. 105-106].) Although the right does not comeinto play “when presence would be useless, or the benefit but a shadow”(Snyder, supra, 291 U.S. at pp. 106-07), under the Constitution, “Ta] defendant is guaranteed the right to be present at any stage of the criminal proceedingthat is critical to its outcomeif his presence would contribute to the fairness of the procedure.” (Kentucky v. Stincer (1987) 482 U.S. 730, 145; accord, Gagnon, supra, 470 U.S.at p. 526; Farettav. California, supra, 422 U.S.at p. 819. ) '* '85 The test to determine when a defendant’s absencerisesto a denial of the right to attend every stage oftrial has also been variously stated as “when his presence will be useful or of benefit to him andhis counsel” (People v. Ainsworth (1988) 45 Cal.3d 984, 1021); when his presenceis “required in order to protect defendant’s interests, to assure him a fair and impartial trial, or to assist counsel in the defense of the case” (ibid.); when “it will be in his power,if present, to give advice or suggestion” (Snyder v. Massachusetts, supra, 291 U.S. at p. 106); or when his “absence could, under someset of circumstances, be harmful.” (Polizzi v. United States (9th Cir. 1976) 550 F.2d 1133, 1138.) 618 If a defendantis denied his constitutional nght to be present during a critical stage of criminal proceedings, the reviewing court must evaluate the nature of the error. Reversal is automatic if the defendant’s absence | constitutes a “structuralerror,” that is, an error that permeates “[t]he entire. conductof the trial from beginning to end”or “affect[s] the framework within which thetrial proceeds.” (Arizona v. Fulminante, supra, 499 U.S. at pp. 309-310.) The Ninth Circuit has heldthat “a defendant’s absence fromcertain stages of a criminal proceeding may so underminetheintegrity of the trial process that the error will necessarily fall within that category of cases requiring automatic reversal.” (Hegler v. Borg (9th Cir. 1995) 50 | F.3d 1472, 1476 .) To merit a finding ofstructural error, a defendant must have been excluded from a stage of the criminalproceedings at which he had an “activerole to play.” (Rice v. Wood (9th Cir. 1996) 77 F.3d 1138, 1141 (en banc); see also Hegler, supra, 50 F.3d at pp. 1476-77 [holding that the “determinative factor” as to whether the defendant’s absence constituted . a structural error was whether the defendant’s ability to “influence the process wasnegligible”].) In addition, the erroneous exclusion of the defendant must, “like the denial of an impartial judge or the assistance of counsel, affect the trial from beginning to end.” (Rice v. Wood, supra, 77 F.3d at p. 1141.) On the other hand, harmless error review is appropriate if the defendant’s absences constitutes a “‘trial error,” that 1s, an error which “occurred during the presentation of the caseto the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whetherits admissionwas harmless beyond a reasonable doubt.” (/d. at pp. 307-08.) 619 Thereis also a statutory right to presence. Penal Code section 977, subdivision (b) provides that the defendant mustbe present during most trial proceedings, and in fact requires him or herto be atall proceedings unless certain stringent written waiver requirements are met. The defendant mustbe present “. . . during those portions of the trial when evidenceis taken beforethetrier of fact....” In addition: The accused shall be personally present at all other proceedings unless he shall, with leave of court, execute in open court, a written waiverofhis right to be personally present, as provided by paragraph (2). (Pen. Code, § 977, subd. (b) [former section].) Paragraph (2) of that section sets forth the content of the required written waiver, and providesthatit must also be approved by the defendant’s counsel and filed with the court. (Pen. Code, § 977, subd.(b)(2).) Even compliance with these stringent requirements is not enough to authorize the absence of a capital defendant duringthe takingof evidence. (See Pen. Code, § 1043, subd. (b)(1) and (2).)""° | Further, as a matter of state statutory law, in a capital case representation by counsel is mandatory atall stages of the criminal proceedings. (See Pen. Code, § 859 [“in a capital case .. . the defendant must be represented in court by counselat all stages of the preliminary and trial proceedings . . . .”]; Pen. Code, §§ 686, subd. (2) and 686.1 [acapital defendant “shall be represented in court by counselatall stages of the preliminary and trial proceedings”].) '8° Penal Code section 1043, subd. (b)(2) provides that the absence of the defendant in a felony case shall not prevent continuing the trial in _ “(a]ny prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent.” (Emphasisadded.) 620 In this case, appellant and his counsel were excluded, over objection, from in camera proceedingsrelating to appellant’s motion to recuse the LADA’s Office (see ArgumentI, ante, incorporated by reference herein), as well as from ex parte proceedings betweenthetrial court and the jury in whichthetrial court discussed security procedures the jurors were required to follow. (See Argument VI, ante, incorporated by reference herein.) In addition, there were numerousothertrial proceedings in which appellant was notpresent, as detailed below. Appellant’s Sixth and Fourteenth Amendmentrights to counsel, to confront witnesses against him,his Fifth and Fourteenth Amendmentrights to due process of law, his Eighth Amendmentrightto a reliable determination of penalty, and his rights under the California Constitution and his statutory rights under the California Penal Code were all violated whenthetrial court took evidence and discussed critical issues in the absence of appellant, and on some occasions, his counsel. The trial court’s failure to ensure appellant was afforded his rights to be presentatall critical stages of the proceedings andto be represented by counselat all stages of his capital case also violated his right to due process under both state and | federal law. (Hicks v. Oklahoma, supra, 447 U.S.at p. 346; U.S. Const., Amends. VI and XIV; Cal. Const., art. I, §§ 7 and 15.) Reversal is required. B. The Absence Of Appellant And His Counsel During In _ Camera Proceedings Relating To His Motion To Recuse The LADA’s Office And During Ex Parte Proceedings Between The Trial Court And The Jury, As Well As Appellant’s Absence During Numerous Other Trial Proceedings Requires Reversal This case also presents a situation where the deprivation, by its very nature, precludes harmlesserroranalysis. Appellant had a fundamental, personal right to be informedof and participate in the proceedingsrelating 621 to his motion to recuse the LADA’s Office due to a conflict of interest. Just _ as plainly, appellant and his counsel had a right to be present at proceedings wherethe court spoke with the jurors who would decide appellant’s fate. The exclusion of appellant and his counsel from these discussions affected the structure of the trial and the error mandatesa finding of prejudice perse. (See Arguments I and VI, ante, incorporated by reference herein.) ‘However, even if reversal is not automatic, the burden is now onthe State to show thatthe trial court’s error was “harmless beyond a reasonable doubt.” (Chapmanv. California, supra, 386 U.S.at p. 24; People v. Wright, supra, 52 Cal.3d at p. 403, cert. den. (1991) 502 U.S. 834 [any violation of a defendant’s right to be presentat all critical stages ofhistrial constitutes federal constitutional error, requiring reversal unless the error can be demonstrated to be harmless beyond a reasonable doubt].)'*’ This '87 Although this Court has stated that the burden is upon the defendant to demonstrate that his absence prejudiced his case or denied him a fair and impartialtrial (see e.g., People v. Jackson (1980) 28 Cal.3d 264, 309-10, cert. den. (1981) 450 U.S. 1035, overruled on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn.3; People v. Duncan, supra, 53 Cal.3d at p. 975, cert. den. (1992) 503 U.S. 980),it is clear that this refers to the defendant’s burden of establishing that his due process right to be present has been implicated. It is true that an accused has a due processright to be present only whenhis presence bears a reasonably substantial relations to the fullness of his opportunity to defend against the charge. (Snyder, supra, 291 U.S.at pp. 105-08.) However, once the defendant has shownthat his presence would be useful or of benefit, and thus his lack of presence is a denial of due process, the burden is then on the State to prove that the constitutional violation was harmless beyond a reasonable doubt. (SeeRushen v. Spain (1983) 464 U.S. 114, 119 (per curiam); People v. Whitt (1990) 51 Cal.3d 620, 671-72, cert. den. (1991) 501 U.S. 1213, (Broussard, J. conc. and dissenting) [“when the error violates the federal Constitution, the defendant need not show prejudice; rather, the prosecution must establish the absenceofprejudice”].) In any (continued...) 622 “burden of proving harmless erroris a heavy one.” (Bustamante, supra, 456 F.2d at p. 271.) “Thestandard by which to determine whether reversible error occurred . . . is not whether the accused wasactually prejudiced, but whether there is ‘any reasonable possibility of prejudice.’” (Wade v. United States (D.C. Cir. 1971) 441 F.2d 1046, 1050.) | Certainly, there is a strong likelihood that appellant was prejudiced — by the absence of both heand his counsel from the courtroom during proceedings at which the court took evidence from the various prosecutors, whom appellant alleged were too biased to prosecute his case. Appellant’s presence at the hearing during whichthe prosecution defended itself against such charges would not have been “useless.” (See Snyder, supra, 291 US. at pp. 105-07:) To the contrary, defensecounsel plainly stated that the presence of the defense at those hearings wasessential to a fair determination of the issue. During argumenton the motion, counsel for one defendantsaid it was difficult to argue factsknownonly to the prosecution and the court, and asked if any additional evidence would be made available to the defense. (RT 4439.) Appellant’s counsel followed-up that argument, and urgedthetrial court not to reach a decision based on information supplied to it by the prosecution in camera becausethe prosecution’s credibility was in doubt; counsel then provided the court with specific examples of misrepresentationsthe prosecution madeto boththetrial court and the Court of Appeal. (RT 4439-4451; see also CT 11258-11262.) The trial court nonetheless denied appellant’s motion to recuse, based almost '87(__ continued) event, for the reasons stated above, the burdenis clearly on the State to show that the absence of both appellant and his counsel from the proceedings referred to herein was harmless beyond a reasonable doubt. 623 solely on the evidence disclosed during the in camera proceedings. (RT 4475-4481.) Thetrial court initially granted the prosecution’s request for an in camera hearingin order to argue that the information sought by the defense- - that is, information supporting the prosecution’s allegations that the Family had infiltrated the LADA’s Office-- was privileged. Appellant, then as now, wasforced to argue blindly to the contrary, that the information was not privileged, or, if any privilege had attached, it had been waived by the prosecution. (CT 11898-11967 and Motion to Vacate Certification or, in the Alternative, to Correct, Augment and Settle the Record at pp. 3-6,74- 77, filed September 13, 2002 in this Court by appellant Bryant, incorporated by reference herein.) Next, because appellant and his counsel were excluded fromthe in camera proceedings, appellant was forced then, as now,to argue blindly the merits of the recusal motion itself. (See Argument I, ante.) . Thetrial court implicitly recognized the “critical” nature of the proceedings from which appellant and his counsel were excluded by using | that precise legal label: the trial courtstated that information “critical to the defense” was discussed. (RT 4422.) In short, appellant’s and his counsel’s presence, at the in camera proceedings would have contributed to the fairness of the procedure by providing him an opportunity to not only inform the court and counsel of his questions, concerns andobservations, butto contradict allegations that he was somehowinvolvedin or responsible for obtaining confidential information from employees of the LADA’sOffice. (See Argument XXXIV,ante, incorporated by reference herein.) 624 Likewise, the proceedings in which thetrial court addressed ex parte the jury that would decide appellant’s fate could only be considered a “critical stage” of the proceeding. Thetrial court, over appellant’s objections, twice addressed appellant’s jury regarding special security procedures implemented for the jurors’ protection in this case. (RT 7980- 7988, 8057-[8072-8075], 9567-9581.) Thebasisforits decision to exclude appellant and his counsel was(1) “activities alleged against the | defendants;” and (2) it would be “awkward”for appellant’s counsel to be present whenthe court so addressed the jury. (RT 7984-7985.) The court ruled it did not want counsel to knowthe route the jurors would betaking to enter and leave the building. (RT 7985.) When counsel suggested the court allow them to bepresentfor the discussion and then to have the bailiffs, off the record, inform the jury of the route, the court cut off discussion and said simply that “it needs to make orders to the jury alongthose lines.” (RT 7985-7987.) The court represented that it would make the statement in the most “neutral manner” possible. (RT 7986.) Although a cold record of those proceedings has been supplied to appellant on appeal, the record cannot reflect whether the court was successful in being neutral in tone and manner. If appellant or his counsel had been present, he would have heard the court’s voice, seen his actions, and measuredthe jurors’ reactions. Appellant or his attorney could have made objections relevant to appellant’s right to a fair trial by an impartial jury. Appellant again raised his concerns in this regard in his motion for a new trial, where he cited cases demonstrating that a defendant’s nght to a fair trial can be abridgedbya trial judge through non-verbal communication. (CT 15884-15900, incorporated by reference herein, citing People v. Franklin (1976) 56 Cal.App.3d 18 [citingtrial judge’s 625 unconsciousfacial expressions towards defense witnesses]; People v. Barquera (1957) 154 Cal.App.2d 513 [trial judge communicated subliminally his beliefs regarding the proper outcomeofthe trial to the jury]; Bellici v. United States (D.C. Cir. 1950) 184 F.2d 39 [conviction reversed where trial judge bias indicated by gesture]. ) Forall the foregoing reasons, the trial court’s ex parte communications with the jurors was fatal constitutional error. C. Appellant’s Waiver Of His Right To Presence At Numerous Other Proceedings Was Invalid Under Federal Law There were numerous proceedings in addition to the recusal hearing discussed above at which Bryant was not present. He was absent, withouta waiver, for a discovery hearing during which Detective James Vojtecky testified. (CT 3449-3467.) Appellant’s counsel waived appellant’s presence for a hearing on a subpoena duces tecum during which Detective Vojtecky testified. (RT 4199-4218; CT 11115). Appellant was also not © present, without a waiver, at the reassignment of his case after Judge Smith recused himself from presiding over appellant’s trial. (RT 4999-5005.) Both appellant, after an oral waiver, and his counsel absentedthemselves from an Evidence Code section 402 hearing concerning codefendant Settle’s statements atthe time of his arrest. (RT 7990-8056.) Appellant’s counselorally and telephonically waived appellant’s presence for proceedingsrelating to jury guilt phase deliberationsafterall guilt verdicts had been rendered against appellant, during which time court and counsel discussed the jury’s confusion over the definition of an accomplice (see Argument XIV, ante, incorporated by reference herein). (RT 17803, 17805.) Appellant orally waived his presence for a hearing in whichhis. 626 motion to limit aggravating evidence during the penalty phase was argued and ruled upon. (RT 17547-17561; CT 15603-15604.) The right to be personally present in a capitaltrial is so fundamental that it has often been held to be unwaivable. In Hopt v. Utah (1884) 110 U.S. 574, 579, a capital case, the Supreme Court stated that a felony defendant’s absence from any “stage of the trial when his substantial rights may be affected,” voluntary or not, violated federal due process. In Diaz v. United States (1912) 223 U.S. 442, 455, the Court rescinded Hopt’s ban on waiverwith respect to noncapital defendants, holding that “when the offense is not capital and the accusedis not in custody” a defendant may waivehis presenceatcritical trial proceedings. The Court reaffirmed that a capital defendantis regarded as“incapable of waivingtheright[to presence] .. . because, in addition to being usually in custody,he is deemed to suffer the constraint naturally incident to an apprehension of the awful penalty that would follow conviction.” ([bid.) In llinois v. Allen, 397 U.S. 337, 345, a noncapital case, the Court suggested in dicta that a capital defendant could waive his right to presence through disruptive conduct, remarking that “criminal contempt has obvious limitations as a sanction when the defendantis charged with a crime so . serious that a very severe sentence such as death orlife imprisonmentis likely to be imposed.” The Supreme Court, however, has never held that a nondisruptive capital defendant may waivehis right to presence. With respect to nondisruptive defendants, Diaz’s position that the right to presence cannot be waivedin capital casesis still good law. Federal circuit court decisions have recognized the continuing validity ofDiaz. In Near v. Cunningham (4th Cir. 1963) 313 F.2d 929, 931, the Court of Appeal for the Fourth Circuit specifically held that a capital 627 _ defendant was entitled to a new trial when he was excluded from an in camera conference concerning whetheror not to sequester the jurors. With respect to the right to be personally present at trial, the court cited Hoptfor the proposition that “[s]o fundamentalis this nght that it may not be waived.” (Ibid.) In Proffitt v. Wainwright (11th Cir. 1982) 685 F.2d 1227, 1257-58, the court rejected the State’s argumentthat a capital defendant’s attorney could waivehis right to be present at a hearing, citing Hopt and | Diaz as holdingthat “the right to presencein capital cases is so fundamental that the defendant cannot waiveit.” It interpreted the [/linois v. Allen dictum as creating only “a limited exception to the no-waiverrule for defendants who willfully disrupt their trials.” (bid; see also Hall v. Wainwright (11th Cir. 1984) 733 F.2d 766, 775.) The Ninth Circuit, on the other hand, has indicated that a capital defendant might be able to waive the right to presence. In Campbell v. Wood, 18F.3d 662, an en banc opinion, the court declared, Thereis no principled basis for limiting to noncapital offenses a defendant’s ability knowingly, voluntarily, and willingly to waive the right ofpresence. Nor do wefind logic in a position that a right that may be waived bydisruptive _ behavior cannot be waived byan affirmative petition freely made and based on informed judgment. (Id. at p. 672.) The court relied upon Snyder v. Massachusetts, supra, 291 U.S.at p. 106, a capital case where the Supreme Court stated thatthe privilege of presence “maybelost by consentor at times even by misconduct,” and Illinois v. Allen, supra, 397 U.S. at pp. 342-43, where the Supreme Court abandoned Hopt’s view that a felony trial could never continuein the defendant’s absence, to illustrate that its ruling was not incompatible with Supreme Court precedents. Allen, however, addressed the narrow issue of 628 “whether an accused can claim the benefit of [the] constitutional right to remain in the courtroom while at the same time he engages in speech and conduct whichis so noisy, disorderly, and disruptive that it is exceedingly difficult or wholly impossible to.carry on thetrial.” (397 U.S.at p. 338.) The Court did not touch upon the much broader issue of waiver bya nondisruptive or mildly disruptive defendant. And in Snyder, the defendant’s right to be presentat critical stages of his trial was not at issue. Snyder dealt with a trial court’s refusal to let the defendantattend a jury view of the crime scene; the Court held that the refusal was not unconstitutional because the defendant had nothing to gain from presenceat the view (291 U.S. at p. 108), and because “a view is nota ‘trial’ nor any part of a trial in the sense in whicha trial was understood at common law. ... To transfer to a view the constitutional privileges applicable to a trial is to be forgetful of our history.” (/d. at pp. 114-15.) Also, as the Eleventh Circuit pointed out in Proffitt, “[T]he Snyder Court relied on Diaz, which expressly recognized a limitation on waiver to - . noncapital cases. Moreover, in Snyderthere wasnoallegation of waiver, and thus the Court wasnot specifically faced with the waiverissue in that case.” (685 F.2d at p. 1258.) Neither Snyder nor Allen in any way questioned Diaz’s reasoning. Campbell’s rejectionofDiaz’s distinction between noncapital and capital defendants was therefore unsupported. As the court stated in Profitt, “Until the Court expressly overrules its decisions in Diaz and Hopt .. . we are bound bythe rule established in those cases that a capital defendant’s right to presence is nonwaivable.” (bid.) Furthermore, in claiming that there was no principled rationale for allowing waiverofthe right to presence in noncapital but not capital cases, Campbell ignored the unique public policy considerations that weigh in 629 favor of insuring a capital defendant’s presenceat all critical stages of his or her trial. As the North Carolina Supreme Court observed in State v. Huff (1989) 381 S.E.2d 635, 651, vacated on other grounds (1990) 497 U.S. 102, a defendant’s presenceat a capital trial is a matter of public as well as private concern, since the public has a compelling interest in protecting humanlife and in upholding the absolute integrity of the criminaljustice system whenthe ultimate sanction of death is being imposed. (See also State v. Braswell (N.C. 1985) 324 S.E.2d 241, 246 [“when a defendantis -being tried for a capital felony public policy prevents the accused from waiving his right to be present at any stage ofthe trial”]; State v. Kelly ; (N.C. 1887) 2 S.E. 185, 186 [the rule that [the accused] must be so present in capital felonies is infavorem vitae . . : founded in the tenderness and care of the law for human life ...]; State v. Paylor (1883) 89 N.C. 539, 541 [“in favoroflife, this rule is never relaxed . . .”’].) _#Finally, Campbell was directly concerned with a defendant’s right to presence at empaneling of the jury, not with the right to presence when the _jury received evidence. However, a capital defendant may not waive the right to be personally present for jury trial. The Eighth andFourteenth Amendments require heightenedreliability as to both the guilt and sentencing determinations in a capital case (Beck v. Alabama, supra, 447 U.S. at pp. 637-638; Kyles v. Whitley (1995) 514 U.S. 419, 422) and there is a substantial constitutional question whether any person may waivea right derived from the cruel and unusual punishments clause of the Eighth Amendment. (See, e.g., Kirchmeier, Let’s Make a Deal: Waiving the Eighth Amendment By Selecting a Cruel and Unusual Punishment (2000) 32 Conn.L.Rev. 615.) The Eighth Amendmentnot only protects the rights of individual, but also embodies a fundamental interest of society in 630 ensuring the reliability of procedures with whichthe State administersits ultimate punishment. (See Beckv. Alabama, supra, 447 U.S.at pp. 637- 638; People v. Chadd (1981) 28 Cal.3d 739, 751-753.) Therefore, “society’s independent stake in enforcementof the Eight Amendment’s prohibition against cruel and unusual punishment cannot be overridden by a defendant’s purported waiver.” (bid; see also, Carter, Maintaining Systemic Integrity in Capital Cases: The UseofCourt-Appointed Counsel to Present Mitigating Evidence When the Defendant Advocates Death (1987) 55 Tenn.L.Rev. 95.) . Since a capital defendant’sright to presenceat trial exists not only for his benefit but for the benefit of the public-at large, it is logical to prevent him from unilaterally waiving that right. This Court has held that “a law established for a public reason cannot be waived or circumvented by a private act or agreement.” (Bickel V. City ofPiedmont(1997) 16 Cal. 4th 1040, 1048 [quoting Covino v. Governing Board(1977) 76 Cal.App.3d 314, 322]; see also Cal. Civ. Code, § 3513 (Deering 1999) (“Anyone may waive the advantageofa law intendedsolely forhis benefit. But a law established for a public reason cannot be contravenedby a private agreement”). The exception to the no-waiver rule made for disruptive defendantsis not inconsistent with recognizing that a capital defendant’s presenceattrial serves important public interests. The ability to expel a disruptive defendant stems from a judge’s inherent power to maintain orderin his or her courtroom and, unlike the ability to accept a waiverof presence,it is essential to preserving the dignityand decorum ofjudicial proceedings. (See Allen, supra, 397 U.S. at pp. 343-344.) For all these reasons, appellant could not waivehis right to be present during any of the aforementioned proceedings. 631 D. Appellant’s WaiverOfHis Right To Presence WasInvalid _ Under State Law And The Federal Due Process Clause This Court has held that “when read together, sections 977 and 1043 permit a capital defendantto be absent from the courtroom only on two occasions: (1) when he has been removedbythe court for disruptive behavior under section 1043, subdivision (b)(1), and (2) when he voluntarily waives his rights pursuant to section 977, subdivision (b)(1).” People v. Weaver (2001) 26 Cal.4th 876, 967 [citing People v. Jackson (1996) 13 Cal.4th 1164, 1210, cert. den. (1997) 520 U.S. 1216].) This Court has further recognized, however, that section 977, subdivision (b)(1) — the subdivision that authorizes waiverfor felony defendants — expressly provides for situations in which the defendant cannot waivehis right to be present, including during the taking of evidence beforethetrier of fact. Section 1043, subdivision (b)(2), further makesclearthatits broad “voluntary” exception to the requirement that felony defendants be present at trial does not apply to capital defendants. ([bid. at pp. 967-68 [citing People v. Jackson, supra, 13 Cal.4th at p. 1210].) As this Court has acknowledged,“[t]he Legislature evidently intended that a capital defendant’s right to voluntarily waivehisrightto be presentbe severely restricted.” (People v. Jackson, supra, 13 Cal.4th at p. 1211; accord, People v. Weaver, supra, 26 Cal.4th at p. 968.) Also, because appellant’s waiver wasoral, the court’s acceptance of it would be statutory error even if, contrary to the holding ofJackson, a capital defendant’s rightto be present during the taking of testimony were waivable. (Pen. Code, § 977, subds. (b)(1) and (b)(2).)'*® '88 While this Court suggested in People v. Visciotti (1992)2 Cal. 4th (continued...) 632 e s Indisputably, the trial court in this case, by permitting a nondisruptive capital defendant to be absent during the taking of evidence, committed error under sections 977 and 1043. This Court has held that an error of this type, being merely statutory, requires reversal onlyif ““‘it is reasonably probable that a result-more favorable to the appealing party would have been reachedin the absenceofthe error.’” People v. Jackson, supra, 13 Cal.4th at p. 1211 [citing People v. Watson, supra, 46 Cal.2d at p. 188continued) _ 1, 49-50, that failure to follow this procedure was possible grounds for reversal onlyif it cast doubt on the knowing and voluntary nature of the defendant’s waiver, such an interpretation of the statute renders pointless the Legislature’s inclusion of specific requirements for a valid waiver. Any waiver of a constitutional right has to be knowing and voluntary (see, e.g., Brady v. United States (1970) 397 U.S. 742, 748; Johnson v. Zerbst (1938) 304 U.S. 458, 464.) By laying out a particular form for waivers of the right to presence, the Legislature must have intended to impose requirements ‘beyond the general ones of knowingness and voluntariness. If section 977, . subdivision (b)(2) is to have any import, acceptance of an oral waiver must be deemedstatutory error. It is a well-established rule of construction that courts should reject interpretations of a statute that make someofits provisions useless or superfluous. (See, e.g., United States v. Nordic Village, Inc. (1992) 503 U.S. 30, 36 [applying “the settled rule” that “a statute must, if possible, be construed in such fashion that every word has some operative effect’]; Beisler v. Commissioner (9th Cir. 1987) 814 F.2d 1304, 1307 [““We should avoid an interpretation of a statute that renders any part of it superfluous . .. .”]; City and County ofSan Francisco v. Farrell (1982) 32 Cal.3d 47, 54 [“[A]n interpretation (of a statute) which would render terms surplusage should be avoided, and every word should be given somesignificance, leaving no part useless or devoid of meaning.”’]; 2A Norman J. Singer, Sutherland’s Statutory Construction (Sth ed. 1992 & Supp. 1995) § 46.06 [“A statute should be construedso that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant... .”]; 7 B.E. Witkin, Summary of California Law (9th ed. 1988 & Supp. 1998) § 94.) 633 836]; People v. Weaver, supra, 26 Cal.4th at p. 968.) In this case, however, the statutory error wasalso a violation of appellant’s constitutional right and the Chapman harmlesserror standard should apply. (Chapmanv. California, supra, 386 U.S.at p. 24.) The arbitrary deprivation of a right secured by state law — here, a capital defendant’s nonwaivable right to presenceat trial — is a denial of due process. (See Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) In Hewitt v. Helms (1983) 459 U.S. 460, 466, the Supreme Court explained that [liberty interests protected by the Fourteenth Amendmentmayarise from two sources — the Due Process Clauseitself and the laws of the States.” In Ford v. Wainwright, supra, 477 U.S.at p. 428, Justice O’Connor, concurring in part, stated, “Our cases leave no doubt that where a statute indicates with ‘language of an unmistakably mandatory character,’ that state conduct injurious to an individual will not occur ‘absent specified substantive predicates,’ the statute creates an expectation protected by: the Due Process Clause.” (Ibid. [quoting Hewitt, supra, 459 U.S.at pp. 471- 472].) Penal Code section 977, using “language of an unmistakably 189 creates an expectation on the part of nondisruptivemandatory character, capital defendants that they will not be convicted andsentenced without having been presentat the proceedingslisted in subdivision (b)(1). The '8 As previously noted, subdivision (b)(1) provides that “the accused shall be present at the arraignment,at the time of the plea, during the preliminary hearing, during those portionsof the trial when evidenceis taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court a written waiverof his or herright to be personally present[. . .].” (Italics added). 634 trial court’s acceptance of appellant’s waiverviolated that expectation, and infringed upona liberty interest protected by the Fourteenth Amendment. Accordingly, since acceptance of appellant’s waiver was federal constitutional error in addition to statutory error, appellant’s convictions must be reversed unless the government showsthat the error was harmless beyond a reasonable doubt. (Chapmanv. California, supra, 386 U.S.at p. 24.) It also “‘is reasonably probable that a result more favorable to 299[appellant] would have beenreached in the absence oftheerror. (People v. Jackson, supra, 13 Cal.4th at p. 1211 [citing People v. Watson, supra, 46 Cal.2d at p. 836]; Peoplev. Weaver. supra, 26 Cal.4th at p. 968.) | | Under any analysis, the error was prejudicial and appellant’s conviction must be reversed and his death judgmentvacated. // /] 635 | XXXI APPELLANT’S DEATH SENTENCE VIOLATES INTERNATIONAL LAW The United States is one of the few nations that regularly uses the death penalty as a form of punishment. (See Ring v. Arizona, supra, 536 USS. at p. 618 (conc. opn. of Breyer, J.); People v. Bull (Ill. 1998) 705 6 N.E.2d 824 (dis. opn. of Harrison,J.).) And, as the Supreme Court of | Canada recently explained: Amnesty International reports that in 1948, the year in which e the Universal Declaration of Human Rights was adopted, only eight countries were abolitionist. In January 1998, the Secretary-General of the United Nations, in a report submitted to the Commission on HumanRights (U.N. Doc. E/CN.4/1998/82), noted that 90 countries retained the death penalty, while 61 weretotally abolitionist, 14 (including Canadaat the time) wereclassified as abolitionist for ordinary crimes and 27 were consideredto be abolitionist defacto (no executions for the past 10 years) for a total of 102 abolitionist — e countries. At the present time, it appears that the death penalty is now abolished (apart from exceptional offences such as treason) in 108 countries. These generalstatistics mask the important pointthat abolitionist states includeall of the major democracies except some of the United States, India _. . e and Japan ... Accordingtostatistics filed by Amnesty | International on this appeal, 85 percent of the world's executionsin 1999 were accounted for by only five countries: the United States, China, the Congo, Saudi Arabia and Iran. (Minister ofJustice v. Burns (2001) 1 S.C.R. 283 [2001 SCC 7], § 91.) The California death penalty schemeviolates the provisions of internationaltreaties and the fundamental precepts of international human rights. Because internationaltreaties ratified by the United States are binding onstate courts, the imposition of the death penalty is unlawful. To the extent that international legal normsare incorporated into the Eighth 636 Amendmentdetermination of evolving standards of decency, appellant raises this claim under the Eighth Amendmentas well. (See Atkinsv. Virginia, supra, 536 U.S.at p. 316, fn. 21;; Stanford v. Kentucky (1989) 492 USS. 361, 389-390 (dis. opn. of Brennan,J.).) A. International Law Article VII ofthe International CovenantofCivil andPolitical Rights (“ICCPR”) prohibits “cruel, inhuman or degrading treatment or punishment.” Article VI, section 1 ofthe ICCPR prohibits the arbitrary deprivation oflife, providing that “[elvery human being hasthe inherent righttolife. This right shall be protected by law. Nooneshall be arbitrarily deprivedoflife.” The ICCPR wasratified by the United States in 1992, and applies to the states under the Supremacy Clause of the federal Constitution. U.S. Const.art. VI, § 1, cl. 2. Consequently, this Court is bound by the ICCPR.!” The United States Court ofAppeals for the Eleventh Circuit has held that whenthe United States Senate ratified the ICCPR “the treaty became, coexistent with the United States Constitution and federal statutes, the '° The Senate attempted to place reservations onthe language ofthe ICCPR,including a declaration that the covenant was not self-executing. (See 138 Cong. Rec. $4784, § III(1).) These qualifications do not preclude appellant’s reliance on the treaty because,interalia, (1) the treaty is self- executing under the factors set forth in Frolova v. U.S.S.R. (7th Cir. 1985) 761 F.2d 370, 373; (2) the declaration impermissibly conflicts with the object and purposeofthe treaty, which is to protect the individual’s rights enumerated therein (see Riesenfeld & Abbot (1991) The Scope ofthe U.S. Senate Control Over the Conclusion and Operation of Treaties, 68 Chi.- Kent L. Rev. 571, 608 ); and (3) the legislative history indicates that the Senate only intended to prohibit private and independent causes of action (see 138 Cong. Rec. S4784) and did not intend to prevent defensive use of the treaty. (See Quigley, Human Rights Defenses in U.S. Courts (1998) 20 Hum. Rts. Q. 555, 581-582.) 637 supreme law of the land” and must be applied as written. (United States v. Duarte-Acero (11th Cir. 2000) 208 F.3d 1282, 1284 ; but see Beazley v. Johnson (5th Cir. 2001) 242 F.3d 248, 267-268.) _ Appellant’s death sentenceviolates the ICCPR. Becauseofthe improprieties of the capital sentencing process challenged in this appeal, the imposition of the death penalty on appellant constitutes “cruel, inhuman or degrading treatment or punishment”in violation of Article VII of the ICCPR. He recognizes that this Court previously has rejected international law claims directed at the death penalty in California. (People v. Ghent, supra, 43 Cal.3d at pp. 778-779; see also id. at pp. 780-781 (conc. opn. of Mosk,J.); People v. Hillhouse (2002) 27 Cal.4th 469, 511.) Still, there is a growing recognition that international human rights normsin general, and the ICCPRin particular, should be applied to the United States. (See United States v. Duarte-Acero, supra, 208 F.3d at p.1284; McKenzie v. Day (9th Cir. 1995) 57 F.3d 1461, 1487, dis. opn. of Norris, J.) Thus, appellant requests that the Court reconsider and, in the contextofthis case, find his death sentence violates international law. | B. The Eighth Amendment As noted above,the abolition of the death penalty,orits limitation to exceptional crimes such as treason — as opposedtoits use as a regular punishment for ordinary crimes — is particularly uniform in the nations of Western Europe. (See, e.g., Stanford v. Kentucky, supra, 492 U.S.at p. 389 (dis. opn. of Brennan,J.); Thompson v. Oklahoma (1988) 487 U.S. 815, 830.) Indeed, a// nations of Western Europe — plus Canada, Australia, and New Zealand — have abolished the death penalty. (Amnesty International, “The Death Penalty: List of Abolitionist and Retentionist Countries” (as of 638 August 2002) at or .)!”! This consistent view is especially important in considering the constitutionality of the death penalty under the Eighth Amendment because our Founding Fathers looked to the nations of Western Europefor the “law of nations” as models on whichthe lawsofcivilized nations were founded and for the meaning of terms in the Constitution. “When the United States became an independentnation, they became,to use the language of Chancellor Kent, ‘subject to that system of rules which reason, morality, and custom hadestablished amongthe civilized nations of Europe as their public law.’” (Miller v. United States (1870) 78 U.S. 268, 315 (dis. opn. of Field, J.) [quoting | Kent’s Commentaries 1]; Hilton v. Guyot (1895) 159 U.S. 113, 163, 227; Sabariegov. Maverick (1888) 124 U.S. 261, 291-292.) Thus, for example, Congress’s powerto prosecute waris, as a matter of constitutional law, limited by the law of nations; whatcivilized Europe forbade, such as using poison weaponsorselling prisoners of war into slavery, was constitutionally forbidden here. (Miller v. United States, supra, 78 U.S.at pp. 315-316,fn. 57 (dis. opn.of Field,J.).) “Cruel and unusual punishment”as defined in the Constitution is not limited to whatever violated the standards of decency that existed within the civilized nations of Europe in the 18th century. The Eighth Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” (Trop v. Dulles, supra, 356 U.S. at p. 100.) '9! Manyother countries including almost all Eastern European, Central American, and South American nations also have abolished the death penalty either completely or for ordinary crimes. (See Amnesty International’s “List of Abolitionist and Retentionist Countries.”) 639 Andif the standards of decency as perceived by the civilized nations of Europe to which our Framers looked as models have evolved, the Eighth ‘Amendment requires that weevolve with them. The Eighth Amendment thus prohibits the use of forms of punishmentnot recognized by several of our states and the civilized nations of Europe, or used by only a handful of countries throughout the world — includingtotalitarian regimes whose own “standards of decency” are supposedto be antithetical to our own. (See Atkins v. Virginia, supra, 536 U.S.at p, 316, fn. 21 [basing determination that executing mentally retarded persons violated Eighth Amendmentin part on disapproval in “the world community”]; Thompson v. Oklahoma, supra, 487 U.S.at pp. 830,.fn. 31 [We have previously recognized the relevance ofthe views of the international community in determining whether a punishmentis cruel and unusual”].) Assuming arguendo that capital punishmentitself is not contrary to international norms of human decency,its use as regular punishment for substantial numbers of crimes — as opposed to extraordinary punishmentfor extraordinary crimes — is contrary to those norms. Nations in the Western world no longer accept the death penalty, and the Eighth Amendment does not permit jurisdictions in this nation to lag so far behind. (See Hilton v. Guyot, supra, 159 U.S. 113; see also Jecker, Torre & Co. v. Montgomery (1855) 59 U-S. 110, 112 [municipaljurisdictions of every country are _ subject to law of nationsprinciple that citizens of warring nationsare -enemies].) Thus, California’s use of death as a regular punishment, as in this case, violates the Eighth and Fourteenth Amendments, and appellant’s death sentence mustbeset aside. 640 XXXII REVERSAL IS REQUIRED BASED ON THE CUMULATIVE EFFECT OF ERRORS Assuming that noneofthe errors in this case is prejudicial by itself, the cumulative effect of these errors nevertheless undermines the confidencein the integrity of the guilt and penalty phase proceedings and warrants reversal of the judgment of conviction and sentence of death. Even wherenosingleerror in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may be so harmful that reversalis required. (See Cooper v. Fitzharris, supra, 586 F.2d at p. 1333 [“prejudice may result from the cumulative impact of multiple deficiencies”]; Donnelly v. DeChristoforo, supra, 416 U.S. at pp. 642-643 [cumulative errors may so infect “the trial with unfairness as to make the resulting conviction a denial of due process”]; Greer v. Miller (1987) 483 U.S. 756, 764.) Reversal is required unless it can be said that the combined effect of all of the errors, constitutional and otherwise, was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S.at p. 24; People v. Williams (1971) 22 Cal.App.3d 34, 58-59 [applying the Chapmanstandardto the totality of the errors whenerrors of federal constitutional magnitude combined with othererrors].) The improper removalof a single juror for cause is groundsfor reversal; in this case, three jurors were improperly removed for cause. In | addition, numerousguilt phase evidentiary andinstructional errors resulted in the admission ofhighly inflammatory and prejudicial evidence. As previously set forth in this brief, many of the errors complained of herein had a synergistic and prejudicial effect. For example, the trial court’s erroneous ruling on appellant’s marital privilege led to the erroneous 641 admission of section 1101 evidencerelating to the Keith Curry bombing, which in turn led to the erroneous admission of additional section 1101 evidence of a subsequent attack on Curry. (See Arguments VII and VIII, ante.) The erroneous admission of the taped statement of Andre Armstrong led to the erroneous admission of section 1101 evidencerelating to the bribe of Rhonda Millerin the guilt phase and to the erroneous admission of aggravating in the penalty phase regarding the alleged solicitation ofthe murder of Sofinia Newsome. (See Arguments VII, [X and XXIII, ante.) The trial court’s failure to grant appellant’s motion to sever his case from _ that of codefendant Settle was exacerbatedbyits failure to control the — conductoftrial. (See ArgumentsITI and IV, ante.) Thetrial court’s multiple errors relating to guilt phase instructions lessened the prosecution’s burden of proof and permitted the jury to convict appellant based on ~ criminal propensity. (See Arguments XV, XVI and XVII, ante.) The cumulative effect of these errors SO infected appellant’s trial with unfairness as to makethe resulting conviction a denial of due process. (U.S. Const. amend. XIV; Cal. Const. art. I, §§ 7 & 15; Donnelly v. DeChristoforo, supra, 416 U.S.at p. 643. Appellant’s conviction, therefore, must be reversed. (See Killian v. Poole (9th Cir. 2002) 282 F.3d 1204, 1211 “even if no single error were prejudicial, where there are several substantial errors, ‘their cumulative effect may nevertheless be so prejudicial as to require reversal’”]; Harris v. Wood (9th Cir. 1995) 64 F.3d 1432, 1438-1439 [holding cumulative effect of the deficienciesin trial counsel’s representation requires habeasrelief as to the conviction]; United States v. Wallace (9th Cir. 1988) 848 F.2d 1464, 1475-1476 [reversing | heroin convictions for cumulative error]; People v. Hill, supra, 17 Cal.4th at pp. 844-845 [reversal based on cumulative prosecutorial misconduct]; 642 People v. Holt (1984) 37 Cal.3d 436, 459 [reversing capital murder conviction for cumulativeerror].) | In addition, the death judgmentitself must be evaluated in light of the cumulative error occurring at both the guilt and penalty phases of appellant’s trial. (See People v. Hayes, supra, 52 Cal.3d at p. 644 [court considers prejudice of guilt phase instructional error in assessing that in penalty phase].) In this context, this Court has expressly recognizedthat evidence that may otherwise notaffect the guilt determination can have a prejudicial impact on the penalty trial. (See People v. Hamilton (1963) 60 Cal.2d 105, 136-137; see also People v. Brown, supra, 46 Cal.3d at p. 466 [error occurring at the guilt phase requires reversal of the penalty determination if there is a reasonable possibility that the jury would have rendered a different verdict absent the error]; In re Marquez (1992) | Cal.4th 584, 605, 609 [an error may be harmless at the guilt phase but prejudicial at the penalty phase].) Aside from the erroneousexclusion of prospective jurors, which1s reversibleperse if, the errors committed at the penalty phase of appellant’s trial include numerousinstructional errors that underminethereliability of the death sentence. Reversal of the death judgment is mandated here because it cannot be shown that these penalty errors, individually, collectively, or in combination with the errors that occurred at the guilt phase, had noeffect on the penalty verdict. (See Hitchcock v. Dugger (1987) 481 U.S. 393, 399; Skipper v. South Carolina, supra, 476 U.S.at p. 8; Caldwell v. Mississippi, supra, 472 US. at p. 341.) Accordingly, the combined impactof the variouserrors in this case requires reversal of appellant’s convictions and death sentence. 643 XXXII IF THE CONVICTION PURSUANT TO ANYCOUNT IS REVERSED OR THE FINDING AS TO ANY SPECIAL CIRCUMSTANCEIS VACATED, THE PENALTY OF DEATH MUST BE REVERSED AND THE CASE REMANDEDFORA NEW PENALTY PHASE TRIAL The jury made its decision to impose a death judgmentafter having convicted appellant of four counts offirst degree murder and one count of attempted murder. They had also found the special circumstance of multiple murderto be true. If this Court sets aside the convictions on any of the counts or the findings on any of the special circumstances, the entire matter must be remanded for a new sentencing determination. (See Silva v. Woodford (9th Cir. 2002) 279 F.3d 825, 849 [court foundprejudice, noting that three of the four specialcircumstances the jurors foundto be true were invalidated on appeal].) Penal Codesection 190.3 codifies the factors that a jury may consider in determining whetherdeath orlife imprisonment withoutparole should be imposed in a given case. In accordance with this provision, appellant’s penalty phase jury was instructed thatit “shall” consider and be guided by the presence of enumerated factors, including, inter alia,“the circumstances of the crime of which the defendant was convicted.” (CT 15820.) 7 A reversal of any of the chargesor allegations would significantly alter the landscape the jury was considering when making its determination to assess death. Thereliability of the death judgment would be severely underminedif it were allowed to stand despite the reversal of any ofthe countsor the vacating of any ofthe special circumstances. Accordingly, to 644 meetthe stringent standards imposedona capital sentencing proceeding by the Eighth Amendment, as well asarticle I, section 17 of the California | Constitution, appellant must be granted a new penalty trial, to enable the fact finder to consider the appropriateness of imposing death. Moreover, in Ring v. Arizona, supra, 536 U.S. 584, the United States Supreme Court applied the rule ofApprendi v. New Jersey, supra, 530 US. 466 to capital sentencing procedures, and concludedthat specific findings the legislature makes prerequisite to a death sentence must be made by a jury and proven beyond a reasonable doubt. In California, jurors must determine twocritical facts to determine at the penalty phaseof trial: (1) whether oneor moreof the aggravating circumstancesexists, and (2) if one or more aggravating circumstances exists, whether they outweigh the . mitigating circumstances. If this Court reverses or reduces any ofthe convictions or special findings, the delicate calculus juries must undertake when weighing aggravating and mitigating circumstancesis necessarily skewed, and there no longer remains a finding by the jury that the aggravating factors outweigh the mitigating evidence beyond a reasonable doubt. Further, this Court cannot conduct a harmlesserror review regarding the death sentence without making findings that go beyond “‘the facts 299reflected in the jury verdict alone.’” (See Ring v. Arizona, supra, 536 US. at p. 589 [quoting Apprendi v. New Jersey, supra, 530 US. at p. 483].) Accordingly, because jury findings regarding thefacts supporting an increased sentenceis constitutionally required, a new jury determination that aggravating factors outweigh mitigating factors and that death is the | appropriate sentence must be made when any countor special circumstance 1S reversed or reduced. 645 XXXIV THE ENTIRE JUDGMENT MUST BE REVERSED BECAUSE APPELLANT HAS BEEN DENIED A COMPLETE AND ACCURATE RECORD ON APPEAL, IN VIOLATION OF HIS CONSTITUTIONAL AND STATUTORY RIGHTS | Both the United States Supreme Court and this Court have long recognized that, under the Due Process Clause of the Fourteenth Amendment, the State has the duty to provide every appellant an adequate, complete and effective appellate review of his conviction. (Entsmingerv. Iowa (1967) 386 U.S. 748, 752; Draper v. Washington (1963)372 US. 487, 496; People v. Barton (1978) 21 Cal.3d 513, 518.) A “complete and adequate” appeal constitutionally requires a competent attorney acting as an advocate forthe appellant (U.S. Const., Amends. VI and XIV), and “an appellate record thatwill permit a meaningful, effective presentation of the indigent’s claims.” (Barton, supra, at p. 518 [citing, inter alia, Britt v. North Carolina (1971) 404 U.S. 226, 227, and Griffin v. Illinois (1956) 351 US. 12]; accord Kennedy v. Lockyer (9th Cir. 2004) 379 F.3d 1041 [reversible error for failure to provide complete transcript of first trial to | indigent defendant].) Anything short of a complete transcript of the proceedings below is incompatible witheffective appellate advocacy. (See, e.g., Hardy v. United States (1964) 375 U.S. 277, 282.) | A defendant’s state as well as federal due processright to such a complete record on appeal as will assure him meaningful and effective appellate review has been recognized in numerous California cases | reversing convictions or lower court rulings for violations of those fundamental constitutional protections. (See, e.g., In re Steven B. (1979) 25 Cal.3d 1; People v. Barton, supra; 21 Cal.3d at p. 518: March v. Municipal 646 Court (1972) 7 Cal.3d 422; People v. Jones (1981) 125 Cal.App.3d 298; In re Roderick S. (1981) 125 Cal.App.3d 48; People v. Apalatequi (1978) 82 Cal.App.3d 970; People v. Gloria (1975) 47 Cal.App.3d 1; Peoplev. Serrato (1965) 238 Cal.App.2d 112.) — The right to a complete and accurate recordis of particular importance in capital appeals, because of the Eighth Amendment requirementof heightenedreliability in capital cases (Woodson v. North Carolina, supra, 428 U.S.at p. 305), the constitutional function of appellate review in such cases, and California’s independent interest in the reliability of its death judgments (see People v. Chadd, supra, 28 Cal.3d at pp. 751- 753). Thus, the United States Supreme Court has “emphasized repeatedly the crucial role ofmeaningful appellate review in ensuring that the death penalty is not imposedarbitrarily or irrationally” (Parker v. Dugger (1991) 498 U.S. 308, 321), and has stressed “the importance of reviewing capital sentences on a complete record.” (Dobbs v. Zant (1993) 506 U.S. 357, 358, [citing Gardnerv. Florida, supra, 430 U.S. at p. 361, and Gregg Vv. Georgia, supra, 428 U.S. at pp. 167, 198].) This Court has likewise reaffirmed, in the capital context, “the critical role of a proper and complete record in facilitating meaningful appellate review.” (People v. Hawthorne, supra, 4 Cal.4th at p. 63.) As this Court has emphasized: “We cannoturge too strongly that trial judges assiduously preserve a detailed accountofall proceedings regardless of their perceived significance, particularly in capital cases, to minimize the need to reconstruct events.” (Ibid.) These constitutional rights to a complete and accurate record in capital cases have also been codified in sections 190.7 and 190.9. Section 190.7 defines the “entire record” in such cases to be not only the “normal” 647 appellate record, butalso to include a copy of “any other paperor record | filed or lodged with the superior or municipal court and atranscript of any other oral proceeding”in those courts pertaining to the case. (See also formerrule 39.5, Cal. Rules of Ct. [applicable to appellant’s appeal and essentially tracking the requirements of section 190.7 to provide “the entire record” in capital appeals]; and present rule 34.1(a)(1)(C), Cal. Rules of Ct. [requiring inclusion in clerk’s transcript of “any other documentfiled or lodged in the case”’].) Section 190.9 provides that a// court proceedingsin the case “shall be conducted on the record with a court reporter present,” - and transcribed. In short, as this Court has summarized the constitutional requirements of a complete and adequate record on appeal: “Under the Fourteenth Amendment, the record of the proceedings must be sufficient to permit adequate and effective appellate review. [Citations.] Under the Eighth Amendment, the record must be sufficient to ensure that there isno . substantial risk the death sentence has been arbitrarily imposed.” (People v. Howard (1992) 1 Cal.4th 1132, 1166.) That risk survives given the insufficient record in this case. Appellant has vigorously, but unsuccessfully, sought to obtain a complete and accurate record ofthe trial court proceedings in this case. On February 26, 2001, appellant filed a motion to correct, augmentandsettle - the record on appeal in Los Angeles County Superior Court. (4 SUPP CT 1-115.) After receipt and review of additional corrected record not previously received, appellant then filed an amended motion on April 23, 2001. (5 SUPP CT 147-262.) On June 12, 2001, appellantfiled a noticed motion for order prohibiting review of confidential materials and for return and sealing of those materials pursuant to Penal Codesection 987.2 and 648 a California Rules of Court, rule 39.51(b).'” (5 SUPP CT 265-312.) After review ofstill additional record, appellant Bryant filed a supplemental motion to augmentandsettle the record on August 23, 2001. (6 SUPP CT 3668-3678.) On March 12, 2002, appellant filed a second amended motion to correct, augmentandsettle the record. (6 SUPP CT 3734-3743.) Appellant’s motion to seal confidential section 987.2 records was deniedin its entirety. (RCRT 1332-1339.) With regard to appellant’s original motion to correct, augmentandsettle the.record, the trial court denied appellant’s requests to correct and settle the record in toto, without addressing the merits of the individual requests. (RCRT 1435-1443.) The remaining requests were granted in part and deniedin part, as reflected in the RCRT. The record on appeal wascertifiedto this Court on July 12, 2002. | On September 13, 2002, appellant filed in this Court a motionto vacate certification, or, in the alternative, to correct, augmentandsettle the record in this case (S049596)(““Motion to Vacate”). That motion remains pendingto date, and is incorporated by referenceas if fully set forth herein. The vast majority of settlement requests that were denied involve trial witnesses’ physical gestures, which were employed by such witnesses as substitutes for, and as an integral part of, their oral testimony which the trier of fact — the jurors — saw and consideredas evidence in evaluating such testimony. (Motion to Vacate, section V; see Evid. Code, §§ 140 [“‘Evidence’ means testimony, writings, material objects, or other things 2 On April 27, 2001, the trial court denied appellant’s request to file the motion underseal; said motion was filed contemporaneously with his original motion to correct augmentandsettle the record. (RCRT 1192- 1196.) 649 presented to the senses that are offered to prove the existence or nonexistence ofafact.” (italics added)] and 225 [“‘Statement’ means. . . (b) nonverbal conduct of a person intended by him asa substitute for oral or written verbal expression.”]; In re Horton (1991) 54 Cal.3d 82, 89].) [settled statement to provide a recordof gestures and tone of voice].) Also missing are such matters as various “off the record” or unreported discussion between the lower court and counsel. (See Motion to Vacate, section V.) Appellant was also precluded from attemptedto settle ~ the record with regard to hearings that should have been reported, transcribed andincluded in the record on appeal (§ 190.9; see Peoplev. Seaton (2001) 26 Cal.4th 598, 700 [“It is importantthattrial courts ‘meticulously comply with Penal Code section 190.9, andplaceall | proceedings on the record.’” (quoting People v. Freeman(1994) 8 Cal.4th 450, 511)]) and various charts and othervisual aids used by both counselin opening statements and closing. (See People v. Tiuilaepa (1992) 4 Cal.4th 569, 585 (“The rules authorizing settlement . . . are intended to ensure that the record transmitted to the reviewing court preserves and conformsto the proceedings actually undertakenin the trial court... . Defendant is entitled to an appellate record that accurately reflects what was said and donein the trial court... .”]; Motion to Vacate, section V.) . Further missing are sealed records and requested settlement items without which appellant cannotfully argue the merits of his claimsoferror. (Motion to Vacate, section IV;see, e.g., Arguments I, XIII and XV,ante.) Still further, appellant was denied an opportunity to correct the record on appeal. (Motion to Vacate, sectionIIL.) The-absenceofthe aforementioned records andthe denial of appellant’s requests to correct the record violates not only the applicable 650 statutes and court rules, but also appellant’s state and federal constitutional rights to a complete and adequate record in a capital appeal and to the effective assistance of appellate counsel. (U.S. Const., Amends. VI, VII, XIV; Cal. Const., art. I, §§ 15, 17.) Moreover,the failure to grant appellant’s request to seal Penal Code section 979.2 records, which were erroneously included in the record on appeal under California Rules of Court rule 39.51(b), has denied appellant his state statutory right to confidentiality of trial preparations in a capital case, his federal constitutional rights to effective assistance of counsel, due process of law and the prohibition against forced self-incrimination, and the fundamental privileges against the disclosure of attorney work-product and attorney/client communications, in accordance with appellant’s Fifth,Sixth, Eighth and Fourteenth Amendmentrights under the United States ’ Constitution and Article 1, sections 1, 7, 13, 15, 16 and 17 of the California Constitution. (Motion to Vacate, section VI; see also Osband v. Woodford (2002) 290 F.3d 1036, 1042 [petitioner in a habeas corpus action whoraises a Sixth Amendmentclaim of ineffective assistance of counsel waives the attorney-client privilege as to the matters challenged, but it is within the discretion of the district court to issue an order limiting that waiverto the habeas proceeding in which the ineffective assistance question is raised].) Appellant is aware of this Court’s repeated rulings that “a complaining party bears the burden of demonstrating that the appellate record is not adequate to permit meaningful appellate review.” (Peoplev. Cummings (1993) 4 Cal.4th 1233, 1334, fn. 70; accord People v. Catlin, supra, 26 Cal.4th at p. 166; People v. Alvarez, supra, 14 Cal.4th at p. 196, ‘fn. 8.) However, that standard has been applied to cases in which the defendant was provided with a meaningful opportunity to develop the 651 appellate record in the trial court. Much of appellant’s motion to correct, augmentandsettle the record was denied wholesale by thetrial court, and his continued requests to correct, augmentandsettle the record on appeal remain pending in this Court to date. Appellant submits that, under such circumstances, basic of principles of due process and fundamental fairness (U.S. Const., Amend. XIV) and of theEighth Amendinent’s requirements of heightened reliability and due process in capital cases preclude the imposition of the burden of proof upon appellant. | Assuming arguendo this Court rules the burden is on appellant, appellant respectfully asks this Court to reconsiderits position on the basis of those sameprinciples. (See, e.g., United States v. Selva (Sth Cir. 1977) 559 F.2d 1303, 1305-1306; Dunn v. State (Tex.Crim.App. 1987) 733 S.W.2d 212, 216-217 [inadequate capital record mandates reversal absent any showingor even allegation by appellant of prejudice, as a matter of policy for the preceding 40 years].) It is simply unfairto require a criminal defendant to bear the burden of showing how missingportions of a record prevent him from raising issues the existence and nature of which heis forced to speculate about. “[W]hen a defendantis represented on appeal by counsel] not involvedat trial, counsel cannot reasonably be expected to show specific prejudice.” (United States v. Selva, supra, 559 F.2d at p. 1306; cf. Britt v. North Carolina, supra, 404 U.S.at p. 230 [“A defendant whoclaims the right to a free transcript does not, under our cases, bearthe burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a court in hindsight.”]; Madera vy. Risley (9th Cir. 1989) 885 F.2d 646, 648.) Under such “Catch-22”circumstances, to condition relief upon a specific showingof how the omission harmsthe appellant “would renderillusory an appellant’s right to notice plain errors or 652 defects, ... and render merely technicalhis right to an appeal.” (United States v. Selva, supra, 559 F.2d at p. 1306.) Such logical considerations are especially vital in a capital case: “That this Court have beforeit the entire record in a capital case serves a public policy which considers assuring evenhanded imposition ofthe ultimate penalty as important, if not moreso, than faulting the one condemned for inability to demonstrate on appeal how anerrorresulted in disadvantage.” (Dunn v. State, supra, 733 S.W.2d at p. 216; internal quotation marks omitted.) Appellant submits that an incomplete and inadequate record like appellant’s is tantamountto a “structural defect affecting the framework within which the [appeal] proceeds,” which requires. reversal ofthe judgment without a specific showing of prejudice. (Arizona v. Fulminante, supra, 499 U.S.at pp. 309-310; see Sullivan v. Louisiana, supra, 508 U.S. at pp. 281-282 [deficient reasonable-doubtinstruction constitutes a structural error and is not subj ect to harmless-error analysis].) But even if an automatic-reversal standard is not applied here, prejudicial error must be found becauseofthe critical nature of the missing record, the sealed proceedingsnot provided to appellant, and the lost or unlocated written materials. The blatant failure to provide appellant with a complete and adequate record on appeal in itself requires reversal of the death judgment, becauseit has rendered the appellate record not “sufficient to ensure that there is no substantial risk the death penalty has been arbitrarily imposed.” (Peoplev. Howard, supra, | Cal.4th at p. 1166.) “It is far better that a defendant be retried than that the State should permit itself to be subject to the criticism 653 that it has denied an appellant a fair and adequate record on appeal.” (Jn re Steven B., supra, 25 Cal.3d at p. 9; internal quotations omitted.) Here, a review of the record as a whole demonstrates that appellant has not been provided with an adequate opportunity to develop the record, ‘has not been provided with an adequate record, and that the record certified to this Court is inadequate to provide appellant the full and fair review of the proceedings below to which heis constitutionally entitled. (U.S. Const., Amends. V, VI, VIII and XIV; Cal. Const., art. I, §§ 7 & 15.) Not only can this Court not “conduct a meaningful review”of the — issues raised because of the inadequate settled record (People v. Holloway, supra, 50 Cal.3d at p. 1116), but it is impossible to determine how many other issues could have been raised on appellant’s behalf were there a complete and adequate record. As the United States Supreme Court has noted: “Frequently, issues simply cannot evenbe seen — let alone assessed — without reading an accurate transcript.” (Hardy v. United States, supra, 375 USS.at p. 280, fn. 3.) Clearly, the right to notice errors or defects that might be raised on appealis “illusory” without a complete and adequate record. (See id. at p. 280; see also People v. Barton, supra, 2] Cal.3d at pp. 519-520 [“Obviously,if counsel has a duty to cite to the appellate record in support of his contentions, then counsel hasa duty to insure that there is an adequate record before the appellate court from which those contentions may be resolved on their merits.”]; cf. People v. Sarazzawski (1945) 27 Cal.2d 7, 19 [a complete showing of prejudice cannot reasonably be required because “the very substance and nature of the error would normally operate to preclude the possibility of such a showing”].) As aresult, the entire judgment must be reversed. (See, e.g., In re Steven B., supra, 25 Cal.3d at pp. 7-9 [settled statement deemed inadequate 654 “substitute for complete record”]; People v. Apalatequi, supra, 82 Cal.App.3d at p . 973 [settled statement “insufficient to afford this defendanteffective appellate review’’]; United States v. Selva, supra, 559 F.2d at p. 1306 [“‘When,as here, a criminal defendant is represented on appeal by counsel other than the attorneyattrial, the absence of a substantial and significant portion of the record, even absent any showing of specific prejudice orerror, is sufficient to mandate reversal.”].) // // 655 CONCLUSION Forall of the reasons stated above, both the judgmentof conviction and sentence of death in this case must be reversed. DATED: December 13, 2004 Respectfully submitted, MICHAEL J. HERSEK State Public Defender KATHLEEN M. SCHEIDEL Assistant State Public Defender Attorneys for Appellant 656 CERTIFICATE OF COUNSEL (Cal. Rules of Court, rule36(b)(2)) 1, Kathleen M. Scheidel, am the Assistant State Public Defender assigned to represent appellant Stanley Bryant in this automatic appeal. | instructed a memberof our staff to conduct a word countofthis brief using our office’s computer software. On the basis of that computer-generated word count,I certify that this brief is 189,867 wordsin length. Since the brief is over the 95,2000 word limit, 1 have filed simultaneously with this brief an application for leave to file an oversized brief. Dated: December 13, 2004 ~ KATHLEEN M. SCHEIDEL Assistant State Public Defender Office of the State Public Defender Attorney for Appellant Bryant 657 DECLARATION OF SERVICE Re: People v. Bryant, Wheeler and Smith No. $049596 I, Glenice Fuller, declare that I am over 18 years of age, and not a party to the within cause; my business address is 221 Main Street, 10th Floor, San Francisco, California 94105; that I served a copy of the attached: APPELLANT’S OPENING BRIEF on each ofthe following, by placing same in an envelope addressed respectively as follows: Office of the Attorney General David Goodwin 300 South Spring Street P. O. Box 93579 Los Angeles, CA 90013 Los Angeles,,CA 90093-0579 (Attorney for appellant Smith) Conrad Petermann Addie Lovelace 323 East MatilijaSt. Death Penalty Appeals Clerk Suite 110, PMB 142 Criminal Courts Building Ojai, CA 93023 210 W. Temple Street, Room M-6 (Attorney for appellant Wheeler) Los Angeles, CA 90012 Stanley Bryant CDCID # J-83400 San Quentin State Prison San Quentin, CA 94964 (TO BE DELIVERED BY HAND ON DECEMBER14,2004) Each said envelope was then, on December 13, 2004, sealed and deposited in the United States mail at San Francisco, California, the county in which I am employed, with the postage thereon fully prepaid. I declare under penalty of perjury that the foregoingis true and correct. Executed on December 13, 2004, at San Francisco, California. ~(eniirtlor DECLARANT
