PEOPLE v. HAJEK & VO

Appellant, Loi Tan Vo, Reply Brief

Cal.February 27, 2012

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, )* CAPITAL CASE ) Petitioner and Respondent, ) No. $049626 vs. ) ) (Santa Clara County STEPHEN EDWARD HAJEKand ) Superior Court No. LOI TAN VO, ) 148113) ) - Defendants and Appellants. ) SUPREME COURT ) FILED FEB 27 2012 APPELLANT’S REPLY BRIEF Frederic K, Ohlrich Clerk Sameso = oe Deputy ne et AS NE A IE DORON WEINBERG(State Bar No. 46131) MARILYN A. WALLER(State Bar No. 073054) LAW OFFICES OF DORON WEINBERG 523 Octavia Street San Francisco, CA 94102 Telephone: (415) 431-3472 Facsimile: (415) 552-2703 KATHRYN K. ANDREWS(State Bar No. 104183) Attorney at Law 3020 El Cerrito Plaza PMB 356 El Cerrito, CA 94530 Telephone: (510) 527-9543 : Attorneys for Petitioner LOI TAN VO AV ASeI mrenannan se Bite, YER. WAY dled | 1 {| \ Td] A \ 7 } pes | Pes | A\ \ |He AV TAL Fhe INY /2\ a See A LI SU UAL IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Petitioner and Respondent, VS. STEPHEN EDWARD HAJEK and LOI TAN VO, Defendants and Appellants. n e CAPITAL CASE No. 8049626 (Santa Clara County Superior Court No. 148113) APPELLANT’S REPLY BRIEF DORON WEINBERG(State Bar No. 46131) MARILYN A. WALLER(State Bar No. 073054) LAW OFFICES OF DORON WEINBERG 523 Octavia Street San Francisco, CA 94102 Telephone: (415) 431-3472 Facsimile: (415) 552-2703 KATHRYN K. ANDREWS(State Bar No. 104183) Attorney at Law 3020 El Cerrito Plaza PMB 356 El Cerrito, CA 94530 Telephone: (510) 527-9543 Attorneys for Petitioner LOI TAN VO TABLE OF CONTENTS Page INTRODUCTION . 20...eceee nets 1 I. California’s death penalty statute unconstitutionally permits prosecutors standardless discretion in capital charging ..... 3 Il. Thetrial court erred in denying Appellant Vo’s motion to severhistrial from that of the co-defendant ............. 8 A. Factual Background ......... 2.00.00 cece cee eee 9 B. Severance Was Required ............ 0.00 0e cece eee 11 C. Conclusion ..... 0... ccceee eee eens 29 Il. Appellant Vo’s trial was rendered fundamentally unfair by the trial court’s refusal to grant continuances necessary for his defense, to timely appoint second counsel, and to ensure the availability of necessary funding before and duringthetrial 30 A. Error in Denying and Delaying Appointment of Second Counsel beeeneee e eee e ene e ees 35 B. Denial ofNecessary Funding ....................0005 42 l. Failure to Pay Authorized Funds and Fees ........ 46 2. Denial ofNecessary Funds Based on Misunderstanding of Counsel’s Duties at the Penalty Phase ......... 51 3. Delays and Denials of Funding Require Reversal .. 56 C. Unreasonable and Unjustifiable Denials of Continuances . 58 l. Legal standards ......... 0.0.0... .0 cee eee 59 2. Pretrial requests for continuance ............... 61 IV. VI. VIL. 3. Mid-trial request for continuance ............... 66 Conclusion .. 0.0... ccc cette eee aes 72 Thetrial court violated appellant Vo’s right to counsel and right to defend, and unreasonably refused to permit trial counsel to withdraw when counsel was unpreparedto adequately defend appellant Vo.................0005. 73 There wasinsufficient evidence to support the lying in wait murder charge and lying in wait special circumstance, and that special circumstance is unconstitutionally vague and Overbroad 2...ete e eeee tne 82 Insufficiency of the Evidence ........... 00.0.0 .0005. 83 The lying in wait special circumstanceis unconstitutionally vague and overbroadas applied to appellant Vo......... 92 1. The Lying-In-Wait Special Circumstance Does Not Narrow the Class of Death-Eligible Defendants ... 93 2. The Lying-In-Wait Special CircumstanceFails to Distinguish Death-Eligible Defendant .......... 100 Respondent’s arguments regarding lying-in-wait fail .... 102 Conclusion .... 2.0.0... eeeee eee ees 108 There wasinsufficient evidence that appellant Vo committed attempted murder while armed with a knife cneteee enn ee tne een een tenes 110 The torture murder special circumstance and torture murder charges must be reversed, for they are both unsupported by the evidence, and the torture murder special circumstanceis unconstitutionally vague and overbroad .............. 114 Insufficiency of the Evidence ..................000. 115 il VIII. The torture murder special circumstance as applied to appellant Vo is unconstitutionally vague and overbroad . . 122 Conclusion .... 0.0... 0c cee eevee eeenns 123 There wasinsufficient evidence to support the use of knife enhancements in most counts ..................000. 124 The Prosecution’s Uncharged Conspiracy Theory Deprived Appellant Vo of His Constitutional Rights, and Permitted Jurors to Infer Guilt of Charged Offenses on a Quantum of Evidence Less than the Standard of Proof L ne nen e ett t net e eens 127 The Prosecutor’s Amorphous Conspiracy Theory was Extraordinarily Broad ............... 00 cece eeeeee 128 The prosecution failed to give constitutionally sufficient notice of the nature and scopeofthe alleged conspiracy, failed to offer sufficient evidence of its existence, and was improperly allowed to place evidence bearing on the alleged conspiracy before the jury without findings that statements were madein furtheranceofthe alleged objective or that the alleged conspiracy existed ...............0..0000 00 133 l. Respondent’s contentions aboutreliance on an uncharged conspiracy ..............0000 0005. 138 2. Respondent’s contentions about sufficiency of EVIdENCe 2...eetee eee 141 The Jury Was Given ErroneousInstructions Regarding the Alleged Uncharged Conspiracy ..................00. 144 It Is Constitutionally Intolerable That Capital Murder Charges and a Death Sentence Rested on an Uncharged, Unnoticed, Unproven, Unsupported, and Endlessly Broad Prosecution TREOKY occcece tenet e eens 151 iil AL. XII. A. B. C, D. E. XIII. XV. XIX. XXI. XXIII. A. Admission of evidence regarding a conversation that the co- defendant Hajek had with a witness before the offense was erroneousas to appellant Vo, and inflammatory e eee ete e tenes 153 Thetrial court erred in admitting a taped conversation between co-defendant Hajek and appellant Vo, in which appellant’s utterances were inaudible and for which no reliable transcript existed ... 2.2.0.0... 0.00000 eee 157 The Poor Quality of the Tape ..................00., 158 Error in Admitting the Tape Against Appellant Vo ..... 159 Error in Denying Appellant Vo’s Motion for New Trial .. 163 Error in Not Requiring Transcription of the Audiotape for the Appellate Record ... 0...eccee eens 168 Reversal is Required .......... 0.0.0. c cece eens 172 Appellant Vo’s right to confront and cross-examine was abridged by the introduction of co-defendant Hajek’s statements and writingS ............ 0.00 eee e eee eae, 174 Thetrial court erred in permitting irrelevant and prejudicial evidence of co-defendant Hajek’s interest in Ozzie Osbourne’s music, alleged satanic matters, and otheralleged badactS 2...e cece eee eee nneeues 194 Thereis insufficient evidence that appellant Vo committed first degree murder... ......... 00.000 e cece eeee 202 The torture murder special circumstance instruction was unconstitutional .... 2.0... 0. cece cee eee 208 The jury was given erroneousinstructions regarding the uncharged conspiracy .......... 0.000 cee cece ence 216 Overt ActS 2.0...eeeeee een ees 217 iv B. Object of the Conspiracy ............0 2.2.0. c eee eee 221 C. Reversal is required ....... 0.0... eee eee eee 225 XXIV. Theinstructions regarding aiding and abetting were confusing, and failed to apprise the jury properly of the prosecution’s burden of proving each element of each crime as to each defendant separately .................0005 226 XXXIV. Thetrial court erred in declining to ensure that all proceedings were properly reported to permit full appellate review of a complete record .. 0.0.0... ceceee eee 231 XXXIX. Thetrial court erroneously refused to preclude improper argumentby the prosecutor .............2. 200002 e ue 232 A. The claims of misconduct are not waived ............. 233 B. Nonstaturory factors in aggravation are impermissible .. . 233 C. It was prejudicial misconduct to argue Vo’s alleged future dangerousness ......... 0... 0c e cece eee eens 237 D. The prosecutor improperly urged the jury to consider the defendants jointly in determining sentence ............ 240 E. Conclusion ..... 0.2... eeetet nes 242 CONCLUSION ...... 0.0...eeeteens 249 TABLE OF AUTHORITIES Page CASES Ake v. Oklahoma (1985) 470 U.S. 68 2.0.0.0... 0. eee 33, 45, 53, 55 Arave v. Creech (1993) 507 U.S. 463 2... ecee eens 101 Arizona v. Fulminante (1991) 499 U.S. 279 .. 0. eee 156 Beck v. Alabama (1980) 447 US. 625 0.0...eee84 Bell v. Cone (2002) 535 U.S. 685 okteee eee 57 Berger v. United States (1935) 295 U.S.78 ............ 7, 137, 196, 248 Berry v. Ryan (1950) 97 Cal.App.2d 492 ................. 22, 112, 169 Boyde v. California (1990) 494 U.S. 370 2.0... ccces 45,55 Brady v. Maryland (1963) 373 U.S. 83 2...ec184, 189 Bruton v. United States (1968) 391 U.S.123 2.0.0.0... 0.....000. passim Bush v. Gore (2000) 531 U.S. 98, 121 S.Ct. 525 20.0.0... eee 4, 44 Carella v. California (1989) 491 U.S. 263 2.0... eceee 219 Chapmanv. California (1967) 386 U.S. 18 ............ 56, 156, 167, 201 Connecticut v. Johnson (1983) 460 U.S. 73 ..........0.0.. 104, 209, 215 Corenevsky v. Superior Court (1984) 36 Cal. 3d 307 ...........0..... 43 Crawford v. Washington (2004) 541 U.S.36 ............... 23-26, 191 Cuyler v. Sullivan (1980) 446 U.S. 335 2...ee eee 76, 77 vi Davis v. Alaska (1974) 415 U.S. 308 2.0...eens 57 Davis v. Washington (2006) 547 U.S. 813 2.0... ceeee 25, 26 Dawson v. Delaware (1992) 503 U.S.159 oo...cee 199 Denham v. Superior Court (1970) 2 Cal.3d 557 ............0.. 165, 167 Domino v. Superior Court (1982) 129 Cal. App. 3d 1000 ............ 89 Dong Haw v. Superior Court (1947) 81 Cal.App.2d 153 ........ 134, 141 Donnelly v. DeChristoforo (1974) 416 US. 637 20... eee 150 Eddings v. Oklahoma (1982) 455 U.S. 104 ............. 44, 53, 183, 237 Estelle v. McGuire (1991) 502 U.S. 62 .............. 104, 105, 209, 210 Ford v. Wainwright (1986) 477 U.S. 399 20.ee55 Francis v. Franklin (1985) 471 U.S. 307..... 105, 107, 146, 210, 214, 229 Furman v. Georgia (1972) 408 U.S. 238 ........... 4, 6, 93, 96, 239, 248 Gardnerv. Florida (1977) 430 U.S. 349 ........... 4, 136, 184, 188, 196 Gardner v. Superior Court (2010) 185 Cal. App. 4th 1003 ........... 47 Geders v. United States (1976) 425 U.S. 80 2.0.0... eceee 57 Gideon v. Wainright (1963) 372 U.S. 335 2... ........0000- 30, 45, 53, 54 Godfrey v. Georgia (1980) 446 U.S. 420 ............ 0.02 eee, 93, 239 Gregg v. Georgia (1976) 428 U.S. 153 2...cee 184 Griffin v. California (1965) 380 U.S. 609 .. 0.0.0... eee eee 163, 180 Hale v. Morgan (1978) 22 Cal.3d 388 2.00.0... 00. cee eee 160, 177 Vii Herring v. New York, 422 U.S. 853, 422 U.S. 862 (1975) .......... 188 Higgins v. Renico (6th Cir. 2006) 470 F.3d 624 ......... 0... eee 57 Holloway v. Arkansas (1978) 435 U.S.475 20.0... cece 34, 76, 78 In re Gay (1998)19 Cal4th 771 0...eee ee 45, 53, 237 In re Oliver (1948) 333 U.S. 257 00.ccceee eee 136 In re Spencer (1965) 63 Cal. 2d 400 1.0.0... cece cece eee 19, 20 In re Winship (1970) 397 U.S. 358 oo.eeeee passim Jackson v. Virginia (1979) 443 U.S. 307 2...eee passim Jennings v. Superior Court (1967) 66 Cal.2d 867 ..... 0... 00. e ee eee 60 Johnson v. Mississippi (1988) 486 U.S.578 ............6. 183, 184, 196 Joint Anti-Fascist Refugee Committee v. McGrath (1951) 341 U.S. 123 Lnnee eden nee en eee teen teen tees 187 Keenan vy. Superior Court (1982) 31 Cal.3d 424 ........0...0... passim Kleba v. Williams (7th Cir. 1986) 796 F.2d 947 2.00.0... cece eee 57 Kyles v. Whitley (1995) 514 US 419 ................ 160, 177, 184, 189 Lankford v. Idaho (1991) 500 U.S. 110 .............. 130, 136, 187, 188 Lockett v. Ohio (1978) 438 U.S. 586 ............ 4,44, 53, 183, 237, 240 Lowenfield v. Phelps (1988) 484 U.S. 231 20... 2. eee eee, 116 Mak v. Blodgett (9 Cir.F.2d 1992) 970 F.2d 614 ................ 45,55 Maynard v. Cartwright (1988) 486 U.S. 356........... 0.000 c eee 239 McClesky v. Kemp (1987) 481 U.S. 279 0...cece 55 vill Mickens v. Taylor (2002) 535 U.S. 162 0...ee77 Mills v. Maryland (1988) 486 U.S. 367 20... 183 Owens v. Superior Court ofLos Angeles County (1980) 28 Cal.3d 238 .. 61 Penry v. Lynaugh (1989) 492 U.S. 302 2.0... eee 44, 53,55 People v. Alvarez (996) 14 Cal.4th 155 20...ecee 52 People v. Aranda (1965) 63 Cal.2d 518 .. 13, 153-155, 159, 176, 182, 189 People v. Avila (2006) 38 Cal.4th 491 2.0.0...eee 17 People v. Bachus (1979) 23 Cal.2d 360.0... . 0... 0c cc eee 134, 140 People v. Bacigalupo (1993) 6 Cal.4th 457 2.0...eee 93 People v. Bain (1971) 5 Cal.3deh236 People v. Bassett (1968) 69 Cal.2d 122.0... 0.0... cee eee 205, 206 People v. Beames (2007) 40 Cal.4th 907 2.0.0... eens 65 People v. Beeman (1984) 35 Cal.3d.547 0.0.0... 229 People v. Belmontes (1988) 45 Cal.3d 744 ........... 138-140, 146, 220 People v. Blanco (1992) 10 Cal.App.4th 1167 ................ 160, 177 People v. Bob (1946) 29 Cal.2d 321 2...ceceeen 47 People v. Bolton (1979) 23 Cal.3d 208 2.2.0.0... ccc eee 233 People v. Boyd (1985) 38 Cal. 3d 762 «0.0.0.0... cece eee 234 People v. Boyde (1988) 46 Cal. 3d 212 0.0.0... 0.eee236 People v. Boyette (2002) 29 Cal.4th 381 ........ 0.0... c cee ee eee 151 ix People v. Byoune (1966) 65 Cal.2d 345 2...ce eee 60 Peoplev. Peoplev. People v. Peoplev. Peoplev. People v. People v. People v. People v. Peoplev. People v. Carpenter (1997) 15 Cal.4th 312.2... 0.0... cee eee 94,95 Castillo (1991) 233 CalApp.3d 36 2.0.2... 0.0.0.0 0000, 50, 51 Ceja (1993) 4 Cal.4th 1134 ....... cove eee eeeeeeeees 94, 101 Chatman (2006) 38 Cal.4th 344 ................004. 116, 117 Cleveland (2004) 32 Cal.4th 704 2.0... 0.0.0... 00 cee eee 16 Cockrell (1965) 63 Cal.2d 659 2.0... eee eae 163, 180 Coffman and Marlow (2004) 34 Cal.4th1 ........0..0...... 17 Combs (2004) 34 Cal.4th 821 ................. 163, 179, 192 Cook (2006) 39 Cal.4th 566 2.0.2... ee eee 171 Courts (1985) 37 Cal.3d 784 0.0... cece 60, 61 Crovedi (1966) 65 Cal.2d 199 1.0.0...ee60 People v. Davenport (1985) 41 Cal.3d 247 .... 20, 103, 108, 116, 209, 214 People v. Demery (1980) 104 Cal.App.3d 548 ...............000.0, 171 People v. Diaz (1992) 3 Cal.4th 495 2.0.0.0... 167 People v. Dunlap (Colo. 1999) 975 P.2d 723 ........ 00. cee eee ee 100 People v. Edelbacher (1989) 47 Cal.3d 983.0... 0.0.0.2 cee eee cee 94 People v. Farley (2009) 46 Cal.4th 1053 ......... 0.0... 00 eevee ee 204 People v. Gallego (1990) 52 Cal.3d 115 ...............00002. 128, 136 People v. Gionis (1995) 9 Cal.4th 1196........0. 0.0.00 00000.005. 150 People v. People v. Peoplev. Peoplev. Peoplev. People v. People v. Peoplev. People v. People v. Peoplev. People v. Peoplev. People v. Peoplev. People v. Peoplev. People v. Peoplev. People v. Gorgol (1953) 122 Cal. App. 2d 281 ................0000. 207 Granado (1996) 49 Cal.App.4th 317 ............00.. 124, 125 Green (1980) 27 Cal.3d 1 ....... 0... cee eee passim Grier (2007) 41 Cal.3d 555 20...cece 83 Gutierrez (2002) 28 Cal.4th 1083 ..............0.. 94, 97,99 Gzikowski [1982] 32 Cal. 3d 580 ............ 0.00000 cee, 51 Hall (1964) 62 Cal.2d 104 2.0...eee206 Hamilton (1989) 48 cal.3d 1142 ........... 160, 176, 181, 200 Hardy (1992) 2 Cal.4th 86.0... ... 0... eee eee 14,17, 18 Harris (1989) 47 Cal.3d 1047 2.0... cece cece eee 150 Harris (2008) 43 Cal.4th 1269.20.00... ........0005. 169, 170 Hedgecock (1990) 51 Cal.3d 395 0.0.0... eee eee 166 Hendricks (1987) 43 Cal.3d 584 0.0.0... cc ccc eee 87 Herrera (2000) 83 Cal.App.4th 46 ..............0...0008. 140 Hill (1992) 3 Cal.4th 959 2... eee, 1, 22, 112, 169 Hill (1998) 17 Cal.4th 800 ......... 49, 149, 160, 177, 218, 233 Hillhouse (2002) 27 Cal.4th 469 .............. 89, 94, 96, 101 Hogan (1982) 31 Cal.3d 815 0.0... cece ec eae 206 Horn (1974) 12 Cal.3d 290 0.2.0.0... eee, 134, 139, 220 Javier A. (1985) 38 Cal.3d 811 2.02.2... eee eee 205 Xi People v. Johnson (1980) 26 Cal.3d 557 20... cece eee 110, 205 People v. Jones (2001) 25 Cal.4th 89 2.0.0.0... cee eee 125, 219 People v. Jourdain (1980) 111 Cal.App.3d 396 ..............0000.. 146 People v. Jurado (2006) 38 Cal.4th 71 ................0. 0... ee 143 People v. Kelly (1901) 132 Cal. 430 1.0.0.0... 0.0... e eee. 206 People v. Lewis (2008) 43 Cal.4th 415 ...............00000. 88-90, 102 People v. Lucero (2000) 23 Cal.4th 692 ...............00005. 198, 199 People v. Lucky (1988) 45 Cal.3d 259 2... 0...eee 240 People v. Manson (1976) 61 Cal.App.3d 102 ...........00.0.. 134, 141 People v. Marsden (1970) 2 Cal.3d. 118 2.0... 0.0.0.0... 00000, 66, 75 People v. Massie (1967) 66 Cal.2d 899 1.0... eee eee 13, 14 People v. Mil (January 23, 2012), 2012 WL 171471 (Cal.), 12 Cal. Daily Op. Serv. 912 0...ccc cece nee 227 People v. Morales (1989) 48 Cal. 3d 527 ............ 83, 88, 94-96, 101 People v. Morante (1999) 20 Cal.4th 403 ..........0. 00.0.0... 218, 219 People v. Morris (1988) 46 Cal. 3d 1.0... cee cee ee 206 People v. Murphy (1963) 59 Cal.2d 818 .......0. 0.0000. cee eee ee 59 People v. Olson (1965) 232 Cal. App. 24480 ........0.0.0....00.. 219 People v. Ortiz (1990) 51 Cal.3d975 0.00... cceee 50, 51 People v. Pensinger (1991) 52 Cal.3d 1210 .......0...0.0...0..... 116 People v. Perez (1962) 58 Cal.2d 229 1.0.0...eee 235 Xil People v. People v. People v. Peoplev. People v. Peoplev. Peoplev. People v. People v. People v. People v. People v. People v. People v. Peoplev. Peoplev. People v. People v. Peoplev. Peoplev. Petznick (2003) 114 Cal.App.4th 663 ........... 104, 108, 209 Pitts (1990) 223 Cal.App.3d 606 ... 141-143, 160, 176, 181, 199 Polk (1996) 47 Cal.App.4th 944 2.0.0... .....0 0000000008 171 Reaves (1974) 42 Cal.App.3d 852 ...... 0.00.00. 0c cee, 125 Riel (2000) 22 Cal.4th 1153 ................ 20, 163, 179, 192 Robarge (1953) 41 Cal.2d 628 .......... 00... .00 000 eee 166 Rodrigues (1994) 8 Cal4th 1060 ..............0..0.,. 141, 143 Russo (2001) 25 Cal.4th 1124 ............000... 143, 218, 219 Salcedo (1994) 30 Cal.App.4th 209 ............0.00.. 138, 220 Scott (1978) 21 Cal.3d 284 ............. 47, 50, 149, 160, 218 Sedeno (1974) 10 Cal.3d 703 ...... 00... ccc eee eee 221 Silva (1998) 45 Cal.3d 604 .............0...00, 162, 179, 192 Sims (1993) 5 Cal.4th 405 2.0...eee 95,171 Snow (2003) 30 Cal.4th 43 2.0... 0.ec64 St. Martin (1970) 1 Cal.3d 524 1.0... 0... cee eee 221 Stiltner (1982) 132 Cal.App.3d 216 .................00.. 125 Thompson (1980) 27 Cal.3d 303 ......... 0.00.00... 008, 205 Thompson (1998) 45 Cal.3d 86 ........ 0.0.00 cc eee eee 236 Valdez (2004) 32 Cal.4th 73 1.0... eee eee 233 Wagner (1975) 13 Cal.3d612 ....... 00.0... eee 236 Xill People v. Webster (1991) 54 Cal.3d 411 ..........0.0000 000.000.0004 101 People v. Wheeler (1978) 22 Cal.3d 258 1.0.0.0... ccc eee 134 People v. Zamora (1976) 18 Cal. 3d 538 ...... 0... ccc eee 219 People v. Zapien (1993) 4 Cal.4th 929 0.0... eee ce eee 70 People v. Wilson (1992) 3 Cal. 4th 926 ....... 00... 206 Powell v. Alabama (1932) 287 U.S.45 ... 0... ccc ec e eee 53, 54, 76 Proffitt v. Florida (1976) 428 U.S. 242 .. 0...cee 184 Richards v. Superior Court (1983) 146 Cal.App.3d 306 .............. 83 Richardson v. Marsh (1987) 481 U.S. 200 ..........0.. 23, 24, 185, 186 Roberts (Harry) v. Louisiana (1977) 431 U.S. 633 ......00.0.. 183, 228 Rompilla v. Beard (2005) 545 U.S. 374 00.0...ceeens 55 Roper v. Simmons (2005) 543 U.S.551 00.0... ccc eee eee 239 Rose v. Clark (1986) 487 U.S.570 2.0... ccc cee 104, 209, 215 Ross v. Moffitt (1974) 417 U.S. 600...cece ees 55 Sandstrom v. Montana (1979) 442 U.S. 510 ..... 0.00 ...00005. 146, 229 Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234 ............0.000.. 136 Skipper v. South Carolina (1986) 476 U.S.1 ........... 44, 53, 183, 237 Smith v. Williams (1961) 55 Cal.2d 617 .............0.0... 22, 112, 169 State v. Dean (2010) 127 Ohio St.3d 140 ........0...000..0000.. 79, 80 Strickland v. Washington (1984) 446 U.S. 668 ..... 30, 35, 45, 53, 57, 187 XIV Stringer v. Black (1992) 503 US. 22 00...ees12 Thacker v. State (Ind. 1990) 556N.E.2d 1315 22.0.2... eee eee 99 Trop v. Dulles (1958) 356 U.S. 86. oceee eens 183 Tuilaepa v. California (1994) 512 U.S.967 2...cee93 Turner v. Louisiana (1965) 379 U.S. 466 2.0...ee eee 235 Ungar v. Sarafite (1964) 376 U.S. 575 oo.cneee 60 United States v. Al-Mugqsit (8th Cir. 1999) 191 F.3d928 ............. 27 United States v. Cardenas (CA2 1990) 917 F.2d 683 ............... 188 United States v. Cheely (9th Cir. 1994) 36 F.3d 1439 ............ 98, 101 United States v. Cronic (1984) 466 U.S. 648 ............. 31, 45, 53, 56 United States v. Gonzalez (9th Cir. 1984) 749 F.2d 1329 ............. 14 United States v. Mayfield (9" Cir. 1999) 189 F.3d 895 .......... 0008. 18 United States v. McCullah (10" Circuit, 1996) 87 F.3d 1136 ..... 218, 233 United States v. Romanello (Sth Cir. 1984) 726 F.2d 173 ............. 18 United States v. Rose (1st Cir. 1997) 104 F.3d 1408 .............00.. 18 United States v. Throckmorton (9th Cir. 1996) 87 F.3d 1069 .......... 18 United States v. Tootick (9th Cir. 1991) 952 F.2d 1078 ..........0... 18 United States v. Zipperstein (7th Cir. 1979) 601 F.2d 281 ............ 18 Vincent v. Seabold (6th Cir. 2000) 226 F.3d 681 ..............0.0.. 27 Wade v. Calderon (9th Cir. 1994) 29 F.3d 1313 ......... 0.0000 0000. 97 XV Washington v. Texas (1967) 388 U.S. 14.0.0... 0... ccc ce eee 57 Welch v. Simmons (10th Cir. 2006) 451 F.3d 675 .........0..0.. 00000. 57 White v. Illinois (1992) 502 U.S. 346 2.0... ceecee eee 25 Wiggins v. Smith (2003) 539 U.S.510 2...eee45,55 Williams v. Taylor (2000) 529 U.S. 362 1.0.0... ccee 45,55 Williamson v. United States (1994) 512 U.S.594 ... 0.0... eee, 27 Wood v. Georgia (1981) 450 U.S. 261 0...eee76, 78 Woodson v. North Carolina (1976) 408 U.S. 280 ............... passim Zafiro v. United States (1993) 506 U.S. 534 2... ee eee eee 11, 14 Zant v. Stephens (1983) 462 U.S. 862 ............004. 93, 183, 184, 196 RULES AND STATUTES CALCRIM 357, Adoptive Admissions ........... 0.0.00. 0005 161, 178 California Evid. Code § 352) 60...cee 129 California Evid. Code § 664 ceeeeeeeee ees 167 California Evid. Code § 1200 cece ee eee een eee neces 185, 192 California Evid. Code § 1220 .. 0... ceecceee 192 California Evid. Code § 1221 ......... 0... cee eee 162, 179, 192 California Rules of Court, Rule 8.2200(a)(a) ............00005 82, 114, 127, 158, 208, 216, 231, 232 CALJIC 2.10oeeee ene eee eae 182 XV1 CALJIC 3.00 2...ceeeee ene 227 CALJIC 3.01 1.eectene e eens 227 CALJIC 6.10.5 2...eneeee eens 221 CALJIC 6.11 ooteee e enn nee ees 221 CALJIC 6.21 0.eeeeee n ees 217 CALJIC 8.25 21.cecetenes 94, 97 CALJIC 8.26 22.eeete eee eens 221 CALJIC 8.80.1 20.0...eeeee 106, 107, 211, 213, 214 CALJIC 8.81.15 2.eectteen teen eas 97 CALJIC 8.81.18 2.0...cecentres 208 California Penal Code § 187 ..... 0.0... ceeene 128 California Penal Code § 190.2 .... 0... 0. eee eee ee 94, 205 California Penal Code § 190.3 2.0... 0... cece eee 184, 204 California Penal Code § 190.4 2.0... 0...cece 206, 243 California Penal Code § 190.5 1... 0... ccceee nee 239 California Penal Code § 987.9... 0.0...ees 33, 45, 53 California Penal Code § 1050 2.0...kcenee 59 California Penal Code § 1054.1 2.0.0...eeeee 189 California Penal Code § 1098 2.0... 0...eee 13 California Penal Code § 1181 2.0...ceee 243 XVii California Penal Code § 1181.1 2... 0.0... 0ceee 110 California Penal Code § 1223 ...............0..004. 129, 135, 140,144 Mont.Code.Ann. § 46-18-310 2.0.0... 0c ccc eee ees 100 California Constitution Article I, § 7(b) oo... c cece cece eeeueeeeeuetevteneteneres 44 Article IV, § 15 ooo. c ec ccc cece cece ceeeeeeueeuetreeeterees 206 Article IV, § 16... 0. cece ccc e ccc c cece ee cereeueeuetnttreees 134 Article IV, § 16(a) . 0.00 ccc ccc cece eee eeeeevteeeteeeetneee. 44 United States Constitution First Amendment ....... 00.0... c eceee teens 199 Fifth Amendment ....... 0.0.0.0... 0c cc eee ee eee 163, 179, 180 Sixth Amendment .................0005. 35, 38, 72, 133, 154,182, 201 Eighth Amendment .......... 0... cee cece eee eens passim Fourteenth Amendment ................ 72, 84, 133, 199, 201, 203, 237 OTHER AUTHORITIES 1 ABA Standards for Criminal Justice 4-4.1 (2005) .............. 45,55 1 Jardine, Criminal Trials ..... 00... .0. 0.0.0... 2 eee eee 25 2 Wigmore, Evidence (3d ed. 1940) §392 .............00..00000., 207 ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(c) (1989) ..... 0... 0... cece eee 45,55 XVili California Commission on the Fair Administration of Justice, Report and Recommendations on the Administration Ofthe Death Penalty in California (2008) .......0. 0000 ccc eee eee 6 Goodpaster, The Trial For Life: Effective Representation OfCounsel In Death Penalty Cases, 58 N.Y.U.L.Rev. 299 (1983) ............0000. 56 Holdman, S. and C. Seeds, Cultural Competency in Capital Mitigation, Hofstra Law Review, Vol. 36:883 (2008) ..............0 000.000 eee 56 “HOMICIDE DA REBUKED”by Howard Mintz, San Jose Mercury News, 02/22/2009 20...ccceee ee eee e ene ees 5 Margulies, Resource Deprivation and the Right to Counsel, Journal of Criminal Law & Criminology, Vol. 80, No. 3 (Autumn 1989) ........ 55 Osterman & Heidenreich, Lying In Wait: A General Circumstance, 30 ULS.F. L.Rev. 20ceeence eee eens 99 Oxford American Dictionary (1979) 0.0... ccc 106-107, 212 Pierce and Radelet, The Impact ofLegally Inappropriate Factors on Death Sentencing for California Homicides, 1990-1999, 46 Santa Clara L. Rev. 1 (2005) 2.0...ccceens 6 Shatz, Steven F. & Nina Rivkind, The California Death Penalty: Requiemfor Furman? 72 N.Y.U.L.REV. 1283 1306-17 (1997) ...... 7, 96 Tiersma, P., “Communicating with Juries: How to Draft More Understandable Jury Instructions” (National Center for State Courts, 2006) 0.0...ceeeee tet eee e ene nes 212 Wayland, K., The Importance ofRecognizing Trauma Through Capital Investigations and Presentations, Hofstra Law Review, Vol. 36: 835 (2008) 2...ceceeens 56 XIX IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CAPITAL CASE PEOPLE OF THE STATE OF CALIFORNIA, ) ) Petitioner and Respondent, ) No. 8049626 VS. ) ) (Santa Clara County STEPHEN EDWARD HAJEKand ) Superior Court LOI TAN VO, ) No. 148113) ) Defendants and Appellants. ) ) APPELLANT?’S REPLY BRIEF INTRODUCTION In this brief, appellant addresses specific contentions made by respondent where necessary in order to present the issues fully to the Court. Appellant does not reply to respondent’s contentions which are adequately addressedin appellant’s opening brief. In addition, the absence of a reply by appellant to any specific contention orallegation made by respondent, or to reassert any particular point madein appellant’s openingbrief, does not constitute a concession, abandonmentor waiverof the point by appellant (see People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3), but ratherreflects appellant’s view that the issue has been adequately presented andthe positions ofthe parties fully joined. The argumentsin this reply are numbered to correspondto the argument numbersin respondent’s brief; references are supplied to the arguments in appellant Vo’s Opening Brief on Appeal. I. California’s death penalty statute unconstitutionally permits prosecutors standardless discretion in capital charging. Appellant Vo and co-defendant Hajek each assert that California’s capital punishment scheme unconstitutionally permits prosecutors standardless discretion in capital charging, resulting in arbitrary and capricious imposition of capital punishment depending on the county in which charges are brought and the prosecutor assigned to the case. (Vo AOB,arg. 27, p. 401 et seq; Hajek AOB,arg.I, p. 40 et. seq.) Appellant Vo adopts by reference the argumentset forth by co-defendant Hajek in his AOB. Thearbitrary pursuit of capital punishment where that punishmentis not sought in similar or more aggravated cases violates equal protection of law, due processof law, as well as the Eighth Amendmentprohibition against cruel and unusual punishment. Respondent argues only that this Court has declinedto grantrelief on similar claims brought by other capital defendants, and this Court should do so again. (Respondent’s Brief, Arg.I, p. 45.) Appellant Vo respectfully requests that this Court reexamine its previous holdings denyingrelief; the disparate treatment ofsimilarly situated defendantsis the very picture ofthe arbitrariness that the constitution forbids. (Furman v. Georgia (1972) 408 U.S. 238.) “Death is a different kind of punishment from any other which may be imposedin this country.” (Gardner v. Florida (1977) 430 U.S. 349, 357-358.) “[T]his qualitative difference between death and other penalties calls for a greater degree ofreliability when the death sentence is imposed.” (Lockett v. Ohio (1978) 438 U.S. 586, 604.) Equal protection, moreover, requires that a statewide scheme must provide sufficient assurance “that the rudimentary requirements of equal treatment and fundamentalfairness aresatisfied.” (Bush v. Gore (2000) 531 U.S. 98, 121 S.Ct. 525, 532.) Not only does the standardless discretion permitted prosecutors result in disparate outcomes among the many countiesin the state, but also within the same county, as appellant’s counsel notedin pleadingsfiled at trial. (See, CT 1540-1541, CT 2069-2087.) Appellant Vorefers to and incorporates herein Argument 26 of his AOB,asserting that the refusal to provide for inter-case proportionality review deprived him ofa reliable sentencing determination. The prosecutor assigned to appellant’s case was Peter Waite. On February 4, 2009, Mr. Waite received a public reproval from the State Bar of California. According to news accounts, the State Bar’s public reproval was based on Mr. Waite’s misconductin anothercase, withholding exculpatory material from the defense. (See, “HOMICIDE DA REBUKED”by Howard Mintz, San Jose Mercury News, 02/22/2009, attached hereto as Exhibit A.) Appellant Vo respectfully requests that this Court take judicial notice of the public reproval. Asset forth in Argument 29 of appellant Vo’s AOB,incorporated herein, the record of this case demonstrates that Prosecutor Waite committed misconduct in argument. Many other arguments demonstrate prosecutorial over-reaching with the objective of obtaining a death sentence for appellant Vo and co-defendant Hajek: Waite’s refusal to permit the co- defendants to be tried separately; his vigorous opposition to necessary continuances; his use against appellant Vo of evidence which was only relevant to Hajek; his reliance on an expansive, uncharged, and unproven conspiracy theory; overcharging; and the use of multiple unsupported theories of capital murder sothat no one theory needed to garner a unanimousvote amongjurors. The decision whether to seek death in appellant’s case wasup to Waite. Taken as a whole, his decisions and actions with respect to appellant Vo reflect a desire to win a death sentenceatall costs. The misconduct in an unrelatedcase, resulting in public reproval, does not prove inappropriate behavior in appellant’s case, butit certainly tarnishes any presumption that Waite’s practices were to act in good faith and out of a desire only to seek justice. The multiple, egregious errors in appellant’s case requirereversal. However, appellant urges that the standardless discretion afforded prosecutors not only permits but encourages prosecutors to engage in the arbitrary and capricious pursuit of death, as seen in appellant’s case. That capriciousnessis highlighted by the arbitrariness in charging practices not only between California counties, but within the county in which these charges were brought. (See, Pierce and Radelet, The ImpactofLegally Inappropriate Factors on Death Sentencing for California Homicides, 1990-1999, 46 Santa Clara L. Rev. 1 (2005); California Commission on the Fair Administration of Justice, Report and Recommendations on the Administration Ofthe Death Penalty in California (2008). Respondent declines even to address the issue; respondent’s answer to specific examples of disparate charging in Santa Clara County around the time of appellant’s trial is “Don’t look there.” The disparate capital charging encouraged by permitting prosecutors standardless discretionis indefensible. It invites the very arbitrariness condemnedby the United States Supreme Court in Furman. It insulates the prosecutorial overreaching condemnedby the United States Supreme Court in Berger v. United States (1935) 295 U.S. 78, 88, holding that due process dictates that a prosecutor's "interest" may not be that he "win a case, but that justice shall be done." It can in no way promote confidencein the judicial system when the charging decision is permitted to be as random as a lightening strike, and examination ofits arbitrariness is dismissed outright, no matter how compelling the showing. (See, Steven F. Shatz & Nina Rivkind, The California Death Penalty: Requiemfor Furman? 72 N.Y.U.L.REV. 1283 1306-17 (1997).) For these reasons, appellant Vo respectfully requests that this Court revisit its rulings declining to perform inter-case proportionality analysis, and declining to find unconstitutional the problem ofarbitrary and capricious, standardless capital charging practices. II. Thetrial court erred in denying Appellant Vo’s motion to severhis trial from that of the co-defendant. Reversal is required becausethetrial court erred in refusing to sever appellant Vo’s trial from that of his co-defendant, Hajek. (Vo AOB,Arg. 1, pp. 123-159.)' Co-defendant Hajek also raises a claim that severance was ' Appellant Vo refers to and incorporates herein other errors flowing from the denial of severance, including butnot limited to the following arguments in his AOB: Arg. 2 (denial of necessary continuances); Arg. 4 (admission of evidence concerning co-defendant Hajek’s conversation with a witness before the offense, stating Hajek’s violent intent); Arg. 5 (admission of taped conversation between appellant Vo and co-defendant Hajek, in which Hajek madeinculpatory statements and Vo’s responses are inaudible); Arg. 6 (the prosecution’s uncharged conspiracy theory); Arg. 7 (admission of co-defendant Hajek’s extrajudicial statements, resulting in the denial ofthe right to confront and cross-examine); Arg.8 (insufficient evidence that Vo killed, intended to kill, or harbored reckless disregard for humanlife, or participated in the uncharged alleged conspiracy, or otherwise was criminally culpable for the homicide); Arg. 12 (admission of evidence of co-defendant Hajek’s musical interests, alleged Satanism, and other alleged bad acts); Arg. 17 (improperinstructions undermined the constitutional requirement of proof beyond a reasonable doubtas to appellant Vo); Arg. 18 (instructions on aiding and abetting improperly relieved the prosecution ofits duty to prove each elementas to each defendant separately); Arg. 19 (appellant Vo’s jury was burdened by instructions regarding Hajek’s conduct and mental defenses, and nolimiting language wasgiven); Arg. 20 (instructions improperly permitted the jury to infer guilt from alleged evidence of motive); Arg. 25 (the trial court improperly refused to permit a separate jury to decide appellant Vo’s penalty); Arg. 28 (penalty instructions failed to provide adequate guidance, and required jurors to considerfactors and evidence that was wholly irrelevant to appellant Vo); Arg. 29 (thetrial court refusedto preclude improper argumentby the prosecutor, including his urging that the defendants be considered jointly and that the jury consider factors applicable only to one defendant); Arg. 30 (denial of the motion for new (continued...) improperly refused by the trial court. (Hajek AOB,Arg.II, pp. 52 et seq.) Respondent arguesthat the defenses proffered were notin conflict, and that the benefits of a joint trial outweighed the defendants’ interests in separate trials. (RB, Arg.II, pp. 45-53.) Respondent is incorrect, and ignores the enormousandconstitutionally intolerable damageto appellant Vo’s ability to defend because he wastried with co-defendant Hajek. Asto the issue of severance, the two defendants are in significantly different postures. Whetheror not co-defendant Hajek suffered harm from the jointtrial, appellant Vo unquestionably did. A. Factual Background. Thevast bulk of the evidence indicated that co-defendant Hajek was responsible for the homicide: he had a grudge against the victim’s grand- daughter; he bragged in advance (outside Vo’s presence) about committing violent acts; he alone had blood onhis clothing; he made self-incriminatory statements; he threatened the family of the homicide victim after his arrest; and his statements and writings after the offenses pointedto his guilt. '(...continued) trial); and Arguments 22 and 33 (cumulativeerror). * Appellant specifically refers to and incorporates herein Argument 6 of his AOB and Argument ofthis brief, addressing the alleged conspiracy theory. Respondenturges that a conspiracy and joint intent can be inferred from the vast array of evidence proffered by thetrial prosecutor. (continued...) Hajek hada prior criminalhistory; he also suffered from a serious mental illness. A great deal of evidence was admitted regarding Hajek’s mental illness, a major componentofhis defenseat the guilt phase andthe penalty phase. This evidence was inapplicable to appellant Vo; and worse,it suggested to the jury that Vo had moreresponsibility because he was not mentally ill. Indeed,the prosecutor so argued. (See, e.g., Vol 22, RT 5556, RT 5573.) Appellant Vo was admittedly present in the home during someofthe events, and admittedly participated in certain crimes that day. However, he had noprior criminal record; he did notparticipate in the events precipitating Hajek’s grudge against the victim’s granddaughter, or know her; he did not know of Hajek’s intent or his statements that he planned violence; there was no physical evidence that he committed the homicide, and no evidence he knew aboutit until after it was committed; Vo admitted *(...continued) The alleged conspiracy evidence includedprior criminalacts involving Hajek only; statements made by Hajek only, before andafter the crime; Hajek’s threat against a witness. That appellant Vo kept letters which Hajek sent him, the prosecution contended, meant that Vo somehow agreed with Hajek’s often bizarre statements. The alleged conspiracy included allegationsoftorture, revenge, and sadism, based on Hajek’s statements and writings. 10 the extentof his participation, but made no statements admitting participation in the homicide; and he was profoundly remorseful that he had gone with Hajek onthatterrible day. B. Severance Was Required. There is a reasonable probability that the jury would have reached a different determination at the guilt phase, had appellant Vo beentried separately from co-defendant Hajek. Thetrial court's denial of severance allowedthe prosecution to proceed with an "uncharged conspiracy theory," the effect of which wasto give the prosecution the enormousstrategic windfall of saddling appellant Vo with theall of the bad acts and extrajudicial statements of co-defendant Hajek. (Vo AOB 152.) Much of this inflammatory evidence would have been excluded had Vobeentried separately. (Vo AOB 153.) Severance should be granted where "evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a co-defendant." (Zafiro v. United States (1993) 506 U.S. 534, 539.) The mentalhealth evidence introduced by co-defendant Hajek in the joint trial raised the expectation that appellant Vo would introducesimilar mental health evidence. (Vo AOB 155.) The prosecution used appellant Vo's lack of mental-health evidence to suggest his guilt, and also 1] impermissibly used mental health evidence against both defendants during closing arguments. (/bid.) The jury was notinstructed to disregard these arguments. Had appellant Vo been granted a separatetrial, the mental health evidence pertaining to co-defendant Hajek would not have been admissible. The joint penalty trial, moreover, ensured that appellant Vo could not receive the individualized determination of sentence that the Eighth Amendment mandates. The Supreme Court has held that a jury's decision to sentence a defendant to death mustpossessthe "precision that individualized consideration demands." (Stringer v. Black (1992) 503 U.S. 22, 231.) Moreover, the jury was not given limiting instructions that some evidence could only be used in assessing the appropriate sentence for one of the two individual defendants. (Vo AOB 149.) Instead, appellant Vo’s jury was permitted to consider Hajek’s prior offenses (and speculate that Vo wascriminally inclined by association); his alleged threats against the family dog; his alleged Satanism (inferred by the prosecutor from his musical choices); his interest in Japanese animation (argued by the prosecutor to suggest Hajek was or wantedto be in an Asian gang); and Hajek’s alleged sadism (leading to factually unsupported argument by Hajek’s counsel that Vo wasthe actual killer and sadistic). 12 Demonstrating without question the irreconcilability of the defenses, Hajek’s counsel was permitted at penalty phase to introduce a hearsay statement of Hajek, denying responsibility for the homicide. (Vol. 23, RT 5892.) Hajek’s statement amounted to an accusation that Vo was personally responsible forthe killing, but it was backed by no other evidence; and the accusation was one Vo could not adequately test by confrontation and cross-examination because Hajek did not take the stand. Vo similarly could not confront and cross-examine Hajek on numerous other extra-judicial statements as well, none of which would have been presented at a separate trial.’ The cumulative effect of these errors was to deny appellant Vo due process anda fairtrial. Asset forth more fully in appellant Vo’s AOB, California Penal Code §1098 governs joinder and severance in California state prosecutions. In People v. Massie (1967) 66 Cal.2d 899, 916-917, this Court held that a trial court must not refuse consideration of reasons advanced in support of a motion for separate trial, but instead must exercise its discretion, stating: [T]he court should separate thetrials of codefendants in the face of an incriminating confession, prejudicial association * Appellant Vo argued that the use of these statements made by the co-defendant violated the principles ofPeople v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123. (See, e.g., CT 1536- 1537.) See Argument 7 of Vo’s AOB,incorporated herein. 13 with codefendants, likely confusion resulting from evidence on multiple counts, [or] conflicting defenses. . .. (Massie, at 917; footnotes omitted.) In Zafiro v. United States, supra, 506 USS. 534; 539 [122 L.Ed.2d 317, 325], the United States Supreme Court recognized that co-defendants should be granted separatetrials if there is a seriousrisk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from makinga reliable judgment aboutguilt or innocence. Such a risk might occur when evidencethat the jury should not consider against a defendant and that would not be admissible if a defendant weretried aloneis admitted against a co-defendant. For example, evidence of a co-defendant's wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty. ... Evidencethatis probative of a defendant's guilt but technically admissible only against a co-defendant also might presenta risk of prejudice. See Bruton v. United States, 391 USS. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). Conversely, a defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a jointtrial. [citation]. (id., at p. 539. Emphasis added.) Co-defendants have mutually exclusive defenses where acceptance of one party's defense will preclude acquittal of the other defendant. (United States v. Gonzalez (9th Cir. 1984) 749 F.2d 1329, 1333.) When co-defendants with mutually exclusive defenses are both convicted,this demonstrates that the conflict in evidence alone impermissibly led the jury to infer both were guilty. (People v. Hardy (1992), 2 Cal.4th 86, 168.) In 14 this case, appellant Vo’s and co-defendant Hajek’s defenses were mutually exclusive. (Vo AOB 150.) Co-defendant Hajek's defense was twofold: he argued both that his mental defect precluded him from forming the mens rea required for first-degree murder, and that appellant Vo wasthetrue killer. (Vo AOB 151.) Appellant Vo's defense presented and stressed evidence that co-defendant Hajek wasthetrue killer. The fact that both appellant Vo and co-defendant Hajek were convicted suggests that this conflict in evidence aloneledthejury to infer that both defendants were guilty. Respondent argues perfunctorily that “This was a classic case for a joint trial” (RB at 47); that “their defenses did not conflict” (Jbid.); thatit matters not whether the victim was killed by co-defendant Hajek, Vo, or both (RB 48); that appellant Vo “did not need a mental defense to succeed on his theory” and thus was not harmed bythe jury’s consideration of Hajek’s extensive evidence of mentalillness (RB 49); that “much”ofthe evidence would have been admissible against Voin a separate trial (RB 49- 50); and that there was no confrontation clause violation when co-defendant Hajek’s extrajudicial statements were admitted against Vo (RB 50-52). Respondent’s contentions are without merit as to appellant Vo. In respondent’s view, the legislative preference for joindervirtually amounts to a directive as a matter of law. This case, however, demonstrates 15 as to appellant Vo the “gross unfairness . . such as to deprive the defendant of a fair trial or due process of law” condemned by this Court when severance is wrongly denied. (People v. Cleveland (2004) 32 Cal.4th 704, 726, cited at RB 46-47.) Respondent’s assertion that the co-defendant’s “defenses did not conflict” and that“the two defense theories permitted the jury to accept both” (RB 47)is disingenuous at best. Respondent conveniently ignores the details of the defenses, as well as the evidence and argumentatthetrial itself. The defenses were actively in conflict from the start: appellant Vo took the stand andtestified that he did not commit orassist in the homicide, did not know aboutit in advance, did not share any intent to kill or harm anyone in the Wang family; and while co-defendant Hajek’s primary defense wasthat he was mentallyill and lacked the requisite mental states for conviction of capital murder, his defense also soughtto place blame on appellant Vo throughoutthetrial, culminating in admission of Hajek’s extrajudicial denial of the killing. However, co-defendant Hajek made numerousself-inculpatory extrajudicial statements, which were admitted against appellant Vo at trial. Only a sturdyset of blinders — one assuredly not possessed by jurors who were constantly urged by the prosecution to view the two defendants together in deciding both guilt and penalty — 16 permits respondent’s crabbed and misleading conclusion that these defenses were not conflicting. Respondent minimizes the impact on Vo’s right to due process by flatly stating that “no California decision has ever found an abuse of discretion [on the basis of conflicting defenses] or reversed the judgment solely on that basis.” (RB 48, citing People v. Coffman and Marlow (2004) 34 Cal.4th 1, 41, and People v. Avila (2006) 38 Cal.4th 491, 575, inter alia.) However, this Court has emphasized that in a contest between administrative convenience and constitutional due process, the latter prevails. Vo’s case is a prime example of a case presenting such a conflict. This Court hasstated that “to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflictis so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.” (People v. Hardy (1992) 2 Cal.4th 86, 168, quoted in People v. Coffman, supra, 34 Cal.4th at p. 42.) However, this Court has also * The prosecution obviously soughtto exploit the conflicting defenses of appellant Vo and co-defendant Hajek, and havethejury infer that both were guilty; to that end, it crafted a broad uncharged conspiracy theory, attributing to Vo everything in the arsenal about co-defendant Hajek. The guilt and penalty phase defenses of these defendants were irreconcilable, as each pointed to the other as the guilty party. 17 articulated the test for severance where defensesare irreconcilable in other ways. In Hardy, this Court quoted with approval federal cases holding that irreconcilable defenses mandating severance “‘exist where the acceptance of one party’s defense will preclude acquittal of the other.’” (People v. Hardy, supra, at p. 168, quoting United States v. Zipperstein (7th Cir. 1979) 601 F.2d 281, 285.° Respondent glosses over the many and detailed reasons that appellant Vo’s trial was unfair because severance was denied (Vo AOB Arg. 1, pp. 123-159), preferring an unfocused and piecemeal approach which, similar to the prosecutor’s approach attrial, attributes to appellant Vo both conduct and motivations that belong to co-defendant Hajek. Nowherein respondent’s argumentis there an analysis ofhow very > Federal courts have applied the same analysis. (See, e.g., United States v. Mayfield (9" Cir. 1999) 189 F.3d 895, 899-900, quoting United States v. Throckmorton (9th Cir. 1996) 87 F.3d 1069, 1072 [irreconcilable defenses exist when “the core of the codefendant’s defense is so irreconcilable with the core of his own defensethat the acceptance ofthe codefendant's theory by the jury precludes acquittal of the defendant’”]; United States v. Tootick (9th Cir. 1991) 952 F.2d 1078, 1086 [irreconcilable defenses “exist when acquittal of a codefendant would necessarily call for conviction of the other]; United States v. Rose (1st Cir. 1997) 104 F.3d 1408, 1415 [irreconcilable defenses exist “if the tensions between the defenses are so great that the finder of fact would haveto believe one defendantat the expense of another”); United States v. Romanello (5th Cir. 1984) 726 F.2d 173, 178-181.) 18 different appellant Vo’s trial would have beenif it had been a separatetrial ofVo alone. Instead, respondent points to a few matters it claims would have been admissible against Vo in a separate guilt trial (RB 49-50), and then argues that Vo’s right to confrontation wasnot abridged by the extrajudicial statements of co-defendant Hajek. (RB 50-52.) Initially, respondent simply implies that Hajek’s reliance on a mental defense at the guilt phase had no impact on the jury’s consideration of Vo’s defense, because these were not technically “conflicting” defenses in its view. (RB 49.) Respondent ignores the broader problem ofthe co- defendant’s mental defense infringing on fair trial for this particular defendant, altering appellant Vo’s trial with an issue wholly inadmissible and inappropriate for Vo’s jury to consider. As noted above, the prosecutor used co-defendant Hajek’s mental illness defense as an opportunity to argue that appellant Vo, in contrast to Hajek, was more culpable because he offered no mental defense(see,e.g., Vol 22, RT 5556, RT 5573), a tactic he could not have undertaken in a separatetrial.° © This Court held in Jn re Spencer (1965) 63 Cal. 2d 400, 412-413 that: If the defendant doesnot specifically place his mental condition into issue at the guilt trial . . . the psychiatrist may nottestify at thattrial. If defendant does specifically place his mental condition into issue at (continued...) 19 Next, respondentasserts that an earlier altercation between Hajek and the homicide victim’s granddaughter “provided the motive for both appellants’ subsequent actions against the Wangs.” (RB 49-50.) However, respondent’s assertion is unsupported bythetrial record. Respondent’s assertion,like that of the trial prosecutor, is based on pure speculation that appellant Vo [a] knew of Hajek’s homicidal plans, and [b] agreed to participate, because[c] he wasallegedly “in love” with a young woman who was with Hajek duringthe earlier altercation. There is no proof of any sub-part of this bald speculation; it is in no way proof beyond a reasonable doubt of planning,participation in an alleged murderousconspiracy, guilty °(...continued) the guilt trial, he can offer no valid complaintas to the testimony of the psychiatrist at thattrial. The Spencer case involved a court-appointed psychiatric examination outside the presence of counsel. Appellant Vo’s case involves the co- defendant offering a mental defense, with no such mental defense offered by appellant Vo, and the prosecutor seeing an opportunity to argue that appellant Vo therefore had greater culpability. Asthis Court has madeclear, the absence of a potential statutory mitigatorat the penalty phaseis not an aggravator. (People v. Riel (2000) 22 Cal.4th 1153, 1223 [absence of a mitigating factoris notitself aggravating]; People v. Davenport (1985) 41 Cal.3d 247, 288-290 [same].) By analogy, surely on due process grounds the same holdstrue at the guilt phase of a capital trial, when a prosecutor seeks to exploit the absence of a mental health defenseto guilt. 20 intent, or of homicidalguilt itself.’ Respondent continues to build on baseless speculation, averring that co-defendant Hajek’s pre-crime statement to witness Tevya Moriarty that he intended to commit murder would have been admissible against appellant Vo in a separate trial. (RB 50.) But there was absolutely no evidence that appellant Vo [a] knew of co-defendant Hajek’s statement to Moriarty, [b] that he knew of Hajek’s intent and plan,or [c] that he otherwise knowingly or actually participated in the killing. Hajek’s hearsay statement would have been excluded from a separatetrial, because there is no nexusat all — and no evidentiary link establishing any tie — between Hajek’s alleged statement to Moriarty and Vo’s alleged knowledgeor intent in the incident. Asto a third and final example ofits contention that “most” evidence would have been admissible against Vo in a separate guilt phasetrial, respondent only argues on an assumption, arguendo,that an entry in appellant Vo’s diary about a crime co-defendant Hajek committed without him would not have "substantially" prejudiced Vo — a virtual admission that ” Speculation of this sort is not uncommonin schoolyards, andit even appearsin office settings. It is an embarrassment that it would be employedin a judicial setting, and an affront to the very foundations of our Justice system, particularly in a capital case. ® Appellant refers to and incorporates herein Argument 6 ofhis AOBand Argument X ofthis brief, addressing the alleged conspiracy theory. 21 it would not have been admitted in a separate trial. (RB 50.) No reasonable judge would have admitted that evidence as “proof” that appellant Vo had anything to do with co-defendant’s planning, intent, or actions in this case. Respondent offers but one response to the many waysthat appellant Vo’s penalty trial was rendered unfair and unconstitutionalbyits joinder with the penalty trial of co-defendant Hajek: a hypertechnical assertion that the Confrontation Clause wasnot violated by the admission of Hajek’s extrajudicial statement denying he had committed the homicide (RB at 50- 52) — a statement which underthe facts of this case was nothing less than an accusation that appellant Vo wasthe perpetrator. Respondentfails to discussall of the other reasonsthe joint penalty trial was unconstitutional, as set forth in Argument | of appellant Vo’s AOBandrelated claims, and these should be considered conceded by respondent.’ Co-defendant Hajek’s mental health expert related, in Hajek’s ° On many occasions,this reply brief notes that respondent has made noresponseat all to some of Mr. Vo’s claims.In particular, on many issues there is a conspicuousabsenceof discussion of Mr. Vo's federal constitutional claims. In these instances, the reasonable and appropriate inferenceis that “respondent has abandoned any attempt to support the judgment[againstthis particular attack], and that the ground urged by appellant for reversing the judgmentis meritorious.” (Berry v. Ryan (1950) 97 Cal.App.2d 492, 493, cited with approval in Smith v. Williams (1961) 55 Cal.2d 617, 621; but see People v. Hill (1992) 3 Cal.4th 959, 995,fn. 3.) 22 penalty defense, a denial by Hajek that he had killed the victim. Hajek himself did nottestify and could not be cross-examined. The prosecution relied on a theory of appellant Vo’s guilt by association with Hajek, since there was substantial evidence of Hajek’s planning and guilt and noneas to appellant Vo. The co-defendant’s extra-judicial statement denying the killing was, therefore, an enormousgift to the prosecution in its quest for a death sentence against appellant Vo, onethat it could not have offered while seeking a death sentence against co-defendant Hajek. At the penalty phase, this witness for co-defendant Hajek was an important conduit for allegations the prosecutor could use against Vo. This circumstance also illustrates perfectly the absolute, irreconcilable conflicts between co- defendant Hajek’s defense — he hada right to offer whatever exculpatory evidence he could at the penalty phase — and appellant Vo’s right to a fair trial. Respondent arguesthat there was no problem with the admission of Hajek’s hearsay statement becauseit was not “testimonial” under Crawford v. Washington (2004) 541 U.S. 36, 51 (RB at 51), and onthetheory that a statement of a co-defendant thatis “redacted”to eliminate a reference to the other defendantdoes not violate Bruton, citing Richardson v. Marsh (1987) 23 481 U.S. 200.'° (RB at 51.) Respondent’s positions are without support. First, co-defendant Hajek’s extrajudicial denial of the killing was testimonial in nature; it was madeto a retained witness with the expectation that the witness wouldtestify at the trial. The High Court in Crawford endeavored to explain the distinction between offhand comments and “testimonial” evidence: The text of the Confrontation Clause ... applies to "witnesses" against the accused — in other words, those who “bear testimony." 2 N. Webster, An American Dictionary of the English Language (1828). "Testimony," in turn,is typically "[a] solemn declaration or affirmation made for the purpose ofestablishing or proving somefact." bid. An accuser who makesa formal statement to government officers bears testimony in a sense that a person who makesa casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement. Various formulationsofthis core class of "testimonial" statements exist: "ex parte in-court testimonyorits functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine,or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” Brief for Petitioner 23; "extrajudicial '0 Richardson v. Marsh, supra, 481 U.S. 200, involved a redacted confession of a co-defendant that did not necessarily implicate the petitioner, which wasnotthe situation here. Also unlike this case, the jury wasinstructed to only use that evidence against the co-defendant who made that statement, and the Court’s discussion focused on the assumption that jurors follow their instructions. (/d., at 208, fn. 3.) 24 statements... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," White v. Illinois, 502 U.S. 346, 365, 116 L. Ed. 2d 848, 112 S. Ct. 736 (1992) (Thomas,J., joined by Scalia, J., concurring in part and concurring in judgment); "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for useat latertrial," Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 3. Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. Police interrogations bear a striking resemblance to examinations by justices of the peace in England. The statements are not sworn testimony, but the absence of oath wasnot dispositive. Cobham's examination was unsworn, see | Jardine, Criminal Trials, at 430, yet Raleigh's trial has long been thought a paradigmatic confrontation violation, see, e.g., Campbell, 30 S.C.L., at 130. Under the Marian statutes, witnesses were typically put on oath, but suspects were not. See 2 Hale, Pleas ofthe Crown, at 52. Yet Hawkins and others wentout of their way to caution that such unsworn confessions were not admissible against anyone but the confessor. [Citation and footnote omitted.] (Crawford v. Washington, supra, 541 U.S. 36, 51-52; emphasis added.) In Davis v. Washington (2006) 547 U.S. 813"', the United States Supreme Court clarified that statements are nottestimonial when .. . the primary purposeofthe interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency,and that the '' The circumstances in Davis v. Washington involved a telephone call to 911, during an emergency. 25 primary purpose of the interrogation is to establish or provepast events potentially relevant to later criminal prosecution. (id. at 822; emphasis added.) The footnote immediately followingthis quote in Davis is instructive, in that it does not limit Craw/ford’s holding to the circumstanceofpolice interrogation: Our holding refers to interrogations because. . . the statements in the cases presently before us are the products of interrogations — which in some circumstances tend to generate testimonial responses. This is not to imply, however,that statements madein the absence of any interrogation are necessarily nontestimonial.. .. (Davis v. Washington, supra, 547 U.S. 813, 822, fn. 1; emphasis added.) Respondent, ignoring the above guidance from the High Court, argues that the statement of co-defendant Hajek implicating appellant Vo as the killer was non-testimonial because it was not made to "government officers." (RB at 51.) In fact, the expert witness who reported the statement wasretained by, and therefore a representative of, the government agency representing co-defendant Hajek, the Santa Clara Public Defender's Office. That was not formally a prosecution agency, but because the defenses of the co-defendants were adverse, it functioned as a second prosecutor as to appellant Vo, seeking to undermine Vo’s defense in order to bolster Hajek’s own. Evenifthe statement was not garneredat the behest of a governmental agency, though,it wouldstill be “testimonial” in 26 nature because it was developedin anticipation of this very trial. Second, the basic constitutional framework for considering the impact of co-defendant Hajek’s extrajudicial statement remainsthat set forth in Bruton v. United States (1968) 391 U.S. 123. The admission of a co-defendant’s inculpatory statement without permitting cross-examination is constitutionally intolerable.” Third, it matters not in the assessment of whether severance was required that co-defendant Hajek’s extrajudicial statement wastechnically “not admitted for the truth,” “but to show the basis for the psychiatrist’s '> See also, United States v. Al-Mugsit (8th Cir. 1999) 191 F.3d 928, holding that admission in a non-capital case of a co-defendant’s post-arrest statement, which claimed that the charged robbery wasplannedby the codefendant and “another individual,” violated defendant’s rights underthe confrontation clause. The replacement of defendant’s name with “another individual” served as a damagingpiece of evidence that went directly to the heart of the petitioner’s defense. Because there was conflicting evidence on whetherthe petitioner had planned the robbery with the co-defendant, the appeals court could not say that admission of the co-defendant’s statement washarmless beyond a reasonable doubt. See also, Vincent v. Seabold (6th Cir. 2000) 226 F.3d 681, holding that the petitioner’s confrontation rights were violated in this non-capital case by admission of a non-testifying accomplice’s confession, in violation of the Supreme Court’s decision in Williamson v. United States (1994) 512 U.S. 594. While the accomplice’s confession inculpated him in thatit placed him at the crime scene,it also attempted to distance himself from the murder andto shift the blame away from himself onto petitioner and the other codefendant. 27 expert opinion.” (RB 51.)'? This was an enormouslyprejudicial accusation against Vo, by the only person present that day besides the victims; no reasonable person could believe the jury would fail to considerit. This evidence would not have been admitted for any purposein a separatetrial of appellant Vo. Fourth, respondentis grasping at straws with its argumentthatco- defendant Hajek’s extrajudicial statement posed no problem because he merely said he did not commit the killing, rather than saying directly that appellant Vo committed the killing. (RB 51.) There were only two choices: this wasnot a case in whichthe evidence suggesteda possible third-party killer. The jury was directed at penalty phase to consider the circumstances of the crimes. There were no “circumstances”in the prosecution’s case as condemningto appellant Vo as co-defendant Hajek’s extrajudicial statement that Hajek had not killed. The prejudice to appellant Vo from the denial of severance is unquestionable. '? There wasnoinstruction to the jury limiting this evidence to consideration in deciding the appropriate sentence for co-defendant Hajek only. Nor could such an instruction have “un-rungthe bell.” The United States Supreme Court so held in Bruton v. United States, supra, 391 US. 123. 28 C. Conclusion. Forall these reasons, and others set forth more fully in appellant Vo’s AOB,reversal is required. 29 Ill. Appellant Vo’s trial was rendered fundamentally unfair by the trial court’s refusal to grant continuances necessary for his defense, to timely appoint second counsel, and to ensure the availability of necessary funding before and duringthetrial. Appellant Vo's right to counsel and his ability to defend against capital charges were unreasonably and unconstitutionally burdened by three interlocking errors by the trial court: (1) denial of and delay in appointing second counselto provide necessary assistance in this complex case; (2) a funding system for conflict cases which delegated decisions on funding to an office left seriously underfunded by other cases, which office in turn denied and delayedcritical funding for appellant's counsel, investigation, and experts; and (3) the trial court's unreasonable refusal to continue the trial to permit counsel time to prepare. (Vo AOB,Arg.2, pp. 160-223.) Respondentdistorts the factual record in its summary, and erroneously contends that noneofthese errors has merit. (RB, Arg.III, pp. 53-76.) An integrated, true assessmentestablishes,to the contrary, that these errors were rooted in not only funding obstacles, but a judicial misapprehension of the scope of appellant Vo’s defense, particularly at the penalty phase. This argumentis framed asthreedistincttrial court errors which together deprived appellant Vo of his right to counsel. (Gideon v. Wainright (1963) 372 U.S. 335; Strickland v. Washington (1984) 446 U.S. 30 668, 685; United States v. Cronic (1984) 466 U.S. 648; see discussion of the legal foundations in Vo’s AOB,Arg. 2, pp. 182-191, incorporated herein.) Respondent choosesnot to address the deprivation of appellant Vo’s right to counsel, addressing instead each set of underlying errors seriatim. The underlying errors did not occur each in isolation. While appellant submits that each error was sufficient to require reversal, together they amountedto an extraordinary interference with trial counsel’s ability to properly represent appellant Vo in this capital trial. That extraordinary judicial interference with counsel’s ability to provide adequate representation amounts to a breakdownofthe adversary process, warranting a presumption of prejudice. (United States v. Cronic, supra, 466 U.S. 648.) The record amply demonstrates that Vo’s was an unusually complex" capital case, with two defendants presenting fundamentally inconsistent defenses. Virtually all of the specific factors that this Court has identified as requiring the appointment of second counsel — the complexity of the issues, large numberofwitnesses, complicated testimony, ‘* Respondent’s brief quotesthe trial court acknowledgingthe case was “complicated.” (RB 55-56, citing 4 CT 1044.) 31 extensive pretrial motions’ — are present here. (Keenan v. Superior Court (1982) 31 Cal.3d 424, 433-434.) Indeed,the trial court eventually did permit appointment second counsel; presumably it found that ample justification.’ However, when Ms. Bachers was forced to withdraw for medical reasons in December, 1995 (1/17/95 RT 56), the case wasleft without second counsel until Jeanne DeKelver was belatedly appointed on February 10, 1995. (10 CT 2741.) Jury selection began on February 14, 1995. (6 CT 1646-1647.) Asset forth in more detail in Mr. Vo’s AOB and below, counsel repeatedly requested continuances before and duringtrial, stating on the record that he wasnot prepared and could not adequately represent '° One additional factor was identified in Keenan v. Superior Court, supra: “other criminalacts alleged.” (/bid., at 433-434.) No other crimes were introduced against appellant Voat trial. During the pretrial period, appellant Vo’s counseltried a separate charge, and appellant Vo was acquitted. (1 RT 48, 50.) Co-defendant Hajek, however, was convicted of a robbery, and evidenceofthat crime was before the jury in this capital case. Respondent mischaracterizes the period during which appellant Vo’s counsellitigated the other charge as mereidle time, repeatedly (RB 58-62.) '® The record does not include an appointmentorder for Marianne Bachers, who served for a time as second counsel. However, counsel’s assertion that she began work in May, 1994 (1/17/95 RT 50-51) was not challenged in the record. 32 appellant Vo.'’ Thetrial court rejected these necessary continuances, displayingirritation that counsel wasnot prepared, and essentially deciding that the case was going forward because the co-defendant wasready."® (See, e.g., 1/17/95 RT 66-67.) Counsel’s assertion of his own incompetence is quite unusualin thetrial record of a capital case; and furthermore, it was supported by specific details about his incomplete investigation and lack of preparation. Thetrial court’s annoyanceisnot, and cannotbe, a constitutionally permissible substitute for providing adequate counsel; nor does an adverse co-defendant’s readiness to proceed protect a defendant whose counselis not. Finally, there were multiple layers of legal difficulties with thetrial court’s unreasonable denial and delay in response to requests for necessary funding, as set forth more fully in appellant Vo’s AOBand below,even thoughtherightto ancillary services is constitutionally protected. (Ake v. Oklahoma (1985) 470 U.S. 68; see also, Penal Code § 987.9.) One essential problem, unique in undersigned counsel’s experience in capital '7 As set forth more fully in Argument 3 of Vo’s AOB,and ArgumentIV herein,the trial court unreasonably refused the request of appellant Vo’s counsel to withdraw because he was unprepared to adequately defend the case. '§ Appellant Vorefers to and incorporates herein Argument 1 ofhis AOB,and ArgumentII herein, concerning the trial court’s erroneous refusal to severhistrial from that of co-defendant Hajek. 33 cases, is that Santa Clara County’s Conflicts Administrator was delegated the task of providing authorized fundsfor ancillary services, as well as paying appointed conflict counsel for their time; and whenthat organization ran out of money becausea separate large, multi-defendant case was then pending,it just stopped paying for both ancillary expenses and counsel’s services in this case, mid-trial. That office had a conflict of interest, and appellant Vo wasthe loser. (See, Holloway v. Arkansas (1978) 435 US. 475.) Respondent”? prefers to think of these circumstances as mere technical difficulties at worst, discussing each as if it was minor, none requiring reversal, respondent never considers the impact on appellant Vo’s '° Respondent’s counselis a staff attorney with the Attorney General’s office; that office employs many attorneys on salary, provides legal and technical support, and allocates necessary expenses from its budget. There are five attorneys listed as counsel on the cover sheet of Respondent’s Brief. Thetrial prosecutorlikewise was a memberofan office with many attorneys andinstitutional support. The same wastrue for counsel for co- defendant Hajek, then a staff attorney with the Public Defender, and now the director ofthat office. Institutional legal offices may encounter budget problems, but they never encounter the situations presented here; becausetheyare not solo attorneys, they always have backup, both in terms of personnel and the costs oflitigation. On the prosecution side, they also do not bear the heavy burden of their performance possibly meaning that an accusedclientis wrongly convicted or sentenced to death. 34 right to counsel — to adequate representation, to be able to meet the challenges that the State (and co-defendant) would certainly present at the trials of guilt and penalty. If the right to counsel is to be meaningful — and it must be, for an adversarial system to find justice’? — respondent’s position must be soundly rejected. A. Error in Denying and Delaying Appointment of Second Counsel. Keenan v. Superior Court, supra, 31 Cal.3d 424, 433-434, held that it is an abuse ofdiscretion for a trial court to fail to address the specific reasons that counsel put forth justifying the need for second counselin a capital case. Second counsel may be required due to the complexity of issues, other criminal acts alleged, a large number of witnesses, complicated scientific and psychiatric testimony, and extensivepretrial motions, all of which are circumstances of appellant Vo’s capitaltrial; in addition, the joint trial with an adverse co-defendant added substantially to the complexity of * In Strickland v. Washington, supra, 446 U.S. 668, 685, the High Court ruled: Thus, a fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding. The right to counselplays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledgeis necessary to accord defendants the "ample opportunity to meet the case of the prosecution" to which they are entitled. 35 thetrial. Respondent arguesthat the trial court did not commiterror in initially denying Vo's request for Keenan counsel in 1991 (RB 54-58), and glosses overthe fact that the trial court eventually approved appointment of second counselin 1994, implicitly but necessarily finding that appointment of counsel was required. Respondentalso finds no problem in the facts that second counsel was forced to withdraw for medical reasons — and the subsequent second counsel whoserved attrial was appointed only four days before jury selection began. Indeed, respondent wishes to have it both ways: on the one hand, no second counsel was needed (RB 54-58), but on the other hand, “second counsel {who withdrew] was appointed well in advanceoftrial.” (RB 57.) Respondent points to motions that lead counsel wasableto file on his own (RB 56) and whathe wasableto presentat penalty phase (RB 57), concluding ipso facto that because there is evidence counsel presented some evidence and performed some ordinary functions of a lawyer, there was no harm. After two requests for the appointment of second counsel were denied, appellant Vo’s counsel requested a hearing on November 15,1991, arguing that a second attorney was necessary “based uponthe facts and 33circumstancesof this case.” Counsel was sworn andtestified to specific 36 factors making the case more complex. (5 CT 1003-1004; 11/20/91 RT 3- 21.) Thetrial court refused to appoint second counsel, viewing this Court’s decision in Keenan as uniquely based on time pressures, and rejecting the complexity of the case as a basis for second counsel;thetrial court noted that appellant’s case had not beensetfor trial, and declared that two counsel were unnecessary for penalty phase preparation. (11/20/91 RT 16-20.) The denials of the motions for second counsel were an abuse of discretion, and contrary to this Court’s holding in Keenan v. Superior Court, supra, 31 Cal.3d 424; the predictable effect in this complex capital case was to undermine appellant Vo’s right to counsel, and his Eighth Amendmentrightto reliable and non-arbitrary proceedingsin his capital trial. (See, Vo AOB,pp. 195-198.) It was not until the prosecuting district attorney re-filed charges considerably later, in March, 1994,that the trial court finally granted appellant Vo's Keenan request, and belatedly granted his request for a penalty phase mitigation expert. (9 CT 2373 - 2377.)"' A new motionfor Keenan counselwasfiled and granted in March, 1994, but it proved 71 The case wasessentially in abeyancein thetrial court from August 28, 1992, whenthetrial court dismissed three alleged special circumstance allegations and various weapons enhancements (5 CT 1349) until an amended Information wasfiled by the District Attorney on March 2, 1994 (6 CT 1442-1453), following an appeal. 37 difficult to find an attorney to serve in this role. Marianne Bachers began work as second counsel in May, 1994. (1/17/95 RT 50-53.) With her expertise in pretrial motions, instructions, and penalty phase investigation, lead counsel had delegatedto her a great deal of preparation for pleadings and all of the penalty phase; however, Ms. Bachers was forced to withdraw for medical reasons in December, 1994. (1/17/95 RT 53-58; 6 CT 1507- 1508.) Counsel movedfor a continuance, as he was unprepared fortrial. (6 CT 1508; 6 CT 1512; 6 CT 1546.) Replacement second counsel, Jeanne DeKelver, was appointed on February 10, 1995 (10 CT 2741), immediately before trial began on February 14, 1995 (6 CT 1646), and herfirst appearance before the jury was March 30, 1995,after the jury wasseated. (7 CT 1692.) In denying the requested continuanceto prepare for trial and permit replacement second counsel to assumethe duties previously assigned to Ms. Bachers,the trial court continued to display disdain for the notion — approved and explainedin detail in Keenan — that second counsel may be (and wasin this case) necessary in a complex capital case, to permit counsel to provide the diligent and competent service contemplated by the Sixth Amendmentright to counsel. Unlike the rejection of appellant Vo’s motions for appointment of second counsel in 1991, whichrelied heavily on 38 the timing and stage of the case (which had not even beensetfortrial (11/20/91 RT 16-20)), the trial court expressedirritation in 1995 that appellant Vo’s counsel wasnot ready to proceed after four years(see, 6/5/95 RT 5658) — ignoring the long hiatus prompted by the dismissal of special circumstance allegations and the ensuing appeal, the late appointmentof second counsel, and second counsel’s withdrawal for medical reasons. Respondenturges this Court to acceptthetrial court’s findingthat lead counsel’s showing in 1991 was “simply conclusionary [sic]; thatit’s a complicated case,” and that second counsel was not required because lead counsel was “experienced.” (RB 55-56; 4 CT 1044.) As argued in appellant Vo’s openingbrief, this finding was erroneous and an abuse of discretion. Trial counsel presented the following matters, under oath, as justifications demonstrating the complexity of the case: appellant Vo was charged with murder, three special circumstances, attempted murder, kidnapping and other charges; the facts were confusing and vague; a co- defendant was also charged; there wereat least 40 witnesses to be interviewed, some of whom did not speak English; complex motions would be needed; expert consultation would be required regarding blood evidence; 39 should capital punishment be sought, an extensive investigation of appellant Vo’s background would be needed; his history was complicated as he was born in Vietnam,and his family had lived as refugees; some family members wereout of the area; an assessment of appellant’s mental health would be needed; expert consultation would be needed regarding the co- defendant’s expected psychiatric history; and discovery indicated that the prosecutor believed that appellant Vo was involved with a gang and possibly other crimes. (11/20/91 RT 3-14.) Appellant Vo’s trial counsel addressed exactly the kinds of matters that this Court identified as requiring the appointment of second counsel in Keenan v. Superior Court, supra, 31 Cal. 3d 424: [T]he [trial] court declared that a criminal attorney should be capable of defending a capital case without the assistance of a second lawyer. But this view fails to take into account the showing made by Schwartzbach of the reasons why a second attorney is justified under the facts ofthis particularcase,e.g., the complexity of the issues, the other criminalacts alleged, the large numberofwitnesses, the complicated scientific and psychiatric testimony, and the extensive pretrial motions, as to some of which review would be sought in the event of adverse rulings. [Fn. omitted.] Thus the court abusedits discretion in failing to address the specific reasons advanced by Schwartzbach in support of the motion. (Jbid, at 433-434.) Counsel again addressed these factors shortly before trial in 1995, explaining that he had delegated preparation of the penalty phase to Ms. Bachers and that he was unable to proceed, but his arguments 40 for continuance were summarily rejected. (6/5/95 RT 5658; see below regarding denials of continuance.) Respondentnext urges this Court to find any error harmless, arguing that counsel “presented an impressive defense,” called a number of witnesses, andthere is “no reasonable probability Vo would have fared better had Keenan counsel been appointed sooner” given what respondent characterizes as “extensive evidenceofhis guilt.” (RB 57-58.) First, this Court can only achieve a finding of harmlessness by ignoring — as respondent does — that [1] trial counsel explained before, during, and after trial that he was unprepared; [2] that counsel asked many timesbeforetrial for second counsel; and [3] that Mr. Vo sought removal of his counsel mid- trial for lack of preparation, a motion in which his counsel joined. Second, respondent’s contention that there is evidence of appellant Vo’s guilt (RB 58)” fails to consider that denial of second counselalso affected critical * Respondentargues an alleged “motive”of love for a girl and loyalty to a friend, “expressing no surprise at the unfolding of events,” and so on in support of its theory that appellant Vo “was not an innocentparty.” (RB 58.) Appellant Vo himself admits to grave mistakes that day, but not killing or intending to kill, nor joining in the apparent plan of his co- defendant, of which he was unaware; no evidence supports the prosecution theory that Vo knew of Hajek’splan, intendedto kill, or actually did kill. By contrast, Hajek told a third party the night before that he intended to kill, he was the one who had blood onhis clothing, and a great deal ofthe (continued...) 41 issues at penalty phase: namely, whether a death sentence is appropriate for this particular defendant. The denials of motions for second counsel early in the case were an abuseofdiscretion, as wasthe refusalofthe trial court to permit a reasonable continuancefor substitute second counsel to become familiar with the case and perform the necessary functions previously assigned to former second counsel. Theseerrors deprived appellant of his fundamental rights to the effective assistance of counsel, due process, to defend, and his right to reliable and non-arbitrary proceedings at both phasesofhis capital trial. Reversal is required. B. Denial ofNecessary Funding Appellant Vo contends that his rights to the effective assistance of counsel, to due process of law, to defend, andto reliable and non-arbitrary *(.. continued) evidence introduced was about Hajek — his grudge evidently leading to these events, his psychiatric problems, his actions, his statements before and after the crime. Respondentalso asserts that appellant Vo “continu[ed] to maintain a relationship with Hajek following their arrest” (RB 58), apparently based on the fact that the co-defendant sent communications to Vo in jail; these communications were one-sided,all instigated by co- defendant Hajek, and they therefore demonstrate in no wayatall that appellant Vo intended to maintain a relationship with Hajek. Asset forth elsewhere in this brief, respondent’s arguments about appellant Vo’s alleged guilt of a capital offense are unsupported by substantial evidence. (See Argument XIX ofthis brief.) Argument of counsel is not evidence. 42 proceedings in his capital case were violated by thetrial court’s delay in providing authorized funds and counsel’s fees”’, and by the denials of funding based uponthe trial court’s unreasonable and unconstitutional view of the scope of mitigating evidence, as well as its overly narrow view of the scope of counsel’s responsibilities in a capital case. (Vo AOB,pp. 202- 213.) The delays in fees and funding occurred mid-trial, between April and June, 1995,” and were solely because the Conflicts Administrator ran out of money, having spentits allotment on a different multi-defendantcase.”° *? In Corenevsky v. Superior Court (1984) 36 Cal. 3d 307, this Court held that “we emphasize that an indigent defendanthas specific statutory rights to certain court-ordered defense services at county expense; that an indigent defendanthas a constitutional right to other defense services, at county expense, as a necessary corollary of the right to effective assistance of counsel; that such rights must be enforced, and a court's order directing paymentfor such services must be obeyed, even if a county has no specifically appropriated funds for those purposes.” ** Jury selection began on February 14, 1995. (6 CT 1646-1647.) Jurors were selected and sworn on March 29, 1995. (7 CT 1690-1691.) The guilt trial began on March 30, 1995 (7 CT 1692), and the prosecution’s case in chief concluded on April 20, 1995. (7 CT 1790.) Guilt phase deliberations began on May 10, 1995 (7 CT 1818), andthe jury reached a verdict on May 22, 1995. (8 CT 2097, 2114.) The penalty phase began on June 6, 1995 (8 CT 2213), and penalty phase deliberations began on June 20, 1995. (10 CT 2618.) The delays in payment and denials of funding thus occurred in the midstoftrial. *° The constitutional right to effective assistance of counsel does not include the qualifier, “assuming there is moneyleft over from other cases.” (continued...) 43 (See, Vo AOB,pp. 202-205.) Before the delays in payment of authorized funds and counsel’s fees wasresolved,the trial court, viewing the task at penalty phase as “very simple” (6/7/95, RT 33-34), refused the bulk of additional funds requested to complete penalty phase investigation and preparation, stating that re- interviews were largely unnecessary, and that as to family members(since some had been “interviewed”), appellant Vo should just decide who he wantedto call. (6/7/95, RT 34-38.) This breathtakingly misguided view ignores the solid body of constitutional law regarding the breadth and importance of mitigation evidenceat the penalty phase”®,thecritical *5(,. continued) Appellant Vo contends that the Conflicts Administrator had a conflict of interest, and chose to make paymentsin the other case and not to Mr. Vo’s counsel; and that the non-paymentcreated a personal conflict of interest for Mr. Vo’s unpaid counsel, who were forced to proceed without funds to pay their personal expensesor for necessary trial investigation and preparation. (See Vo AOB,pp. 187-190.) Appellant Vo’s right to equal protection of law wasalso violated. His co-defendant’s counsel, the Public Defender, was also publicly funded but not burdened by non-payment of counselor for necessary investigation. (Bush v. Gore (2000) 531 U.S. 98, 121 S.Ct. 525, 530-532;Article I, § 7(b) and Article IV, § 16(a) of the California Constitution.) Similarly, the District Attorney receives public funding, providing the State’s counsel with a regular paycheck and necessary trial expenses. *° See, e.g., Lockett v. Ohio (1978) 438 U.S. 586; Eddingsv. Oklahoma (1982) 455 U.S. 104; Skipper v. South Carolina (1986) 476 U.S. 1, 4-8; Penry v. Lynaugh (1989) 492 U.S. 302, 317. This Court’s decision (continued...) 44 function of defense counsel in the adversary system?’, and the scope oftrial counsel’s duties to meet the standard of care at the penalty phase”®. Authorization for ancillary funding to permit counsel to meet their obligations is not only provided by statute (Penal Code § 987.9), but such resourcesare also constitutionally guaranteed. (Ake v. Oklahoma (1985) 470 U.S. 68.) Respondentalso secondsthetrial court’s minimalization of the effort required to investigate a capital defendant’s history and background where refugee history and cultural factors were a factor. Respondentarguesthat the striking funding problemsin this case do not warrant reversal. (RB 67-76.) Respondent does notdisputethat °°. .continued) in In re Gay (1998)19 Cal.4th 771, was rendered after appellant Vo’s trial, but its underpinnings were clearly established long beforethetrial. *7 See, e.g., Powell v. Alabama (1932) 287 U.S. 45, 68-69; Gideonv. Wainwright (1963) 372 U.S. 335; Strickland v. Washington (1984) 466 U.S. 668, 685; United States v. Cronic (1984) 466 U.S. 648 [in some cases the deficiencies of counsel’s performance are so fundamental and pervasive that prejudice may be presumed]. *8 See, e.g., Mak v. Blodgett (9" Cir.F.2d 1992) 970 F.2d 614, 619; Boyde v. California (1990) 494 U.S. 370, 382. More recent decisions clarify counsel’s responsibilities in detail — see, e.g., Williams v. Taylor (2000) 529 U.S. 362; Wiggins v. Smith (2003) 539 U.S. 510 — but do not represent an expansion of counsel’s duties existing at the time of trial. See, for example, 1 ABA Starndards for Criminal Justice 4-4.1, commentary,pp. 4-55 (2d ed. 1980); ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1 (c), p. 93 (1989). 45 counsel’s fees and pre-approved funds for investigation and experts remained unpaid mid-trial, as the record demonstrates. (RB 67-69.) 1. Failure to Pay Authorized Funds and Fees. Respondentcharacterizes appellant Vo’s first fundingissue, the failure to pay authorized funds and attorney fees, as an improper delegation of the trial court’s duties, and argues that this objection wasnotraised below. (RB 73.) Respondent is wrong. There was no waiver. Counsel argued extensively the need forancillary funds and feesto be paid, and properly sought the assistance ofthe trial court; the trial court recognized the constitutional problems, but threw up its hands. Respondentfails to address the constitutional claims raised by appellant Vo,that the failure to pay authorized expenses and fees deprived him ofhis right to counsel, due process,the right to defend, and 8" Amendmentreliability in this capital case. Counsel very clearly raised the issue of nonpaymentaffecting him and his co-counsel personally, and preventing himfrom being prepared to adequately represent appellant Voat the penalty trial. (See, e.g., 6/5/95 RT 5660-5667.) Ironically, the trial court itself recognized that the nonpayment dueto the pending Nuestra Familia case (6/5/95 RT 5669) wasof grave concern,stating “. . . this issue kind of really bothers me, becausethis really goes to a constitutional 46 dimension.” (6/5/95 RT 5668.) The constitutional issues are adequately preserved for review, and respondent has chosen not to address them.” Respondentignores the trial court’s duty to protect appellant Vo’s right to the assistance of counsel, and thetrial court’s duty to ensure the funds were madeavailable — whether the mechanism of payment was through the Conflicts Administrator or the County. Respondent characterizes these unconscionable delays as merely “inconvenient and frustrating” (RB p. 75), yet fails to acknowledge(as did thetrial court) the devastating harm the delays(particularly in combination with othererrors) exacted on Vo’s ability to prepare both phases ofhis capital case. California courts are not as sanguine as respondent in deeming such harm merely “inconvenient.” For example, in Gardner v. Superior Court (2010) 185 Cal. App. 4th 1003, the court recognized that defense resources for investigation and preparation are essential even before the prosecutor makes a final decision to charge the case capitally. Nor doesthetrial record establish, as respondent would haveit, that any such delays were 1)Vo’s defense counsel’s fault, or 2) of no consequence, since someservices were rendered before payment was 29 Where the record showsthatthe trial court understood the objection, allegations of waiver are unfounded. (People v. Scott (1978) 21 Cal.3d 284, 290; People v. Bob (1946) 29 Cal.2d 321, 325.) 47 available. Thetrial court could and should have granted a continuance while the problems were workedout (as urgently requested by counsel), and/orit could and should have ordered payment to be made immediately, butit did neither. Whether onecalls this “delegation” (AOB 206; RB 73) or abdication,the trial court erroneously refused to protect appellant Vo’s right to counsel, his due process rights, and his right to reliable determinations of guilt, death eligibility, and penalty. Respondentalso contends that no objection was made below that the Conflicts Administrator had conflict of interest, and in any event, it was the County rather than that office responsible for making payments. (RB 74.) This is merely a shell game by which respondent seeksto avoid the issue. Respondent contends that the Conflicts Administrator’s “function appears to have been purely administrative” (RB 73), and that the county was responsible for setting the budget and making the payments.” (RB 74.) In fact, the Conflicts Administrator admitted that the conflicts office “ha[d] not yet submitted their claims to the county” (5/10/95 RT 5603), and as the issue continued unresolved, the Conflicts Administrator made an ex parte request for a hearing to determine whether expenditures were “reasonable and necessary.” (6/7/95 RT 8.) These actions indicate that the 48 Conflicts Administrator was charged with far more than the merely administrative role posited by respondent; this office was actively adverse to appellant Vo’s rights and his counsel’s ability to adequately proceed. During proceedings apparently instigated by the Conflicts Administrator, Vo’s counsel moved for disqualification of Judge Hastings, arguing inter alia that the judge “is in a conflict of interest position because he is the so-called 987 judge butis also on the board ofdirectors of the Conflicts Administration Program.” (6/5/95 RT 5705-6; see also 6/7/95 RT 6.)°° While the specific phrase “conflict of interest” was not specifically used by trial counsel with respect to the Conflicts Administrator, appellant Vo contendsthat the factual and legal basis — depletion of funds because of another case, to the detriment of his client — was adequately fleshed out in the trial record, and the record demonstrates that the court understood counsel’s objection to refer to a conflict of interest.. If there is any technical imperfection, this Court should nonetheless consider the conflict of interest analysis since the deprivation of funds so adversely affected appellant Vo’s right to a fair trial. (See, People v. Hill (1998) 17 Cal.4th * Counsel’s motion to disqualify Judge Hastings was denied; as respondentpoints out, Judge Hastings ruled that he had no conflict “because the budget for conflicts was set by the county, not the court or conflicts administration.” (6/7/95 RT 7.) 49 800, 843, fn 8; People v. Scott (1978) 21 Cal.3d 284, 290 [objection is sufficient if the record showsthetrial judge understood the issue presented].) Respondent additionally arguesthat trial counsel had no conflict of interest in being ordered to move forward with trial despite serious personal financial hardships, citing People v. Castillo (1991) 233 Cal.App.3d 36, a non-capital case in which privately-retained counsel sought appointment once private funding ran out. Respondent’s reasoningis that if retained counsel can be forced to proceed with no expectation of payment,refusal to pay appointed counsel, such as appellant Vo’s counsel, does not constitute a conflict of interest. (RB 75-76.) Castillo is in no way analogous, much less dispositive, although a more careful reading is instructive. Castillo was not a capital case. It did not involve non-paymentof appointed counsel, mid-trial, of funds previously authorized by the court; ratherit involved the question of appointing previously-retained counsel. Recognizing that in some circumstances such an appointment may be necessary,”' the Castillo court *! "The risk in compelling a defendantto gototrial with unpaid counsel against his wishes and those of his attorney is that the defendant will 'get what he paid for.'" (People v. Ortiz [1990] 51 Cal.3d 975, 985.) In Ortiz, the client wanted to discharge his retained lawyer, and the lawyer (continued...) 50 concluded — underthe circumstancesofthat case — that appointment would make the trial court a “guarantor of bad debts." (People v. Castillo, supra, 233 Cal.App.3d 36 at 54.) The debts in question here were ones already incurred and authorized for paymentby the trial court. Respondent does not care to addressthat distinction. Thetrial court denied appellant Vohis right to assistance of counsel and other rights, by declining to ensure that previously-authorized funds and fees were actually dispersed in a timely manner, thoroughly disrupting counsel’s ability to provide adequate representation. 2. Denial ofNecessary Funds Based on Misunderstanding of Counsel’s Duties at the Penalty Phase. Appellant Vo’s second complaint about fundingis that thetrial court’s denial of necessary funds wasbased on a distorted and confused *!(...continued) wanted to be relieved (because he wasnot being paid)." (Peoplev. Castillo, supra, 233 Cal.App.3d 36 at 62-63.) Ortiz held that “Reversal is automatic, however, when a defendant has been deprived ofhis right to defend with counsel of his choice. (People v. Gzikowski [1982] 32 Cal. 3d 580, 589.)” (People v. Ortiz, supra, 51 Cal.3d 975, 988; emphasis added.) As a matter of fact, both appellant Vo andhistrial counsel requested that trial counsel be permitted to withdraw becausetrial counsel was unprepared to proceed. (See, Arg. IV ofthis brief and Vo AOB,Are.3, incorporated herein.) These requests occurred in the same timeperiod as the problems with payment. 51 understanding of the scope of mitigation and of counsel’s duties at the penalty phase. The legal authority is set forth in the AOB,and not addressed by respondent. (Vo AOB, pp. 182-191, 207-213.) Respondent argues — with no discussion of appellant Vo’s rights to counsel, to defend, to due process, or to reliable determinationsin his capital trial, and no discussion of any of the constitutional authorities cited by appellant Vo — that the denial of necessary funding by Judge Hastings wasa proper exercise of discretion; respondent argues further that any possible error was harmless, andthat “there is no reasonable possibility that Vo would have achieved a more favorable outcome absentthe error. (People v. Alvarez [1996] 14 Cal.4th [155] at p. 234.)” (RB 74-75.) Respondent’s citation ofAlvarez is mystifying. There, funding was initially authorized for an “aboveboard”trip to investigate mitigating evidence in Cuba, and later withdrawn when the only way to accomplish the life history investigation was with a “surreptitious”trip: “although the end remained proper, the means had become otherwise, threatening harm to international relations and also to the twotravelers.” (People v. Alvarez, supra, 14 Cal.4th 155, 234.) If this Court had meant Alvarez to be a blanket absolution for denials of funding for penalty phase preparation, it would havesaid so. Instead, it held that the “ends” of conducting necessary 52 investigation werejustified, but surreptitious “means” were not. The trial court in appellant Vo’s case, viewing the task at penalty phase as “very simple” (6/7/95, RT 33-34), refused the bulk of additional funds requested to complete penalty phase investigation and preparation, stating that re-interviews werelargely unnecessary, and that as to family members, appellant Vo should just decide who he wantedto call. (6/7/95, RT 34-38.) This misguided view ignoresthe solid body of constitutional law regarding the breadth and importance of mitigation evidenceat the penalty phase”, the critical function of defense counselin the adversary system’, and the scopeoftrial counsel’s duties to meet the standard ofcare at the penalty phase. Ancillary funding to permit counsel to meet the obligations of capital advocacyis not only provided by statute (Penal Code § 987.9), but is also constitutionally guaranteed. (Ake v. Oklahoma (1985) * See, e.g., Lockett v. Ohio (1978) 438 U.S. 586; Eddingsv. Oklahoma (1982) 455 U.S. 104; Skipper v. South Carolina (1986) 476 US. 1, 4-8; Penry v. Lynaugh (1989) 492 U.S. 302, 317. This Court’s decision in In re Gay (1998) 19 Cal.4th 771, was rendered after appellant Vo’s trial, but its underpinnings were clearly established long before thetrial. See also, Craig Haney, "Evolving Standards Of Decency: Advancing The Nature And Logic Of Capital Mitigation" Hofstra Law Review, Vol: 36, p 835 (2008). * See, e.g., Powell v. Alabama (1932) 287 U.S. 45, 68-69; Gideon v. Wainwright (1963) 372 U.S. 335; Strickland v. Washington (1984) 466 U.S. 668, 685; United States v. Cronic (1984) 466 U.S. 648 [in some cases the deficiencies of counsel’s performance are so fundamental and pervasive that prejudice may be presumed]. 53 470 US. 68.) There is no justification, and therefore respondent cites no authority, for the proposition that appointed counsel’s task is to defer to the uninformed decisions of a client about howto proceed at the penalty phase of a capital trial. As the High Court said many decadesago: A defendant's need for a lawyer is nowherebetter stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama: The right to be heard would be, in manycases, oflittle avail if it did not comprehendtheright to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictmentis good or bad. Heis unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Withoutit, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. (Gideon v. Wainwright, supra, 372 U.S. 335, 344-345, citing Powellv. Alabama, supra, 287 U.S. 45 at 68-69.) An indigent defendant’s rights are not adequately protected merely by the presence of counsel in the courtroom; the meansofeffectively defending must also be provided. "We recognized long ago that mere access to the courthouse doors doesnotby itself assure a proper functioning ofthe adversary process,and that a criminaltrial is fundamentally 54 unfair if the State proceeds against an indigent defendant without making certain that he has accessto the raw materials integral to the building of an effective defense. . [F]undamental fairness entitles indigent defendants to an adequate opportunity to present their claims fairly within the adversary system." (Ake v. Oklahoma, supra, 470 U.S. 68, 78 (quoting Ross v. Moffitt (1974) 417 U.S. 600, 612; See also, Margulies, Resource Deprivation and the Right to Counsel, Journal of Criminal Law & Criminology, Vol. 80, No. 3 (Autumn 1989)). Nowherein the practice of law is more required of counsel’s special skills, careful preparation, and diligence than the penalty phaseof a capital trial.** The "heightened standard ofreliability" required at every step of a capital prosecution (Ford v. Wainwright (1986) 477 U.S. 399, 411) has an obvious application in this context. The importanceoffacilitating a capital defendant’s presentation of mitigating evidence is well established. * See, e.g., Mak v. Blodgett (9" Cir.F.2d 1992) 970 F.2d 614, 619; Boyde v. California (1990) 494 U.S. 370, 382. More recent decisions clarify counsel’s responsibilities in detail — see, e.g., Williams v. Taylor (2000) 529 U.S. 362; Wiggins v. Smith (2003) 539 U.S. 510; Rompilla v. Beard (2005) 545 U.S. 374 — but do not represent an expansion of counsel’s duties existing at the time of trial. (See, for example, 1 ABA Standards for Criminal Justice 4-4.1, commentary, pp. 4-55 (2d ed. 1980); ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(c), p. 93 (1989).) 55 (McClesky v. Kemp (1987) 481 U.S. 279, 306; Penry v. Lynaugh (1989) 492 U.S. 302, 318.) The right to present such evidenceis a hollow right without an opportunity for adequate preparation: "To do this . .. counsel must know what mitigating evidence there is, know what evidence maybe usedto rebutit, and make reasonable decisions about what mitigating evidence to use. Penalty phase investigation and preparation therefore are fundamental to effective advocacyin capital cases." (Goodpaster, The Trial For Life: Effective Representation OfCounsel In Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 318 (1983); see also, Wayland, K., The Importance ofRecognizing Trauma Through Capital Investigations and Presentations, Hofstra Law Review, Vol. 36: 835 (2008); S. Holdman and C. Seeds, Cultural Competency in Capital Mitigation, Hofstra Law Review, Vol. 36:883 (2008).) 3. Delays and Denials of Funding Require Reversal. In Chapmanv. California (1967) 386 U.S. 18, 23, the High Court held that "there are some constitutional rights so basic to a fairtrial that their infraction can never be treated as harmless error. . ..". This case presents such “infractions.”. As the High Court held in United States v. Cronic, supra, 466 U.S. 648, in some casesthe deficiencies of counsel’s performanceare so fundamental and pervasive that prejudice may be presumed. Where, as 56 here, the deficiencies are caused bya state-created impediment,it is constitutionally inappropriate to conduct an analysis of prejudice. For example, @ Where defense counsel fails to consult with the defendant, a defendant seeking to prove counsel ineffective must establish prejudice under Strickland. (See, e.g., Kleba v. Williams (7th Cir. 1986) 796 F.2d 947, 954.) But where it is a state-created impediment that prevents counsel from consulting with defendant, the defendant need not prove prejudice. (Geders v. United States (1976) 425 US. 80.) @ Where defense counsel fails to call certain witnesses, a defendant seeking to prove counselineffective must prove prejudice under Strickland. (See, e.g., Strickland v. Washington, supra, 466 U.S. at pp. 699-700.) But where defense counselis precluded from calling certain witnessesby a state statute, no prejudice need be shown. (Washington v. Texas (1967) 388 U.S. 14.) @ Wheredefense counselfails to cross-examine certain witnesses, a defendant seeking to prove counsel ineffective must prove prejudice under Strickland. (See, e.g., Higgins v. Renico (6th Cir. 2006) 470 F.3d 624, 634-635; Welch v. Simmons (10th Cir. 2006) 451 F.3d 675, 706.) But where defense counsel is precluded from cross-examining a state witness by a state statute, no prejudice need be shown. (Davis v. Alaska (1974) 415 U.S. 308.) In each of these cases, where the impediment wasstate-created the Court has refused to require defendants to prove prejudice under Strickland. (See also, Bell v. Cone (2002) 535 US.at p. 696, n.3.) In this case, the fundamental and pervasive impingements on appellant Vo’s right to counsel andrelated trial rights were the fault of the trial court’s constitutionally erroneousrulings on funding: [1] refusing 57 either a continuanceor to effectively order payment of pre-authorized expenses andtrial counsel’s fees, and [2] the denial of necessary funding to complete penalty phase investigation, based on a complete misunderstanding of the scope of mitigation and trial counsel’s duties at penalty phase. C. Unreasonable and Unjustifiable Denials of Continuances On several occasions, thetrial court unreasonably andarbitrarily denied necessary motions for continuance made on behalf of appellant Vo. (Vo AOB,Arg. 2.) These occurred both pretrial, when the original Keenan counsel was forced to withdraw for medical reasons without having completed the work she wasassigned to do (see, subpart A ofthis argument, above), and mid-trial, when the trial court refused to ensure adequate funding and/or a continuance to complete penalty phase investigation and preparation. (See subpart B of this argument, above.) These denials of reasonable and well-justified motions for continuance guaranteed that appellant Vo would be deprivedofhis rights to the effective assistance of counsel, thosetrial rights counsel is meant to ensure, due process of law, and reliable determinationsof guilt, death eligibility, and penalty in Vo’s capitaltrial. Respondent arguesthat the trial court properly exercised discretion 58 in denying continuances, because the case had been pendingfor overthree years. (RB 58-67.) Respondent’s statement is misleading. Respondent glosses over the fact that the state took the dismissal of several special circumstances and other enhancements up on appeal, consuming much of that time.*° Once more, respondentalso does not address the constitutional context of this argument, including state-inflicted deprivation of adequate assistance of counsel and the particular 8" Amendmentrequirements in capital cases. 1. Legal standards. Asset forth more fully in appellant Vo’s AOB,pp. 213-222, California law requires that a criminal defendant be afforded a continuance of a proceeding upona sufficient showing of good cause. (Pen. Code§ 1050(e); People v. Murphy (1963) 59 Cal.2d 818, 825 [continuance should be granted to afford a reasonable opportunity to prepare defense].) The granting of a continuance is within the broad discretion of the * Thetrial court did not agree to appoint second counsel until after a new information wasfiled, post-appeal, in 1994. (1/17/95 RT 50-51.) The recordreflects that Ms. Bachers began work in May, 1994 (1/17/95 RT 52), and submitted a medical report that she was unable to work in early December, 1994. (1/17/95 RT 56; 6 CT 1507-1508.) Replacement second counsel, Jeanne DeKelver, was appointed on February 10, 1995 (10 CT 2741), immediately beforetrial began on February 14, 1995 (6 CT 1646), and her first appearance before the jury was March 30, 1995, after the jury wasseated. (7 CT 1692.) 59 court, but "myopic insistence upon expeditiousness"in the face of a justifiable request for a delay constitutes a clear abuse ofthat discretion. In People v. Courts (1985) 37 Cal.3d 784, 791, this Court held that thetrial court erred in denying a request to continue proceedings to enable defendantto retain counsel. The High Court, in Ungar v. Sarafite (1964) 376 U.S. 575, 589, explained that "a myopic insistence upon expeditiousnessin the face of a justifiable request for delay can render the right to defend with counsel an empty formality." In capital cases particularly, trial courts should accommodate such requests "'to the fullest extent consistent with effective judicial administration.."" (People v. Courts, supra, 37 Cal.3d 784, 790 [quoting People v. Crovedi (1966) 65 Cal.2d 199, 209]; see also, Jennings v. Superior Court (1967) 66 Cal.2d 867, 875-876 ["discretion may not be exercised in such a manneras to deprive the defendant of a reasonable opportunity to prepare his defense"].) Whena request for continuance is made, ''the answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." (People v. Byoune (1966) 65 Cal.2d 345, 347 [quoting Ungar v. Sarafite, supra, 376 USS. at p. 589].) California courts typically consider the following four factors: (1) The diligence of the defendant; (2) The usefulness of a 60 continuance; (3) The inconvenienceto the court; and (4) The prejudice to the defendantif the continuanceis not granted. (People v. Courts, supra, 37 Cal.3d at pp. 791-795; Owens v. Superior Court ofLos Angeles County (1980) 28 Cal.3d 238, 251.) Here, as outlined extensively earlier in this argument and not repeated here, the calculation must also include appellant Vo’s rights to counsel and ancillary services, to defend, to due process of law, and to reliable determinationsof guilt, death eligibility, and penalty. As demonstrated in Mr. Vo’s AOBandbelow,his trial counsel explained in detail, both pretrial and mid-trial, that he was unprepared, and the reasons why he was unprepared — including the absence of second counsel, as well as delays and denials of funding; appellant Vo himself presented his concerns mid-trial, with counsel joining. Thetrial court, while recognizing that some of these concerns rose to “constitutional dimension,” nonetheless refused to even consider the particular reasons offered in support of these necessary continuance motions, thus abusingits discretion, abridging appellant Vo’s basic constitutional rights, and denying Voa fairtrial. 2. Pretrial requests for continuance. At a hearing on December16, 1994, counsel for appellant Vo presented a medicalletter stating that second counsel Marianne Bachers 61 was completely disabled and would need to be out of work for at least two months. Lead counselstated that he would not be ready fortrial on January 16, 1995. Both the People and counsel for co-defendant Hajek opposed the motion for continuance, which was deemed premature bythetrial court. (6 CT 1507-1508.)*° At an in camera hearing on January 17, 1995, counsel for appellant Vostated that he was not prepared to proceed (1/17/95 RT 41), and explained the reasons why. (1/17/95 RT 41-66; see Vo AOBpp. 162-166.) Thetrial court denied the continuance. (6 CT 1546.) During that hearing, counsel stated clearly that the defense was not prepared to proceed. (1/17/95 RT 41, 60-61, 62-63, 66.) He explained the unusualfacts ofthe case (1/17/95 RT 41), and the complexity ofanticipated motions, the antagonistic nature of the co-defendant’s defense, the complexity of legal issues, and the need to preserve issues for post- conviction review. (1/17/95 RT 43-45.) Counsel then summarized a history of the case andhis actions to prepare, given the circumstancesat various points in time. (1/17/95 RT 45-60.) He noted the complex social *° On January 6, 1995, the court addressedthe prosecutor’s discovery motion and ordered the defendants to produce discovery before jury selection. Counsel for appellant Vo stated that he was not ready because he had no Keenan counsel, andthat he had “nothing to offer.” (6 CT 1512-1515.) 62 history of appellant Vo, including his family’s flight from Vietnam and subsequent refugee status; cultural issues; issues of abuse, neurological status, deprivation; and possible links between his background andhis involvementin the offense. (1/17/95 RTR 53, 58, 61-62.) Counsel humbly admitted that perhaps his decisions over the course of the case were incorrect, and urged the trial court to charge him with any error, rather than punishing the client: “You can relieve me, you can getrid of me, but my client shouldnot suffer if I have made a wrong decision.” (1/17/95 RT 59.) “... Pve done it as well as I know how to do, and if I have been derelict, which I don’t think I have, it should not go to the detriment of my client. He is the one that faces the death verdict, not me.” (1/17/95 RT 62-63.) Counsel emphasizedthat “this matter is not ready, and I believe if Mr. Vo was required to proceed totrial based upon the state of non- readinessat this point, that he would be deprived of competent counsel and the right to put on a defense.” (1/17/95 RT 66.) Thetrial court, obviously irritated with trial counsel, stated: "T have read the transcript of the proceedings on November 20th, 1991, that was heard before Judge Hastings when he denied the request for Keenan counsel. All the arguments you're putting forth are the same arguments you put forth at that time. ... I don't think this case will ever be prepared, Mr. Blackman,andall the information you need for a competent guilt phase and penalty phase investigation is at your fingertips. It can be done. It will be done. Request for 63 continuance denied." (1/17/95 RT 66-67.) Abdicatingits responsibilities, the trial court declined to consider any of the specific reasons why a continuance wasnecessary. Respondentarguesthat the trial court properly exercised its discretion in denying the January 17, 1995 motion for continuance,noting that trial counsel agreed in October, 1994 to a January trial date (RB 58), and arguing thattrial counsel had notbeen sufficiently diligent*” in preparing. (RB 64.)** Onthe other hand, respondentalternatively argues that the loss of second counsel Bachers so soonbefore trial at most merely “inconvenienced”lead counsel, and ~ speculating with no evidentiary support — avers that “the bulk of the penalty phase work should have been, *” Tn otherparts ofits argument, respondentasserts that counsel "presented an impressive defense." (See, e.g., RB 57-58.) Respondent wishes to have it both ways, so long as this Court upholds the judgment. The consistent thread of respondent’s argumentis thatthetrial court has no responsibility for ensuring the right to counsel; and trial counsel has no business asking fortime if the court has its mind set on going ahead. Such a position is, however, directly contrary to this Court’s interpretation of fundamentaltrial rights. “[A] trial court may not exercise its discretion over continuancesSo as to deprive the defendantor his attorneys of a reasonable opportunity to prepare [Citations.” (People v. Snow (2003) 30 Cal.4th 43, 70.) *8 Note thattrial counsel himself urged repeatedly that the court might punish him,but his client should not suffer if counsel had not been sufficiently diligent. (See, e.g., 1/17/95 RT 59, 62-63, 66.) Neitherthetrial court nor respondent suggested a way to punish a lawyer’s lack of diligence in a capital case, besides forcing an unprepared lawyerto trial; neitheris concerned with the constitutionaltrial rights of a capital defendant. 64 and presumably had been, done by then.” (RB 65.)°’ Respondent’s position, echoingthat of the trial judge who refused to even consider reasons the continuance wasneeded,is simply that the case wasfouryears old — disregarding what had and hadnot actually happened duringthat time period. (RB 65.) Respondent's extensive reliance on People v. Beames (2007) 40 Cal.4th 907 (RB 63) is misplaced. In that case, a continuance motion was presented onthefirst day oftrial; a continuance would have inconvenienced 40 witnesses;the trial court said it would monitor the situation; and no further request for continuance was made. It was an abuse ofdiscretion for thetrial court to refuse to consider the reasons a continuance was needed. It is vastly misleading for respondentto assert the age of the case as a catch-all excuse, because [a] the trial court refused in the first instance to appoint second counsel; [b] the People took up the dismissal of several special circumstance and other allegations,a lengthy process,filing the information that proceededtotrial *° As noted above,the trial record is directly contrary to respondent’s airy assertion thattrial counsel had “presumably” performed the necessary preparation for trial. No evidence supporting respondent’s asserted presumption appears in the record. Indeed, counsel wasstill not prepared for the penalty phase when that proceeding was imminent; see below. 65 only on March 2, 1994 (6 CT 1442-1453); [c] trial counseltried a separate charge against appellant Voin the interim, and won an acquittal; [d] the initial second counsel only began work in May, 1994, and had to withdraw due to medical problems in December, 1994; [e] all of the penalty phase preparation and work on motions had been delegated to second counsel; [f] lead counsellaid out in detail the complexity of the case, the work remaining to be done, andhis lack of preparation; and [g] replacement second counsel wasonly appointed later, on the very eveoftrial.“° 3. Mid-trial request for continuance. On June 5, 1995, thetrial court denied appellant’s in camera Marsden’ motion, and a motion for continuance. (9 CT 2210; 6/5/95 RT 5650-5671.) This was at the very time that counsel was seeking paymentof fees and of funds previously authorized, and seeking additional funds necessary to complete the penalty phase investigation (See subpart B ofthis argument, above), and the day before the penalty phase began on June6, 1995. (8 CT 2213.) Appellant complained about a lack of communication with his “° Replacement second counsel, Jeanne DeKelver, was appointed on February 10, 1995 (10 CT 2741), immediately before trial began on February 14, 1995 (6 CT 1646),and herfirst appearance before the jury was March 30, 1995, after the jury was seated. (7 CT 1692.) “People v. Marsden (1970) 2 Cal.3d. 118. 66 counsel, even on issues of importance to appellant (6/5/95 RT 5650, 5651- 5652), a lack of preparation for his own testimony (6/5/95 RT 5654), and antagonism betweenthetrial court and his counsel dating from thepretrial motion for continuance. (6/5/95 RT 5655.) The trial court responded: “There was animosity between your attorney asking for a continuance in a case four years old and a case assigned to me as a trial department. I felt four years was an adequate amountoftime to present the case. I did express displeasure in the fact that counsel did not announcereadyto gototrial." (6/5/95 RT 5655.) Appellant replied: "We weren't. We were just, when we'rein trial we were putting the trial together. We weren't ready to go. We weren't prepared. There wasa little bit of confusion. It wasn't prepared. "I knowit is difficult to understand becausethis is a four years case (sic), and I don't know why .... I don't understand why we weren't prepared. It was difficult for me to understand that too." (6/5/95 RT 5655.) Appellant's counsel supported his client's motion, expressing surprise at the jury's guilt phase verdicts and his own feelings of guilt. (6/5/95 RT 5657.) The trial court expressed extreme displeasure in counsel's lack of preparation: "It's beyond my comprehension whyafter four years this case is not ready to proceed. I know you had Keenan counsel problems, but there's a real question whether a Keenan counselis really appropriate in this case." 67 (6/5/95 RT 5658.) In thetrial court's view, the case was "very straightforward," but trial counsel contended that the complexity of the case "comes from the innerrelationship between the facts and the law." (6/5/95 RT 5658.) Thetrial court stated: "The fact it takes four years to get this case readyfortrial I think is just horrendous. This caseis not that difficult, and I'm of the firm beliefhad I not pushedthis case outtotrialit never would beready fortrial." (6/5/95 RT 5659.) Trial counselreiterated that after withdrawalofthe initial Keenan counsel, he was “left in a position where the penalty phaseis just notat all prepared.” (6/5/95 RT 5659-5660.) Trial counsel explained in more detail the problemsleading up tohis lack of preparation pretrial — again stressing that “whatever I did wrong should [not] be attributed to Mr. Vo, particularly in the context of the catastrophic potential consequencesin this case... ..” (6/5/90 RT 5660), and again stressing the impact of “extraordinary”financial issues. (6/5/95 RT 5660-5663, 5666-5667.) Counsel wasclear that under these circumstances,“we are not ready” and “we are not in fact adequately prepared.” (6/5/95 RT 5664, 5666, 5670.) With respect to the non-payment of authorized funds and counsel, the trial court simply threw up its hands — acknowledging a problem of constitutional dimension, yet refusing to consider any order ameliorating its 68 impact on the right to counsel or the adequacy of a capital defense: "Mr. Blackman,this case has been in preparation for four years. There is not going to be a continuance. We are going to go forward with the penalty phase ofthis case. "It irritates me to no endthat the county has notpaid for the experts, has not paid counsel. I just think, you know,this is deja vu all over again, whetherit is state action that interferes with the adequate preparation of a case I guess is something for the appellate court to decide. But we've been fighting these financial issues with conflicts cases the entire 15 years I've been on the bench.It is just something beyond the court's control . . .." (6/5/95 RT 5666.) Thetrial court additionally stated, “this issue kind of really bothers me, becausethis really goes to a constitutional dimension.” (6/5/95 RT 5668.)Nonetheless, counsel’s motion for a continuance to adequately prepare for the penalty phase was denied. (6/5/95 RT 5668.) “ It is extraordinary thatthe trial court recognized the “constitutional dimension”ofthe problem of non-payment, yet deferred to this Court (‘the appellate court”) for a pronouncement, for future reference. There could be no clearer example of the need for this Court to firmly direct the trial courts and counties to protect thetrial rights of indigent defendants, either by providing funds,or by providing necessary continuances, or by other means. Accordingto the trial court, issues of nonpayments in conflict cases had been ongoing in the county for 15 years; this was but one more. * Thetrial court also stated that the supervising judge, Judge Komar, had been consulted, andtrial counsel was ordered to appear before the PC § 987 judge, Judge Hastings, to obtain approval for expert fees, and also "for an audit of your billings as to over the four years as to why youare not prepared to proceed." (6/5/95 RT 5705.) This “audit” was apparently (continued...) 69 Again,thetrial court abdicated its responsibilities by declining to address the specific reasons a continuance was requested, even thoughthetrial court recognized these might be of constitutional importance. Respondent maintainsthat the denial of counsel’s mid-trial motion for continuance wasnot an abuseofdiscretion (RB 65-67), citing People v. Zapien (1993) 4 Cal.4th 929, 972for the proposition that the trial court should consider burdens on witnesses, jurors and the court in assessing whether“substantial justice” will be accomplished by granting the motion. (RB 65-66.) Weighing heavily in respondent’s assessmentis that co- defendant Hajek’s counsel wished the penalty phase to proceed without a (,..continued) instigated by the Conflicts Administrator’s ex parte request for a hearing to determine whether expenditures were "reasonable and necessary." (6/7/95 RT 8.) Thus, in addition to counsel being required to begin the penalty phaseoftrial without being adequately prepared, and being denied previously authorized funds and counsel fees, and while seeking additional funding needed to complete investigation,trial counsel also was forced during the penalty phase to defend previously authorized but unpaid funds — at the behest of the Conflicts Administrator. *“* In Zapien, the defendantalleged that the prosecutor’s agents had listened to a confidential defense tape; counsel sought to recuse the prosecutor, and sought a mistrial or continuanceto reinterview all the witnesses. The continuance sought was lengthy. In contrast, the continuances sought by Vo would have been vastly less disruptive, and would have allowed for development of mitigation evidence, as was his constitutional right. 70 significant break. (RB 66, citing 22 RT 5641.) Respondentalso stresses that Vo allegedly had “years” to prepare his defense*’, and that the guilttrial had afforded replacement Keenan counsel four monthsto prepare after her appointment. (RB 66.) In a case of this magnitude, such a length of time was insufficient to permit newly appointed counsel to become familiar with this complex case. Noneofthese points addresses appellant Vo’s right to counsel and related rights, nor the specific reasons why his counsel wasnot prepared and requested a necessary continuance. Respondent’s argumentis, in short: Fouryears since arrest; co-defendant was ready; endofstory. However, this Court must not eviscerate the right to counsel and to defendat the penalty phase ofa capitaltrial, nor the right to a necessary continuance, by putting its imprimaturon the rule that respondent implicitly urges: if a case has been pendingfor a while, and everyoneelse is ready to go, no continuances will be granted. This is a case where eventhetrial court noted circumstances impinging on counsel’s ability to proceed in a constitutional way, yet that court declined to protect appellant Vo’s rights becausethe trial was in *° Respondentalso says — as the record shows — that "work apparently began in earnest in early 1994," contradicting the claim that counsel had “years.” (RB 64.) 71 motion. Reversal is required. D. Conclusion. Respondent’s efforts to balkanize and minimize the effects of these serious obstacles to appellant Vo’s 6", 8", and 14 Amendmentrights must be rejected. Reversal is required. 72 IV. Thetrial court violated appellant Vo’s right to counsel and right to defend, and unreasonably refused to permit trial counsel to withdraw when counsel was unprepared to adequately defend appellant Vo. Appellant Vo contendsthat the trial court abridgedhis right to counsel andright to defend, and that the trial court erred in refusing counsel’s request to withdraw based on a conflict of interest. (Vo AOB, Arg. 3, pp. 223-231.) Respondentfirst denies that any conflict of interest waspresent. Respondentignores the breadth of the evidence bearing on the abridgement of appellant Vo’s right to counsel and right to defend, and indeed does not respondto that constitutional framework; instead, respondent focuses narrowly on counsel’s alleged impropriety in failing to provide discovery material andthetrial court’s denial of the motion to withdraw, as events in isolation. (RB, Arg. IV, pp. 76-80.) Respondent’s argumentis therefore largely unresponsive to the actual claim for relief set forth in appellant Vo’s Opening Brief. Argument 2 of Vo’s AOBsets forth at length several sets oftrial court errors resulting in denial of various constitutionaltrial rights: by denying and delaying the appointment of second counsel; by delegating funding to a seriously underfunded conflicts agency, which denied and delayed funding for the defense; and by refusing necessary continuancesto permit counsel to prepare to defend. (Vo AOB,Arg. 2, pp. 160-223.) 73 Argument 3 of Vo’s AOB, which respondentaddressesin its ArgumentIV, focuses on trial court violations of the right to counsel and the right to defend, including butnot limited to the motion to withdraw. Rather than repeating at length all of the relevant facts set forth in Argument2, appellant Vo incorporated them by reference.“ (Vo AOB, Arg. 3, pp. 223-224.) Itis in the contextof all of the abridgements of appellant Vo’s right to counsel and right to defend that the motion to withdraw must be considered. Trial counsel’s declaration of a conflict of interest and his motion to withdraw (RT 4959) did not occur in a vacuum,as respondent would have it. The trial court had refused to sever appellant Vo’s trial from that of the co-defendant. (Vo AOB,Arg.1.) It had refused continuances necessary for the defense (Vo AOB, Arg. 2), even when counselstated clearly the reasons he was unprepared to adequately represent appellant Vo. (See, e.g.,1/17/95 RT 41-67.) Thetrial court refused to provide substitute second counsel until the very eve oftrial, and refused to ensure funding for the defense and payment to counsel. Theerror in denying counsel’s motion to withdraw “© Vo’s AOB wasquite lengthy, and Argument 2 alone was 63 pages. It is not counsel’s understanding that this Court either requires or desires extensive repetition of facts and legal authority when twoclaimsfor relief share an underlying basis. 74 needs to be considered in this context. Following the motion to withdraw, appellant Vo personally presented a Marsden motion, on the ground that his counsel was unprepared (6/5/95 RT 5650-5671), and his counsel agreed with that motion and that he was unprepared. (6/5/95 RT 5657.) In the hearing on the Marsden motion, which was denied,trial counsel related events in the history of the case that led to his lack of adequate preparation. (CT 2210; 6/5/95 RT 5650-5671.) Thistrial record is unusualin reflecting the extent of that lack of preparation, andthe natureofthe trial court errors contributing to counsel’s inability to adequately defend. In fact, counsel was irreparably hobbled by the trial court’s erroneous decisions. It is clear that many ofthose errors occurred before counsel’s motion to withdraw. Later events tend to confirm the extent to whichthe trial court bore animosity toward trial counsel personally, throughoutthetrial; for example, witness the following exchange between appellant Vo andthetrial court: Vo: "Well, it seems to me that ever since when we asked for a continuance and you explained to him, you told him, no, kind of chewed him out, seemed like there seemed to be some animosity between you, Your Honor, and toward myattorney. I feel it affected this trial." (6/5/95 RT 5655.) Trial Court: "There was animosity between yourattorney asking for a continuance in a case four years old and a case 75 assigned to me as a trial department. I felt four years was an adequate amount oftime to present the case. I did express displeasure in the fact that counsel did not announce ready to go to trial." (6/5/95 RT 5655.) Appellant Vo will not repeat at length all of the context and authorities for his claim that the trial court deprived him ofhis right to counsel and right to defend, and erroneously denied counsel’s motion to withdraw (Vo AOB,Args. 2 and 3), but notes that respondent’s brief has chosen to ignore the bulk of the evidence and thelegal theories presented in Vo’s AOB. Instead, respondent argues that denial of the motion to withdraw and to exclude Dr. Berg’s testimony was proper because “counsel’s loyalty to Vo was not threatened” and becausetrial counsel erred in failing to provide discovery of materials in Berg’s possession but upon which Berg would not rely. (RB 79-80.) Respondent misunderstands the law regarding conflicts ofinterest, positing that a lay understanding of“loyalty”is the sole test. A defendant in a criminal case hasa rightto the assistance of counsel, including "a correlative right to representation that is free from conflicts of interest." (Wood v. Georgia (1981) 450 U.S. 261, 271; see also, Powell v. Alabama (1932) 287 U.S. 45, 68-71; Holloway v. Arkansas (1978) 435 U.S. 475, 481-487; Cuyler v. Sullivan (1980) 446 U.S. 335, 350.) “[A]bsent objection, a defendant must demonstrate that "a conflict of interest actually 76 affected the adequacyofhis representation." (Cuyler v. Sullivan, supra, 446 U.S. at 348-349.) Once an actual conflict of interest is shown, prejudice is presumed. (Mickens v. Taylor (2002) 535 U.S. 162, 173.) Here, of course, there was an objection. After the trial court stated that it “does not believe [counsel’s] explanation, the court does nottrust Mr. Blackmanin his defense, and the court thinks Mr. Blackmanis dealing with the court in bad faith," trial counsel declared a conflict of interest, and requested withdrawal and the appointmentof “an attorney before the court whohas somerespect of the court so [Mr. Vo] is not subjected to a disparate treatment because of what the court believes as to my handling of this matter." (RT 4959.) The conflict of interest identified by trial counsel wasthetrial court’s antipathy toward counsel himself, resulting in adverse rulings throughoutthe trial. The conflict of interest was actual: counsel’s ability to adequately represent his client was compromisedin a constitutionally unacceptable way bythetrial court’s view that counsel’s behavior was unprofessional and that he wasacting in badfaith. In this situation, one aspect of the conflict of interest was between counsel’s duty to adequately represent his client, and counsel’s personal professional standing with the trial court. For example, on occasions before 77 and duringtrial, the trial court refused to timely appoint second counsel and refused necessary continuances (see, Vo AOB,Arg. 2), and thetrial court explicitly blamedtrial counsel for not being prepared. There was an obvious divergenceof interests betweentrial counsel’s need to protect and defend himself against accusations of misconduct, and trial counsel’s duty to zealously defend his client. This was analogousto the situation in Wood v. Georgia, supra, 450 U.S. 261, wherein the defendants’ counsel wasretained by andalso represented the interests of the defendants’ employer. Conflicting goals raise the danger that counsel might act, or fail to act, only in the client’s interests. (See, Holloway v. Arkansas, supra, 435 U.S. 475, 481-487.) This Court has stated that when appointed capital counsel find that they are unable to fulfill their obligations, counsel are ethically bound to associate counsel or to withdraw as attorney of record. (People v. Sanders (1999) 21 Cal.4th 697.) Underthe circumstancesofthis case,trial counsel appropriately moved to withdraw because counsel’s own conduct was identified by thetrial court as the reasonit ordered the testimony of a key witness excluded. A related but conceptually separate aspect of the conflict of interest arose from thetrial court’s assertions that trial counsel’s conduct was 78 unprofessional, untrustworthy, and undertaken in bad faith — thattrial counsel’s conduct wasconstitutionally inadequate. Trial counsel said as much on numerousoccasions, imploring the trial court to grant needed continuances. (See Vo AOB,pp. 213-222.) Thetrial court ruled that counsel had improperly refused to turn over discovery as ordered, and therefore the testimony of Dr. Berg was excluded. Respondent arguesthat ruling was proper. (RB 79.) Whethertrial counsel’s refusal to provide that discovery resulted from bad faith ortrial counsel’s misunderstanding of the scope of discoverable material, the result wasthe exclusion of expert testimonycritical to appellant Vo’s defense. (RT 5958.) Given theruling, trial counsel acted properly in moving to withdraw,andthetrial court erred in refusing to grant the motion. It is an abuse ofdiscretion to force a capital defendant to continue with counsel whose misunderstanding and/or actions severely compromisethe defense. In State v. Dean (2010) 127 Ohio St.3d 140, 937 N.E.2d 97, the Ohio Supreme Court ordered reversal of a capital conviction and sentence under circumstances remarkably similar to those presented here. There, the defendant requested to represent himselfbecause of the animosity displayed by the trial court against his counsel, including accusations of counsel’s misconduct; that request was denied on the groundthat the defendant made 79 it “under duress.” The reviewing court foundthatthe trial “judge himself had created that duress,” and that problems flowing therefrom “permeated the entire trial.” Ud, 137 Ohio St.2d at 140.) Thus, the court held: This court has a responsibility to preserve the integrity of the criminaljustice system, which includes a duty to ensure that all defendants have receiveda fair trial from an impartial judge. Where the record demonstrates that that has not occurred, the remedyis a newtrial. (d., 137 Ohio St.2d at 141.) While the legal focus of that opinion was judicial bias, it is clear that the court was highly concerned with the defendant’s right to counsel and with the integrity ofthetrial itself. In this case, as in Dean,thetrial court had created duress — a circumstance of unresolvable conflict. As in Dean, counsel was not permitted to withdraw after the trial court accused counsel of misconduct; in this case, too, appellant Vo’s right to counsel, to defend, to due process of law,a fair trial, and a reliable sentencing process were irreparably harmed. Aside from asserting that trial counsel remained “loyal” to appellant Vo, respondent ignores the broader legal mandate that defendants are entitled to adequate counsel, and to defend against criminal charges, as well as the Eighth Amendment’s requirement of heightenedreliability in capital Cases. Assuming arguendo that counselerred in failing to provide adequate 80 discovery regarding a key defense witness, and/or that counsel so misunderstood the law regarding discovery that he placed his client in the untenable position of losing a key portion of the defense to which he was entitled, the trial court should have granted counsel’s motion to withdraw. Either legal error was not the fault of appellant Vo. The right to counsel and the right to defend are absolutely core constitutional rights, essential to ensuring a fair trial and a just result. Reversal is required. 81 VI. There wasinsufficient evidence to support the lying in wait murdercharge andlying in wait special circumstance, and that special circumstanceis unconstitutionally vague and overbroad. The evidenceis insufficient to support the lying in wait murder charge and the lying in wait special circumstance, and the special circumstanceis unconstitutionally vague and overbroadas to appellant Vo. (Vo AOB,Arg.10, pp. 307-316; Arg. 8.E, pp. 294-296.) Co-defendant Hajek also contendsthat the evidence wasinsufficient to support the lying in wait theory of first degree murder, and the lying in wait special circumstance. (Hajek AOB,Arg.III., pp. 68-78.‘”) Respondent argues that the evidence was sufficient as to each ofthe defendants, and that the lying in wait special circumstanceis constitutional. (RB, Arg. VI, pp. 87-96.) As to appellant Vo, respondent’s arguments rely heavily upon the assumption — unsupported by the evidence — that appellant Voshared co-defendant Hajek’s alleged plan to kill. Respondentis not correct. “7 Appellant Vo adopts ArgumentIII of Hajek’s AOB and ARB,to the extent those arguments are applicable to him, pursuant to California rules of Court, Rule 8.2200(a)(a). (Vo AOB,pp. 309-310.) 82 A. Insufficiency of the Evidence. There is insufficient evidence that appellant Vo either intendedto or actually killed the victim, muchless that he did so while lying in wait.” The lying in wait special circumstance requiresan intentional killing, with concealmentofpurpose, a substantial period of watching and waiting for an opportune timeto act, and immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. (People v. Morales (1989) 48 Cal. 3d 527, 556-557.) Neither concealment of purpose nor taking a victim unawaresis sufficient to support the special circumstance allegation. (Richards v. Superior Court (1983) 146 Cal.App.3d 306, 314- 315.) A defendant may not be convicted of a crime (or have foundtrue a special circumstance allegation) if the evidence presentedattrialis “8 The trial court found that appellants killed the victim while lying in wait for her granddaughter, Ellen Wang, who wasnot present during any of the events. Respondent, however, states ‘““We do not subscribetothis theory,” without explaining why. (RB 91, fn. 31.) This footnote strongly suggests that respondent is aware the lying-in- wait in this case was erroneously permitted to go to the jury. The case cited in that footnote, People v. Grier (2007) 41 Cal.3d 555, 602, stands for the idea that a ruling given for the wrong reason should not be disturbed on appeal. Respondent cites no case approving lying-in-wait murder or the lying-in-wait special circumstance underfacts similar to those of this case, wherethe alleged lying-in-wait was for an entirely different person who wasnotpresent. 83 insufficient to persuade a rational factfnder beyond a reasonable doubtthat the defendantis guilty. (Jackson v. Virginia (1979) 443 U.S. 307, 309.) The Eighth and Fourteenth Amendments require heightenedreliability at both the guilt and penalty phases. (Woodson v. North Carolina (1976) 408 USS. 280, 305; Beck v. Alabama (1980) 447 U.S. 625, 638.) Respondent admits that Vo wasnota party to the telephonecall between co-defendant Hajek and witness Moriarty*®, wherein Hajek talked of a plan to kill as revengefor an earlier incident involving Ellen Wang. (RB p. 89, fn. 30.)°° Appellant Vo wasnota party to the earlier conflict between Ellen Wang and co-defendant Hajek, and did not know Ellen Wangorher family. Appellant Vo testified that his sole purpose in accompanying Hajek on that day wasto assist Hajek in speaking with Ellen Wangandif “’ Witness Moriarty stated on cross-examination that co-defendant Hajek never mentioned appellant Voin the statement; he only indicated whathe, Hajek alone, planned to do. (RT 3684.) °° Appellant Vo refers to and incorporates herein Argument4 of his AOB,and argument XIofthis brief, addressing the error in admitting the testimony of Moriarty against him; Argument 1 of his AOB and argumentII ofthis brief, regarding thetrial court’s error in refusingto severhistrial from that of the co-defendant; and Argument7 of his AOB and Argument XIII of this brief, regarding the multiple errors in admitting wordsofhis co- defendant against him in violation ofhis right of confrontation and cross- examination. 84 necessary, to provide interference to defuse the situation in case there was any hostility. (RT 4986-88.) Vo testified that he tagged along with Hajek that day in case "Ellen hadherfriends there, or her boyfriend or something like that." (RT 4987.) Appellant Vo and co-defendant Hajekfirst went to Ellen Wang's school, in order to speak with her. (RT 4983.) She was not at schoolthat day, and it was only then they tried to find her at her house. While Vo madea briefthreat to kill if family members screamed (13 RT 3162), he immediately returned a knife he had brandishedto the kitchen (upon the request of Cary Wang), anddid not use it again. (13 RT 3163.) He assured Tony Wangthat he did not intend to harm the family. (16 RT 3894.) Vo’s assurance, rather than establish a concealment of purpose, establishes his independence from Hajek’s “plan.” Unlike co-defendant Hajek, appellant Vo had no blood on his person. (15 RT 3590; 7 CT 1762.) Respondent’s argument depends on the unproven assumptionthat the two defendants shared a plan tokill: “/t/hey concealed their murderous 39, 66 purpose”; “they continued to conceal their purpose”; “appellants waited and watched for an opportunetime to tact, and thereafter sprung a surprise attack ... from a position of advantage.” (RB 89.) Although respondent admits that Vo was not present when co-defendant Hajek madehis statement about a plan to witness Moriarty, it asserts that Vo accompanying 85 Hajek to the homeandacting “in apparent conformity with the plan, suggest[ed] that he was knowingly participating in it as well.” (RB 89-90, fn. 30°'; emphasis added.) This reasoningis circular andfails to support respondent’s assumption of complicity. The mere “suggestion” of knowledge of and agreement with a co- defendant’s alleged plan falls far short of proof upon whicha rational factfinder can find guilt beyond a reasonable doubt. (Jackson v. Virginia, supra.) Respondent argues that appellant Vo’s “actions before, during, and after the crime demonstrate”intent to kill (RB 92), but by way of factual support offers only that appellant Vo allegedly had a “motive” for revenge — motive not being an elementof either the crimeor the special circumstance — and that he went to the Wang household in Hajek’s company. (RB 92, referencing RB 85-86.) Speculation about motives and the mere fact of appellant Vo’s presence in the homeis not a substitute for proof beyond a reasonable doubt that Vo intended to kill. *! Also in footnote 30, respondent asserts that “Following arrest, [Vo] continued to maintain contact with Hajek.” (RB 90.) There is no evidencethat is true, and respondent cites none. Hajek wrote to Vo in the jail, and those letters were seized via search warrant, but there is no indication that Vo responded. Asthe prosecutordid attrial, respondent continues to improperly attribute Hajek’s words andactions to Vo. 86 Asnoted, appellant Vo concealed no homicidal purpose because he did not have one; he did not possessan intent to kill. (Vo AOB,308,citing 7CT 1762.) Appellant Vo took no weaponsto the house;the knife he briefly brandished was from the Wangs’ kitchen, andit returnedit to its place upon request. (13 RT 3163.) Hajek brought an inoperable pellet gun. (16 RT 3796-3798; 14 RT 3508-10.) Neither broughtrestraints; a rope that was used was found in the house. (14 RT 3286) Noneofthese facts support respondent’s premise that Vo possessed an intentto kill. Thetrial court found that the homicide of Su Hung occurred “while they were lying in wait for Ellen... ..” (21 RT 5272.) Respondent disavows the finding regarding lying in wait for a different alleged intended victim (RB 91, fn. 31), urging this Court instead to find sufficient evidence of lying in wait as to all the family members, including the homicidevictim. (RB 89, fn. 29.) Appellant’s counsel is not aware of authority — and respondentcites none — for the proposition that a lying in wait special circumstance may be employed whenthe perpetrator is waiting for someone other than the homicide victim. A special circumstance “must... be based on specific factual indicia that relate to a rational distinction characterizing a more serious type of murder.” (7 CT 1762, citing People v. Hendricks (1987) 43 Cal.3d 584, 595.) 87 Despite the trial court’s finding that there was “absolutely no evidence on the record that there was a surprise attack other than the fact that she may have beentied or boundatthe time it did occur” (21 RT 5272), respondent gamely offers the theory that the victim was isolated from others in the family”, lulled into a “false sense of security” by being untied and left to nap and read the newspaper, and then killed by surprise at an opportune time. (RB 89-91.)°? Respondent’s characterization again requires considerable leaps from the available facts; such a conjured scenario does not equate to substantial evidence meeting the legal standard. Respondent’s theory is directly contrary to this Court’s reasoning in People v. Lewis (2008) 43 Cal.4th 415, 514-515, which held that: “Mere” concealment of purpose is not enough to support the lying-in-wait special circumstance. (People v. Morales, supra, >? Su Hung became "angry andhostile,” and was taken to her bedroom andtied for a time. (20 RT 4991.) Her bonds were then removed. (14 RT 3343-45, 14 RT 3365.) She napped and read the newspaper. (14 RT 3305, 3366, 3367.) °3 Respondent nowhere explains why it would be more “opportune” to wait until additional family membersarrived at the home.It is arguable (indeed,likely) that co-defendant Hajek waited until appellant Vo had gone with Su Hung’s daughter Cary Wangto look for Ellen Wang. If so, that turn of events fails to prove that Vo had any knowledgeofthe plan, and exculpates him from personally committing the homicide. The facts do not support a hypothesis that there was an advance arrangementto take Cary Wang from the house. She herself suggested going to look for Ellen Wang. (13 RT 3250.) 88 48 Cal.3d at p. 557.) Rather, such concealment must be contemporaneous with a substantial period of watching and waiting for an opportune time to act, and followed by a surprise attack on an unsuspecting victim from a position of advantage. (See ibid.) Here, there was no evidence that, while concealing his purpose to kill, defendant watched and waited for an opportunetimeto kill the victims. Rather, the evidence suggests each was killed when, and only when,his or her ATMwithdrawallimit had been reached and the victim had been driven to a suitable location for killing. Moreover, there wasno evidencethat the victims were surprised. Indeed, the evidence suggests each victim must have been aware of being in grave danger long before getting killed. (Emphasis added.) Thefactual circumstances in Lewis were analogous to those in this case, and the prosecution’s arguments about a continuing course of conduct — quite similar to those advanced by respondenthere (see RB 91) — were soundly rejected. There, as here, the alleged concealment of homicidal purpose and watchful waiting must be contemporaneous, and flow immediately to the killing. This Court explained: Wehaveneverheld the lying-in-wait special circumstance to have beenestablished on similar facts. Were weto hold that sufficient evidence supports the lying-in-wait special-circumstanceallegations the jury foundtrue here,it would be difficult to say that there is any distinction between a murder committed “by meansof” lying in wait and a murder committed “while” lying in wait. Such a construction of the lying-in-wait special circumstance would read the word “while” out of the statute. Although we do not “minimize the heinousnessof defendant's deeds” (People v. Hillhouse, supra, 27 Cal.4th at p. 499), we are compelled to conclude that on these facts “the circumstancescalling for the ultimate penalty [on the basis of lying in wait] do not exist.” (Domino [v. Superior Court], supra, 129 Cal. App. 3d at p. 1011.) 89 (People v, Lewis, supra, 43 Cal.4th 415, 515.) Respondentarguesthat reversal of the convictionis not required, should this Court determine that the murder by lying in wait charge be reversed, because there were a variety of other murdertheories available: torture murder, burglary felony-murder, and premeditated murder. (RB 92.) Appellant Vo disagrees, as there wasinsufficient evidence to support any of these charges as to him.” There is no evidence that appellant Vo intendedto kill or did kill. The case against him for homicide was manufactured from the statements and actions of the co-defendant”, spun into an elaborate uncharged conspiracy”, and admitted against him the statements of co-defendant ** Appellant Vorefers to and incorporates by reference Argument 8 of his AOB, and Arguments VII and XIX ofthis brief. Argument 8 of Vo’s AOBarguesthat there wasinsufficient evidence that appellant Vo committed first degree murder. Respondent’s reply brief failed to respond to the arguments concerning intentional murder (subparts A and B); those should be deemed admitted. °° Appellant refers to and incorporates his argument thatthetrial court erroneously refused to severthe trials, Argument | of his AOB and argument2 ofthis brief. °° Appellant Vo refers to and incorporates Argument 6 of his AOB and Argument X ofthis brief, concerning the uncharged and unproven conspiracy theory. 90 Hajek, in a joint trial where he was unable to confrontthe source*”’. Respondentalso contendsthat reversal of the lying in wait special circumstance would not require reversal of the death judgment, since a torture special circumstance wasalso found.** (RB 92-95.) Muchofthis discussion yet again attributes moves and actions of Hajek to appellant Vo, without supporting evidence for an “evil plan,” lack of remorse, and “evil characters” (RB 92-93); this discussion is based on co-defendant Hajek’s statements and actions, factors which should have played no part in the individualized sentencing to which appellant Vo wasentitled, had he somehow been convicted and a special circumstance found in the absence of all the evidence that should not have been admitted against Vo. Asto Mr. Vo personally, respondent first notes that “the prosecutor emphasizedhis role as the leader of the operation”(RB 94, citing 25 RT 6397) and other statements of the trial prosecutor during argument. (RB 94, °7 Appellant Vorefers to and incorporates Arguments4, 5, and 7of his AOB,and corresponding Arguments XI, XII, and XIIIofthis brief, addressing the violations of his confrontation rights in this jointtrial. °8 As set forth more fully in Argument VII of appellant Vo’s AOB and Argument VII herein, the torture murder special circumstance and torture murder chargeare also both invalid. °° ‘Respondent exaggerates even the statementofthetrial prosecutor, who arguedasto factor J that Vo “wasin fact a major participant if not at the scene that time giving manyofthe orders.” (25 RT 6397.) 91 citing 25 RT 6398, 6390.) A prosecutor’s argumentis not evidence; it certainly does not show the harmlessnessof a conviction anda true finding based on lack ofsufficient evidence.® Appellant Vo admitted briefly brandishing a knife and making a threat, but then returned the knife to the kitchen upon Cary Wang’s request. (20 RT 4988; 20 RT 4988-9.) Vo also admitted going with Cary Wangto look for Ellen; they stoppedat the school, and then at her office, with no physical harm done. (20 RT 4989; 20 RT 4989-90.) The evidence wasinsufficient to prove either lying in wait murder, or the lying in wait special circumstance, as to appellant Vo. Reversal is required. B. The lying in wait special circumstance is unconstitutionally vague and overbroad as applied to appellant Vo. "To avoid th[e] constitutional flaw [of arbitrary and capricious sentencing], an aggravating circumstance must genuinely narrow the class of personseligible for the death penalty and must reasonablyjustify the °° Theassertion that appellant Vo was “the leader” is ludicrous. Co- defendant Hajek hadthe fight with Ellen Wang, whom Vo did not know; Hajek told Moriarty of his plan for revenge, in a conversation that did not involve Vo; Hajek woke Vo and took him that morning; Hajek droveto the school and then the Wang house; Hajek alone had blood on his person; and Hajek’s statements and writings were at the core of the prosecution theory. 92 imposition of a more severe sentence on the defendant compared to others found guilty of murder." (Zant v. Stephens (1983) 462 U.S. 862, 876.) UnderCalifornia law, the "special circumstances" enumerated in section 190.2 "perform the same constitutionally required ‘narrowing function’ as the ‘aggravating circumstances’ or ‘aggravating factors' that some of the other states use in their capital sentencing statutes." (People v. Bacigalupo (1993) 6 Cal.4th 457, 468; see also Tuilaepa v. California (1994) 512 USS. 967, 975.) The lying-in-wait special circumstance (§ 190.2, subd. (a)(15)), as interpreted by this Court, violates the Eighth Amendmentbyfailing to narrow the class of personseligible for the death penalty, and by failing to provide a "‘meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the manycases in whichitis not.'" (Godfrey v. Georgia (1980) 446 U.S. 420, 427, quoting Furman v. Georgia (1972) 408 U.S. 238, 313 (conc. opn. of White, J.].) 1. The Lying-In-Wait Special Circumstance Does Not Narrow the Class of Death-Eligible Defendants. Murder "perpetrated by meansof .. . lying in wait" is murder of the first degree. (§ 189.) A defendant convicted offirst-degree murder in California is rendered death eligible if a special circumstance is found. (See § 190.2.) At the time of appellant's crime andtrial, one such special circumstance wasthat "[t]he defendant intentionally killed the victim while 93 lying in wait." (Former§ 190.2, subd. (a)(15).) The Court has described the lying-in-wait special circumstanceas only "slightly different" from lying-in-waitfirst-degree murder (People v. Hillhouse (2002) 27 Cal.4th 469, 500; People v. Carpenter (1997) 15 Cal.4th 312, 388; People v. Ceja (1993) 4 Cal.4th 1134, 1140, fn. 2), with the special circumstance requiring an intentional murder that occurs during a period "which includes (1) a concealmentofpurpose, (2) a substantial period of watching and waiting for an opportunetimeto act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage[.]" (People v. Gutierrez (2002) 28 Cal.4th 1083, 1148-1149, quoting People v. Morales, supra, 48 Cal.3d 527, 557.) Although the second elementofthe lying-in-wait special circumstance — a substantial period of watching and waiting — theoretically could differentiate murder under the lying-in-wait special circumstance from simple premeditated murder, the Court's construction of this prong has precluded such a narrowing function. The Court has established that the watching and waiting period need only be "brief" and its duration only "such as to show a state of mind equivalent to premeditation or deliberation." (People v. Edelbacher (1989) 47 Cal.3d 983, 1021, quoting CALJIC No. 8.25.) The victim need not be the object of the "watching"in 94 order for this special circumstanceto apply, as a period of "‘watchful' waiting"for the arrival of the victim will satisfy this requirement. (People v. Sims (1993) 5 Cal.4th 405, 433.) And,this "watchful waiting" may occur in the knowing presenceofthe victim (see, e.g., People v. Morales, supra, 48 Cal.3d at p. 558), or where the defendant reveals his presence to the victim. (See, e.g., People v. Carpenter, supra, 15 Cal.4th 312, 388-389.) In light of this broad interpretation of the second elementof the lying-in-wait special circumstance, only the first and third elementsareleft to differentiate a first-degree murder underthe lying-in-wait special circumstance from other premeditated murders. The Court has, however, also adopted an expansive construction ofthe first prong of the lying-in-wait special circumstance (concealment ofpurpose), andits case law has construed the meaning oflying-in-wait to include notonly killing in ambush, but also murder in which the killer's purpose was concealed. (People v. Morales, supra, 48 Cal.3d at p. 555.) By requiring only a concealmentof purpose, rather than physical concealment, the first prong clearly fails to narrow the class of death-eligible premeditated murderers in any significant manner. (See, e.g., Morales, supra, at p. 557 [noting concealmentofpurposeis characteristic of many "routine" murders].) As 95 for the final prong (a surprise attack from a position of advantage),it is hard to imagine many premeditated murders preceded by fair warning and carried out from a position disadvantageous to the murderer. As Justice Mosknoted: [The lying-in-wait special circumstance] is so broad in scope as to embracevirtually all intentional killings. Almost always the perpetrator waits, watches, and conceals his true purpose and intent before attacking his victim; almost never does he happen on his victim and immediately mounthis attack with a declaration of his bloody aim. (People v. Morales, supra, 48 Cal.3d at p. 575 (conc. and dis. opn. of Mosk, J).) In light of the broad interpretation that the Court has given to the lying-in-wait special circumstance, the class of first-degree murders to whomthis special circumstance applies is enormous. (See, e.g., Shatz & Rivkind, The California Death Penalty Scheme: Requiemfor Furman? (1997) 72 N.Y.U. L.Rev.1283, 1320 [the lying-in-wait special circumstance makes most premeditated murders potential death penalty cases].) This special circumstance thereby creates the very risk of "wanton" and "freakish" death sentencing found unconstitutional in Furman v. Georgia, supra, 408 U.S. 238. Moreover, while the Court has interpreted the lying-in-wait special circumstance as being "slightly different" from lying-in-wait first-degree murder (People v. Hillhouse, supra, 27 Cal.4th at 96 p. 500), this difference is not madeclear to California juries. According to Wethe Court, the distinguishing factors are that "‘{mJurder by meansoflying in wait requires only a wanton andrecklessintentto inflict injury likely to cause death[,]" while the special circumstance requires "‘an intentional Wemurder"that "‘take[s] place during the period of concealment and watchful waiting[.]"" (People v. Gutierrez, supra, 28 Cal.4th at pp. 1148-1149.) California juries are not, however, instructed that "murder by means of lying in wait requires only a wanton and reckless intent to inflict injury likely to cause death," but instead, are told that the defendant's state of mind must be such that he considered the murder beforehand, or carefully thought and weighed considerations for and against the murder. (CALJIC No. 8.25.) Likewise, California juries instructed on lying-in-waitfirst degree murder are told the murder must be "immediately preceded by lying in wait" (ibid.), thereby indicating, as does the special circumstance,that there can be no "clear interruption separating the period of lying in wait from the period during whichthe killing takes place[.]" (CALJIC No. 8.81.15.) Thus, while the Court has interpreted the special circumstance differently than lying-in-wait first degree murder, California juries are not provided adequate guidance from whichthey can distinguish the class of death-eligible defendants. (See Wade v. Calderon (9th Cir. 1994) 29 F.3d 97 1313, 1321-1322 [failure to adequately guide the jury's discretion regarding the circumstances under whichit could find a defendanteligible for death violates the Eighth Amendment]; United States v. Cheely (9th Cir. 1994) 36 F.3d 1439, 1444 [death penalty statutes are constitutionally defective where "they create the potential for impermissibly disparate andirrational sentencing [by] encompass[ing] a broad class of death-eligible defendants without providing guidance to the sentencing jury as to how to distinguish among them."].) Furthermore, the Court's interpretation of the lying-in-wait theory of murder as requiring only implied malice appears incorrect. Both lying-in-wait murder and the lying-in-wait special circumstance incorporate the identical definition of lying in wait. The lying in wait need not continue for any particular period of time providedthatits duration is such as to show state of mind equivalent to premeditation and deliberation.[{]] The word "premeditation" means considered beforehand. [{] The word "deliberation" means formed or arrived at or determined uponas a result of careful thought and weighing of considerations for and against the proposed course of action. Thus, to establish either lying-in-wait murderor the lying-in-wait special circumstance, the defendant must be provedto have acted with premeditation or deliberation. As stated by the Court, "lying in wait as a theory of murderis the ‘functional equivalent ofproof of premeditation, 98 deliberation and intent to kill’ [Citations]; hence, ‘a showing of lying in wait obviates the necessity of separately proving premeditation anddeliberation. ...'[Citation.]" (People v. Gutierrez, supra, 28 Cal.4th at p. 1149, fn. 10.) If, by definition, lying-in-wait as a theory of murderis the equivalent of an intent to kill, and lying-in-wait is defined in the identical mannerin the lying-in-wait special circumstance, then both must includethe intent to kill, and there is no meaningful distinction between them. In sum,the lying-in-wait special circumstance is not narrower than lying-in-wait murder, and can applyto virtually any intentional first-degree murder. This special circumstance therefore violates the Eighth Amendment narrowing requirement. Indeed, although the vast majority of states now havecapital punishmentstatutes, only three states other than California use lying in wait as a basis for a capital defendant's death eligibility: Colorado, Indiana and Montana. (See Osterman & Heidenreich, Lying In Wait: A General Circumstance, 30 U.S.F. L.Rev.at p. 1276.) Notably, the construction of the Indiana provision is considerably narrower than the construction of the California statute, as it requires watching, waiting and concealment, then ambush uponthearrival of the intended victim. (Thacker v. State (Ind. 1990) 556 N.E.2d 1315, 1325.) Colorado similarly limits its "lying-in-wait or ambush" aggravating factor to 99 situations where a defendant "conceals himself and waits for an opportune momentto act, such that he takes his victim by surprise." (People v. Dunlap (Colo. 1999) 975 P.2d 723, 751.) While there are few cases interpreting the Montana aggravating factor, its scope is necessarily limited by the state law requirement of proportionality review, which prevents imposition of death sentences on less culpable defendants. (See Mont.Code.Ann. § 46-18-310.) 2. The Lying-In-Wait Special Circumstance Fails to Distinguish Death-Eligible Defendant. The Eighth Amendment demands more than mere narrowing the class of death-eligible murderers. The death-eligibility criteria must provide a meaningfulbasis for distinguishing between those whoreceive death and those who do not. For example, a death penalty statute could satisfy the Eighth Amendment narrowing requirementby restricting death eligibility to only those murderers whose victims were between the ages of 20 and 22. However, such aneligibility requirement would be unconstitutional in that it fails to meaningfully distinguish, on the basis of comparative culpability, between those who can be sentenced to death and those who cannot. "When the purposeofa statutory aggravating circumstanceis to enable the sentencerto distinguish those who deserve capital punishment from those who do not, the circumstance must provide a 100 principled basis for doing so." (Arave v. Creech (1993) 507 U.S. 463, 474; see also United States v. Cheely, supra, 36 F.3d at p. 1445 ("[n]arrowingis not an endin itself, and not just any narrowing will suffice"].) The lying-in-wait special circumstance, as interpreted by the Court, fails to provide the requisite meaningful distinction between murderers. There is simply no reason to believe that murders committed by lying in wait are more deserving of the extreme sanction of death than other premeditated killings. Indeed, members of the Court have long recognized this fundamentalflaw of the lying-in-wait special circumstance. (See, e.g., People v. Morales, supra, 48 Cal.3d at p. 575 (conc. and dis. opn. of Mosk, J.); People v. Webster (1991) 54 Cal.3d 411, 461-462 (conc. and dis. opn. of Mosk, J.); id. at p. 466 (conc.and dis. opn. of Broussard, J.); People v. Ceja, supra, 4 Cal.4th at p. 1147 (conc. opn. of Kennard, J.); People v. Hillhouse, supra, 27 Cal.4th 469, 512-513 (conc. opn. of Kennard,J.).) It is particularly revealing that, as stated above, almost no otherstate has included lying-in-wait murderas the type of heinouskilling deserving of eligibility for the ultimate sanction of death, a clear indication of the lack of "societal consensus that a murder while lying in wait is more heinous than an ordinary murder, and thus more deserving of the death penalty." (People v. Webster, supra, 54 Cal.3d at p. 467 (conc.and dis. opn. of 101 Broussard,J.).) C. Respondent’s arguments regarding lying-in-waitfail. Respondentcorrectly notes that this Court has rejected claims that the lying in wait special circumstance is unconstitutionally vague and overbroad. (RB 95.)®! Forreasonsset forth in Vo’s AOB,appellant respectfully requests that this Court reconsider those earlier rulings. The _ special circumstance, as construed by this Court, fails to genuinely narrow the category of personseligible for capital punishment, and fails to provide a meaningful basis for distinguishing between those whoare subjected to the death penalty and those who are not. (Vo AOB,Arg. 10, pp. 310-316.) Appellant, however, additionally asserts that the lying in wait special circumstance was unconstitutionally vague and overbroad as applied to him. (Vo AOB 313-315.) In the unique circumstancesofthis case, the alleged lying in wait was — and was foundbythetrial court to be — waiting for a person other than the homicide victim. (21 RT 5272.) Respondent’s footnote stating, “We do not subscribe to this theory,” but urging this Court nonethelessto rule that the trial court properly found sufficient evidence to °' Amongthe cases cited by respondentfor this propositionis People v. Lewis, supra, 43 Cal.4th 415, 515-516. (RB 95.) As discussed above,the Lewis case in fact reversed lying in wait special circumstances based on facts analogous to those in this case, where the alleged lying in wait to surprise a victim was not followed immediately by the homicide. 102 support the special circumstance (RB 91, fn. 31), is an invitation to this Court to abandon anyeffort at requiring the special circumstance to genuinely narrow theclass of persons eligible for capital punishment, and to ignore its own jurisprudenceinterpreting the lying in wait special circumstance. This, the Court cannot do. Moreover, the special circumstance was unconstitutional as applied to appellant Vo because the jury instruction invited a true finding on the special circumstance without regard to personal culpability, stating it must be proven only that “a” defendant intentionally killed the victim, and that the homicide occurred while “a” defendant was lying in wait. (Vo AOB 313; 8 CT 2031.) Respondentrefers to a similar argument regarding the torture special circumstance, and argues there is no reasonable likelihood the jury applied the instruction in an unconstitutional manner; it further notes that there was an individual verdict form including a finding that appellant Vo intentionally killed while lying in wait. (RB 95-96.) In the referenced argument (RB 163-166), respondent admits the error, and that it was prejudicial under controlling precedent: In People v. Davenport (1985) 41 Cal.3d 247, 271, this Court held that the torture-murderspecial circumstance requires proofthat the defendant himself intendedto kill and to torture the victim. The instruction given here wasthus technically 103 erroneous. In People v. Petznick (2003) 114 Cal.App.4th 663, 686, the Sixth District Court of Appeal found a similar error prejudicial. Respondent nonetheless argues that other instructions and the verdict form cured the “technical” harm,citing Estelle v. McGuire (1991) 502 U.S. 62, 72. (RB 164-165.) Respondent is wrong. Respondent doesnot discuss appellant Vo’s contention that under these circumstances, the lying in wait special circumstance instruction violated both major aspects of the Eight Amendment: the requirement of individualized sentencing, and the requirement that death eligibility be adequately narrowed and channeled to avoid arbitrary and capricious application of capital punishment. (Vo AOB,pp. 314-316.) The instructional error amountedtostrict liability for Vo being present in the Wang homewith co-defendant Hajek, relieving the prosecution ofits obligation to prove the defendant’s beyond a reasonable doubtas to each element of a crime — orin this instance, the special circumstance allegation. Un re Winship (1970) 397 U.S. 358, 364.) It is error per se, and not subject to harmlesserror analysis. (Rose v. Clark (1986) 487 U.S. 570; Connecticut v. Johnson (1983) 460 U.S. 73; Jackson v. Virginia (1979) 443 U.S. 307.) Estelle v. McGuire, supra, 502 U.S. 62,72,is cited by respondent in support ofits theory that “there is no reasonablelikelihood the jury applied 104 the challenged instruction in an unconstitutional manner.” (RB 95.) Estelle v. McGuire dealt with review of ordinary instructional error on federal habeas corpus; it is not applicable wherethe instructional error relieves the prosecution of its burden of proof. Un re Winship, supra, 397 U.S. 358, 364.) That other instructions were given in which the jury wastold to decide as to each defendant separately (see, RB 164-165) does not cure the fundamental error with the lying in wait special circumstanceinstruction. Asthe United States Supreme Court decided in Francis v. Franklin (1985) 471 U.S. 307, conflicting instructions do not ensure that every juror disregarded the plain meaning ofthis instruction: that the special circumstance should be foundtrueif “a” defendant intentionally killed while “a” defendant waslying in wait. As noted throughoutthis brief, appellant Vo’s was a case in which the prosecution did all in its power to persuade jurors to find culpability on the part of appellant Vo based on the words and actions of co-defendant Hajek. Despite a lack of evidence that Vo knewofor joined in any murderousintentions of Hajek, or committed the homicide, the prosecution created an elaborate (but uncharged and thus unproven) conspiracy theory, and ceaselessly stressed joint responsibility — joint intent, joint actions — 105 going so far as to tell jurors they need not decide who did what. (21 RT 5382.) The trial court erroneously refused a severance, allowed the uncharged conspiracy theory to go before the jury, and admitted statements of co-defendant Hajek,all reinforcing the prosecutor’s successful effort to have the jurors treat the co-defendants as if they were one. Respondent primarily relies on CALJIC 8.80.1 (7 CT 1903-1904) for its argumentthat other instructions cured the harm. (RB 164-165.) The first paragraph quoted (RB 164)is an eight-line sentence and, quite frankly, not very comprehensible to speakers of ordinary English who are untrained in legal analysis. Reasonable jurors might well be struck by the phrase “if you are unable to decide whether the defendant wasthe actualkiller or an aider and abettor or co-conspirator” in conjunction with the last phrase suggesting that “aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or “assis[ing] any actor in the commission of murder in the first degree” was sufficient. Thecritical phrase, that “such defendant with the intent to kill” act in any wayis lost in the middle; and ofthat phrase, the most crucial part is one word, “such.” While part of the legal lexicon, this usage of “such” is uncommon amongordinary speakers of English. In ordinary usage, “such” implies similarity rather than particularity. See, e.g., the definition in the Oxford 106 American Dictionary (1979): such (such) adj. 1. Of the same kind or degree, people such as these, 2. Of the kind or degree described, there ’s no such person. 3. So great or intense, it gave her such afright. such pronounthat, the action or thing referred to, such being the case, we can do nothing. [definition of as such omitted.] In the midst of this paragraph-long sentence, the word “‘such”’ fails to clearly admonishthat jurors could not find the special circumstance true unless this particular defendant personally intended to kill or did kill. The second paragraph of CALJIC 8.80.1 cited by respondentstates that jurors must decide special circumstances “separately as to each of the defendants” (RB 164), and the third requires each special circumstance to be decided as to each of the defendants. (RB 164-165.) Again, in the context of this case where the prosecutor hammered homethe (unproven) theory that appellant Vo shared the murderous intentions of co-defendant Hajek (as expressed in his conversation with witness Moriarty, a conversation in which Vo did not participate), these jury instructions failed to provide clarity and ensure the prosecution washeld to its burden ofproof as to all elements, when the primary instruction on the lying in wait special circumstance required only that the prosecution prove “a” defendant possess the intent to kill while “a” defendant was lying in wait. (Francis v. Franklin, supra, 471 U.S. 307.) A reasonable juror may well have 107 concludedthat these instructions required them to address separate verdict forms for each defendant.” In any event, reversal is required under People v. Davenport, supra, 41 Cal.3d 247, 271 [in which this Court held that the torture-murder special circumstance requires proofthat the defendant himself intendedto kill and to torture the victim], and People v. Petznick, supra, 114 Cal.App.4th 663, 686 [wherein a similar error was found prejudicial]. D. Conclusion. The evidenceis insufficient to prove that appellant Vo either killed or intendedto kill the victim, necessary elements of both murderby lying in wait and the lying in wait special circumstance. It is insufficient to prove any lying in wait, as that special circumstance has previously been construed by this Court. Appellant urges that the lying in wait special circumstanceis constitutionally vague and overbroad, and that this Court’s previous rejections of that challenge be reconsidered. In any event, its application to him is overbroad, and relieved the prosecution of its burden ofproof. Reversal is required as a matter of law. Even if this Court should °° Respondent argues that the verdict forms required a finding of personalintent to kill or actual killing. (RB 96, 165.) A verdict form is not an instruction on the law, and these did not cure the error. 108 decide on narrower groundsthanall those raised, it cannot — consistent with its own jurisprudence and that of the United States Supreme Court — decide that this constellation of errors was harmless. 109 Vv. There wasinsufficient evidence that appellant Vo committed attempted murder while armed with a knife. Thetrial court erroneously denied appellant Vo’s motion for a directed judgmentof acquittal (Penal Code § 1181.1) and allowed the prosecutor to pursue, and the jury to convict, appellant Vo of four counts of attempted murder while armed with a knife. (Vo AOB,Arg. 11, pp. 316- 324.) The evidence wasinsufficient™ to support those charges: there was no evidencethat Vo either possessed the requisite specific intent to kill, nor that he committed acts in furtherance of an intent which he did notpossess. Noneofthe alleged victims was physically harmed; one, Ellen Wang, was not even present during anyofthe events occurring before the defendants werearrested that day. Appellant Vo admittedly useda knife briefly at one point, then at the request of Cary Wang, he returnedit to its place in the kitchen. (RT 3241-42; RT 4988-9.) There is no evidence that appellant Vo thereafter held a knife. Co-defendant Hajek alsoraises a claim that the evidence was 6 Appellant Voalso raises objections to the sufficiency of evidence regarding the knife enhancements in Argument 9 of his AOB, and ArgumentVIIIofthis brief, incorporated herein. 64 Jackson v. Virginia, supra, 443 U.S. 307, 319-320. This Court must “resolve the issue in light of the whole record . . ..” (People v. Johnson (1980) 26 Cal.3d 557, 562.) 110 insufficient to support the attempted murder counts. (Hajek AOB,Arg. VII, pp. 111-119.) Without expressing an opinion aboutthe sufficiency of the evidence as to co-defendant Hajek, appellant Vo notes again that the co- defendants are in significantly different postures.© Respondentarguesthatthe trial court properly denied the motion for a directed judgmentof acquittal on the attempted murder charges. (RB Arg. V, pp. 80-86.) Unsurprisingly, respondent relies heavily on co-defendant Hajek’s statements to witness Moriarty before the crime that Hajek intended to kill the Wang family. (RB p. 84.) Respondentalso arguesthat the actions of that day were “overt acts” “in furtherance of their design.” (RB pp. 82-84.)° Asto appellant Vo, respondent’s assertions urge this Court to ignore ® See, e.g., appellant Vo’s briefing regarding the improper denial of his motion for severance, set forth more fully in his AOB, Arg. 1, and in Arg. II of this brief. Co-defendant Hajek had a grudge against Ellen Wang,arising from an incident at which Vo was not present. Co-defendant Hajek told a witness the night before that he intendedto kill Ellen’s family; appellant Vo wasnot presentat either end of that telephone conversation. Co-defendant Hajek awoke appellant Vo that morning andtalked him into going to confront Ellen Wang, but there is no evidence he told Vo ofhis intent to kill anyone. Co-defendant Hajek brought a weaponto the scene. Co-defendant Hajek alone had blood on his clothing after the homicide victim waskilled. 6° Appellant Vo refers to and incorporates herein Argument6 ofhis AOBand Argument X herein, addressing numerouserrors arising from the prosecution’s uncharged conspiracy theory. 1il the bedrock constitutional principles regarding sufficiency ofthe evidence®’, and to uphold four convictions of attempted murder — an extremely serious felony — based on no more than innuendo, speculation, and guilt by association. A close look at the “evidence” showsits ephemeralbasis; it cannot withstand constitutional scrutiny. Respondentspeakslittle of appellant Vo himself in the section ofits argument regarding “overt acts;” respondentprefers to address the actions of the co-defendants jointly, in the context of an assumed joint “plan.” (RB,pp. 82-84.) The only reference specifically to appellant Vo is this: “Ellen Wang] wasthe primary target of their rage, because of her fight with Hajek and Lori Nguyen, both of whom wereclose friends with Vo.” (RB,p. 82.) Asto the intent-to-kill element of attempted murder, respondent asserts that appellant Vo “had a motive to get revenge on Ellen for fighting 67 When,as here, respondent declines to address issues raised by appellant, the reasonable and appropriate inferenceis that “respondent has abandonedany attempt to support the judgment[against this particular attack], and that the ground urged by appellant for reversing the judgmentis meritorious.” (Berry v. Ryan (1950) 97 Cal.App.2d 492, 493, cited with approval in Smith v. Williams (1961) 55 Cal.2d 617, 621; but see People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3.) 68 Appellant Vo refers to and incorporates herein Argument6 ofhis AOB and Argument X ofthis brief, addressing the alleged conspiracy theory. 112 with his best friend and the girl he was in love with, and [for Ellen] making crank calls afterward.” (RB pp. 85-86.) Motive is not an element ofthis crime; an alleged “love” motive falls far short of proof of specific intent to kill. Respondent then recites acts that appellant Vo either admittedly or allegedly committed, without bothering tocite the trial transcript, as if these were proof of mens rea. (RB p. 86.) Theyare not. There is no proof that appellant Vo intendedto kill any of the four alleged victims of attempted murder (one ofwhom wasneverpresent), or that he committed overt acts in furtherance ofan alleged plan he did not join. Reversalis required. °° Vo was not present during that earlier event involving Hajek, Ellen Wang, and Lori Nguyen. The prosecutor’s assertion that Vo was“in love” with Ms. Nguyen was denied by both Nguyen (17 RT 4081) and Vo (21 RT 5203). 113 VIL. The torture murderspecial circumstance and torture murder charges must be reversed, for they are both unsupported by the evidence, and the torture murder special circumstance is unconstitutionally vague and overbroad. The evidenceis insufficient to support the torture murder charge and the lying in special circumstance, and the special circumstanceis unconstitutionally vague and overbroadas to appellant Vo. (Vo AOB,Arg. 9, pp. 298-307; Arg. 8.D, pp. 291-294.) Co-defendant Hajek also contends that the evidence wasinsufficient to support the torture theory offirst degree murder, and the torture special circumstance. (Hajek AOB,Arg. IV, pp. 79-91.”°) Respondentargues that the evidence wassufficient, and that the torture special circumstanceis constitutional. (RB, Arg. VII, pp. 96-102.) Asto appellant Vo, respondent’s arguments rely heavily upon the assumption — unsupported by the evidence — that appellant Vo shared co- defendant Hajek’s alleged plan to kill, and extrapolating from that assumption, also shared an alleged intent to torture. Respondentis not correct. 7” Appellant Vo adopts Argument IV of Hajek’s AOB and ARB to the extentit is applicable to him, pursuant to California rules of Court, Rule 8.2200(a)(a). (Vo AOB,p. 300-301.) 114 In People v. Davenport (1985) 41 Cal.3d 247, this Court recognized that severe pain presumably precedes the death of the victim in the vast majority of murders. (/d., at p. 265.) In order to comply with the constitutional requirement that any capital punishment scheme “must ‘genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence’” (Lowenfield v. Phelps (1988) 484 U.S. 231, 244), this Court construed the special circumstance to includethe intent to torture, as defined by established authority. (Davenport, supra, at p. 271.) That intent must be personalto a particular defendant. (See, e.g., People v. Pensinger (1991) 52 Cal.3d 1210.) Under this Court’s construction, the acts alleged to constitute torture must be substantially in excess of those causing death, in order to comport with the constitutional requirement that the special circumstance genuinely narrow the class ofpersons eligible for capital punishment. For example, in People v. Chatman (2006) 38 Cal.4th 344, this Court upheld a conviction for torture murder anda true finding on a torture special circumstance allegation, describing the woundsas follows: Here defendant stabbed[the victim] over four dozen times. Six life-threatening woundsto the neck, back, and chest, while quite serious, were not immediately fatal. The location of most of the blood spatters supports a conclusion that the 116 these charges as to him.” There is no evidencethat appellant Vo intended to kill or did kill. The case against him for homicide was manufactured from the statements and actions of the co-defendant”, spun into an elaborate uncharged conspiracy”’, and admitted against him the statements of co-defendant Hajek,in a joint trial where he was unable to confront the source”, Respondentalso contendsthat reversal of the torture special circumstance would not require reversal of the death judgment, since a lying in wait special circumstance wasalso found.” (RB 101.) This 7 Appellant Vorefers to and incorporates by reference Argument8 of his AOB, and Arguments VII and XIX ofthis brief. Argument 8 of Vo’s AOBarguesthat there was insufficient evidence that appellant Vo committed first degree murder. Respondent’s reply brief failed to respond to the arguments concerning intentional murder (subparts A and B); those should be deemed admitted. 7© Appellant refers to and incorporates his argumentthat the trial court erroneously refused to severthe trials, Argument 1 of his AOB and argument2 ofthis brief. 7” Appellant Vo refers to and incorporates Argument 6 of his AOB and Argument X ofthis brief, concerning the uncharged and unproven conspiracy theory. 78 Appellant Vo refers to and incorporates Arguments4, 5, and 7of his AOB,and corresponding Arguments XJ, XII, and XIII ofthis brief, addressing the violations of his confrontation rights in this jointtrial. ” As set forth more fully in Arguments 10 and 8.E of appellant Vo’s AOBand ArgumentVI herein, the lying in wait murder charge and lying in (continued...) 121 discussion involves respondentreciting victim impact, the defendants’ alleged lack of remorse, and “evil characters” (RB 101), based primarily on co-defendant Hajek’s statements and actions. The co-defendant’s statements would not have been admissible in a separate trial; most of the factors recited by respondent should have played no part in the individualized sentencing to which appellant Vo wasentitled, had he somehow been convicted and a special circumstance found in the absence of all the evidence that should not have been admitted against Vo. Reversalis required. Appellant Vo did some shameful things that day, but the evidence does not show hekilled or intended to kill, much less that he tortured or intendedto torture. B. The torture murder special circumstance as applied to appellant Vo is unconstitutionally vague and overbroad. Appellant recognizes that this Court has rejected facial challenges to the torture murder special circumstancein the past, but urges this Court to reconsider those decisions. In this case, however, the torture murder special circumstanceas applied to appellant Vo is unconstitutionally vague and overbroad. There was no proof — only argument — that appellant Vo intendedto kill, intended 7(...continued) wait special circumstance are also both invalid. 122 to torture, or committed any of those acts. The theories upon which the State relies amount to advocatingstrict liability for Vo’s presence in the home with co-defendant Hajek. Amplifying those problemsrather than curing them,the jury instruction permitted the jury to return a true finding if “a” defendant intendedto kill and “a” defendant intended to and committed torture, thus removing the requirementthat this defendant personally possess the requisite intent and/or commit the requisite acts. Respondent addressesthis instructional issue in Argument XXI; appellant Vo refers to and incorporates his reply in Argument XXIofthis brief. C. Conclusion. There is insufficient evidence to support the torture murder charge and the torture murder special circumstance, as to appellant Vo. The torture murder special circumstanceis additionally vague and overbroad, particularly as applied to appellant Vo. Reversal is required. 123 VU. There was insufficient evidence to support the use of knife enhancements in most counts. There wasinsufficient evidence to support use of knife enhancements as to appellant Vo in counts 3, 4, 6, and 9 ofthe information, and reversal is required. (Vo AOB,Arg. 14, pp. 337-340.)®° Respondent contends the evidenceis sufficient as to Cary Wang, then argues — based onits conspiracy theory and the assumptionthat appellant Vo possessedan intentto kill the entire family — that Vo’s brief brandishmentof a knife from the Wang kitchen, which he then returned to the kitchen upon request,*' is sufficient to convict him of attempted murder and to view him as armed throughoutthe course of events, despite the evidence that he was not so armed. (RB 102-105.) Respondentcites People v. Granado (1996) 49 Cal.App.4th 317, 322 8° Appellant refers to and incorporates herein Argument11 ofhis AOBand Argument V herein, regarding the insufficiency of evidence supporting the attempted murder charges. There was no evidencethat appellant Vo shared anyintentto kill any victim (in contrast to co-defendant Hajek, whose statements before the crimes suggested he did). There was no evidence that appellant Vo attempted to murder anyone. Oneofthe alleged victims of attempted murder wasnotpresent at any time duringthe day. *! Appellant Vo admittedly used a knife briefly at one point, then at the request of Cary Wang,he returnedit to its place in the kitchen. (RT 3241-42; RT 4988-9.) There is no evidence that appellant Vo thereafter held a knife. Thus, Vo’s caseis distinct from those advanced by respondent, where a defendantinstilled fear through use of a weapon. None of these involved an explicit discarding of a weapon upon request. 124 and People v. Jones (2001) 25 Cal.4th 89, 111 for the proposition that the phrase “in the commission of” a crime should be broadly construed. Respondentseeksto stretch the concept of broad construction well past constitutional tolerability. People v. Granado, supra, 49 Cal.App.4th 317, was a robbery case in which the defendant pulled a gun from his waistband and displayedit within a few feet of the victim, while demanding money. Theappellate court found that defendant’s use of a weapon qualified as use during the commission of the robbery, even though the gun wasnot pointedat the victim. People v. Jones, supra, 25 Cal.4th 89, was a sexual assault case in which a weapon wasusedafter completion of several sex crimes, presumably to maintain control over the victim and permit the defendant’s escape.” Neither Granado nor Jones bears any similarity to the facts of this case, where a knife wasbriefly brandished when Cary Wang arrived home, then put away in the kitchen at Cary Wang’s request, and no knife was ever displayed again by appellant Vo. Anyuse of the knife terminated quickly, * “A person is ‘armed’ with a deadly weapon whenhesimply carries a weaponor hasit available for use in either offense or defense. (People v. Reaves (1974) 42 Cal.App.3d 852, 856-857 [117 Cal.Rptr. 163].)” (People v. Stiltner (1982) 132 Cal.App.3d 216, 230.) That is not the circumstance here, where the weapon was put away upon request. 125 when the knife was put away — in the kitchen, not on his person. The cases cited by respondentdo not address the termination of a weapons enhancementat all. Nordo they deal with the constitutional problem here: the sufficiency of the evidence to support a weapons enhancement whenthe weapon was put away and never seen again, except in the kitchen knife block. These facts do not support any of the knife enhancements under the standard ofJackson v. Virginia (1979) 443 U.S. 307.) Reversal is required. 126 X. The Prosecution’s Uncharged Conspiracy Theory Deprived Appellant Vo of His Constitutional Rights, and Permitted Jurors to Infer Guilt of Charged Offenses on a Quantum of Evidence Less than the Standard of Proof. Appellant Vo’s trial was rendered fundamentally unfair because the prosecutor waspermitted to pursue an uncharged and amorphous “conspiracy” theory — the existence and scope of which wasnot found by the trial court beforetrial, or even before the admission ofallegedly relevant evidence — resulting in the admission of a broad range of evidence, most of which was properly admissible, if at all, only against co-defendant Hajek. There was no evidence that appellant Vo knew ofor joined in Hajek’s alleged murderous plot. (Vo AOBarg. 6, pp. 107-111.) Appellant Vo also has argued that there was not constitutionally sufficient evidence to support the conspiracy theory. (Vo AOB,arg. 8.C, pp. 290-291, 287.) Co-defendant Hajek also raised an argument concerning the conspiracy theory. (Hajek AOB,arg. V, pp. 92-100.)® Respondent maintainsthat thetrial court properly relied upon an uncharged conspiracyas a theory ofliability (RB 107-108), and that there wassufficient evidence of a conspiracy in this case. (RB 109-111.) As 83 Appellant Vo adopts Argument V of Hajek’s AOB and ARB to the extent it is applicable to him, pursuant to California rules of Court, Rule 8.2200(a)(a). 127 demonstrated below, respondentfails to address many ofthe contentions raised in appellant Vo’s opening brief, and respondent’s assertions posit a view stripping appellant Vo ofhis constitutional rights and a fairtrial. A. The Prosecutor’s Amorphous Conspiracy Theory was Extraordinarily Broad. Asset forth more fully in Mr. Vo’s AOB,pp. 249-253, trial counsel objected to use of the uncharged conspiracy theory. No written notice concerning the nature and scope ofthe alleged conspiracy was provided pretrial. (6 CT 1442-1453; 13 RT 2986 et seq.)™ Asto letters written by co-defendant Hajek and testimony of witness Leung, urged as supportive of an alleged conspiracy, trial counsel argued that the prosecution appearedto be trying to establish “a broad conspiracy which does not apply to the [Penal Code §] 187 [homicide charge]” (16 RT 3900); that the evidence did not show a conspiracy between the co- defendants (16 RT 3900-3901); that as to appellant Vo, co-defendant 84 Respondentsimply asserts, without discussion, that defendants were not deprived of adequate notice of the charges, citing People v. Gallego (1990) 52 Cal.3d 115, 188. (RB 108.) This is non-responsive to the contention that the uncharged conspiracy theory wasusedas a substitute for evidence that appellant Vo wasguilty ofthe charged offenses, and the state failed to provide constitutionalpretrial notice of the breadth and object(s) of the alleged conspiracy. 128 Hajek’s letters are hearsay, are not shown to be adoptive admissions,are irrelevant and objectionable under Evidence Code §352 (16 RT 3903); and that the admission of this evidence would invite jurors to speculate sinceit is unclear who waspart of the alleged conspiracy, and what the object of the alleged conspiracy was. (16 RT 3903.) Furthermore,trial counsel argued that under Penal Code § 1223 and related cases, an alleged conspiracy must be established as a foundational fact before statements are admissible, and that the prosecution was unable to establish that foundation. (16 RT 3905-3906.)® Objections were reiterated before the case went to the jury. (21 RT 5261.) In addition, counsel objected to the conspiracy instructions proffered by the prosecution, arguing in particular that the felony-murder theory was groundedin an alleged conspiracy which wasinsufficiently provento takeit to the jury. (21 RT 5285-5286.) Moreover, appellant Vo’s ®° Thetrial court admitted evidence allegedly related to the conspiracy theory without first determining whether there was foundational evidenceofthe alleged uncharged conspiracy, or what it might encompass, stating that it would rule on admissibility of some items after seeing how the evidence fit into the conspiracy theory (15 RT 3542), that it would admit co-defendant Hajek’s statements subject to a motion to strike (16 RT 3936), andthat it would not hold a hearing on admissibility of a witness’ testimony outside the presence of the jury because “T really don’t like to try a case twice.” (16 RT 3907, 3010.) 129 counsel objected that the instructions as a whole were irreparably confusing due to the multiple theories offered by the prosecution, including conspiracy, aiding and abetting, felony murder. (21 RT 5286-5287.) Although at one point the prosecutor asserted that his theory was a conspiracy to commit murder (16 RT 3905), he presentedit to the jury as a conspiracy to commit burglary, arguingthat all it took to find appellant Vo guilty of first degree murder wasa finding that he “went into that house with a feloniousintent.” (21 RT 5370.)* The prosecutor usedhis vast all-purpose conspiracy theory to present a broad array of evidence (Vo AOB pp. 253-260), which he then used totar appellant Vo with the bad acts and statements of his co-defendant, urging those as a substitute for evidence that appellant Vo himself premeditated, deliberated, possessed the requisite intent for special circumstance allegations, intended tokill, or did kill.2” Yet none of that evidence served 8° As respondentnotes, jury instructions preparedat the close of the guilt phase “specified burglary and murderasthe target offenses.” (RB 110, citing 7 CT 1858.) The fact that the court settled on target offenses at the end of guilt phase offers little comfort to a defendant wishing to hone the theory of defense and prepare to meet the evidence beforetrial. (See, Lankford v. Idaho (1991) 500 U.S. 110.) 87 Appellant refers to and incorporates herein Arguments 8, 9, 11, and 14 of his AOB,regarding insufficiency of evidence (Arguments V, VI, VU, VUI, and XIX ofthis brief); Argument | of his AOB regardingerrorin denying severance (ArgumentII of this brief); Argument 5 of the AOB (continued...) 130 to establish the basic foundational facts of [1] agreement, or [2] acts in accordance. It failed to demonstrate even a prima facie case that a conspiracy connected to this crime actually existed. Withoutrepeating all of the examples in Vo’s AOB(pp. 253-260), the alleged conspiracy evidence includedprior criminal acts involving Hajek only*’; statements made by Hajek only, both before® and after the crime; and Hajek’s threat against a witness. That appellant Vo keptletters which Hajek sent him”, the prosecution contended, meant that Vo 87(...continued) regarding improper admission of a taped conversation betweenthe co- defendants in which only co-defendant Hajek’s voice was audible (Argument XII ofthis brief); and Argument 7 of the AOB regarding the error in admitting statements of the co-defendant against appellant Vo (ArgumentXIII ofthis brief). 88 During the pendencyofthe capital case in the trial court, Vo was tried for and acquitted of a robbery, for which Hajek was convicted. (1/17/95 RT 48-50.) Vo’s diary entry about Hajek’s arrest, which was exculpatory as to Vo, was admitted over Vo’s objection to “corroborate” Vo’s involvementin the alleged conspiracy. (17 RT 4179.) *° A cornerstone of the prosecution’s theory that the homicide was pre-planned was co-defendant Hajek’s statements to witness Tevya Moriarty the night before. (15 RT 3644.) Ms. Moriarty testified, inter alia, that co-defendant Hajek spoke ofhis plan in the singular. (15 RT 3656.) No evidence wasintroducedthat appellant Vo knew ofor joined in Hajek’s plan. © Votestified that he kept the letters from Hajek so he could give them to his lawyer. (20 RT 5049.) Obviously,the right to counsel contemplates a defendant sharing important information with his counsel, as (continued...) 131 somehow agreed”! with Hajek’s often bizarre” statements.”? The alleged conspiracy included allegations of torture, revenge, and sadism,all based on Hajek’s statements and writings. An adjunct to the conspiracy theory was the prosecutor’s inventive “love triangle” motive, based on the fact that Lori Nguyen had been with co-defendant Hajek when a dispute erupted with Ellen Wang, the victim’s granddaughter, and the prosecutor’s assertion — denied by both Nguyen (17 RT 4081) and Vo (21 RT 5203) — that Vo was “in love” with Ms. Nguyen.” *°(,..continued) well as counsel advising the client. An adverse co-defendant’s unsolicited statements bearing on the crime andthetrial are plainly of interest in preparing the defense. ’! The prosecution asserted that the fact Vo kepta letter meantthat co-defendant Hajek’s assertions in the letter were true. (21 RT 5372.) In the context of a case where the co-defendants had adverse defenses, this assertion makes no sense absent someaffirmative additional evidence that Vo agreed with these statements of Hajek. There is no such evidence. ° For example, Exhibit 76 described Hajek’s plan to “getrid of” witness Moriarty (17 RT 4175); Exhibit 78, in which Hajek said “we did this for her,” was proffered as evidence of a motive and admitted over objection. (17 RT 4177.) Co-defendant Hajek’s counsel presented extensive evidence of his serious mental illnessattrial. > As set forth more fully in Argument XIIofthis brief, and Argument 5 of Vo’s AOB,respondent’s arguments concerning Hajek’s writings are wrong. * Exhibits 94, 95, and 96,letters apparently written by Vo, were admitted in support of the “love” branch of the prosecution conspiracy (continued...) 132 B. The prosecution failed to give constitutionally sufficient notice of the nature and scope ofthe alleged conspiracy, failed to offer sufficient evidence of its existence, and was improperly allowed to place evidence bearing on the alleged conspiracy before the jury without findings that statements were madein furtherance of the alleged objective or that the alleged conspiracy existed. Asset forth more fully in Mr. Vo’s AOBat pp. 260-276, the uncharged conspiracy in this case implicates not only state law, but federal constitutional law. One of the objectives of the criminal justice system is to prevent convictions (much less death sentences) based on mere speculation; that speculation was employedhere violates appellant Vo’s rights under the Sixth, Eighth, and Fourteenth Amendments. The prosecution bears the burden of proof, and the standard of proof is beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358.) Charges must be supported by *“(...continued) theory. (See, e.g., 15 RT 3548-9, 3552-3, 3554.) These letters demonstrate neither the existence of a conspiracy nor appellant Vo’s participation in a conspiracy. Asto the alleged “love” motive, the prosecutor’s speculation as a basis for a capital conviction would violate Eighth Amendmentreliability concerns. (Woodson v. North Carolina (1976) 428 U.S. 280, 305.) °° Respondentasserts that an uncharged conspiracy may be used as a “theory of liability” (RB107-108), but fails to address the specific problem here: that this “theory of liability” was not required to be proven to any standard. The broad conspiracy theory wasinstead used as a substitute for proof of the substantive charges. Jurors were encouragedto infer guilt based on the alleged and unproven conspiracy. 133 constitutionally sufficient evidence. (Jackson v. Virginia (1979) 443 U.S. 307.)*° Verdicts must be unanimous. (See, People v. Wheeler (1978) 22 Cal.3d 258, 265, interpreting Art. 1, § 16 of the California Constitution.) The prosecution here failed to give notice of the charges, failed to clarify the scope and objectives of the alleged conspiracy, and furthermorefailed to prove the existence of a conspiracy. Conspiracy is a specific intent crime, with the intent divided into two elements: "(a) the intent to agree or conspire, and (b) the intent to commit the offense whichis the object of the conspiracy. .. . To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of the offense." (People v. Horn (1974) 12 Cal.3d 290, 296 [115 Cal.Rptr. 516, 524 P.2d 1300].) (People v. Bachus (1979) 23 Cal.2d 360, 390.) ‘Conspiracies cannot be established by suspicions. There must be some evidence. Mere association does not make a conspiracy. There must be evidence of some participation or interest in the commission ofthe offense.' [Citations.]" (Dong Haw v. Superior Court (1947) 81 Cal.App.2d 153, 158; accord, People v. Manson (1976) 61 Cal.App.3d 102, 126 ["[a]ssociation,byitself, does not prove criminal conspiracy"].) 7” *© Respondentargues that there was sufficient evidence of a conspiracy. (RB 109-111.) This argumentwill be addressed below. *” Guilt by association wasthe only plausible reason the prosecution (continued...) 134 Astrial counsel noted (16 RT 3905-3906), pursuant to Penal Code § 1223, statements in the course of a conspiracy are not inadmissible under the hearsay rule, but only if evidence sufficient to sustain a finding that the statement was madewhile participating in a conspiracy, and in furtherance of the objective of the conspiracy. Evidence was admitted in this case without the trial court having made such a finding.” 77(_..continued) pursued the alleged but uncharged conspiracy. As noted above, the overwhelming bulk of the evidence proffered in support ofthe alleged conspiracy consisted of the words and actions of co-defendant Hajek. The jury was urgedto treat Vo’s friendship with Hajek and witness Lori Nguyen as proof he wasinvolved in a conspiracy. The fact that Vo keptletters that co-defendant Hajek wrote meant, the prosecutor asserted, that co-defendant Hajek’s assertions were true. (21 RT 5372.) °8 Respondentstates that the trial court made an express finding on the existence of the conspiracy. (RB 110,fn. 36, citing 17 RT 4143, 4165; 21 RT 5263.) The timing of any asserted finding underscores appellant Vo’s argument that vaguenessasto this theoryviolated his right to due process. On April 19, 1995 — the day before the prosecution rested at the guilt phase — the parties were discussing admission of marked exhibits, about which testimony had already been given. Thetrial court stated first that he thought a primafacie case for conspiracy had been shown,but that it was a question of when the conspiracy ended. (17 RT 4143; emphasis added.) In the court’s next statement, it said “I guess maybe I kind ofjumped ahead by saying we had a conspiracy theory” (17 RT 4143-4144), and again questioned whetherthe alleged conspiracy lasted after incarceration, when Mr. Hajek wrote variousletters. Later, the trial court stated, “Well, I think a conspiracy has been shown.” (17 RT 4165.) Not only was this too late for pretrial notice or to serve as a finding about the existence of the alleged conspiracy before evidence was admitted on that theory, but it was toolittle (continued...) 135 Moreover, due process of law requires that a person be given "reasonable notice of a charge against him, and an opportunity to be heard in his defense . . . to examine the witnesses against him,to offer testimony, and to be represented by counsel." (Jn re Oliver (1948) 333 U.S. 257, 273, quoted in Lankford v. Idaho (1991) 500 U.S. 110, 126; see also, Gardnerv. Florida (1977) 430 U.S. 349, 360, n. 23.) No such notice was given in this case.” °8(,..continued) to place any limits on the scope ofthe alleged conspiracy. On May3, 1995, as the guilt phase drew to a close, the judge stated, “.,. and I think the court has made a finding of conspiracy, but I think somewhereI havereadthatit is a jury question, whether it was a conspiracy or not. And they may have to decide and how to treat that certain evidence if they findit true or find it not true, even though it’s not charged.” (21 RT 5263.) These findings were madeafter the state had introduced a wide array of evidence bearing on the alleged conspiracy. °° Respondentargues that using the uncharged conspiracy theory to prove criminalliability does not violate the right to notice, citing Peoplev. Gallego (1990) 52 Cal.3d 115, 188. (RB 108.) Gallego, however, recognizes that in some instances notice may be constitutionally inadequate. (Gallego, supra, 52 Cal.3d 115, 189, citing Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234.) Vo’s trial presented such a situation. Even the general nature of the alleged conspiracy was not clarified until jury instructions were being prepared. The vast array of evidence allegedly supporting an alleged conspiracy was such that no reasonable counsel or defendant could anticipate and prepare without notice in advanceoftrial. 136 In this capital case, the Eighth Amendment guarantee of heightened reliability was eviscerated by the use of such vague, post-hocallegations of conspiracy. (Woodson v. North Carolina, supra, 428 U.S. 280, 305.) Respondent does not address the constitutional need for heightened reliability in a capital case. The beauty ofthis trial prosecutor’s boundless conspiracy theory was ~— from the point of view of winningat all costs! — is that the prosecutor could invent a “conspiracy” out of any unrelated facts that smelled bad, and call it “proof” of capital charges against both defendants. Conveniently, because the conspiracy wasnot charged, the prosecution was improperly relieved ofall the troublesome work of giving notice of its scope,its objective, which acts were alleged to be in furtherance ofthealleged conspiracy (as opposedto the independent and the unrelated acts performed '° “The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice be done. As such,heis 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. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he maystrike hard blows,heis not at liberty to strike foul ones. It is as muchhis duty to refrain from improper methodscalculated to produce a wrongful conviction asit is to use every legitimate meansto bring about a just one.” (Bergerv. United States (1935) 295 U.S. 78, 88; emphasis added.) 137 solely by co-defendant Hajek), and also relieved the prosecution of the need to prove those allegations beyond a reasonable doubt, or to a unanimous 101jury. 1. Respondent’s contentions about reliance on an uncharged conspiracy. Respondentfirst argues that it was proper for the state to rely on an uncharged conspiracy as a theory ofliability. (RB 107-108.)'” Respondent cites People v. Belmontes (1988) 45 Cal.3d 744, 788-789, and People v. Salcedo (1994) 30 Cal.App.4th 209, 215-216.'° Belmontes holds that once the existence of a conspiracy in furtherance of the charged crimes is proven, there is no error in instructing the jury on the law of conspiracy. '0! Had a conspiracy been charged, the prosecutor would have neededto plead in advanceoftrial and prove beyond a reasonable doubt that there was an agreement to conspire; the object of the conspiracy; and the acts alleged to be in furtherance of that conspiracy. ' Respondentasserts that neither defendant objected to conspiracy instructions on that ground, and thus any objection to the use of an uncharged conspiracy as a theory ofliability is waived. (RB 107.) This is a classic straw man argument. Appellants objected repeatedly to the introduction of evidence concerning the alleged uncharged conspiracy theory. See subpart A of this argument, above. Appellant also refers to and incorporates Argument XXIII ofthis brief, concerning conspiracy instructions. '3 Salcedo is a non-homicide drugcase,in which the conspiracy urged was undera drug statute meant to “extend sentence enhancements to large narcotic traffickers who do not personally handle the narcotics but whoare often prosecuted for conspiracy” (Salcedo, supra, at 217), and thus is not obviously applicable to this capital case. 138 (Belmontes, supra, at 790.) In Belmontes, this Court explained: The evidence here showed that defendant, Vasquez and Bolanos met, specifically intended to agree or conspire, specifically intended to commit the planned burglary, and carried out overt acts in furtherance of the conspiracy-- completing the intended crime. There being evidence supportive ofall the elements of a conspiracy, the People wereentitled to proceed on that alternative theory ofliability. (People v. Horn (1974) 12 Cal.3d 290, 296 [115 Cal.Rptr. 516, 524 P.2d 1300].) (People v. Belmontes, supra, 45 Cal.3d 744, 789.) There was no independent evidencein this case of a specific agreement to commit a planned crime, no of overt acts in furtherance of such an agreement. Respondentwishesfor the holding in Belmontes to be the prosecutorial equivalent of a “get out ofjail free” card'™*:if the prosecutor’s theory is that there is a conspiracy, the prosecution may offer any evidence at all as “proof” of the substantive charges; no notice of a novel theory must be given; the usual burden ofproof beyond a reasonable doubt does not apply; and the prosecution need not worry about the 8” Amendment '* “Monopoly” is a popular board game, in which players might end up in jail by chance. A “get out ofjail free” card is part of the game, enabling players to escape jail, again by chance (or sometimesbybarter, depending on houserules). This analogy is obviously imperfect, but the point is that respondent seeks to have a prosecutor’s self-created “conspiracy theory” serve as an escape-hatch from the usual rules about prosecutors needing to prove substantive criminal charges beyond a reasonable doubt. 139 requirementofparticular reliability or heightened due process standards in capital cases. The prima facie showing of the existence of a conspiracyis, however, not so minimal as respondent suggests. The proponent’s burden under Penal Code §1223 is to show thatit is more likely than not that the foundational facts exist, i.e., by a preponderance of the evidence. (People v. Herrera (2000) 83 Cal.App.4th 46, 62.) This is the burden of proofthat governs resolution of civil disputes. That burden was metin thecasescited by respondent, but was not metin this case. Appellant Vo respectfully urges that this Court should clarify Belmontes in the contextofthe situation presented here — an intolerably vague unchargedconspiracy resting mainly on the co-defendant’s words and actions over a broad span in time, with no independentproofthat appellant Vo ever agreed to those wordsor entered a conspiracy, nopretrial notice of the objects or scope of the alleged conspiracy, used as “proof” of substantive charges in lieu of actual proof of those charges — and emphasize to prosecutors andtrial courts thatit is constitutionally unacceptable to cast aside the most basic legal protections of defendants where the charges are merely labeled differently. This Court must not permit what the law of conspiracy has long forbidden: guilt by suspicion or by association. (People 140 v. Bachus, supra, 23 Cal.2d 360, 390; Dong Haw v. Superior Court (1947) 81 Cal.App.2d 153, 158; People v. Manson (1976) 61 Cal.App.3d 102, 126.) 2. Respondent’s contentions about sufficiency of evidence. Respondent’s second contention is that there was sufficient evidence of a conspiracy in this case. (RB 109-111.) Respondent points to People v. Rodrigues (1994) 8 Cal.4th 1060, 1134, for the proposition that the jury may be instructed upon a prima facie showing of a conspiracy by independent evidence, and People v. Pitts (1990) 223 Cal.App.3d 606, 891, for the proposition that it is unnecessary to prove that the parties previously met and agreed to perform the unlawful act, or that they had a detailed plan for its execution. People v. Rodrigues, supra, was a case in which an accomplice and another providedthe critical testimony that a conspiracy existed. This Court stated: Wefind that accomplice Ontiveros's testimonyattrial, standing alone, provided prima facie evidence of a conspiracy. In addition, we find that the existence of a conspiracy was sufficiently established through Zavala's testimony of the events taking place at the apartment. (People v. Rodrigues, supra, 8 Cal.4th 1060, 1135.) That case involved a plan to rob drug dealers, a plan shownby the testimony of an accomplice as 141 well as that of a witness at the scene. An obvious difference is that in this case, the statements and actions of co-defendant Hajek, which weighed so heavily in the prosecution’s conspiracy theory, were never allowed to be tested by confrontation and cross-examination, because co-defendant Hajek nevertestified.’” People v. Pitts, supra, was a multi-defendantcase involving a child molestation ring, with numerousalleged offenses by the defendants occurring over a period of time with several victims. The major holdings of the case involved rampant prosecutorial misconduct, for which the convictions were reversed. Asto the use of a conspiracy theory in that case, the appellate court said: Taken in the light most favorable to the judgment below,the evidence showsthatall defendants met numeroustimes for the purpose of molesting children and filming these acts. Johnny, for one, identified all defendants, including Grace, Dill, and Gina, as being presenta lot ofthe times the "nasty things" occurred. Their agreement can be reasonably inferred from the numberoftimes this went on and the nature of the acts that occurred,as can their dual purpose and intent. '°5 Appellant Vorefers to and incorporates Argument 1 of his AOB regarding error in denying severance (ArgumentII ofthis brief); Argument 5 of the AOB regarding improper admission of a taped conversation between the co-defendants in which only co-defendant Hajek's voice was audible (Argument XII ofthis brief); and Argument 7 of the AOB regarding the error in admitting statements of the co-defendant against appellant Vo (Argument XIII of this brief). 142 (People v. Pitts, supra, 223 Cal.App.3d 606, 891-892; emphasis added.) No such course of substantial criminal conduct occurred in this case, nor was there evidence of a common homicidal purpose. Turningto the facts of this case, respondent simply recites, with no record citations, a summary of the prosecution’s theory of the case. (RB 109-110.) Respondent then cites People v. Jurado (2006) 38 Cal.4th 71, 121, for the proposition that shared motive, presence at the scene, and evidence of post-crime conduct demonstrates sufficient evidence of a conspiracy; and respondent again turns to People v. Rodrigues, supra, 8 Cal. 4" 1060, 1135, addressed above. (RB 110.) Respondent’s reliance on Jurado is misplaced, as Jurado involved a charged conspiracy — unlike the uncharged conspiracyin this case — and this Court stated: “Disagreementas to who the coconspirators were or who did an overt act, or exactly what that act was, does not invalidate a conspiracy conviction, as long as a unanimousjuryis convinced beyond a reasonable doubtthat a conspirator did commit someovert act in furtherance of the conspiracy.” (People v. Russo [(2001) 25 Cal.4th 1124] at p. 1135.) (People v. Jurado, supra, 38 Cal.4th 71, 120-121, emphasis added.) Appellant Vo’s jury was not required to find either the existence of a conspiracy or any overt act, much less unanimously or beyond a reasonable 143 doubt. Essentially conceding that evidence bearing on the alleged but uncharged conspiracy was admitted in advance of a ruling as required by Penal Code §1223, respondentasserts that appellant Vo could not have been prejudiced “since thetrial court correctly found sufficient evidence of the conspiracy” (RB 110-111), referring to respondent’s own summary ofthe prosecution theory (RB 109), which contains nocitations to the record. Respondent’s argument, which appeals to post-hoc andcircular reasoning, containslittle specificity since the recordis bereft of evidence supporting a conspiracy. This Court should makeclear that a prosecutor cannot constitutionally be allowed to introduce a vague, uncharged, unproven “conspiracy” theory as a substitute for evidence that each defendantis guilty of the substantive charges. C. The Jury Was Given ErroneousInstructions Regarding the Alleged Uncharged Conspiracy. Appellant Vo adopts Argument XVI of co-defendant Hajek’s opening brief concerning erroneousinstructions regarding the alleged conspiracy, and incorporates Argument 18 of his own openingbrief concerning erroneousinstructions on aider and abettor liability. (See, Vo AOB 272-276.) Theinstructions regarding the alleged conspiracy failed to specify 144 the quantum ofproof necessary to establish that a conspiracy existed. (8 CT 1981-1990; 16 RT 3906.)'Furthermore, the instructions do not address the scopeofthe alleged conspiracy, or what evidence was admitted in support of it. Conflicting instructions were given: jurors weretold that the existence of a conspiracy maybeinferred from circumstances showing common intent (8 CT 1984), but that the “independent”act or declaration of an alleged conspirator is not binding on a co-conspirator. (8 CT 1986.) The information was read immediately after the instructions regarding the alleged conspiracy; but because the conspiracy wasnot charged,that allegation wasnotin the information. (8 CT 1991 et seq.) Jurors were not instructed what evidence wasoffered in support of the alleged conspiracy, nor what evidence was admitted only against one defendant. Jurors were not required to make findings regarding the existence or scopeofthe alleged conspiracy, unlike the decisions required °° On May 3, 1995,as the guilt phase drew to a close,the judge stated, “... and I think the court has madea finding of conspiracy, but I think somewhere I havereadthatit is a jury question, whetherit was a conspiracy or not. And they may haveto decide and howtotreat that certain evidenceifthey findit true or find it not true, even thoughit’s not charged.” (21 RT 5263.) Thetrial court thus contemplated the need for jurors to make findings regarding the alleged conspiracy, but then failed to provide instructions for them to do so. 145 for the charged crimes. The failure to instruct jurors that proof beyond a reasonable doubt was required, as was a unanimousverdict, impermissibly lightened the burden ofproof on the prosecution, allowing jurors to use the conspiracy evidencein lieu of proof of substantive charges without requiring the prosecution to meet any standard ofproof, or the jury to find the existence and scope ofthe alleged conspiracy unanimously. (See, Francis v. Franklin (1985) 471 US. 307, 317-318; Sandstrom v. Montana (1979) 442 U.S. 510, 523-524.) Respondent does not address the impermissible lightening of the prosecution’s burden. Respondent contends that due process was not offended by the failure to require the prosecutor to prove beyonda reasonable doubt, or the jury to find, the existence and scopeofthe alleged conspiracy, citing People v. Belmontes (1988) 45 Cal.3d 744, 789-790, and People v. Jourdain (1980) 111 Cal.App.3d 396, 403-404. (RB 108.) Appellant acknowledgesthis contrary authority, but maintains that Belmontes mustbe distinguished. The evidence in Belmontes demonstrated a specific agreement to commit a planned burglary and overt acts in furtherance, satisfying the requirements of a conspiracy. (People v. Belmontes, supra, 45 Cal.3d 744, 789.) There was no such evidencein this case, neither of a specific agreement to commit 146 a planned crime, nor overt acts in furtherance of such an agreement. Co-defendant Hajek expressed an intent to kill to a third party before the offense, but there is no evidence that appellant Vo knew of, muchless agreed to, such an idea. Co-defendant Hajek made inculpatory statements before and after the offense, but there is no evidence that appellant Vo embraced those statements. Co-defendant Hajek said and did other things with which Vo wasnotinvolved'’’, but those too were introducedaspart of the grand, non-existent conspiracy theory. Appellant Vo sought and was denied severance!™; he objected to the use of his co-defendant’s statements against him'”, but achieved noprotection from thetrial court. The evidence hereis that on the morning of the offense, co- defendant Hajek arrived at Vo’s apartment and awoke him. Votestified '°7 See, Vo AOB, Argument 12 and Argument XVofthis brief, regarding the improper admission ofirrelevant and prejudicial evidence of co-defendant Hajek’s interest in Ozzie Osbourne’s music, alleged satanic matters, and other bad acts, incorporated herein. '08 See, Vo AOB, Argument 1, and ArgumentII ofthis brief, regarding severance, incorporated herein. 109 See, Vo AOB, Argument 4 [admission of evidence of a conversation Hajek had with a witness before the crime], Argument 5 [admission of a taped conversation between the co-defendants, in which only Hajek was audible], and Argument7 [denial ofthe right to confront and cross-examinehis co-defendantviolated by introduction of Hajek’s statements], and corresponding Arguments XI, XII, and XIII of this brief, incorporated herein. 147 that he agreed to accompany Hajek to talk to Ellen Wang and dissuade her from making more crank calls to Hajek; he had a concern that Ellen’s friends might confront Hajek. They proceeded to Ellen’s school, but she wasnot there because she was playing hooky with friends. Hajek next drove to Ellen’s house, where she wasalso not present. Hajek and Vo were admitted to the house, with nouse offorce, to wait for Ellen. Things went bad after that, unquestionably. Butthereis still no evidence that Vo conspired with Hajekeitherto commit a burglary or to commit homicide. The events before and during the co-defendants entry into the home were contrary to the prosecution theory of a conspiracy; an intended talk on school grounds doesnotin the least reflect a plot to kill anyone. Critically absent is any evidencethat appellant Vo ever agreed to an alleged murderand/or burglary conspiracy. Respondentarguesthatthe trial court’s failure to advise the jury what evidence was admitted for what charges orallegations (Vo AOB 259) was waivedfor lack of objectionat trial. (RB 111.) Respondentis wrong. Trial counsel objected broadly to the “instructions as a whole,” noting the great potential for confusion given the multiple theories proffered by the prosecution, including conspiracy, aider and abettor, and felony murder theories, which he urged would “causeirreparable confusion on the part of 148 ajury....” Counsel therefore objectedto all instructions on conspiracy, as the ones proposed “are not accurate statements of law and they are not adequately supportedin the trial record.” (21 RT 5286-5287.) Moreover, counsel urged that the felony-murder theory groundedin an alleged conspiracy wasnotsufficiently proven to take it to a jury. (21 RT 5285- 5286.) Ifthere is any technical imperfection in counsel’s objections, this Court should nonetheless address the confusion complained of— that the jury was given no guidance about which evidence was admitted as allegedly supportive of a conspiracy, or how properly to use that evidence — because so adversely affected appellant Vo’s right to a fair trial. (See, People v. Hill (1998) 17 Cal.4th 800, 843, fn 8; People v. Scott (1978) 21 Cal.3d 284, 290 [objection is sufficient if the record showsthetrial judge understood the issue presented].) The prosecutor exploited the lack of legal and factual boundaries to its conspiracy theory, conflating it with the requirements for findingfirst degree murder. (Vo AOB 259-260.) He urgedas proofofthe alleged conspiracy — and thus proofoffirst degree murder — matters such as Hajek’s participation in another crime (21 RT 5370-5371) anda letter Hajek wrote after arrest; the prosecutor wentso far as to argue that because Vo hadtheletter in his possession, it was not only proof of a conspiracy, 149 but proof that co-defendant Hajek’s assertions in that letter were true. (21 RT 5372.)'"° This is not independent proof of conspiracy. Respondentclaims that any objection to prosecution misconductin argument was waivedbyfailure to object. (RB 111.)''' Respondentis "1° If the requirements of proof beyond a reasonable doubt (Jn re Winship, supra, 397 U.S. 358) and that there must be substantial evidence (Jackson v. Virginia, supra, 443 U.S. 307) mean anything, the prosecutor’s argument was unacceptably out of bounds. Then again, so was the evidence admitted. Guilt by association is legally and constitutionally unacceptable. '!! Respondent cites People v. Gionis (1995) 9 Cal.4th 1196, 1215, in support of its contention that appellant Vo waived an objection to prosecution misconduct. This Court stated: A prosecutor's rude and intemperate behaviorviolates the federal Constitution when it comprises a pattern of conduct'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' (People v. Harris (1989) 47 Cal.3d 1047, 1084 [255 Cal.Rptr. 352, 767 P.2d 619], citing Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643 [40 L.Ed.2d 431, 436-437, 94 S.Ct. 1868].) Appellant is not complaining of “rude” conduct, but that the trial court permitted the alleged uncharged conspiracy — ill-defined, of extreme breadth, and without constitutional protections — to be before the jury, with no constraints on the use of that theory or the information admitted. Thetrial prosecutor did what one would expect of a prosecutor bent on winningat all costs: used everything in the arsenal to wrongly attribute to appellant Vo the intent and actions of co-defendant Hajek; Hajek’s prior statements and actions; Hajek’s subsequent statements and actions; and even matters so obscure as Hajek’s taste in music, alleged to reflect satanic beliefs. That was indeed an “egregious” course of conduct, infecting the trial with such unfairness as to deny due process. (continued...) 150 incorrect. Appellants had strenuously objected to the admission of evidence in support of the alleged conspiracy; they had stressed that no such evidence could be admitted without the court first finding the existence of a conspiracy; they had objected to the conspiracy instructions. Plainly, any further objection would havebeen futile.''” This trial court had already failed to put any significant boundaries on the claimed conspiracy theory. Thus, the trial court, which had the responsibility for ensuring appellant Vo’s basictrial rights, and yet refused to do so. D. It Is Constitutionally Intolerable That Capital Murder Charges and a Death Sentence Rested on an Uncharged, Unnoticed, Unproven, Unsupported, and Endlessly Broad Prosecution Theory. Forall the reasons above, appellant Vois entitled to relief because the trial court permitted the jury to hear and consider unprovenallegations of and a broad array of evidence supposedly supporting a conspiracy theory — despite the lack ofproof that any conspiracy ever existed — andthetrial court then declinedto give sufficient guidanceto jurors, permitting and 'N'..continued) The prosecutor’s conspiracy theory and conduct flowing therefrom received the full support of the trial court. It was rather like using a blank check, or playing extra lottery games “won”in earlier rounds. '? A claim oferror is automatically preserved if an admonition by the trial court would not have cured the prejudice or if an objection would have been futile. (People v. Boyette (2002) 29 Cal.4th 381, 432.) 15] encouraging jurors to use that information and thoseallegations in lieu of proof that appellant Vo intendedto kill or did kill, or that he wasliable for other charges. Those sameerrors failed to ensure that the jury adequately considered whether appellant Vo should appropriately be sentenced to death. Reversal is required. 152 XI. Admission of evidence regarding a conversation that the co-defendant Hajek had with a witness before the offense was erroneousas to appellant Vo, and inflammatory. Appellant Vo moved for severanceofhis trial from that of co- defendant Hajek’’. One such motion argued that Hajek’s alleged statements to witness Tevya Moriarty about Hajek’s plans to take revenge and kill violated the principles of People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123. (Vol. 6, CT 1536.) An additional motion wasfiled to restrict the testimony of this witness and/or preclude the statements made by co-defendant Hajek on the basis that Moriarty’s statements were hearsay as to appellant Vo. (Vol. 6, CT 1580-1582; Vol. 1, RT 229.) The motions were denied. Vo’s objection wasrenewed immediately prior to Moriarty’s testimony. (Vol. 15, RT 3636.) In Argument 4 of his AOB, appellant Vo argued that it was error to permit his jury to consider these extrajudicial statements ofhis co- defendant, that witness Moriarty’s testimony was used to improperly paint appellant Voasa sadistic killer, and that reversal is required because appellant Vo was deprived ofhis constitutional right to confront adverse '? Argument 1 of Vo’s Appellant’s Opening Brief and ArgumentII of this brief address the error in denying severance, and are incorporated herein by reference. 153 witnesses. (Vo AOB,pp. 232-237, incorporated herein.) Respondentoffers three main arguments: that Moriarty’s statements were not testimonial because they concerned a conversation that happened before the crime occurred;that the statements do notfacially implicate Vo and as suchthe inference is too weak to be considered a violation; and that other evidence of Vo’s guilt is overwhelming enoughto render any error harmless. (RB, pp. 112-114.) Respondentis incorrect. The admission of a co-defendant’s statements is controlled by People v. Aranda, supra, 63 Cal.2d 518 and Bruton v. United States, supra, 391 U.S. 123. Respondent mentions Bruton in passing (RB at 112), but does not discussits applicability. Aranda is not mentionedatall. Bruton v. United States, supra, 391 U.S. 123 held that admission of one co-defendant's extrajudicial statement against another violated the second defendant's Sixth Amendmentright to cross-examine the witnesses against him, even wherethe jury received a limiting instruction. Therisk is too great that the jury will be unable to disregard the evidencein deciding guilt, despite instructions to do so. In People v. Aranda, supra, this Court held that the statement of one co-defendant implicating another cannot be admittedin a jointtrial. The trial court has three alternatives: [1] effectively delete any statements that 154 could be used against the second co-defendant; [2] sever the trials of the defendants; or [3] exclude the statemententirely. (/d., 63 Cal.2dat 530-531.) This Court further held that alldirect and indirect identifications in a co-defendant’s statement must be removedbefore it may be admitted into evidence. “By effective deletions, we mean not only direct and indirect identifications of codefendants but any statements that could be employed against nondeclarant codefendants oncetheir identity is otherwise established.” (Aranda, at 530.) According to Moriarty’s testimony, co- defendant Hajek gave the impression that others would be involved. (Vol. 15, RT 3665-66.) The prosecutor’s opening statementstressed that the two defendants plannedsadistic torture and to carry out the plan of which co- defendant Hajek spoke. (Vol. 13, RT 3013-3015.) The prosecutor’s closing argumentstressed that Hajek’s plan was a “conspiracy”(Vol. 21, RT 5373), that Hajek’s desire for revenge demonstrated “torture” (Vol. 21, RT 5375), and that Hajek’s statements to Moriarty demonstrated planning by “two cold-blooded murderers.” (Vol. 22, RT 5555.) Moriarty’s testimony about co-defendant Hajek’s statement was the only even arguable evidence suggesting that anyone besides Hajek may have had a plan or intended to harm anyone. In no way werethe inferences against appellant Vo too vague or weak to matter constitutionally: he was at 155 the house with co-defendant Hajek, and more importantly, the key inference that appellant Vo conspired to commit murder was the very heart of the prosecution’s theory. Harmless error analysis cannot save this fundamental constitutional error, which stripped appellant Vo ofa fair trial. The prosecution cannot now prove beyonda reasonable doubtthat the evidence of Hajek's statements to Ms. Moriarty did not contribute to appellant Vo's conviction and the death verdict. (Chapman v. California (1967) 386 U.S. 18, 24; Arizona v. Fulminante (1991) 499 U.S. 279, 296.) The conviction and death judgment mustbe reversed. 156 XII. Thetrial court erred in admitting a taped conversation between co-defendant Hajek and appellant Vo, in which appellant’s utterances were inaudible and for which no reliable transcript existed. Thetrial court erred in admitting a taped conversation between the co-defendant and appellant Vo after they were arrested, in which appellant Vo’s utterances were inaudible and for which noreliable transcript existed; admission of this evidence permitted jurors to draw unreliable conclusions, which are unsupported by evidence, about appellant Vo’s culpability. (Vo AOB,Arg.5, pp. 238-249.)''* As also addressed in Argument 7 of Vo’s AOBand Argument XIII. of this brief, incorporated herein, the tape recording of Vo and Hajekat the police station following their arrest 115(Exhibit 53) was erroneously admitted as to appellant Vo. Co-defendant Hajek also raised issues about the admission ofthis "4 Appellant Voalso refers to and incorporates herein other related issues, including but not limited to: Argument 1 of his AOB and Argument IT herein (denial of severance); Argument 6 of his AOB and Argument X herein (uncharged conspiracy theory); and Argument 7 of his AOB and Argument XIII herein (Bruton violations arising from the statements and writings of his co-defendant). ''S The tape wasplayed forthe jury over appellant's objection; by stipulation, this recording wasnot transcribed by the court reporter. (12 CT 1722) Detective Walter Robinsontestified at trial that the sound quality of the tape is poor (RT 3815), but that portions are identifiable as being spoken by co-defendant Hajek; only Hajek is audible on the tape. (16 RT 3818, 3844.) 157 tape. (Hajek AOB,Arg. VII, pp. 120-132.)'’° Respondent addresses the issues surrounding the admission ofthis audiotape in Argument XII ofits brief. (RB 114-125.) Respondentasserts that the trial court did not abuseits discretion in admitting this tape despite its poor quality (RB117-118), that the trial court did not abuseits discretion in denying the motions for new trial (RB 118-122), that the tape was properly admitted as to appellant Vo (RB 122-123), and that the trial court wasnot required to have the audiotape transcribed (123-124). A. The Poor Quality of the Tape. Respondent admits that much ofthe tape is inaudible; the examples respondentgives of audible portions were all statements of co-defendant Hajek. (RB 117-118.) Respondent chooses not to address the inaudibility of any of appellant Vo’s statements, which — contrary to respondent’s assertion (RB 118) — did in fact invite speculation and unfairness as to appellant Vo. "16 Appellant Vo adopts Argument VIII of Hajek’s AOB and ARB to the extentit is applicable to him, pursuant to California rules of Court, Rule 8.2200(a)(a). 158 B. Error in Admitting the Tape Against Appellant Vo. Respondentarguesthat appellant Vo's confrontation clause claim is forfeited for failure to object, inapplicable because his statements to Hajek were nottestimonial, insufficiently clear as to which statements on the tape Vois challenging, and meritless because adoptive admissions do not implicate the confrontation clause. (RB 122-123.)!!” Respondent’s waiver argumentfails. Appellant Vo's trial counsel objected, stating "it may well be hearsay to my client and very prejudicial in its effect, particularly if there's going to be an effort by the co-defendant to put in statements that are exculpatory as to him orinculpatory as to my client...” (16 RT 3820.) Since that objection had been raised and rejected, further objections would have beenfutile. Trial counsel had previously made numerousobjectionsto the jointtrial, and hadspecifically argued that severance was required because ofBruton and Aranda problems'”*: he repeatedly arguedthat the statements of co-defendant Hajek ''7 Appellant Vo refers to and incorporates herein otherrelated issues, including butnot limited to: Argument 1 of his AOB and Argument II herein (denial of severance); Argument 6 of his AOB and Argument X herein (uncharged conspiracy theory); and Argument 7 of his AOB and Argument XIII herein (Bruton violations arising from the statements and writings of his co-defendant). "8 People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 US. 123. 159 would be used against appellant Vo. (See, e.g., Vol. 6, CT 1536.) '!° Trial counsel explicitly expressed his concerns about the evidencetothetrial court, but the judge explicitly noted Vo’s counsel's objection and overruled it (1 RT 232). (See, People v. Scott (1978) 21 Cal.3d 284, 290 [objectionis sufficient if the record showsthetrial judge understood the issue presented].) There was no waiver.'”° The only statements audible on the tape were those of co-defendant '!? Numerous cases speak to the futility of additional objections whenprevious objections on that ground have been denied. (See., e.g., People v. Hamilton (1989) 48 Cal.3d 1142, 1189, fn 27 [lack of objectionis not a waiver where objection would have beenfutile]; People v. Green (1980) 27 Cal.3d 1, 35, fn. 19 [objecting party does not need to request an admonition when objection was overruled]; People v. Pitts (1990) 223 Cal.App.3d 606, 692 [lack of objection does not waiveerror if objection and admonition would not have cured the harm].) '° Should there be any question in this Court’s minds regarding waiver, appellant's constitutionally protected rights in a death penalty case require a heightenedlevel of scrutiny and care. (See, e.g., Hale v. Morgan (1978) 22 Cal.3d 388, 394; People v. Blanco (1992) 10 Cal.App.4th 1167, 1172-1173 [constitutional claims may be considered whenpresented for the first time on appeal under certain circumstances, e.g., when enforcement of a penalstatute is involved, the asserted error fundamentally affected the validity of the judgment, or importantissues of public policy are at stake]; People v. Hill (1998) 17 Cal.4th 800, 843, fn. 8 [reviewing court may consider claim despite lack of objection when error may have adversely affected defendant's right to a fair trial]. Capital cases require courts to construe any ambiguity in favor of the defendant, because they require a greaterattention to reliability and due process. (See, Kyles v. Whitley (1995) 514 US 419, 422 [the Supreme Court's duty to search for constitutional error with painstaking care is never more exactingthanit is in a capital case].) 160 Hajek. Appellant Vo’s counsel objected to them all; respondent’s complaint that it is unclear which statements were offensive is a straw man. (RB 122, 125.) Respondentalso argues that appellant Vo’s “silence” in response to co-defendant Hajek’s statements on this poor-quality, surreptitiously- recorded tape are “adoptive admissions.” (RB 122-123, 125.) This is another “heads, I win;tails, you lose” argument.'! First, for a statement of another to be considered an adoptive admission, the State must demonstrate not only that the defendant heard the statement, but that underall the circumstances, he naturally would have denied the statement if untrue, and that the defendant could have denied the statement but did not. '” "21 Appellant’s counselare at a loss to think of another instance when so muchhas been confabulated from inaudible material in a legal exhibit. Respondent urgesthat this Court find an adoptive admission. The jury went farther, and imagined it heard appellant Vo make admissionsthat no one else heard — not the investigating officers, not trial counsel, not even the District Attorney. (Vo AOB,Args. 5.C and 30.C.6.) Appellant had no notice and opportunity to be heard abouteither theory attrial. '22 See, CALCRIM 357, Adoptive Admissions: If you conclude that someone madea statement outside of court that (accused the defendant of the crime/ [or] tended to connect the defendant with the commission of the crime) and the defendant did not deny it, you must decide whether each of the followingis true: 1. The statement was made to the defendant or made in(his/ her) (continued...) 161 "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” (Evid. Code, § 1221.) The statute contemplates either explicit acceptance of another's statement or acquiescencein its truth by silence or equivocal or evasive conduct. "There are only two requirements for the introduction of adoptive admissions: '(1) the party must have knowledge of the content of another's hearsay statement, and (2) having such knowledge, the party must have used words or conduct indicating his adoption of, or his belief in, the truth of such hearsay statement.’ [Citation.]" (People v. Silva, supra, 45 Cal.3d at p. 623.) Admissibility of an adoptive admission is appropriate when " 'a person is accused of having committed a crime, under circumstances whichfairly afford him an opportunity to hear, understand,andto reply, and which do not lend themselvesto an inference that he was '22(_..continued) presence; 2. The defendant heard and understood the statement; 3. The defendant would, underall the circumstances, naturally have denied the statementif (he/she) thought it was nottrue; AND 4. The defendant could have deniedit but did not. Ifyou decide that all of these requirements have been met, you may conclude that the defendant admitted the statement wastrue. Ifyou decide that any of these requirements has not been met, you must not considereither the statement or the defendant's response for any purpose. [You must not considerthis evidence in determining the guilt of (the/any) other defendant[s].] 162 relying on the right of silence guaranteed by the Fifth Amendmentto the United States Constitution... .'" (Peoplev. Riel (2000) 22 Cal.4th 1153, 1189 [96 Cal. Rptr. 2d 1, 998 P.2d 969].) (People v. Combs (2004) 34 Cal.4th 821, 842-843.) Respondent has made no such showing, nor can it. Detective Walter Robinsontestified at trial that only co-defendant Hajek is audible on the tape. (Vol. 16, RT 3818, 3844.) There is no evidence whatsoeverto indicate that appellant Vo agreed with anything that co-defendant Hajek said, which likely accounts for why respondent cites none. Furthermore, appellant Vo wasin custody and entitled to exercise his right to silence underthe Fifth Amendmentof the United States Constitution and the corollary provision of our state constitution; the State is not entitled to use any silence against him. (See,e.g., Griffin v. California (1965) 380 U.S. 609; People v. Cockrell (1965) 63 Cal.2d 659.) C. Error in Denying Appellant Vo’s Motion for New Trial. Appellant Vo refers to and incorporates herein Argument30 ofhis AOB(pp. 444-464), and Argument XL herein, regarding denial of his new trial motion. Appellant raised numerous grounds whya newtrial should be granted. One wasthe uniquesituation presented here, where the jury “found” information in evidence that had never been noticed or presented. 163 Respondent arguesthat the trial court did not abuseits discretion in denying the new trial motions (RB 118-122), addressing almost exclusively contentions of co-defendant Hajek. As to appellant Vo’s contention that the jury hearing something onthe tape that nobody else did was tantamountto (comparable to) jury misconduct — in its devastating effect on appellant Vo’s ability to defend — respondent argues it was not jury misconduct. (RB 121-122.) Appellant Vo’s claim here is not that the jury committed misconduct in the ways that such misconductis usually understood; rather, appellant Vo claimsthat the jury was tainted by alleged information that was notpart of the trial. Jury deliberations were affected by something that was absolutely not raised or known duringthetrial, and therefore was not addressedatall during the trial; the evidence was therefore extraneous and unreliable. Respondentarguesthat the jury’s belief it heard statements on the audiotape that no oneelse heard wasa factual finding that the jury was entitled to make. (RB 119.) Noauthority is cited to support the proposition that jurors may find facts that were not introducedattrial and which do not exist. Respondent then arguesthat all presumptions must be drawnin favor of the court’s ruling and therefore it must be “presumedthat the jury could 164 conclude the challenged statements were in fact made” (RB 120); respondent further argues that appellants have “failed to demonstrate that the remarks heard by the jury werenot in fact on the tape” (RB 121) citing Denham v. Superior Court (1970) 2 Cal.3d 557, 564. (Emphasis respondent’s.)!”? Noevidence waspresentedat trial that appellant Vo made any admissions on thetape; the only evidence wasthat any statements he made were inaudible. Appellant Vo did all he could — and all he reasonably could be expected to do at thetrial level — to demonstrate the absence of evidence that he madethose alleged remarks. Respondent’s position seeksto insulate the egregious unreliability of appellant Vo’s death sentence by ignoring that Vo had no notice or opportunity to defend against any alleged admissions on the audiotape; respondentalso ignoresthe particularreliability that is constitutionally required in capital cases. In respondent’s view,it does not matter if “the reported statements had notin fact been recorded on the tape, because some portionsofthe tape were “clearly audible and relevant.” (RB 120.) No law is cited in support of that proposition, which also ignores appellant Vo’s complaint that Hajek’s statements, the only audible portions, should not '*3 Denham is a case in which a defendant sought a writ of mandate to compel dismissal of charges for failure to prosecute. 165 have been admitted against him ateither phaseofthis capital trial.!4 Addressingthetrial court’s role in ruling on the motion for newtrial, respondentasserts that the court’s duty was to “weigh the evidence independently, not to determine whether the jury weighedit correctly,citing People v. Robarge (1953) 41 Cal.2d 628, 633. First, respondent endeavors to conflate the duties of the trial court on a motion for new trial based on insufficiency of the evidence as a whole, and the court’s responsibility whena circumstancearisesthat taints the jury’s consideration. Counsel for both defendants urgedthetrial court to listen to the tape on the recorder used by the jurors, and makea finding asto the existence of the alleged statements that jurors claimed to have heard. (See, Vo AOB, pp. 243-244,citing People v. Hedgecock (1990) 51 Cal.3d 395, 414.) It appears from the recordthatthetrial court did not do so, but instead denied the motion for newtrial without specifying the reasons, and without '4 During guilt phase deliberations, the jury requested a transcript of the tape recording. (7 CT 1823.) Thetrial court respondedthata transcript wasnot available. (7CT 1824.) The content of the tape was therefore clearly an issue during guilt phase deliberations. Jurors might reasonably have concluded during guilt phase deliberations that they need not resolve all questions about the contents of the tape, because underthe prosecution’s expansive yet uncharged conspiracy theory, it did not matter who did or said what. Appellant Vo refers to and incorporates herein Argument 6 of his AOB and Argument X herein, regarding the uncharged conspiracy theory. 166 listening to the tape using the same equipment or makinga finding. (10/21/95 RT 30.) Thus, contrary to respondent’s suggestion,thetrial court did not perform its independent duty to ensure fair trial, on reliable evidence. The presumption urged by respondent — that the trial court understood and fulfilled its duties (RB 121, citing People v. Diaz (1992) 3 Cal.4th 495, 567, Evid. Code § 664, and Denham v. Superior Court, supra, 2 Cal.3d at p. 564) — has been rebutted by the record in this case. The burdenis on the state to demonstrate harmlessness beyond a reasonable doubt (Chapmanv. California (1967) 386 U.S. 18), and it cannot meet that burden. Finally, respondent argues that appellant Vo raises juror misconduct “for the first time on appeal,” and therefore “forfeits” his claim on appeal. (RB 121.) Appellant Vo pointsto the facts set forth at pp. 238-244 of his AOB. Appellant’s counsel argued at the hearing on the new trial motion, inter alia, that the verdict based on alleged statements that do not exist violated appellant Vo’s “right to reliable, competent, trustworthy evidentiary basis for both the guilt and penalty phases. (10/12/95 RT 10-11, cited at Vo AOBpp.241-242.) Co-defendant Hajek’s counsel attacked the reliability of the evidence, emphasizing the particular need forreliability in 167 capital cases under the 8" Amendment, andurged a violation of due process of law; counselalso clarified that they were not accusing jurors of misconduct, but observing that there is a problem withthe reliability of the evidence. (10/12/95 RT 14-15.) The basis for appellant Vo’s contentions on appeal were adequately preservedattrial. D. Error in Not Requiring Transcription of the Audiotape for the Appellate Record. Thetrial court had a responsibility to ensure a full and accurate transcript of proceedings for this appeal. (Vo AOB,Arg. 5.B., pp. 246- 248.)'*° It failed to do so, by allowingthis audiotape to be played for the jury without requiring the court reporter to transcribeit. Respondent contendsthat the burden is on appellant Vo to demonstrate that proceedings are rendered unreliable for appellate review; respondent arguesthat the outcome would not have been different in the absence of counsel’s stipulation that the tape need not be transcribed, and that “the jurors would not be boundby the transcript but by what they heard.” (RB 123-124.) Respondent does not address any ofthe "> Appellant refers to and incorporates herein Argument21 ofhis AOB,and Argument XXXIV herein, regardingthetrial court’s failure to ensure a full reporting and a complete record on appeal. 168 constitutional arguments raised in the AOB.'”° The core problem is that jurors thought they “heard” something that nobodyelse ever heard, accordingto the trial record — including the police officers whotestified, and defense counsel. Appellant Vo had nonotice, and obviously could not defend against the startling post-trial discovery that the jurors thought they had heard explosive admissions from his own mouth. A transcript would simply have corroborated that these supposed statements of appellant Vo were not audible — that the jury “hearing” them was on the order ofjurors doing their own investigation or research, becausethey relied on “evidence” never introduced duringthetrial. Respondent cites People v. Harris (2008) 43 Cal.4th 1269, 1283, for the proposition thatit is “Vo’s burden to establish that the complained-of omissionsresulted in a record so deficient as to make the appellate process unreliable,” contending Vo cannot meetthis standard becausethe actual © On manyissues there is a conspicuous absenceof discussion in Respondent’s Brief of Mr. Vo's federal constitutional claims. In these instances, the reasonable and appropriate inferenceis that “respondenthas abandoned any attempt to support the judgment[against this particular attack], and that the ground urged by appellant for reversing the judgmentis meritorious.” (Berry v. Ryan (1950) 97 Cal.App.2d 492, 493, cited with approval in Smith v. Williams (1961) 55 Cal.2d 617, 621; but cf., People v. Hill (1992) 3 Cal.4th 959, 995,fn. 3.) 169 tape is available. (RB 123.)'” First, Harris confirmed the importanceof a complete record for appellate review. Second,the situation in Harris was vastly different: this Court found it speculative that the loss of somepost- trial letters to jurors had an impact on the appeal. Third,it is abundantly clear from the record in this case that jurors thought they heard something of overwhelming importance; Harris confirmsthat the significance of missing material must be analyzed with respect to information in the record otherwise. Respondent does not address appellant’s constitutional authority concerning the importance of a complete record to meaningful appellate review. Finally, respondent argues that there is no reasonable probability that the outcome would have been different if the disputed tape had been transcribed, as jurors were boundbythe tape itself and not any transcript. '°7 By inference, respondent expects this Court to do whatthetrial court would not do: listen to the tape to determine the existence of statements that no one besides jurors heard. Alternatively and perhaps morelikely, respondent expects this Court to find a way to ignore the fact that jurors spent a significant amount of their deliberations considering alleged information of which no oneelse was aware, despite the obviousgravity of their decisions on guilt, special circumstances, and penalty, and despite the constitutional constraints on unreliable judgments. 170 (RB 123-124, citing People v. Cook (2006) 39 Cal.4th 566, 577, fn. 2; People v. Sims (1993) 5 Cal.4th 405, 448; People v. Polk (1996) 47 Cal.App.4th 944, 952.) While Polk supports the contention that a tape, notits transcript!”*,is the evidence upon whichjurors mustrely, it also held that admission of a partially unintelligible tape is acceptable so long asit does not invite speculation: “To be admissible, tape recordings need not be completely intelligible for the entire conversation as long as enoughis intelligible to be relevant without creating an inference of speculation or unfairness.” (People v. Demery (1980) 104 Cal.App.3d 548, 559... The recording in this case may not have been misleadingor invited speculation as to the statements of co-defendant Hajek which were intelligible, but there is no question that the unintelligibility of any statements of appellant Vo — which wasestablished by testimony — caused "8 Cook and Sims similarly confirm that jurors should rely on audiotapesrather than transcripts supplied by a party. Noneofthese cases addresses the issue raised here, that the trial court was required to havefull transcripts prepared for appellate review. A transcript prepared by the prosecutionin this case was excluded becauseit was ruled misleading and inaccurate. (7 CT 1688.) Theyalso do not addressa situation where jurors request for transcripts to be read back, to aid them in their deliberations. During guilt phase deliberations,the jury requested a transcript of the tape recording. (7 CT 1823.) Thetrial court respondedthat a transcript was notavailable. (7CT 1824.) 171 these jurors to speculate in a way that no party could foresee. This Court is not present during thetrial itself. That is the reason for the rule (and related constitutional rulings) that all proceedings and testimony mustbe transcribed. Underthe bizarre circumstancesofthis case, and their obvious impact on appellant Vo — both at guilt phase, when the jury heard his co-defendant’s admissions and asked for a transcript to aid their deliberations, and at penalty phase, when the jury thought it “heard” appellant Vo himself confessing — the importanceofthe state and constitutional law requiring all proceedings to be transcribed is starkly evident. It wasthetrial court’s responsibility to ensure a verdict on reliable evidence as well as transcription of the entiretrial, and thetrial court failed to do so. E. Reversal is Required. There was no evidence at the trial that appellant Vo said anything audible on this audiotape — inculpatory, exculpatory, or otherwise. His co- defendant Hajek, on the other hand, made statements that should never have been admitted against appellant Vo without permitting confrontation and cross-examination of their source. Shockingly, jurors thought during penalty deliberations that they heard admissions from appellant Vo — who, accordingto all the evidence, made no audible statementsatall. 172 Particularly in a capital case where heightenedreliability standards apply, such a tainted proceeding violates fundamental fairness. Reversal is required. 173 XIU. Appellant Vo’s right to confront and cross-examine was abridged bythe introduction of co-defendant Hajek’s statements and writings. As a consequenceof the trial court’s refusal to sever appellant Vo’s trial from that of his co-defendant Hajek, and of the trial court’s erroneous rulings on the admission of evidence, Vo’s jury heard and considered statements and writings of the co-defendant, and Vo was deprivedofthe opportunity to confront and cross-examine the co-defendant about them. (Vo AOB,Arg. 7, pp. 276-285.) 9 Respondentargues that appellant Vo’s rights were not violated. (RB, Arg. XIII, pp. 124-129.) Respondentfirst complains that particular items also addressed in stand-alone arguments on appeal are “redundant.” (RB at 124,referring to Hajek’s telephonecall to Tevya Moriarty; RB at 124-125, referring to the recording of co-defendant Hajek and appellant Vo [wherein no statements of Mr. Vo were audible]; RB at 125, referring to Hajek’s denial of the homicideto his testifying expert at penalty phase.) While these instances are striking examples ofhow co-defendant Hajek’s words were used against appellant Vo without providing Vo the ' As in his AOB,appellant Vo refers to and incorporates by reference the related arguments in his Opening Brief (Vo AOB,Args.1, 4, 6) and this Brief (Vo ARB,Args.II, XI, and X). 174 opportunity to confront and cross-examine him — each exampleentitling Vo to relief— they did not occur individually and in isolation, nor were they the only examples of Hajek’s words being used against appellant Vo. This was a joint trial riddled with Hajek’s statements and writings, and those matters all would have been inadmissible in a separate trial of appellant Vo. Moriarty: As explained more fully in Argment 4 of Vo’s AOB and Argument XIofthis brief, incorporated herein, co-defendant Hajek’s statements to witness Moriarty — from whichshe inferred the involvement of other people — were the lynchpin of the prosecutor’s theory that appellant Vo waspart of a pre-planned conspiracyto torture and kill. Given the prosecution’s use of that evidence, respondent’s argumentthat the admission was “harmless” is contradicted by the record. (RB 124.) Jailhouse tape: As also addressed in Argument 5 of Vo’s AOB and Argument XII.D.of this brief, incorporated herein, the tape recording of Vo and Hajekat the police station following their arrest (Exhibit 53) was erroneously admitted as to appellant Vo.'*° Respondentarguesthat °° The tape wasplayed forthe jury over appellant's objection; by stipulation, this recording wasnot transcribed by the court reporter. (12 CT 1722) Detective Walter Robinsontestified attrial that the sound quality of the tape is poor (RT 3815), but that portions are identifiable as being spoken by co-defendant Hajek; only Hajek is audible on the tape. (16 RT 3818, 3844.) 175 appellant Vo's confrontation clause claim is forfeited for failure to object, inapplicable because his statements to Hajek were not testimonial, insufficiently clear as to which statements on the tape Vois challenging, and meritless because adoptive admissions do not implicate the confrontation clause. (RB 124-125.) Respondent’s waiver argumentfails. Appellant Vo's trial counsel objected, stating "it may well be hearsay to my client and very prejudicial in its effect, particularly if there's going to be an effort by the co-defendant to put in statements that are exculpatory as to him or inculpatory as to my client..." (16 RT 3820.) Since that objection had been raised andrejected, further objections would have been futile. Trial counsel had previously made numerousobjectionsto the joint trial, and had specifically argued that severance was required because ofBruton and Aranda problems"': he repeatedly argued that the statements of co-defendant Hajek would be used against appellant Vo. (See, e.g., Vol. 6, CT 1536.) % Trial counsel 3! People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 US.123. '?? Numerous cases speakto the futility of additional objections whenprevious objections on that ground have been denied. (See., e.g., People v. Hamilton (1989) 48 Cal.3d 1142, 1189, fn 27 [lack of objection is not a waiver where objection would have beenfutile]; People v. Green (1980) 27 Cal.3d 1, 35, fn. 19 [objecting party does not need to request an admonition when objection was overruled]; People v. Pitts (1990) 223 (continued...) 176 explicitly expressed his concerns with the evidenceto the trial court, and the judge explicitly noted Vo’s counsel's objection and overruled it (1 RT 232). (See, People v. Scott (1978) 21 Cal.3d 284, 290 [objection is sufficientif the record showsthetrial judge understood the issue presented].) There was no waiver.' The only statements audible on the tape were those of co-defendant Hajek. Appellant Vo’s counsel objected to them all; respondent’s complaint that it is unclear which statements were offensive is a straw man. (RB 122, 125.) eeRespondentalso argues that appellant Vo’s “silence” in response to '2(_, continued) Cal.App.3d 606, 692 [lack of objection does not waiveerror if objection and admonition would not have cured the harm].) '? Shouldthere be any question in this Court’s minds regarding waiver, appellant's constitutionally protected rights in a death penalty case require a heightened level of scrutiny and care. (See, e.g., Hale v. Morgan (1978) 22 Cal.3d 388, 394; People v. Blanco (1992) 10 Cal.App.4th 1167, 1172-1173 [constitutional claims may be considered when presented for the first time on appeal under certain circumstances, e.g., when enforcement of a penalstatute is involved, the asserted error fundamentally affected the validity of the judgment, or important issues of public policy are at stake]; People v. Hill (1998) 17 Cal.4th 800, 843, fn. 8 [reviewing court may consider claim despite lack of objection when error may have adversely affected defendant's rightto a fair trial]. Capital cases require courts to construe any ambiguity in favor of the defendant, because they require a greater attentionto reliability and due process. (See, Kyles v. Whitley (1995) 514 US 419, 422 [the Supreme Court's duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case].) 177 co-defendant Hajek’s statements on this poor-quality, surreptitiously- recorded tape are “‘adoptive admissions.” (RB 122-123, 125.) This is another “heads, I win; tails, you lose” argument.'*4 First, for a statement of another to be considered an adoptive admission, the State must demonstrate not only that the defendant heard the statement, but that underall the circumstances, he naturally would have denied the statement if untrue, and that the defendant could have denied the statement but did not. !* '34 Appellant’s counselare at a loss to think of another instance when so much has been confabulated from inaudible material in a legal exhibit. Respondent urges that this Court find an adoptive admission. The Jury wentfarther, and imaginedit heard appellant Vo make admissionsthat no one else heard —~ not the investigating officers, not trial counsel, not even the District Attorney. (Vo AOB,Args. 5.C and 30.C.6.) Appellant had no notice and opportunity to be heard abouteither theory at trial. "35 See, CALCRIM 357, Adoptive Admissions: If you conclude that someone madea statement outside of court that (accused the defendant of the crime/ [or] tended to connect the defendant with the commission ofthe crime) and the defendant did not denyit, you must decide whether each ofthe followingis true: 1. The statement was madeto the defendant or madein(his/ her) presence; 2. The defendant heard and understood the statement; 3. The defendant would, underall the circumstances, naturally have denied the statementif (he/she) thought it was nottrue; AND 4. The defendant could have deniedit but did not. Ifyou decidethatall of these requirements have been met, you may (continued...) 178 "Evidence of a statement offered against a party is not made inadmissible by the hearsayrule if the statement is one of whichthe party, with knowledge of the content thereof, has by words or other conduct manifested his adoptionorhis belief in its truth." (Evid. Code, § 1221.) Thestatute contemplates either explicit acceptance of another's statement or acquiescencein its truth by silence or equivocal or evasive conduct. "There are only two requirements for the introduction of adoptive admissions: '(1) the party must have knowledge of the content of another's hearsay statement, and (2) having such knowledge, the party must have used words or conduct indicating his adoption of, or his belief in, the truth of such hearsay statement.' [Citation.]" (People v. Silva, supra, 45 Cal.3d at p. 623.) Admissibility of an adoptive admission is appropriate when "'a person is accused of having committed a crime, under circumstances whichfairly afford him an opportunity to hear, understand, andtoreply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendmentto the United States Constitution... .'" (Peoplev. Riel (2000) 22 Cal.4th 1153, 1189 [96 Cal. Rptr. 2d 1, 998 P.2d 969].) (People v. Combs (2004) 34 Cal.4th 821, 842-843.) Respondent has made no such showing,nor can it. Detective Walter Robinsontestifiedattrial that only co-defendant Hajek is audible on the tape. (Vol. 16, RT 3818, 3844.) There is no evidence whatsoeverto indicate that appellant Vo "SC. continued) conclude that the defendant admitted the statement wastrue. If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant's response for any purpose. [You must not considerthis evidencein determiningthe guilt of (the/any) other defendant{[s].] 179 agreed with anything that co-defendant Hajek said, which likely accounts for why respondentcites none. Furthermore, appellant Vo was in custody andentitled to exercise his right to silence under the Fifth Amendmentofthe United States Constitution and the corollary provision of our state constitution; the State is not entitled to use any silence against him. (See,e.g., Griffin v. California (1965) 380 U.S. 609; People v. Cockrell (1965) 63 Cal.2d 659.) Testimony of co-defendant Hajek’s expert that Hajek denied the killing: Hajek's mental health expert, Dr. Minagawa,testified at the penalty phase that Hajek had admitted going to the Wang houseto get back at Ellen Wang,but he denied killing Su Hung. (23 RT 5892.) This testimony was tantamount to Hajek accusing Voofbeing the killer — no otherpossibility wasleft, under these facts — violating Vo's right to confrontation in the most prejudicial manner imaginable, just as his jury was to decide his fate. (AOB 279-281, 157-159.) This hearsay evidence could never have been admitted in the separate trial to which appellant Vo wasentitled. Respondent argues that Hajek's statement to Dr. Minagawa was not testimonial, not admitted forthe truth of the matter, and did notfacially incriminate Vo; respondent further argues that the issue is waived. (RB 125.) 180 Respondent’s waiver argumentis easily refuted.'*° It argues the issue was forfeited because appellant Vo did not movetostrike the testimony when it was given. (RB 125.) Appellant’s counsel moved for severance pretrial and later, arguing that the co-defendants’ defenses were irreconcilably adverse; those motions were denied. (See, Vo AOB,Arg.1, pp. 123-159, and Arg.II of this brief.) When Dr. Minagawatestified to co- defendant Hajek’s denial of the killing (23 RT 5892), appellant’s trial counsel immediately objected and asked to be heard outside the jury’s presence;the trial court declined, and instructed the jury that the evidence wasonly received as to Hajek. (23 RT 5893.) Outside the presence of the jury, trial counsel then movedfor a mistrial (23 RT 5909); expressed that the admonition ofthe trial court would be insufficient to protect Mr. Vo from the prejudicial effect of this testimony (23 RT 5908, 5909-10); reiterated his arguments about extrajudicial statements of co-defendant 3° Numerous cases speak to thefutility of additional objections when previous objections on that ground have been denied. (See., e.g., People v. Hamilton (1989) 48 Cal.3d 1142, 1189, fn 27 [lack of objection is not a waiver where objection would have been futile]; People v. Green (1980) 27 Cal.3d 1, 35, fn. 19 [objecting party does not need to request an admonition when objection was overruled]; People v. Pitts (1990) 223 Cal.App.3d 606, 692 [lack of objection does not waiveerror if objection and admonition would not have cured the harm].) 181 Hajek based on the Aranda and Bruton cases'*’ (23 RT 5909-5910); and argued that under those cases, the admonition was insufficient. (/bid.; see also 23 RT 5908-5913.)!*8 Bruton v. United States, supra, 391 U.S. 123 is dispositive authority, and not mentioned by respondentin this argument. Wehold that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of Evans' confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. (Id., at 391 U. S. 126; emphasis added.) Respondent claimsthat the statement was not hearsay because it was not admitted for the truth of the matter. (RB 125.) In its ArgumentII, respondentelaborates: that the statement was admitted “to show the basis for the psychiatrist’s opinion. (See CALJIC No. 2.10; 8 CT 2060.)” (RB 37 People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 US. 123. 38 Respondent’s footnote 43 contends, “This after-the-fact motion [for mistrial] was no substitute for a timely objection.” (RB 125.) One must wonder how muchrespondentbelievestrial counsel must do to preserve an issue, if similar matters been raised before repeatedly, and the trial court declines to interrupt witness testimony to hear the matter at that time. If disruption of the trial and risking contempt of court are required, as the Attorney General seems to suggest, this Court should state that clearly, since current authority does not support that view. 182 51.) This rationale is certainly true as to co-defendant Hajek, who was entitled to present the strongest case in mitigation that he could at the penalty phase.'*? However,it was not only irrelevant and inadmissible, but extraordinarily prejudicial as to appellant Vo, who wasentitled to have his jury decide the appropriate sentence for him individually. (See, e.g., Woodson v. North Carolina (1975) 428 U.S. 280, 304'°; Zant v. Stephens (1983) 462 U.S. 862, 879"'; Johnson v. Mississippi (1988) 486 U.S. 578, 139 “Tt is beyond dispute that, in a capital case "the sentencer [may] not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstancesofthe offense that the defendant proffers as a basis for a sentence less than death." Eddings v. Oklahoma, 455 U. S. 104, 455 U. S. 110 (1982), quoting Lockett y. Ohio, 438 U.S. 586, 438 U. S. 604 (1978) (plurality opinion) (emphasis in original). See Skipper v. South Carolina, 476 U.S. 1,476 U.S. 4 (1986).” (Mills v. Maryland (1988) 486 U.S. 367, 374.) 140 < In People v. Boyde (1988) 46 Cal. 3d 212, 253-254, for example, this Court clarified that the jury’s duty is to weigh the appropriate (continued...) 236 the default sentence, repudiating the constitutionally mandated function of mitigating evidence in capital cases. In Lockett v. Ohio (1978) 438 US. 586, the United States Supreme Court explained that a state may not prevent the sentencer "from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances ofthe offense proffered in mitigation [because that] creates the risk that the death penalty will be imposedin spite of factors which maycall for a less severe penalty. When the choiceis between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments." (d., at p. 605.) See also, Eddings v. Oklahoma (1982) 455 U.S. 104, 112; Skipper v. South Carolina (1986) 476 U.S. 1, 4-8; In re Gay (1998) 19 Cal.4th 771, 814.) C. It was prejudicial misconduct to argue Vo’s alleged future dangerousness. Appellant Vo asserts prejudicial misconductin the prosecutor’s arguments that he would pose a dangerin prison. (Vo AOB 432-433.) While some of co-defendant Hajek’s behavior raised a concern about (continued) punishment, deciding whether death or life without parole is more appropriate. There is no presumption that death should be the sentence. '°° The Unites States Supreme Court has madeclear that mandatory sentencing schemesare unconstitutional (Woodson v. North Carolina (1976) 428 U.S. 280), and that juries must be permitted to give weight to mitigating evidence. 237 possible assaultive conductin prison, appellant Vo presented considerable evidence of his exemplary conductin jail. In support of his future dangerousnesstheory, the prosecutor argued Hajek’s misconduct, and the youth of both defendants. (See, e.g., 25 RT 6420.) Respondent addresses the improper argument that Vo would be dangerousin the future due to his youth in two places, asserting that it was properto argue future dangerousness (RB 224-225), and that it was proper to argue that the defendants’ youth should not be used as a mitigating factor. (RB 240-241.) Respondent failed to address the prosecution’s systematic linking of co-defendant Hajek’s misconductto the prosecutor’s argument that appellant Vo would be dangerousin prison;this therefore would appear to be uncontested. The “evidence” that Vo might be dangerous wasessentially the unsworn “testimony”of the prosecutor; he first elicited from appellant’s expert that youth is a risk factor, then argued to the jury — despite the expert’s actual testimony that appellant Vo’s jail records “show that he’s been a very good prisoner” (24 RT 6160-6171) — that the expert said that youthful “age makes them worse prisoners, more dangerous, less controllable in the prison situation.” (25 RT 6397.) Plainly, the prosecutor was arguing that a death sentence was deserved because of appellant’s age; 238 he used this as a factor in aggravation. The prosecutor invited jurors to focus only on witness Park’s general statement regarding age, and to ignore its non-applicability to appellant Vo personally. According to respondent, the prosecutor merely urged jurors to accord age no weight in mitigation, because [1] the defendants were adults, [2] the crime was heinous, and [3] Vo’s expert said future dangerousness was more of a risk with youngerprisoners. (RB 240-241.) In the first place, no one below age 18 is eligible for capital punishment’”’; urging appellant’s youth (age 19 at the time of the offense) to be disregarded as mitigation on the ground he wasa legal adult renders the statutory sentencing factor meaningless, since the death penalty only applies to legal adults in any event. Secondly, “heinousness”is unconstitutionally vague’; by definition, every case that reaches the penalty phase does so because there has been a murder conviction plus a special circumstance finding; again,this asserted justification could be applied to every capital case. '°7 Roper v. Simmons (2005) 543 U.S. 551; California Penal Code § 190.5. 8 See, Maynard v. Cartwright (1988) 486 U.S. 356 [holding that Oklahoma’s “heinous, atrocious, and cruel” aggravating circumstance was unconstitutionally vague]; Godfrey v. Georgia (1980) 446 U.S. 420, 64 L. Ed. 2d 398, 100 S. Ct. 1759 (1980); Furman v. Georgia (1972) 408 USS. 238. 239 Switching gears, respondentposits that it is perfectly acceptable for a prosecutor to argue age in aggravation. (RB 241, citing People v. Lucky (1988) 45 Cal.3d 259, 302.) Appellant recognizes that this Court has previously held that age may be arguedas either mitigation or aggravation, but respectfully suggests that the use of appellant Vo’s youth to argue future dangerousness— in the face of evidence he had noprior record of violence, as well as evidence that Vo had demonstrated no problems in custody — was factually misleading, failed to provide constitutionally adequate guidance to jurors, and underminesthe requirementthat jurors fully consider and weighall evidence proffered in mitigation of sentence, so they can reach a reliable determination. (Woodson v. North Carolina, supra, 428 U.S. 280; Lockett v. Ohio, supra, 438 U.S. 586.) D. The prosecutor improperly urged the jury to consider the defendants jointly in determining sentence. The United States Supreme Court has held that the Eighth Amendmentrequires "consideration of the character and record of the individual offender and the circumstancesofthe particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. (Woodson v. North Carolina, supra, 428 U.S. 280, 304; emphasis added.) Respondentcontends that Vo asserts the prosecutor urged the jury to 240 consider the co-defendants jointly throughout his argument, but only points to one instance. (RB 242.) The prosecutor’s penalty argument (25 RT 6384-6419) is literally filled with references to the defendants jointly. See, e.g., 25 RT 6384 (“they have committed the worst of crimes;”’ “the defense” [referring to both defenses]); 25 RT 6385 (“these two murderers, attempted mass murderers”); 25 RT 6387 (‘the defendants;”“they tortured her;” “these defendants knew what they were doing”); 25 RT 6391 (“the defense” [again referring to both defenses]); 25 RT 6394-6395 (comparing Voto Hajek, and concluding Vo was worse because he did not have mental illness; objection sustained); 25 RT 6396 (“these two men killed;” as to Vo, “this is all about him just backing up, just helping out a friend’); 25 RT 6397 (“they’re both adults;” “these are monsterous defendants and age has nothing to do with it”); 25 RT 6416 (“these defendants”); 25 RT 6418 (“the defendantsare liable;” the death penalty is justified “by the character of the criminals and the character of the crime, and the defendants in this case havesatisfied that”); 25 RT 6419 (“these defendants and these defense counsel;” “both of these defendants deserve the death penalty for the monsterous crimes”’). 241 E. Conclusion. The prosecutor’s misconduct in argument continued the course set in its determination to try these defendantsjointly, weilding an unfounded and boundless conspiracy theory, and employing all means to secure a death judgment against appellant Vo — despite the lack of evidence that Vo killed or intended to kill, despite Vo’s lack of any prior record of violence, despite Vo’s excellent behavior and hard workinjail, and despite significant factors militating against a death judgment. Reversalis required. 242 XL. Thetrial court improperly denied appellant Vo’s motion for new trial. Appellant Vo’s trial counsel raised numerous groundsfor a newtrial, and so does appellant on direct appeal. (Vo AOB,Arg. 30, pp. 435-469.)!% The groundsare: (1) Insufficient evidence to support the torture special circumstance.” (2) Insufficient evidence to support the lying in wait special circumstance,””! (3) Admission ofletters written by co-defendant Hajek, over objection of appellant Vo.*” '? Co-defendant Hajek also filed a Motion for New Trial (CT 2752- 2755), supported by the Declaration of Brenda Wilson, a paralegal who attended an interview with three jurors on August 10, 1995. (CT 2756- 2757.) Also pending before the trial court was appellant Vo’s Motion to Reduce Death Verdict to the Penalty of Life Imprisonment Without the Possibility of Parole [Penal Code §190.4(e); §1181(7)], filed on August 16, 1995. (CT 2730-2740.) That motion was supported by the Declaration of Jeanne DeKelver, appellant’s second counsel, relating conversations with several jurors after the penalty phase(thefirst also attended by the prosecutor and an investigator for the Public Defender, and the second also attended by counsel for co-defendant Hajek). (CT 2741-2744.) 200 Appellant refers to and incorporates Arguments 9, pp. 298-307, and 8.D of his AOB,pp. 291-294, and Argument VII ofthis brief, regarding torture murder and the torture murder special circumstance. °°! Appellant refers to and incorporates Arg. 10, pp. 307-316, and Arg. 8.E, pp. 294-296, of his AOB, and ArgumentVIofthis brief, regarding lying in wait. *02 Appellant refers to and incorporates AOB, Arg. 7, pp. 276-285 regarding Bruton violationsin this case (in turn incorporating Args. 1, 4, 6 of the AOB), and corresponding Arguments XIII, II, XI, and X ofthis brief. 243 (4) Denial of the severance motion despite inconsistent defenses, and the admission of evidence applicable only to one defendant.” (5) Admission of co-defendant Hajek's statement to witness Moriarty 203 Appellant Vorefers to and incorporates Argument1 of his AOB, pp. 123-159 (Arg.II of this brief), regarding the improper denial of severance, which in turn incorporates the other errors flowing from that denial, including but not limited to the following arguments in his AOB: Arg. 2 (denial of necessary continuances); Arg. 4 (admission of evidence concerning co-defendant Hajek’s conversation with a witness before the offense, stating Hajek’s violent intent); Arg. 5 (admission of taped conversation between appellant Vo and co-defendant Hajek, in which Hajek madeinculpatory statements and Vo’s responsesare inaudible); Arg. 6 (the prosecution’s uncharged conspiracy theory); Arg. 7 (admission of co- defendant Hajek’s extrajudicial statements, resulting in the denial of the right to confront and cross-examine); Arg. 8 (insufficient evidence that Vo killed, intendedto kill, or harbored reckless disregard for humanlife, or participated in the unchargedalleged conspiracy, or otherwise was criminally culpable for the homicide); Arg. 12 (admission of evidence of co-defendant Hajek’s musicalinterests, alleged Satanism, and other alleged bad acts); Arg. 17 (amproperinstructions undermined the constitutional requirement ofproof beyond a reasonable doubtas to appellant Vo); Arg. 18 (instructions on aiding and abetting improperly relieved the prosecution of its duty to prove each element as to each defendant separately); Arg. 19 (appellant Vo’s jury was burdenedbyinstructions regarding Hajek’s conduct and mental defenses, and no limiting language was given); Arg. 20 (instructions improperly permitted the jury to infer guilt from alleged evidence of motive); Arg. 25 (the trial court improperly refused to permit a separate jury to decide appellant Vo’s penalty); Arg. 28 (penalty instructions failed to provide adequate guidance, and required jurors to consider factors and evidence that was wholly irrelevant to appellant Vo); Arg. 29 (the trial court refused to preclude improper argumentby the prosecutor, including his urging that the defendants be consideredjointly and that the jury consider factors applicable only to one defendant); Arg. 30 (denial of the motion for newtrial); and Arguments 22 and 33 (cumulative error). 244 the night before the homicide, over objection of appellant Vo.“ (6) Admission of a tape recording of a conversation between the defendants (Exhibit 53), despite such poor quality that substantial portions were inaudible, permitting the jury to speculate and baseits verdict on unreliable evidence.”® (7) Excusal over objection of prospective juror E, and the refusal to excuse juror W for employment hardship.” (8) Denial of continuance requests, requiring counsel to defend when he wasnot prepared to go forward.”” *% In Argument 4 of his AOB,appellant Vo argued that it was error to permit his jury to consider these extrajudicial statements of the co- defendant, that witness Moriarty’s testimony was used to improperly paint appellant Vo as a sadistic killer, and that reversal is required because appellant Vo was deprivedofhis right of confrontation. Appellant Vo incorporates herein Argument4 of his AOB,pp. 232-237, and Argument XI of this brief. 20° Appellant Vorefers to and incorporates herein Argument 5 ofhis AOB,pp. 238-249, and ArgumentXII ofthis brief. The improper admission of the jailhouse audiotape, in which only co-defendant Hajek’s voice was audible, was an egregiouserror. Appellant Voalso refers to and incorporates herein other related issues, including but not limited to: Argument 1 of his AOB and Argument II herein (denial of severance); Argument 6 of his AOB and Argument X herein (uncharged conspiracy theory); and Argument 7 of his AOB and Argument XIII herein (Bruton violations arising from the statements and writings of his co-defendant). *°6 Appellant Vorefers to and incorporates Argument 23ofhis AOB,pp. 378-386. *07 Appellant Vo refers to and incorporates Argument2 of his AOB, and ArgumentIII of this brief, regarding denials of his right to counsel via denials of necessary continuances, second counsel, and necessary funding. 245 (9) Paymentissues that caused counsel to be unpreparedattrial, prevented counsel from preparing and presenting additional evidence for sentencing, and prevented full investigation of matters concerning jury deliberations; all resulting in an unfair trial for appellant Vo.7°% (CT 2764-2772.) This motion was also supported by a Declaration of James W. Blackman Respecting Juror Interview. (CT 2773-2774.) Furtherlitigation ensued, as investigation revealed that jurors had spent considerable timelistening to Exhibit 53, an audiotape introduced at trial, and — contrary to the evidence presentedattrial that appellant Vo’s voice was inaudible, jurors thought they heard admissionsby appellant Vo. Respondent admits that much ofthe tape is inaudible; the examples given of audible portions were all statements of co-defendant Hajek. (RB 117-118.) In its response to the argument that a new trial was warranted because jurors heard something nobody else heard, respondent contends that “all presumptions must be drawnin favor of the court’s ruling.” (RB 243.) Respondent argues that there were no violations of notice or due process, since appellant Vo’s counsel “had a copy of the tape” (RB 244), andthat “It is of no momentthat the defense claimsit did not hear what the 208 Appellant Vo again refers to and incorporates Argument2 ofhis AOB,and ArgumentIII of this brief, regarding denials ofhis right to counsel via denials of necessary continuances, second counsel, and necessary funding. 246 jurors apparently heard.” (/bid., emphasis added.) Respondentalso argues that “the jury committed no misconductby listening to a tape admitted into evidence.” (/bid.) Respondent’s argumentis utter nonsense. Officer Walter Robinson testified that only Hajek's statements are audible on the tape. (RT 3818, 3844.) At no point were any alleged admissions by appellant Vo introduced via testimony.” That jurors thought they heard an admission by appellant Vo wasa lightning bolt out of the blue, something he and his counsel could not have anticipated, and what the jurors thought they heard was devastating: what could be more damning than thinking one hears an admission of guilt to which nobodytestified? How can respondenttreat such startling circumstance, in a capital case where the outcome wasa death sentence, as a matter of “no moment?” (RB 244.) In capital cases, [T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the needforreliability in the determination that death is the appropriate punishmentin a specific case. *°° Appellant Vo addresses this issue in more depth in Argument 5 of his AOB,pp. 238-249, and Argument XII ofthis brief, incorporated herein. 247 (Woodson v. North Carolina (1976) 428 U.S. 280, 305; emphasis added.) Having one's jury consider non-existent information’'® of a supposed admission of guilt — information appearing no whereinthetrial transcripts, and of which appellant and counsel had nonotice — fits the description of an event akin to being "struck by lightning." (Furman v. Georgia (1972) 408 U.S. 238, 309 (conc. opn. of Stewart, J.).) It is the very definition of an arbitrary and capricious determination of sentence, one prohibited by our state and federal Constitutions. A death sentence founded on such unreliable evidence cannotstand. Thetrial court was obligated to grant a newtrial, and it refused to do so. Reversal is required. 210 Even respondent frames what happenedasthe jurors “apparently” hearing this purported admission. (RB 244.) Respondent can muster no better evidence, because the record does not demonstrate any admission on the part of appellant Vo. Still, public prosecutors are expected to seek justice rather than endeavoring to win by any means. (Berger v. United States (1935) 295 U.S. 78, 88.) 248 CONCLUSION Forall of the reasonsset forth in this brief, appellant Loi Tan Vo respectfully requests this Court to reverse the judgmentof guilt and sentence of death, and grant him a newtrial. Dated: February 22,2012 Respectfully submitted, LAW OFFICES OF DORON WEINBERG ‘a DORON WEINBERG \ Attorney for Appellant LOI TAN VO 249 CERTIFICATION OF WORD COUNT PURSUANT TO CALIFORNIA RULES OF COURT, RULE 13 I certify that Appellant Loi Tan Vo’s Reply Brief consists of 57,311 words. Dated: February 22, 2012 Respectfully submitted, LAW OFFICES OF DORON WEINBERG DORON WEINBERG \ Attorney for Appellant LQI TAN VO 250 PROOF OF SERVICE BY MAIL -- 2015.5 C.C.P. [ am a citizen of the United States, my business address is 523 Octavia Street, San Francisco, CA 94102. I am employedin the City and County of San Francisco, where this mailing occurs; I am over the age of eighteen years and not a party to the within cause. I served the within APPELLANT’S REPLY BRIEF on the following person(s) on the date set forth below, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Post Office mail box at San Francisco, California, addressed as follows: Mel Greenlee California Appellate Project 101 Second Street, Suite 600 San Francisco, CA 94105 Habeas Corpus Resource Center 303 Second Street, Suite 400 South San Francisco, CA 94107 Alison Pease, Senior Deputy State Public Defender’s Office 801 K Street, Suite 1100 Sacramento, CA 95814 Moona Nandi Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 Loi Tan Vo P.O. Box J82901 San Quentin, CA 94974 Certificate of Service Page 2 Death Penalty Appeals Clerk Santa Clara County Superior Court 191 No.First Street San Jose, CA 95110 I certify or declare under penalty of perjury that the foregoing is true and correct. Executed on February 22, 2012, at San Francisco, California. acs boysne. co QO