PEOPLE v. ROMERO (ORLANDO) & SELF (CHRISTOPHER)Appellant, Christopher Self, Opening BriefCal.September 25, 2006 ~— SUPREI'E COURT COPY IN THE SUPREME COURT OF THESTATE OF CALIFORNIA > PEOPLE OF THE STATE OF CALIFORNIA, ) ) Plaintiff and Respondent, ) CAPITAL CASE ) VS. ) No. SO55856 ) ORLANDO ROMEROand ) SUPREME COURT CHRISTOPHERSELF, ) FILED Defendants and Appellants. ' gFP 2 8 2006 Frederick K. Ohlrich Clerk APPELLANT’S OPENING BRIEF (CHRISTOPHER SELF) Automatic Appeal from the Superior Court County of Riverside Superior Court No. CR46579 ¥ THE HONORABLE RONALDL. TAYLOR, JUDGE WILLIAM D. FARBER State Bar No. 45121 Attorney at Law P.O. Box 2026 San Rafael, CA 94912-2026 Telephone: (415) 472-7279 Attorney for Appellant Self DEATH PENALTY TOPICAL INDEX TABLE OF CASES TABLE OF STATUTES STATEMENTOF THE CASE STATEMENTOF FACTS I. Introduction II. Guilt Trial A. Overview andInitial Investigation B. The Arrests of Jose Munoz, Appellant, and Codefendant Orlando Romero,Jr. C. Searches in Connection with the Investigation D. The Offenses Charged, Background Information, and the EvidenceatTrial 1. Murders of Joey Mans and Timothy Jones (Counts 1 and 2) 2. Murder of Jose Aragon (Count 3) 3. Other Charges Against Appellant (Counts 4-19) a. William Meredith robbery (count 4) b. Mills-Ewy shooting ( counts 5-7) c. Williams-Rankins shooting (counts 9 and 10) Page XVlil lix 13 13 20 20 21 24 27 31 43 56 56 61 65 TOPICAL INDEX (CONTINUED) STATEMENT OF FACTS(Cont.) I. Guilt Trial (Cont.) D. The Offenses Charged, Background Information, and the Evidenceat Trial (Cont.) 3. Other Charges Against Appellant (Counts 4-19) (Cont.) d. Magnolia Center Interiors burglary (counts 11 and 12) e. Alfred Steenblock kidnapping-robbery (counts 13 and 14) f. Albert Knoeffler robbery (count 15) g. Mills robbery (counts 16-17) h. Feltonberger shooting (counts 18-19) E. Testimony of Ruben Munoz F. Scientific Evidence 1. Firearm andballistics evidence 2. Fingerprint evidence 3. Shoeprint evidence 4. Tire tracks G. Evidence of Escape Attempts Ill. Penalty Trial A. Prosecution Evidence in Aggravation il Page 73 75 79 81 86 94 98 98 102 104 106 106 108 108 TOPICAL INDEX (CONTINUED) Page III. Penalty Trial (Cont.) A. Prosecution Evidence in Aggravation (Cont.) 1. Victim Impact Evidence 109 a. Jose Aragon 109 b. Joey Mans 116 c. Timothy Jones 121 2. Prior School Assault 123 a. Milton Solorzano (May 22, 1992) 123 3. SubsequentJail Assaults 125 a. Richard Reyes (July 22, 1992) 125 b. Oswaldo Vasquez (June 24, 1993) 126 c. Mario Garcia (May 30, 1994) 129 d. Jacob Aramburo (June 4, 1994) 13] 4. Possession of Weaponsin Jail 132 a. Possession of Sharpened Toothbrush (September 19, 1993) 132 b. Possession of Other Shanks (November25, 1994) 133 B. Defense Evidence in Mitigation 134 C. Rebuttal Evidence in Aggravation 142 iil TOPICAL INDEX (CONTINUED) ASSIGNMENTS OF ERROR A. Guilt Trial Issues and Assignments of Error I. THE JUROR QUESTIONNAIRE ADOPTED BY THE TRIAL COURT OVER APPELLANT’S OBJECTIONS LED TO THE IMPERMISSIBLE AND IMPROPER DISCHARGE OF PROSPECTIVE JURORS BASED ON RACE AND ETHNICITY, AND RESULTEDIN THE SELECTION OF A BIASED JURY THAT DENIED APPELLANT’S RIGHT TO AN IMPARTIAL JURY REPRESENTING A FAIR CROSS-SECTION OF THE COMMUNITYIN VIOLATION OF ARTICLEI, SECTIONS15 AND 16 OF THE CALIFORNIA CONSTITUTION AND THE FIRST, FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Factual and Procedural Background B. The Questions on Race and Ethnicity Resulted in the Nonrepresentation of Hispanics on Appellant’s Jury and the Selection of a Biased Jury in Violation of Appellant’s Rights to a Fair Trial, Trial by Jury Drawn From a Representative Cross-Section of the Community, and Due Process Guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and by Article I, Section 16 of the California Constitution C. In the Absence of Voir Dire Examination, Reliance Upon Juror Questionnaires Alone to Discharge or Disqualify Prospective Jurors Violated Appellant’s Rights to a Fair Trial by Jury, Due Process, a Reliable Guilt and Penalty Determination, and Equal Protection of the Laws Guaranteed by Article I, Sections 15 and 16 ofthe California Constitution and the First, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution 1. Introduction iv Page 143 143 143 143 154 158 158 TOPICAL INDEX (CONTINUED) Page I. (Cont.) C. (Cont.) 2. Argument 159 3. Federal Pronouncements Regarding Voir Dire 162 4. California Pronouncements Regarding Voir Dire 170 D. The Trial Court Erred in Excusing at Least Five Prospective Jurors Without Voir Dire Examination Despite Finding That Their Questionnaire Responses Alone Did Not Constitute Sufficient Cause Justifying Discharge 178 E, Excusing Jurors for Cause Without Voir Dire in Open Court Also Violated the First Amendment 184 F. Counsel’s Stipulations Did Not Waive Issues Raised in this Assignmentof Error 186 G. Reversal of the Entire Judgment is Required 189 Il. THE PROSECUTOR COMMITTED MISCONDUCT DURING TRIAL IN VIOLATION OF APPELLANT’S RIGHTS TO TRIAL BY JURY, FAIR TRIAL, AND DUE PROCESS OF LAW GUARANTEEDBYTHEFIFTH, SIXTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION; THE PROSECUTOR’S MISCONDUCT ALSO UNDERMINED THE RELIABILITY OF THE GUILT AND PENALTY DETERMINATIONSIN VIOLATION OF THE EIGHTH AMENDMENTTO THE UNITED STATES CONSTITTION 197 A. Introduction 197 B. The Prosecutor Repeatedly Committed Misconduct 198 TOPICAL INDEX (CONTINUED) Page II. (Cont.) B. (Cont.) 1. The prosecutor unfairly and improperly targeted all Hispanic prospective jurors during jury selection, thereby tainting and prejudicing the jury pool against Hispanics andfacilitating the selection of a biased and nonrepresentative jury in which all Hispanics were excluded 198 2. The prosecutor repeatedly vouched for the credibility and truthfulness of accomplice Jose Munoz 208 3. The prosecutor repeatedly misrepresented the nature of mitigation evidence, improperly insinuated that appellant bore a burden of proofas to mitigation, and insinuated that the absence of mitigating evidence ofthe sort described by the prosecutor might amount to aggravation 216 C. Appellant Was Prejudiced by the Prosecutor’s Misconduct 226 D. The Prosecutor’s Misconduct Also Violated Appellant’s Rights to a Fair Trial by an Unbiased Jury Representative of the Cross-Section of the Community, Due Process, the Effective Assistance of Counsel, and to Reliable Determinations of Guilt and Penalty Guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution 234 /// //1 Vi TOPICAL INDEX (CONTINUED) Page Il. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING SEVERANCEOF THE INFLAMMATORY MAGNOLIA CENTER INTERIORS BURGLARY AND VANDALISM COUNTS11 AND 12 FROM ALL OTHER CHARGED CRIMES; DENIAL OF SEVERANCE UNDER THE CIRCUMSTANCESOF THIS CASE DENIED APPELLANTA FAIR TRIAL BY AN IMPARTIAL JURY AND DUE PROCESS OF LAW GUARANTEEDBY THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION, AND PRODUCED AN UNRELIABLE DETERMINATION OF GUILT AND PENALTY ON ALL COUNTSIN VIOLATION OF THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION 236 A. Factual and Procedural Background 236 B. Joinder, Generally 241 C. The Trial Court Erred and AbusedIts Discretion by Refusing to Sever the Magnolia Center Interiors Burglary and Vandalism Counts from the Charged Murders 246 D. The Prejudice From Refusing To Sever These Charges Outweighed the Benefits 252 E. The Denial of Severance of the Magnolia Center Interiors Crimes Rendered the Trial of the Charged Murders Fundamentally Unfair; Reversal of Guilt and Penalty Determinations is Required 255 //1/ /// /// vii IV. V. /// /// TOPICAL INDEX (CONTINUED) THE EVIDENCE WASINSUFFICIENT TO SUPPORT APPELLANT’S COUNT 15 ROBBERY CONVICTION (KNOEFFLER) IN VIOLATION OF APPELLANT’S RIGHTSTO FAIR TRIAL, DUE PROCESS, A RELIABLE DETERMINATION OF GUILT, AND EQUAL PROTECTION OF THE LAWS GUARANTEEDBYTHEFIFTH SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Factual and Procedural Background B. Standard of Review C. Constitutional Due Process Standards D. Insufficiency of the Evidence THE EVIDENCE WASINSUFFICIENT TO SUPPORT APPELLANT’S CONVICTIONS ON COUNTS5-7 (MILLS-EWY) IN VIOLATION OF APPELLANT’S RIGHTS TO FAIR TRIAL, DUE PROCESS, A RELIABLE DETERMINATIONOF GUILT, AND EQUAL PROTECTION OF THE LAWS GUARANTEEDBYTHEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Factual and Procedural Background B. Standard of Review C. Constitutional Due Process Standards D. Insufficiency of the Evidence Vill Page 259 259 261 262 264 268 268 270 271 273 VI. /// /// // 1 TOPICAL INDEX (CONTINUED) Page THE TRIAL COURT ERREDIN FAILING TO INSTRUCT THE JURY SUA SPONTE NOT TO AGGREGATE EVIDENCE OR INCIDENTS TO CORROBORATE THE ACCOMPLICE . TESTIMONY OF JOSE MUNOZ AND TO DETERMINEGUILT; THE ERROR VIOLATED APPELLANT’S RIGHTSTO A FAIR TRIAL, UNANIMOUS VERDICT, DUE PROCESS OF LAW, AND TO A RELIABLE DETERMINATION OF GUILT AND PENALTY GUARANTEEDBY THEFIFTH, SIXTH,EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION AND CALIFORNIA CONSTITUTIONAL COUNTERPARTS 278 A. Introduction 278 B. The Trial Court Erred By Failing to Instruct the Jury Sua Sponte That All of the Evidence Introduced Pertainingto All Counts Could Not Be Usedto Corroborate Jose Munoz’ Accomplice Testimony or Determine Appellant’s Guilt on Each Separate Countor Incident-Related Counts 284 C. The Circumstancesof this Case Required a Sua Sponte Alteration of CALJIC No. 17.02 to Direct the Jury to Segregate the Accomplice Corroboration and Other Evidence Pertinent to Each Countor Incident 291 D. The Trial Court’s Failure To Provide a Proper Instruction to the Jury Against Aggregating Accomplice Corroboration and Other Evidence of Guilt on Each Count Impermissibly Lessened the State’s Burden of Proof 299 ix VII. THE USE OF CALJIC 2.90 IN CONJUNCTION WITH OTHER TOPICAL INDEX (CONTINUED) JURY INSTRUCTIONS IMPERMISSIBLY UNDERMINED AND DILUTED THE BURDEN OF PROOF BEYOND A REASONABLE DOUBTIN VIOLATION OF APPELLANT’S RIGHTSTO A FAIR TRIAL, UNANIMOUS VERDICT, AND DUE PROCESS OF LAW, AND RENDERED THE GUILT AND PENALTY DETERMINATIONS UNRELIABLEIN VIOLATIONOF THEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. B. Factual and Procedural Background CALJIC No. 2.90 Erroneously Implied that Reasonable Doubt Requires Jurors to Articulate Reason for Their Doubt CALJIC 2.90 Unconstitutionally Admonished the Jury that a Possible Doubt Is Not a Reasonable Doubt CALJIC No. 2.90 Was Deficient and Misleading by Failing Affirmatively to Instruct that Appellant Had No Obligation to Present or Refute Evidence CALJIC 2.90 Failed to Inform the Jury that the Presumption of Innocence Continues Throughout the Entire Trial, Including Deliberations The Jury Should Have Been Instructed that a Conflict in the Evidence and/or a Lack of Evidence Could Form the Basis of Reasonable Doubt as to Guilt The Court Should Reconsiderits Prior Rulings Upholding the Defective Instructions The Errors Violated the United States and California Constitutions; the Errors Were Prejudicial Per Se Page 305 305 306 309 311 318 320 321 325 TOPICAL INDEX (CONTINUED) Page B. Penalty Phase Issues and Assignments of Error 327 VIII. APPELLANT’S JURY INCLUDED JURORS WITH ACTUAL IX, /// PENALTY BIAS IN VIOLATION OF APPELLANT’S RIGHTS TO A FAIR TRIAL, TRIAL BY IMPARTIAL JURY, DUE PROCESS, AND A TO RELIABLE DETERMINATION OF PENALTY GUARANTEEDTHEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS; THE CONSTITUTIONAL VIOLATIONS AS TO PENALTY ARE REVERSIBLE PER SE 327 THE TRIAL COURT ERRED BY ADMITTING, AND THE PROSECUTOR COMMITTED MISCONDUCT BY OFFERING AND ARGUING, IMPROPER, HIGHLY INFLAMMATORY, AND PREJUDICIAL VICTIM IMPACT EVIDENCE DURING THE PENALTY TRIAL IN VIOLATION OF APPELLANT’S RIGHTS TO A FAIR TRIAL, DUE PROCESS OF LAW, AND TO A RELIABLE DETERMIINATION OF PENALTY GUARANTEED BYTHEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION 343 A. Factual and Procedural Background 343 B. Victim Impact Evidence Was Admitted Withoutthe Safeguards Needed to Confine the Evidence Within Constitutional Bounds 351 C. Irrelevant and Prejudicial Opinions About the Crimes and Appellant Were Improperly Admitted as Victim Impact Evidence 357 D. Accounts of the Victims, Including Their Activities, Achievements and Awards, Were Improperly Presented to the Penalty Jury 360 xi TOPICAL INDEX (CONTINUED) IX. (Cont.) X, XI. E. Inflammatory and Emotionally-Charged Evidence About the Impact of the Crime on the Victims’ Survivors Was Erroneously Admitted and Undermined Appellant’s Right to a Fair Trial, Due Process, and a Reliable Determination of Penalty F, The Erroneous Admission of Improper Victim Impact Evidence Requires Reversal THE TRIAL COURT ERRONEOUSLY AND PREJUDICIALLY FAILED TO INSTRUCT THE JURY ON THE APPROPRIATE USE OF VICTIM-IMPACT EVIDENCEIN VIOLATION OF APPELLANT’S RIGHTSTO A FAIR TRIAL, DUE PROCESS, AND TO A RELIABLE DETERMINATION OF PENALTY GUARANTEEDBYTHEFIFTH,SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Factual and Procedural Background B. The Court Failed to Instruct the Jury on the Proper Use of Victim-Impact Evidence THE FAILURE TO PROVIDE INTERCASE PROPORTIONALITY REVIEW VIOLATES APPELLANT’S RIGHTSTO A FAIR TRIAL, DUE PROCESS, EQUAL PROTECTION OF THE LAWS, AND PROTECTION FROM THE ARBITRARY AND CAPRICIOUS IMPOSITION OF THE DEATH PENALTY GUARANTEED BY THE FIFTH, EIGHTH AND, FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. The Lack of Intercase Proportionality Review Violates Appellant’s Eighth and Fourteenth Amendment Protections Against the Arbitrary and Capricious Imposition of the Death Penalty xii Page 373 378 383 383 385 393 393 TOPICAL INDEX (CONTINUED) XI. (Cont.) B. The LackofIntercase Proportionality Review Also Violates Appellant’s Rights to a Fair Trial, Due Process, and Equal Protection of the Laws Guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution XII]. THE JURY INSTRUCTIONS ON THE MITIGATING AND AGGRAVATING FACTORSIN SECTION 190.3, AND THE JURORS’ APPLICATION OF THESE SENTENCING FACTORS, RENDERED APPELLANT’S DEATH SENTENCE CAPRICIOUS AND ARBITRARY IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION A. Factual and Procedural Background B. The Instruction on Section 190.3, Subdivision (a) and Application of that Sentencing Factor Resulted in the Arbitrary and Capricious Imposition of the Death Penalty C. TheInstruction on Penal Code Section 190.3, Subdivision (b) and the Jurors’ Application ofthat Sentencing Factor Violated Appellant’s Constitutional Rights to a Fair Penalty Trial, Due Process, Equal Protection, Trial by Jury and a Reliable Penalty Determination 1. Introduction 2. The Use of Unadjudicated Criminal Activity as Aggravation Renders Appellant’s Death Sentence Unconstitutional /// xiii Page 398 405 405 407 415 415 416 TOPICAL INDEX (CONTINUED) Page XII. (Cont.) C. (Cont.) 3. The Failure to Require a Unanimous Jury Finding on the Unadjudicated Acts of Violence Denied Appellant His Right to a Jury Trial Guaranteed by the Sixth and Fourteenth Amendments and Requires Reversal of His Death Sentence 418 4. Absent a Requirementof Jury Unanimity in Respect to the Alleged Unadjudicated Acts of Violence, the Instructions on Section 190.3, Subdivision (b) Allowed Jurors to Impose the Death Penalty on Appellant Based on Unreliable Factual Findings That Were Never Deliberated, Debated, or Discussed 421 D. Restrictive Adjectives Usedin the List of Potential Mitigating Factors Impermissibly Impededthe Jurors’ Consideration of Mitigation 424 E. The Failure to Require the Jury to Base a Death Sentence on Written Findings Regarding the Aggravating Factors Violates Appellant’s Constitutional Rights to Meaningful Appellate Review and Equal Protection of the Law 425 F. Even if the Absence of the Previously Addressed Procedural Safeguards Does Not Render California’s Death Penalty Scheme Constitutionally Inadequate to Ensure Reliable Capital Sentencing, Denying Them to Capital Defendants Such as Appellant Nevertheless Violates Equal Protection Requirements of the Fourteenth Amendmentto the United States Constitution 428 G. Conclusion 430 // 1 Xiv TOPICAL INDEX (CONTINUED) XII. PENAL CODE SECTION 190.3 AND IMPLEMENTING JURY INSTRUCTIONS(CALJIC NOS.8.84-8.88) ARE UNCONSTITUTIONAL, BECAUSE THEY FAIL TO SET OUT THE APPROPRIATE BURDEN OF PROOF OR CONTAIN OTHER CONSTITUTIONALLY COMPELLED SAFEGUARDS AND PROTECTIONS REQUIRED BY THEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Introduction B. The Statute and Instructions Unconstitutionally Fail to Assign to the State the Burden of Proving Beyond a Reasonable Doubt the Existence of an Aggravating Factor, that the Aggravating Factors Outweigh the Mitigating Factors, and that Death is the Appropriate Penalty C. The State and Federal Constitutions Require an Instruction that the Jury May Impose a Sentence of Death Only if Persuaded Beyond a Reasonable Doubt that the Aggravating Factors Outweigh the Mitigating Factors and that Death is the Appropriate Penalty 1. Factual Determinations 2. Imposition of Life or Death D. The Fifth, Sixth, Eighth, and Fourteenth Amendments Require that the State Bear Some Burden of Persuasion at the Penalty Phase E. The Instructions Violated the Sixth, Eighth, and Fourteenth Amendments by Failing to Require Juror Unanimity on Aggravating Factors F. The Penalty Jury Should Have Been Instructed on the Presumption of Life G. Conclusion XV Page 431 43] 432 448 448 449 454 459 465 466 TOPICAL INDEX (CONTINUED) Page XIV. THE USE OF CALJIC NO.8.88 (1989 REVISION), DEFINING THE SCOPE OF THE JURY’S SENTENCING DISCRETION AND THE NATURE OFITS DELIBERATIVE PROCESS, VIOLATED APPELLANT’S FUNDAMENTALRIGHTSTO A FAIR TRIAL, DUE PROCESS, EQUAL PROTECTION, AND TO A RELIABLE DETERMINATION OF PENALTY GUARANTEED BY THE FIFTH, SIXTH, EIGHT, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION 467 A. The Use CALJIC No,8.88 (1989 Revision) Caused the Jury’s Penalty Choice to Turn on an Impermissibly Vague and AmbiguousStandard that Failed to Provide Adequate Guidance and Direction 467 B. CALJIC No. 8.88 (1989 Revision) Failed to Inform the Jurors that the Central Determination is Whether the Death Penalty is the Appropriate Punishment, Not Simply an Authorized Penalty 47] C. CALJIC No. 8.88 (1989 Revision) Failed to Inform the Jurors that if they Determined that Mitigation Outweighed Aggravation, They Were Required to Return a Sentence of Life Without the Possibility of Parole 474 D. Conclusion 478 XV. APPELLANT’S DEATH SENTENCE VIOLATES INTER- NATIONAL LAW, WHICHIS BINDING ON THIS COURT, AS WELL AS THE EIGHTH AMENDMENTTO THE UNITED STATES CONSTITUTION 480 A. Introduction 480 B. The Death Penalty in California Violates International Law 480 /// xvi TOPICAL INDEX (CONTINUED) Page XV. (Cont.) C. Evolving International Norms Compelthe Conclusion that Appellant’s Death Sentence Also Constitutes Cruel and Unusual Punishmentin Violation of the Eighth Amendment 483 XVI. THE CUMULATIVE EFFECT OF ERRORS UNDERMINED THE FUNDAMENTALFAIRNESS OF TRIAL AND THE RELIABILITY OF THE DEATH JUDGMENTIN VIOLATION OF THEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION 487 XVII, APPELLANT SELF JOINS IN ALL ISSUES AND ASSIGNMENTS OF ERROR RAISED BY COAPPELLANT ROMERO WHICH MAY ACCRUETO HIS BENEFIT 492 CONCLUSION 493 CERTIFICATE OF COMPLIANCE 493 PROOF OF SERVICE 494 XVI TABLE OF CASES Adams v. Texas (1980) 448 U.S. 38 Addington v. Texas (1979) 441 U.S. 418 Aldridge v. United States (1931) 283 U.S. 308 Alford v. State (Fla. 1975) 307 So.2d 433 Alvaradov. State (Tex.Crim.App. 1995) 912 S.W.2d 199 Apodaca v. Oregon (1972) 406 U.S. 404 Apprendi v. New Jersey (2000) 530 U.S. 466 Arnold y. State (Ga. 1976) 224 S.E.2d 386 Atkins v. Virginia (2002) 536 U.S. 304 Ballard v. Estelle (9th Cir. 1991) 937 F.2d 453 ~ Ballard v. United States (1946) 329 U.S. 187 Ballew v. Georgia (1978) 435 U.S. 223 Batson v. Kentucky (1986) 476 U.S. 79 XViil Page Passim 449, 451, 452 163, 206 395 364 418 Passim 468, 469, 470 401, 481, 485 291 156 Passim 157, 189, 205, 366 TABLE OF CASES (CONTINUED) Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073 Beazley v. Johnson (Sth Cir, 2001) 242 F.3d 248 Beck v. Alabama (1980) 447 U.S. 625 Blakely v. Washington (2004) 542 U.S. 296 Blystone v. Pennsylvania (1990) 494 U.S. 299 Booth vy. Maryland (1987) 482 U.S. 496 Boulden v. Holman (1969) 394 U.S. 478 Boyde v. California (1990) 494 US. 370 Brewerv. State (Ind. 1980) 417 NE.2d 889 Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711 Brown v. Louisiana (1979) 447 U.S. 323 Bruton v. United States (1968) 391 U.S. 123 Bullington v. Missouri (1981) 451 U.S. 430 X1X Page 244, 245, 257, 286 482 Passim Passim 471 Passim Passim 221, 222, 474 395 352 Passim 359 452 TABLE OF CASES (CONTINUED) Burch v. Louisiana (1978) 441 U.S, 130 Burger v. Kemp (1987) 483 U.S. 776 Burns v. State (Fla. 1992) 609 So.2d 600 Bush v. Gore (2000) 531 U.S. 98 Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374 Cage v. Louisiana (1990) 498 U.S. 39 Caldwell v. Mississippi (1985) 472 U.S. 320 California v. Brown (1987) 479 U.S. 538 Cargle v. State (Okla.Crim.App. 1995) 909 P.2d 806 Castaneda v. Partida (1977) 430 U.S. 482 Chapmanv. California (1967) 368 U.S.18 Charfauros v. Board ofElections (9th Cir. 2001) 249 F.3d 941 Clark v. Jeter (1988) 486 U.S. 456 XX Page 419 325 368, 381, 382 403 324 305, 307, 325 421, 490 425, 432 364, 387 156 Passim 403 399 TABLE OF CASES (CONTINUED) Clarke v. Commonwealth (1932) 159 Va. 908, 166 S.E. 541 Coker v. Georgia (1977) 433 U.S. 584 | Coleman vy. Calderon (9th Cir. 2000) 210 F.3d 1047 Collins v. State (Ark. 1977) 548 S.W.2d 106 Commonwealth v. Bird (1976) 240 Pa.Super. 587, 361 A.2d 737 Commonwealth v. Means (Pa. 2001) 773 A.2d 143 Commonwealth v. O’Neal (Mass. 1975.) 327 N.E.2d 662 Connors v. United States (1895) 158 U.S. 408 Conservatorship ofRoulet (1979) 23 Cal.3d 219 Cool v. United States (1972) 409 U.S. 100 Cooperv. Fitzharris (9th Cir. 1978) 586 F.2d 1325 CooperIndustries, Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424 Copley Press Inc. vy. Superior Court (1991) 228 Cal.App.3d 77 XX Page 319 40] 223, 224 395 315 388 429 163 450 478 487 445 173, 185 TABLE OF CASES (CONTINUED) Darden v. Wainwright (1986) 477 U.S. 168 Davis vy. Georgia (1976) 429 U.S. 122 Davis v. State (Georgia) (1976) 225 S.E.2d 241 Delo v. Lashley (1983) 507 U.S. 272 Dennis v. United States (1950) 339 U.S. 162 Donnelly v. DeChristoforo (1974) 416 U.S. 637 Drew v. United States (D.C. Cir. 1964) 331 F.2d 85 Duncan vy. Louisiana (1968) 391 U.S. 145 Eddings v. Oklahoma (1982) 455 U.S. 104 Elisa B. y. Superior Court (2005) 37 Cal.4th 108 Enmundv. Florida (1982) 458 U.S. 782 Estate ofObernolte (1979) 91 Cal.App.3d 124 Estelle v. McGuire (1991) 502 U.S. 62 XXii Page Passim 164, 190 164, 190 465 163 234, 325, 487, 488 257 192, 337 223, 455, 458 361 401 320 308, 323 TABLE OF CASES (CONTINUED) Estelle v. Williams (1976) 425 U.S. 501 Evitts v. Lucey (1985) 469 U.S. 387 Fetterly vy. Paskett (9th Cir. 1991) 997 F.2d 1295 Ford v. Wainwright (1986) 477 U.S. 399 Francis v. Franklin (1985) 471 U.S. 307 Frolova v. U.S.S.R. (7th Cir. 1985) 761 F.2d 370 Furman v. Georgia (1972) 408 U.S. 248 Gardner v. Florida (1977) 430 U.S. 349 Gentile v. State Bar ofNevada (1991) 501 U.S. 1030 Gideon v. Wainwright (1963) 372 U.S. 335 Gilmore v. Taylor (1993) 508 U.S. 333 Glasser v. United States (1942) 315 U.S. 60 Godfrey v. Georgia (1980) 446 U.S. 420 XXHl Page 465 477 326 401, 402 313, 323 48] 366, 427, 468 Passim 155, 338 476 291 156 470 TABLE OF CASES (CONTINUED) Gomez v. Superior Court (2005) 35 Cal.4th 1125 Gomez v. United States (1989) 490 U.S. 858 Gray v. Mississippi (1987) 481 U.S. 648 Green v. Georgia (1979) 442 U.S. 95 Greer vy. Miller (1987) 483 U.S. 756 Gregg v. Georgia (1976) 428 U.S. 153 Griffin v. United States (1991) 502 U.S. 46 Hain v. Gibson (10th Cir. 2002) 287 F.3d 1224 Ham v. South Carolina (1973) 409 U.S. 524 Harmelin v. Michigan (1991) 501 U.S. 957 Harris v. Pulley (CA9 1982) 692 F.2d 1189 Harris v. Wood (9th Cir, 1995) 64 F.3d 1432 Hernandez v. Municipal Court (1989) 49 Cal.3d 713 XXIV Page 361 190 Passim 421 487 194, 393, 425, 469 460 357 164, 206 427, 463 395 488 192, 193 TABLE OF CASES (CONTINUED) Hernandez v. Ylst (9th Cir. 1991) 930 F.2d 714 Herring v. Meachum (2nd Cir. 1993) 11 F.3d 374 Hicks v. Oklahoma (1980) 447 U.S.343 Hilbish v. State (Alaska App. 1995) 891 P.2d 841 Hildwin v. Florida (1989) 490 U.S. 638 Hilton v. Guyot (1895) 159 U.S. 113 Hitchcock v. Dugger (1987) 481 U.S. 393 Holland v. United States (1954) 348 U.S. 121 Hovey v. Superior Court (1980) 28 Cal.3d 1 Howitt v. Superior Court (1992) 3 Cal.App.4th 1575 Hughes v. United States (6th Cir. 2001) 258 F.3d 453 In re Anthony T. (1980) 112 Cal.App.3d 92 In re Application ofNational Broadcasting Co. (1981) 209 U.S.App.D.C.355, 653 F.2d 609 XXV Page 326 286 Passim 310 460, 461 484, 486 490 310 174, 191 228 338, 339, 340, 341 242, 284 165 TABLE OF CASES (CONTINUED) In re Carpenter (1995) 9 Cal.4th 634 In re Eric J. (1979) 25 Cal.3d 522 In re Hitchings (1993) 6 Cal.4th 97 In re Horton (1991) 54 Cal.3d 82 In re Marquez (1992) 1 Cal.4th 584 In re Martin (1986) 42 Cal.3d 437 In re Rodriguez (1987) 119 Cal.App.3d 457 In re Stephen P. (1983) 145 Cal.App.3d 123 In re Sturm (1974) 11 Cal.3d 258 In re Winship (1970) 397 U.S. 358 Irvin vy. Dowd (1959) 359 U.S. 394 Izazaga v. Superior Court (1991) 54 Cal.3d 356 Jackson v. Virginia (1979) 433 U.S. 307 XXV1 Page 338 399 155, 337 336, 337, 339 489 399 326 275, 276 426 Passim 164, 190 476 Passim TABLE OF CASES (CONTINUED) Jecker, Torre & Co. v. Montgomery (1855) 59 U.S. 110 Johnson v. Armontrout (8th Cir. 1992) 961 F.2d 748 Johnson v. Louisiana (1972) 406 U.S. 356 Johnson v. Mississippi (1987) 486 U.S. 578 Johnson v. State (Nev. 2002) 59 P.3d 450 Johnson v. Zerbst (1938) 304 U.S. 458 Killian v. Poole (9th Cir, 2002) 282 F.3d 1204 Kyles v. Whitley (1995) 514 U.S. 419 Le v. Mullin (10th Cir. 2002) 311 F.2d 1002 Lesher Communications, Inc. v. Superior Court (Contra Costa) (1990) 224 Cal.App.3d 774 Lockett v. Ohio (1978) 438 U.S. 586 Lockhart v. McCree (1986) 476 U.S. 162 Manduley y. Superior Court (2002) 27 Cal.4th 537 XXVIii Page 486 338, 341 418, 422, 424 291, 461 439, 443 336 488 325 381 172, 173 220, 222, 421, 425 Passim 399 TABLE OF CASES (CONTINUED) Matthews v. Eldridge (1976) 424 U.S. 319 Maxwell v. Bishop (1970) 398 U.S. 262 Maynard y. Cartwright (1988) 486 U.S. 356 McCleskey v. Kemp (1987) 481 U.S. 279 McCullough vy. Bennett (N.D.N.Y. 2003) 317 F.Supp.2d 112 McDonough Power EquipmentInc. v. Greenwood (1984) 464 U.S. 548 McFarland v. Smith (2d Cir. 1979) 611 F.2d 414 McKenzie v. Daye (9th Cir. 1995) 57 F.3d 1461 McKoyv. North Carolina (1990) 494 U.S. 433 Miller v. State ofN.C. (4th Cir. 1978) 583 F.2d 701 Miller v. United States (1870) 78 U.S. 268 Miller-El y. Dretke (2005) 545 U.S. 231 //1 XXViil Page 450 164, 168, 169 408, 414, 468 366, 401 339, 341 162 206 483 222, 223, 461 205 484 206 TABLE OF CASES (CONTINUED) Mills v. Maryland (1988) 486 U.S. 367 Minister ofJustice v. Burns (2001) 1 S.C.R. 283, 2001 SCC 7 Mongev. California (1988) 524 US. 721 Moore v. Kemp (11th Cir. 1987) 809 F.2d 702 Morford v. United States (1950) 339 US. 258 Morgan vy.Illinois (1992) 504 U.S. 719 Murray's Lessee (1855) 59 U.S. (18 How.) 272 Murtishaw v. Woodford (9th Cir. 2001) 255 F.3d 926 Myers v. Ylst (9th Cir. 1990) 897 F.2d 417 Nancev. State (Ga. Supreme Court 2000) 526 S.E.2d 560. Neder v. United States (1999) 527 U.S. 1 Panzavecchia v. Wainwright (Sth Cir. 1981) 658 F.2d 337 Park v. California (9th Cir. 2000) 202 F.3d 1146 XX1X | Page Passim 480 Passim 360, 370 163 Passim 460 471 417, 427, 457, 463 334 325 257, 287 244 TABLE OF CASES (CONTINUED) Patton yv. United States (1930) 281 U.S. 276 Patton v. Yount (1984) 467 U.S. 1025 Payne v. Tennessee (1991) 501 U.S. 808 Penry v. Lynaugh (1989) 492 U.S. 302 People v. Alcala (1984) 36 Cal.3d 604 People v. Allen . (1986) 42 Cal.3d 1222 People v. Anderson (2001) 25 Cal.4th 543 People v. Anderson (1987) 43 Cal.3d 1104 People v. Andrews (1989) 49 Cal.3d 200 People v. Antommarchi (N.Y. 1992) 80 N.Y.2d 247 People v. Arias (1996) 13 Cal.4th 92 People v. Armstead (2002) 102 Cal.App.4th 784 People v. Ashmus (1991) 54 Cal.3d 932 XXX Page 337 164, 165, 167, 190 Passim 40] 287 400, 402, 403, 439 433, 439, 442 257 281 308 244, 249, 251, 255 301, 302 193, 392, 412 TABLE OF CASES (CONTINUED) People v. Attard (1973) 346 N.Y.S.2d 851 People v. Ayala (2000) 24 Cal.4th 243 People v. Bacigalupo (1993) 6 Cal.4th 457 People v. Bacigalupo (1991) 1 Cal.4th 103 People v. Bain (1971) 5 Cal.3d 839 People v. Barnett (1998) 17 Cal.4th 1044 People v. Bassett (1968) 69 Cal.2d 122 People v. Beagle (1972) 6 Cal.3d 441 People v. Bean (1988) 46 Cal.3d 919 People v. Beeman (1984) 35 Cal.3d 547 People v. Bell (1989) 49 Cal.3d 502 People v. Belton (1979) 23 Cal.3d 516 People v. Benavides (2005) 35 Cal.4th 69 XXX1 Page 319 171, 212, 287 472 354, 355, 460 206 195, 228 262, 263, 271,272 | Passim 243, 244, 249 265 155, 157, 189 273, 281 187, 188 TABLE OF CASES (CONTINUED) People v. Benson (1990) 52 Cal.3d 754 People v. Bias (1959) 170 Cal.App.2d 502 People v. Blair (2005) 36 Cal.4th 686 People v. Bolden (2002) 29 Cal.4th 515 People v. Bolton (1979) 23 Cal.3d 208 People v. Bonillas (1989) 48 Cal.3d 757 People v. Bonin (1988) 46 Cal.3d 659 People v. Boulerice (1992) 5 Cal.App.4th 463 People v. Boyce (1980) 110 Cal.App.3d 726 People v. Boyd (1985) 38 Cal.3d 762 People v. Boyd (1990) 222 Cal.App.3d 541 People v. Boyette (2002) 29 Cal.4th 381 People v. Bradford (1997) 15 Cal.4th 1229 XXXil Page 227 294, 295 398, 425, 433 171, 263, 272 212, 227, 232 220 230, 411 338 281 354 215 Passim 247, 248 TABLE OF CASES (CONTINUED) People v. Breaux (1991) | Cal.4th 281 People v. Breverman (1988) 19 Cal.4th 142 People v. Briton (1991) 232 Cal.App.3d 316 People v. Brown (2004) 33 Cal.4th 382 People v. Brown (2003) 31 Cal.4th 518 People v. Brown (1988) 46 Cal.3d 432 People v. Brown (1985) 40 Cal.3d 512 People v. Brownell (Ill. 1980) 404 N.E.2d 181 People v. Burnick (1975) 14 Cal.3d 306 People v. Burns (1969) 270 Cal.App.2d 238 People v. Cahill (1993) 5 Cal.4th 479 People y. Cain (1995) 10 Cal.4th 1 People v. Carpenter (1997) 15 Cal.4th 312 XXXIit Page 221, 469, 470, 472 385, 387 265 173, 482 280 Passim 439, 471, 474 395 450 242 303 232 220, 410, 411 TABLE OF CASES (CONTINUED) People v. Carter (2005) 36 Cal.4th 1114 People v. Castillo (1997) 16 Cal.4th 1089 People v. Castro (1985) 38 Cal.3d 301 People v. Catlin (2000) 26 Cal.4th 81 People v. Champion (1995) 9 Cal.4th 879 People v. Coffman and Marlow (2004) 34 Cal.4th 1 People yv. Collie (1981) 30 Cal.3d 43 People vy. Collins (2001) 26 Cal.4th 297 People v. Cooks (1983) 141 Cal.App.3d 224 People v. Cornwell (2005) 37 Cal.4th 50 People v. Costello (1943) 21 Cal.2d 760 People v. Craig (1925) 196 Cal. 19 People v. Crawford (1982) 131 Cal.App.3d 591 XXX1V Page 242 298 294, 359 Passim 47] 322, 323, 469 293 336, 337 280 433 476 176 420 TABLE OF CASES (CONTINUED) People v. Crew (2003) 31 Cal.4th 822 People v. Crittenden (1994) 9 Cal.4th 83 People v. Cudjo (1993) 6 Cal.4th 585 People v. Cummings (1993) 4 Cal.4th 1233 People vy. Cunningham (2001) 25 Cal.4th 926 People v. Daniels (1991) 52 Cal.3d 815 People v. Davis (2005) 36 Cal.4th 510 Peopley. Dellinger (1985) 163 Cal.App.3d 284 People y. Dennis (1998) 17 Cal.4th 468 People v. Duncan (1991) 53 Cal.3d 955 People v. Dunkle (2005) 36 Cal.4th 861 People v. Easley (1983) 34 Cal.3d 858 People v. Edelbacher (1989) 47 Cal.3d 983 XXXV Page 322 322, 323 208, 211 228, 242 Passim 220 273 421 195 443, 456, 475 356, 398, 410, 466 223 47] TABLE OF CASES (CONTINUED) People v. Edwards (1991) 54 Cal.3d 787 People v. Ernst (1994) 8 Cal.4th 441 People v. Espinoza (1992) 3 Cal.4th 806 People v. Estrada (1998) 63 Cal.App.4th 1090 People v. Eudy (1938) 12 Cal.2d 41 People v. Ewoldt (1994) 7 Cal.4th 380 People v. Fairbanks (1977) 16 Cal.4th 1223 People v. Falconer (1988) 201 Cal.App.3d 1540 People v. Farnam (2002) 28 Cal.4th 107 People v. Fauber (1992) 2 Cal.4th 792 People v. Feagley (1975) 14 Cal.3d 338 People v. Fields (1983) 35 Cal.3d 329 People v. Fierro (1991) 1 Cal.4th 173 XXXVI Page Passim 337 232 340 176 250 437 280 171, 334, 394, 438 426 450 176 355 TABLE OF CASES (CONTINUED) Page People v. Flood (1998) 18 Cal.4th 470 302 People v. Ford (1964) 60 Cal.2d 772 286 People v. Frazier (2005) 128 Cal.App.4th 807 307 People v. Fredericks (1895) 106 Cal. 554 176 People v. Frye (1998) 18 Cal.4th 894 212 People v. Garceau (1993) 6 Cal.4th 140 287 People v. Ghent (1987) 43 Cal.3d 739 . Passim People v. Gibson (1976) 56 Cal.App.3d 119 287 People v. Glenn (1991) 229 Cal.App.3d 1461 477 People v. Grant (2003) 113 Cal.App.3d 579 244 People v. Gray (2005) 37 Cal.4th 168 246, 256 People v. Green (1980) 27 Cal.3d 1 215, 263, 272 People v. Griffin (2004) 33 Cal.4th 536 179, 444, 445, 452, 472 XXXVI TABLE OF CASES (CONTINUED) People v. Gurule (2002) 28 Cal.4th 557 People v. Guzman (1988) 45 Cal.3d 915 People v. Hall (1983) 35 Cal.3d 161 People v. Hamilton (1989) 48 Cal.3d 1142 People v. Hamilton (1963) 60 Cal.2d 105 People v. Hardy (1992) 2 Cal.4th 86 People vy, Harris (2005) 37 Cal.4th 310 People v. Haskett (1982) 30 Cal.3d 841 People v. Hawthorne (1992) 4 Cal.4th 43 People v. Hayes (1990) 52 Cal.3d 577 People v. Hayes (1989) 49 Cal.3d 1260 People v. Heard (2003) 31 Cal.4th 946 People v. Hill (1998) 17 Cal.4th 800 XXXVI Page 376 160 207 188 489 224, 313 373, 385, 386, 394 361, 373, 374, 391 427, 438, 465 427, 454, 465, 488 230 160 Passim TABLE OF CASES (CONTINUED) People v. Hillhouse (2002) 27 Cal.4th 469 People v. Hines (1997) 15 Cal.4th 997 People v. Holbrook (1955) 45 Cal.2d 228 People v. Holt (1984) 37 Cal.3d 436 People v. Horton (1969) 1 Cal.3d 444 People v. Houts (1978) 86 Cal.App.3d 1012 People v. Jackson (1996) 13 Cal.4th 1164 People v. Javier A. (1985) 38 Cal.3d 811 People v. Jennings (1991) 53 Cal.3d 334 People v. Johnson (2003) 30 Cal.4th 1302 People v. Johnson (1989) 47 Cal.3d 1194 People v. Johnson (1988) 47 Cal.3d 576 People vy, Johnson (1980) 26 Cal.3d 557 XXXIX Page Passim 410 294, 295 488 292 299 232, 381, 391 262, 271 322, 323 206 207 249 263, 264, 272, 273 TABLE OF CASES (CONTINUED) People v. Johnson (1972) 4 Il.App.3d 539, 281 N.E.2d 451 People v. Jones (2003) 29 Cal.4th 1229 People v. Jones (1962) 205 Cal.App.2d 460 People v. Kainzrants (1996) 45 Cal.App.4th 1068 People v. Kaurish (1990) 52 Cal.3d 648 People v. Kelley (1980) 113 Cal.-App.3d 1005 People v. Key (1984) 153 Cal.App.3d 888 People v. Kipp (2001) 26 Cal.4th 1100 People v. Kipp (1998) 18 Cal.4th 349 People v. Koontz (2002) 27 Cal.4th 1041 People v. Lang (1974) 11 Cal.3d 134 People v. Lawson (1987) 189 Cal.App.3d 741 People v. Ledesma (1987) 43 Cal.3d 171 xl Page 319 160, 381, 392 208 323 179, 410 476 287 266 250, 411 385, 387 264, 276 313 195 TABLE OF CASES (CONTINUED) People v. Loggins (1973) 23 Cal.App.3d 597 People v. Loper (1910) 159 Cal. 6 People v. Lopez (1975) 47 Cal.App.3d 8 People v. Marks (1988) 45 Cal.3d 1335 People v. Marquez (1992) 1 Cal.4th 553 People vy. Marshall (1997) 15 Cal.4th 1 People v. Martin (1986) 42 Cal.3d 437 People v. Martinez (1982) 132 Cal.App.3d 119 People v. Mata (1955)133 Cal.App.2d 18 People v. Maury (2003) 30 Cal.4th 342 People v. McKay (2002) 27 Cal.4th 601 People v. McPeters (1992) 2 Cal.4th 1148 People v. Medina (1995) 11 Cal.4th 694 xli Page 307 171, 176 286 292 252 263, 272 426 280 476 321 361 410, 425 212, 225, 226, 463 TABLE OF CASES (CONTINUED) People v. Memro (1995) 11 Cal.4th 786 People v. Memro (1985) 38 Cal.3d 658 People v. Mendoza (2000) 23 Cal.4th 896 People v. Mickey (1991) 54 Cal.3d 612 People v. Milner (1988) 45 Cal.3d 227 People v. Miranda (1987) 44 Cal.3d 57 People v. Monterroso (2004) 34 Cal.4th 743 People v. Montiel (1993) 5 Cal.4th 877 People vy. Moon (2005) 37 Cal.4th 1 People v. Moore (1954) 43 Cal.2d 517 People v. Morales (2001) 25 Cal.4th 34 People v. Morales (1989) 48 Cal.3d 527 People v. Morris (1991) 53 Cal.3d 152 xlit Page 256 263, 272 361 360 47] 262, 271 321 355, 362 398 476, 477 234 156, 408 294 TABLE OF CASES (CONTINUED) People v. Morris (1988) 46 Cal.3d 1 People v. Morrison (2004) 34 Cal.4th 698 People v. Morton (1903) 139 Cal. 719 People v. Murtishaw (1989) 48 Cal.3d 1001 People v. Musselwhite (1998) 17 Cal.4th 1216 People v. Narvaez (2002) 104 Cal.App. 4th 1295 People v. Noguera (1992) 4 Cal.4th 599 People v. Ochoa (2001) 26 Cal.4th 398 People v. Ochoa (1998) 19 Cal.4th 353 People v. Olivas (1976) 17 Cal.3d 236 People v. Osband (1996) 13 Cal.4th 622 People v. Panah (2005) 35 Cal.4th 395 People v. Perry (1972) 7 Cal.3d 756 xl Page 213, 263, 272 399 281 385 242 281 322 177, 389 24] 400, 429 243, 409 374, 482 273, 275 TABLE OF CASES (CONTINUED) People v. Pollock (2004) 32 Cal.4th 1153 People vy. Prettyman (1996) 14 Cal.4th 248 People v. Price (1991) 1 Cal4th 324 People v. Prieto (2003) 30 Cal.4th 226 People v. Reingold (1948) 87 Cal.App.2d 382 People v. Reyes (1974) 12 Cal.3d 486 People v., Rice (1976) 59 Cal.App.3d 998 People v. Richardson (Ill. 2001) 751 N.E.2d 1104 People v. Riel (2000) 22 Cal.4th 1153 People v. Robinson (2005) 37 Cal.4th 592 People v. Roder (1983) 33 Cal.3d 491 People v. Rodrigues (1994) 8 Cal.4th 1060 People v. Rodriguez (1999) 20 Cal.4th 1 xliv Page 356, 387, 390 265 227, 251 Passim 280 263, 264, 272 476 353 322 321, 322 305 160, 184, 220, 280 262, 271 TABLE OF CASES (CONTINUED) People v. Rodriguez (1986) 42 Cal.3d 730 People v. Roldan (2005) 35 Cal.4th 646 People v. Rowland (1992) 4 Cal.4th 238 People v. Ryan (1907) 152 Cal. 364 People v. Samayoa (1997) 15 Cal.4th 795 People v. Samuels (2005) 36 Cal.4th 96 People v. Sanders (1990) 51 Cal.3d 471 People v. Sandoval (1992) 4 Cal.4th 155 People v. San Nicolas (2004) 34 Cal.4th 614 People v. Seaton (2001) 26 Cal.4th 598 People v. Smallwood (1986) 42 Cal.3d 415 People v. Smith (2005) 35 Cal.4th 334 People v. Smith (2003) 30 Cal.4th 581 xlv Page 401 354 263, 267, 271, 277 176 235, 411 321 155 243, 246 158, 176 225, 226 252, 254, 255, 257 470, 482 390 TABLE OF CASES (CONTINUED) People v. Smith (1970) 4 Cal.App.3d 41 People v. Snow (2003) 30 Cal.4th 43 People v. Stanley (1995) 10 Cal.4th 764 People v. Stansbury (1995) 9 Cal.4th 824 People v. Stewart (2004) 33 Cal.4th 425 People v. Stewart (1985) 165 Cal.App.3d 1050 People v. Stewart (1983) 145 Cal.App.3d 967 People v. Stone (1981) 117 Cal.App.3d 15 People v. Strickland (1974) 11 Cal.3d 946 People v. Superior Court (Mitchell) (1993) 5 Cal.4th 1229 People v. Sutton (1993) 19 Cal.App.4th 795 People v. Szeto (1981) 29 Cal.3d 20 People v. Taylor (2002) 26 Cal.4th 1155 xlvi Page 492 433, 439, 442 374 294 Passim 285 323 492 226, 227 454 326 280, 281 410 TABLE OF CASES (CONTINUED) People v. Taylor (1990) 52 Cal.3d 719 People v. Thomas (1977) 19 Cal.3d 630 People v. Torres (1995) 33 Cal.App.4th 37 People vy. Trevino (1985) 39 Cal.3d 667 People v. Turner (2004) 34 Cal.4th 406 People v. Turner (1984) 37 Cal.3d 302 People v. Turner (1983) 145 Cal.App.3d 658 People y. Vann (1974) 12 Cal.3d 220 People v. Vera (1997) 15 Cal.4th 269 People v. Vieira (2005) 35 Cal.4th 264 People v. Ward (2005) 36 Cal.4th 186 People v. Wash (1993) 6 Cal.4th 215 People v. Watson (1956) 46 Cal.2d 818 xlvii Page 460 450 359 193 212, 433 257 232 326 187 482 207 362 227, 230, 303 TABLE OF CASES (CONTINUED) People v. Weaver (2001) 26 Cal.4th 876 People v. Webster (1991) 54 Cal.3d 411 People v. Westlake (1899) 124 Cal. 452 People v. Wheeler (1978) 22 Cal.3d 258 People v. Williams (1997) 16 Cal.4th 153 People v. Williams (1971) 22 Cal.App.3d 34 People v. Wilson (1992) 3 Cal.4th 926 People v. Wilson (1962) 66 Cal.2d 749 People v. Wims (1995) 10 Cal.4th 293 People v. Wong Ark (1892) 96 Cal. 125 People v. Wright (1990) 52 Cal.3d 367 People v. Zapien (1993) 4 Cal.4th 929 Peters v. Kiff (1972) 407 U.S. 493 xlvii Page 327, 338, 339, 341 336 323 Passim 212 326, 487 324 292 302, 303 176 205 280, 374, 408, 410 156 TABLE OF CASES (CONTINUED) Plyler v. Doe (1982) 457 U.S. 202 Powers v. Ohio (1991) 499 U.S. 400 Presnell v. Georgia (1978) 439 U.S. 14 Press-Enterprise Co.v. Superior Court (1984) 464 U.S. 501 Price v. Superior Court (2001) 25 Cal.4th 1046 Proffitt v. Florida (1976) 428 U.S. 242 Pulley v. Harris (1984) 465 US. 37 Reagan y. United States (1895) 157 U.S. 301 Reliance Ins. v. McGrath (N.D. Cal. 1987) 671 F.Supp. 669 Rexall yv. Nihill (9th Cir. 1960) 276 F.2d 637 Reynolds v. United States (1879) 98 U.S. 145 Richardson v. United States (1999) 526 U.S. 813 Ring v. Arizona (2002) 536 U.S. 584 xlix Page 478 190, 205 449 184, 185, 186 192 393, 455, 458 394, 396 476 32] 321 Passim 463 Passim TABLE OFCASES (CONTINUED) Ristaino v. Ross (1976) 424 U.S. 589 Rogers v. McMullen (11th Cir. 1982) 673 F.2d 1185 Roper v. Simmons (2005) 543 U.S. 551 Rosales-Lopez v. United States (1981) 451 U.S. 182 Rose v. Clark (1986) 478 U.S. 570 Ross v. Oklahoma (1988) 487 U.S. 81 Sabariego v. Maverick (1888) 124 U.S. 261 Sandin v. Conner (1974) 515 U.S. 472 Santosky v. Kramer (1982) 455 U.S. 743 Sawyer v. Whitley (1992) 505 U.S. 333 Schad v. Arizona (1991) 501 U.S. 624 Simmonsv. Blodgett (9th Cir. 1997) 110 F.3d 39 Skinner v. Oklahoma (1942) 316 U.S. 535 Page 163 338 401 163, 190 187, 303 164, 190 484 291 450, 451 408 460 321 429 TABLE OF CASES (CONTINUED) Skipper v. South Carolina (1986) 476 US. 1 Smith v. Murray (1986) 477 U.S. 527 Smith v. Phillips (1982) 455 U.S. 209 Speiser v. Randall (1958) 357 U.S. 513 Spencerv, Texas (1967) 385 U.S. 554 Stanford v. Kentucky (1989) 492 U.S. 361 State v. Bernard (La. 1992) 608 So.2d 966 State v. Bjorklund (Neb. 2000) 604 N.W.2d 169 State v. Bobo (Tenn. 1987) 727 S.W.2d 945 State v. Carter (Utah 1995) 888 P.2d 629 State v. Clark (N.M. 1999) 990 P.2d 793 State v. Cohen (1899) 108 Iowa 208, 78 N.W. 857 State v. Dixon (Fla. 1973) 283 So.2d 1 li Page 223, 490 483 162 448, 450 298 481, 483 357, 362 357 417 364, 366, 367 363 308 395 TABLE OF CASES (CONTINUED) State v. Goff (1980) 166 W.Va. 47, 272 S.E.2d 457 State v. Hightower (N.J. 1996) 680 A.2d 649 State v. Humphries (S.C. 2002) 570 S.E.2d 160 State v. Hutchinson (Tenn. 1994) 898 S.W.2d 161 State v. Koskovich (N.J. 2001) 776 A.2d 144 State v. Mains (1983) 295 Or. 640, 669 P.2d 1112 State v. McCormick (Ind. 1979) 397 N.E.2d 276 State v. Miller (1966) 197 W.Va. 588, 476 S.E.2d 535 State v. Muhammad (N.J. 1996) 678 A.2d 164 State v. Nesbit (Tenn. 1998) 978 S.W.2d 872 State v. Pierre (Utah 1977) 572 P.2d 1338 State v. Ring (Az. 2003) 65 P.3d 915 State v. Rizzo (Conn. 2003) 833 A.2d 363 lii Page 319 387 369 319 369, 387, 388, 389 315 417 312 353, 362, 363 362, 387 395, 437 437, 443 453 TABLE OF CASES (CONTINUED) State v. Simants (Neb. 1977) 250 N.W.2d 881 State v. Storey (Mo. 1995) 901 S.W.2d 886 State v. Tharp (1980) 27 Wash.App. 198, 616 P.2d 693 State v. White (Del. 1978) 395 A.3d 1082 State v. Whitfield (Mo. 2003) 107 S.W.3d 253 Strickland v. Washington (1984) 466 U.S. 668 Stringer v. Black (1992) 503 U.S. 222 Sullivan v. Louisiana (1993) 508 U.S. 275 Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155 Taylor y. Kentucky (1978) 436 U.S. 478 Taylor vy. Louisiana (1975) 419 U.S. 522 Tejada v. Dubois (ist Cir. 1998) 142 F.3d 18 Tennard v. Dretke (2004) 542 U.S. 274 lini Page 395 370 319 427 443 194, 195, 340 470 Passim 359 489 192, 193 340 222, 223 TABLE OF CASES (CONTINUED) Thiel v. Southern Pacific Co. (1946) 328 U.S. 217 Thompson v. Oklahoma (1988) 487 U.S. 815 Townsend v. Sain (1963) 373 U.S, 293 Trop v. Dulles (1958) 356 U.S. 86 Tuilaepa v. California (1994) 512 U.S. 967 Turner v. Murray (1986) 476 US. 28 Turner v. State (Ga. 1997) 486 S.E.2d 839 United States v. Batchelder (1979) 442 U.S. 114 United States v. Burr (CC Va. 1807) 25 F.Cas. No. 14,692g United States v. Doe (D.C. Cir. 1990) 903 F.2d 16 United States v. Duarte-Acero (11th Cir. 2000) 208 F.3d 1282 United States v. Eubanks (9th Cir. 1979) 591 F.2d 513 United States v. Frederick (9th Cir. 1996) 78 F.2d 1370 liv Page 193 483, 485 425 429, 485 Passim Passim 387 399 165 206 482, 483 327, 339 212 TABLE OF CASES (CONTINUED) United States v. Gonzalez . (9th Cir. 2000) 214 F.3d 1109 United States v. Hall (Sth Cir. 1976) 525 F.2d 1254 United States v. Hasting (1983) 461 U.S. 499 United States v. Jackson (9th Cir. 1996) 84 F.3d 1154 United States v. Kojayan (9th Cir. 1993) 8 F.3d 1315 United States v. Lane (1985) 474 US. 438 United States v. Lesina (9th Cir. 1987) 833 F.2d 156 United States v. Lewis (9th Cir. 1986) 787 F.2d 1318 United States v. Lotsch (2nd Cir. 1939) 102 F.2d 35 United States v. Maccini (ist Cir. 1983) 721 F.2d 840 United States v. Martinez-Salazar (2000) 528 U.S. 304 United States v. Payne (9th Cir. 1990) 944 F.2d 1458 United States v. Quintero-Barraza (9th Cir. 1995) 78 F.3d 1314 lv Page 327, 339 323 227 212 380 242, 244 477 246, 257 246 312, 313 328, 341 319 335 TABLE OF CASES (CONTINUED) United States v. Ragghianti (9th Cir. 1975) 527 F.2d 586 United States v. Roberts (9th Cir. 1980) 618 F.2d 530 United States v. Sanchez (9th Cir. 1999) 176 F.3d 1214 United States v. Sarkisian (9th Cir. 1999) 197 F.3d 966 United States v. Schuler (9th Cir. 1987) 813 F.2d 978 United States v. Smith (2nd Cir. 1940) 112 F.2d 83 United States v. Wallace (9th Cir. 1988) 848 F.2d 1464 United States v. Wilson (1914) 232 U.S. 563 United States ex rel. Haynes v. McKendrick (2d Cir. 1973) 481 F.2d 152 Vasquez v. Hillery (1986) 474 U.S. 254 Verzi v. Superior Court (1986) 183 Cal.App.3d 382 Victor v. Nebraska (1994) 511 U.S. 1 Village of Willowbrook v. Olech (2000) 528 U.S. 562 lvi Page 246 213 213 212 390 246 487, 488 310 206 336 285 306, 309 364 TABLE OF CASES (CONTINUED) Vitek v. Jones (1980) 445 U.S. 480 Wainwright v. Witt (1985) 469 U.S. 412 Walton v. Arizona (1988) 497 U.S. 639 Wardius v. Oregon (1973) 412 U.S. 470 Washington v. Texas (1967) 388 U.S. 14 Welch v. State (Okla.Crim.App. 2000) 2 P.3d 356 Westbrook v. Milahy (1970) 2 Cal.3d 765 White v. Illinois (1992) 502 U.S. 346 Wiggins v. Smith (2000) 539 U.S. 510 Williams v. Florida (1970) 399 US. 78 Williams vy. Superior Court (1984) 36 Cal.3d 441 Witherspoon vy.Illinois (1968) 391 U.S. 510 Woldt v. People (Colo. 2003) 64 P.3d 256 lvli Page 291, 359 Passim 220, 419, 435 476 476 377 429 325 195 418 Passim Passim 443 TABLE OF CASES (CONTINUED) Wolfe v. Brigano (6th Cir. 2000) 232 F.3d 499 Woodson v. North Carolina (1976) 428 U.S. 280 Zant v. Stephens (1983) 462 U.S. 862 Zemina v. Solem (8th Cir. 1978) 573 F.2d 1027 Zemina v. Solem (D.S.D. 1977) 438 F.Supp. 455 Ivili Page 334, 338 Passim 291, 360, 468 478 478 TABLE OF STATUTES Page United States Constitution Article VI, § 1, cl. 2 48] First Amendment Passim Fourth Amendment Passim Fifth Amendment Passim Sixth Amendment Passim Seventh Amendment 445 Eighth Amendment Passim Fourteenth Amendment Passim California Constitution Article I, section 1 6 Article I, section 7 Passim Article I, section 7, subd. (a) 283 Article I, section 13 5,6 Article I, section 15 Passim Article I, section 16 Passim Article I, section 17 Passim Article I, section 22 5,6 Article I, section 24 194 Article I, section 27 6 lix TABLE OF STATUTES (CONTINUED) Page Penal Code Section 187 Passim Section 190.2 397, 401, 432, 441 Section 192, subd.(a) 439 Section 190.2, subd. (a)(3) | 3,7 Section 190.2, subd. (a)(17)(i) 3,7 Section 190.3 Passim Section 190.3, subd.(a) Passim Section 190.3, subds. (a)-(j) 403 Section 190.3, subd.(b) Passim Section 190.3, subd. (k) 223 Section 190.4, subd. (e) 9, 401, 456 Section 205 3, 7, 9, 268 Section 209, subd. (b) 3,7, 11 Section 211 Passim Section 246 3,10 Section 459 3,7, 11 Section 496 3,7, 12 Section 594, subd.(b) 3,7, 11 Section 654 10, 11, 12 Ix TABLE OF STATUTES (CONTINUED) Penal Code (Cont.) Section 664 Section 954 Section 995 Section 1096 Section 1111 Section 1158, subd. (a) Section 1170, subd.(c) Section 1170, subd. (d) Section 1181, subd. 7 Section 1202.4, subd. (b) Section 1237, subd.(a) Section 1239, subd.(b) Section 1538.5 Section 12022, subd.(a) Section 12022, subd.(a)(1) Section 12022.7 Evidence Code Section 210 Section 350 Ixi Page Passim 241, 249 4 324 Passim 462 426 399, 403 9 12 12 12 4 9,10, 11,12 3, 7,9, 10 Passim 290, 359 290, 359, 364 TABLE OF STATUTES (CONTINUED) Page Evidence Code (Cont.) Section 352 343, 359 Section 452, subd. (d) 408 Section 500 326 Section 501 326 Section 502 326 Section 520 | 457 Section 1101 246, 287 Section 1101, subd.(a) 256 Code of Civil Procedure Section 191 159, 160 Section 197, subd. (a) 160 Section 223. | 158 California Rules of Court Rule 4.420(b) 457 Rule 4.421 403 Rule 4.423 403 Rule 13 492 Rule 36(b)(2) 493 Ix TABLE OF STATUTES (CONTINUED) Page California Jury Instructions -- Criminal CALJIC No.1.00 314, 322 CALJIC No. 1.01 313 CALJIC No. 2.01 315, 322 CALJIC No.2.02 322 CALJIC No. 2.11 314 CALJIC No. 2.21 322 CALJIC No.2.21.2 316 CALJIC No.2.22 317 CALJIC No.2.27 322 CALJIC No, 2.51 322 CALJIC No. 2.52 322 CALJIC No.2.60 315 CALJIC No.2.61 315 CALJIC No. 2.90 Passim CALJIC No.3.10 281 CALJIC No. 3.11 (1990 Revision) 282 CALJIC No. 3.12 283 CALJIC No. 3.16 282 CALJIC No. 8.83 22 Ixili TABLE OF STATUTES (CONTINUED) Page California Jury Instructions -- Criminal (Cont.) CALJIC No.8.84 431, 431 CALJIC No.8.84.1 389, 390 CALJIC No. 8.85 Passim CALJIC No. 8.87 (1989 Revision) 416, 422 CALJIC No. 8.88 (1989 Revision) Passim CALJIC No. 17.02 Passim Other Authorities ABAStandards for Criminal Justice (3d ed. 1993) Standard 4-5.1 195 Berger, Payne and Suffering — A Personal Reflection and a Victim-Centered Critique (1992) 20 Fla.St.U.L.Rev. 21 366 Blume, Ten Years ofPayne: Victim Impact Evidence in Capital Cases (2003) 88 Cornell L.Rev. 257 365 Criminal Jury Instructions for the District of Columbia, Instr. 1.03 (Bar Crim. Association of the District of Columbia, 4th ed. 1993) 319 Eighth Circuit Model Instructions -- Criminal, No. 3.11 (2000) 310 Federal Judicial Center, Pattern Criminal Jury Instructions (1988) 312 First Circuit Model Instructions -- Criminal, No. 1.01 319 Georgia Suggested Pattern Jury Instructions - Criminal Cases (Carl Vinson Inst. of Gov’t., Univ. of Georgia, 2nd ed. 2000) 321 xiv TABLE OF STATUTES (CONTINUED) Other Authorities (Cont.) Goldstein, The State and the Accused: Balance ofAdvantagein Criminal Procedure (1960) 69 Yale L.J. 1149 Greenfield & Abbot, The Scope ofthe U.S. Senate Control Over the Conclusion and Operation of Treaties (1991) 68 Chi.-Kent L. Rev. 571 Idaho Criminal Jury Instructions -- ICJI No. 1501 Merriam-Webster’s Collegiate Dictionary (10th ed. 2001) New York CJI (New York) (Ist Ed. 1983), No.-3.05 Note, The Presumption ofLife: A Starting Pointfor Due Process Analysis ofCapital Sentencing, 94 Yale L.J. 351 (1984) Oklahoma Uniform Jury Instruction Crim (2nd ed.) No. 1 O’Malley, et. al., and Lee, Federal Jury Practice and Instructions (West, Sth ed. 2000) Quigley, Human Rights Defenses in U.S. Courts (1998) 20 Hum. Rts. Q. 555 Stevenson, The Ultimate Authority on the Ultimate Punishment: The Requisite Role ofthe Jury in Capital Sentencing (2003) 54 Ala L. Rev. 1091 Uniform Criminal Jury Instructions (Oregon) No. 1006 Washington Pattern Jury Instructions -- Criminal, WPIC 1.01 (West, 2nd ed. 1994) Wisconsin Jury Instructions- Criminal, WIS-JI-Criminal 140 (Univ. of Wisconsin Law School, 2000) lxv Page 476 481 318, 319 471 319 465 319 310 482 443 319 319 320 TABLE OF STATUTES (CONTINUED) United States Code 21 U.S.C. section 848(a) 21 U.S.C. section 848(k) Federal Rules of Criminal Procedure Rule 23 Treaties International Covenant on Civil and Political Rights (“ICCPR”) State Statutes Ala. Code, § 13A-5-45(e) (1975) Ala. Code, § 13A-5-46(f) (1982) Ala. Code, § 13A-5-47(d) (1982) Ala. Code, § 13A-5-53(b)(3) (1982) Ariz. Rev. Stat. Ann. § 13-703 (1989) Ariz. Rev. Stat. Ann. § 13-703.01(E) (2002) Ark. Code Ann., § 5-4-603 (Michie 1987) Ark. Code Ann., § 5-4-603(a) (Michie 1993) Colo. Rev. Stat. Ann., § 16-11-104-1.3-1201(1)(d) (2002) Colo, Rey. Stat. Ann., § 18-1.3-1201(2)(b)(I1) Colo. Rev. Stat. Ann., § 18-1.3-1201(2)(b)(ID(A) (West 2002) Conn. Gen.Stat. Ann., § 53a-46a(c) (West 1985) Ixvi Page 463 462 337 Passim 437 427 427 395 437 427, 462 437 427, 462 433 427 427, 462 437 TABLE OF STATUTES (CONTINUED) Page State Statutes (Cont.) Conn. Gen. Stat. Ann., § 53a-46a(e) (West 1985) 427 Conn. Gen.Stat. Ann., § 53a-46b(b)(3) (West 1993) 395 Del. Code Ann., tit. 11, § 4209(c)(3)a.1 (2002) 437 Del. Code Ann., tit. 11, § 4209(c)(3)b.1. (2002) 462 Del. Code Ann., tit. 11, § 4209(g)(2) (1992) 395 Fla. Stat. Ann., § 921.141(3) (West 1985) 427 Ga. Code Ann., § 17-10-30(c) (Harrison 1990) 427, 437 Ga. Code Ann. § 17-10-35(c)(3) (Harrison 1990) 395 Idaho Code, § 19-2515(3)(b) (2003) 437, 462 Idaho Code, § 19-2515(8)(a)-(b) (2003) 427 Idaho Code, § 19-2827(c)(3) (1987) 395 Il. Ann. Stat. ch. 38, para. 9-1(f) (Smith-Hurd 1992) 437 Ill. Ann. Stat. ch. 38, para. 9-1(g) (Smith-Hurd 1992) 462 Ind. Code Ann., § 35-50-2-9(a) (West 1992) 437 Ky.Rev. Stat. Ann., § 532.025(3) (Michie 1992) 319, 427, 437 Ky. Rev. Stat. Ann., § 532.075(3) (Michie 1985) 395 La. Code Crim. Proc. Ann., art. 905.3 (West 1984) 437 La. Code Crim. Proc. Ann., art. 905.6 (West 1993) 462 La. Code Crim. Proc. Ann., art. 905.7 (West 1993) 427 Ixvii TABLE OF STATUTES (CONTINUED) State Statutes (Cont.) La. Code Crim.Proc. Ann., art. 905.9.1(1)(c) (West 1984) Md.Ann. Codeart. 27, § 413(i) (1993) Miss. Code Ann., § 99-19-103 (1993) Miss. Code Ann., § 99-19-105(3)(c) (1993) Mont. Code Ann., § 46-18-305 (1993) Mont. Code Ann., § 46-18-310(3) (1993) Neb. Rev. Neb.Rev. Neb.Rev. Neb.Rev. Neb. Rev. Nev. Rev. Nev. Rev. N.H.Rev. N.H.Rev. Stat., § 29-2520(4)(f) (2002) Stat., § 29-2521.01 (1989) Stat., § 29-2522(3) (1989) Stat., § 29-2521(2) (2002) Stat., § 29-2522 (2002) Stat. Ann., § 175.554(3) (Michie 1992) Stat. Ann., § 177.055 (d) (Michie 1992) Stat. Ann. § 630:5 (IV) (1992) Stat. Ann. § 630:5(XI)(c) (1992) N.J.S.A. 2C:11-30(2)(a) N.M.Stat. Ann., § 31-20A-3 (Michie 1990) N.M.Stat. Ann., § 31-20A-4(c)(4) (Michie 1990) N.C. Gen. Stat. § 15A-2000(d)(2) (1983) Ixvili Page 395 428, 462 427, 437, 462 395 428 395 437, 462 395 395 428 428 428, 437 395 428, 462 395 437 428, 437, 462 395 395 TABLE OF STATUTES (CONTINUED) Page State Statutes (Cont.) Ohio Rev. Code, § 2929.04 (Page’s 1993) | 437 Ohio Rev. Code Ann. § 2929.05(A) (Baldwin 1992) 395 Okla. Stat. Ann., tit. 21, § 701.11 (West 1993) 428, 437, 462 41 Pa. Cons. Stat. Ann., § 9711 (1982) 428 42 Pa. Cons. Stat. Ann., § 9711(c)(1)(iii) (1982) 437 42 Pa. Cons. Stat. Ann., § 9711(c)(1)(iv) (1982) 462 42 Pa. Cons. Stat. Ann., § 9711(h)(3)(iii) (1993) 395 " S.C. Code Ann., § 16-3-20(A) (Law. Co-op (1992) 437 S.C. Code Ann., § 16-3-20(C) (Law. Co-op. 1992) 428, 462 S.C. Code Ann., § 16-3-25(c)(3) (Law. Co-op. 1985) 395 S.D. Codified Laws Ann., § 23A-27A-5 (1988) 428, 437 S.D. Codified Laws Ann., § 23A-27A-12(3) (1988) 395 Tenn. Code Ann., § 13-206(c)(1)(D) (1993) 395 Tenn. Code Ann., §, 39-13-204(f) (1991) 437 Tenn. Code Ann., § 39-13-204(g) (1993) 428, 462 Tex, Crim. Proc. Code Ann. § 37.071 (West 1993) 437, 462 Tex. Crim. Proc. Code Ann., § 37.071(c) (West 1993) 428 Utah Crim. Code, § 76-3-207, subd. (2)(a)(iii) 367, 370 Va. Code Ann., § 17.110.1C(2) (Michie 1988) 395 lxix TABLE OF STATUTES (CONTINUED) Page State Statutes (Cont.) Va. Code Ann., § 19.2-264(D) (Michie 1990) 428 Va. Code Ann., § 19.2-264.4(C) (Michie 1990) 437 Wash.Rev. Code Ann. § 10.95.060(4) (West 1990) 437 Wash.Rev. Code Ann. § 10.95.130(2)(b) (West 1990) 395 Wyo.Stat., § 6-2-102(d)()(A) (1992) 437 Wyo.Stat., § 6-2-102(e) (1988) 428 Wyo.Stat., § 6-2-103(d)(it) (1988) 395 Ixx IN THE SUPREME COURTOF THE STATE OF CALIFORNIA ) PEOPLE OF THE STATE OF CALIFORNIA,) Plaintiff and Respondent, ) ) VS. ) $055856 ) Riverside Sup. Ct. No. CR46579 ORLANDO ROMERO AND ) CHRISTOPHERSELF, ) Defendants and Appellants. ) ) STATEMENTOF THE CASE By a 23-count, amended informationfiled in the Superior Court of California, Riverside County, on April 26, 1995, appellant Christopher Self and his older brother, Orlando Gene Romero, were charged with various crimes, includingthreefirst degree murders in violation of Penal Code section 187! with special circumstances. The circumstancesthat led to the charges were alleged to have occurred in 12 separate incidents in Riverside County between October8, 1992 and December7, 1992. Appellant was charged with crimes involving 10 of those incidents. Daniel Chavez was also charged as a codefendant in the amended information.” Although not namedin the amendedinformation, Jose Munoz was also charged as a fourth codefendant in various felony complaints involving three of the murders and attempted murders, as well as charges of robbery, kidnapping, '/ Subsequent undesignated references are to the Penal Code. *) Daniel Chavez was namedas a party defendant on counts 1, 2, 13, 14, 15, and 16. and multiple special circumstances.° Codefendant Chavez’s case wassevered beforetrial,* and he wastried separately and convicted after a trial by jury of two counts of first degree murder with special circumstances. Chavez wassentencedto life imprisonment without possibility of parole. In a plea bargain in which heagreedto testify against appellant and codefendant Romero, Munoz pled guilty to three counts offirst degree murder, one count of attempted premeditated murder, three counts of robbery, and one count of attempted robbery. (See 2 CT 180-181; see also 45 Supp CT 12906- 12909 (People’s Exhibit 269) [memorandum of agreement, dated September8, 1993, between Riverside County District Attorney and Munoz.).] In consideration */ (See 1 Supplemental CT[hereafter “Supp CT”] 1-3 [felony complaintfiled December14, 1992 charging Munoz with three counts of murder, two special circumstances, and count of attempted murder]; see also 1 Clerk’s Transcript [hereafter “CT”’] 32-35 [felony complaint charging Munoz with three counts of murder, one count of attempted murder, robbery, and special circumstances]; 1 CT 52-61 [third amended felony complaint also charging Munoz, inter alia, with three counts of murder, three counts of attempted murder, robbery, and special circumstances]; 1 CT 95-116 [fourth amended felony complaint [also charging Munoz,inter alia, with three counts of murder, two counts of attempted murder, robbery, and special circumstances]; and 1 CT 143-154 [fifth amended felony complaint also charging Munoz,inter alia, with three counts of murder, three counts of attempted murder, robbery, and special circumstances]. Another amended felony complaint, filed against Munoz and Chavez on December16, 1992, was deemedbysettled statement“no longerin the Court file.” (7 Fifth Supp CT 1926; 1 Sixth Supp CT 134.) A copy of the amended complaint was appended as Appendix B to codefendant Romero’s second supplemental request to correct, complete, andsettle the record on appeal (1 Sixth Supp CT 58-61) and has been deemedbysettled statement to be an authentic copy of the amended complaint as filed. (7 Fifth Supp CT 1926; 1 Sixth Supp CT 134.) */ See 4 CT 903, 908-909[transcript of April 30, 1995 proceedings in which Chavez severance discussed]. of his testimony, Munoz was promised andreceived a sentence of 51-years-to-life imprisonment in accordance with the termsofhis plea agreement. (See 2 CT 180- 181; see also 45 Supp CT 12907 [sentencing termsset forth in memorandum of agreement].) In the amended information filed on April 26, 1995, appellant was charged with three counts of murder (§ 187) (counts 1, 2, 3); six counts of robbery (§ 211) (counts 4, 14, 15, 16, 19, 23); four counts ofwillful, deliberate, and premeditated attempted murder (§§ 664/187) (counts 5, 9, 10, 18); one count of aggravated mayhem (§ 205) (count 6); one count of attempted robbery (§§ 664/211) (count 7); one count of shooting at an occupied motorvehicle (§ 246) (count 8); one count of burglary (§ 459) (count 11); one countof aggravated vandalism (§ 594, subd. (b)) (count 12); one count of kidnapping to commit robbery (§ 209, subd. (b)) (count 13); and one count of receiving stolen property (§ 496) (count 17), In addition, counts 1 through 10, 13 through 16, 18, 19, and 23, charged against appellant, alleged that a principal was armedwith a firearm within the meaning of section 12022, subdivision (a)(1). Counts 1, 2, and 3 alleged one robbery-murder special circumstance (§ 190.2, subd. (a)(17)(i)) and two multiple murderspecial circumstances (§ 190.2, subd. (a)(3)). Counts 5, 7, 8, 18, and 19 alleged that appellantinflicted great bodily injury on the victim within the meaning of section 12022.7. (4 CT 821-834.) At his arraignment on April 28, 1995, appellant pled not guilty to all counts and denied all enhancements, special circumstances, and special allegations. (4 CT 839.) On September 15, 1995, the trial court granted codefendant Romero’s motion for separate juries. (4 CT 917-918.) Trial by jury commenced December 11, 1995. (5 CT 980.) On December 29, 1995, appellant moved pursuant to section 995 to dismiss counts 4, 5, 6, 9, 10, 11, 12, 15, and 23 and the alleged section 12022.7 enhancements as to counts 5, 7, and 8. (5 CT 983-1008; 1 Supp CT 250-274.) The prosecution conceded appellant’s motion as to count 23 on January 9, 1996. (5 CT 1056-1073.) On January 11, 1996, the court denied appellant’s section 995 motion except as to count 23, which was granted. The court subsequently dismissed count 23 as to appellant. (5 CT 1080-1081.) On December29, 1995, appellant moved, pursuant to section 1538.5, to suppress statements and evidence obtainedafter his arrest. (5 CT 1008-1033.) Appellant’s motion was heard and denied on March 19, 1996. (6 CT 1230.) On January 4, 2004, the prosecution movedin limine to admit evidence of appellant’s escape attempts following his arrest and while awaitingtrial as evidence of consciousnessofguilt. (5 CT 1034-1039.) On the same date, the prosecution also movedin limineto restrict or limit evidence of alcohol or methamphetamine use by the victims in counts 1 and 2. (5 CT 1040-1042.) On January 11, 1996, appellant objected to the use of a jury questionnaire; appellant’s objection was overruled on the same date. (5 CT 1080) OnFebruary 20, 1996, codefendant Romero movedto exclude photographic evidence on groundsthat the admission of various photographs would violate his rights to a fair trial, due process of law, and to a reliable determination of guilt guaranteed by the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, sections 7, 13, 15, 16, 17, and 22 of the California Constitution. (5 CT 1128-1136.) Appellant joined in the motion on February 22, 1996. After a hearing, the court denied the motionin part and granted the motionin part, excluding the admissibility at trial of seven photographs(identified as IJ, 2R, 2U, and 3V, 3W, 3Y, and 3Z). (5 CT 1152; see also Second Supp CT 13, 28.) On March 14, 1996, appellant movedto sever the three alleged counts of murder with special circumstances (counts |, 2, and 3) from trial of the remaining counts of the amended information on grounds,interalia, that joinder of highly inflammatory murder charges with the other alleged crimes would prejudice appellantin violation of his constitutional rights to a fair trial and due process of law.’ (6 CT 1216-1223.) Appellant movedto strike the prosecution’s notice of aggravation and to exclude evidence of aggravation on groundsthat the admission of the aggravation evidence noticed by the prosecution would,inter alia, violate section 190.3, subdivision (b) and appellant’s rights guaranteed by the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution and Article °/ The minutes of proceedings as to codefendant Romero on March 14, 1996 provide that his severance motion was denied. (See 6 CT 1205.) Appellant’s defense counsel wasnotpresentat that hearing. There were no court proceedings involving appellant on March 14, 1996. Proceedings as to appellant were held on March 12, 1996 and then continued to March 19, 1996. (See 6 CT 1204, 1229- 1230.) The trial court did not rule on appellant’s severance motion on either of those dates. I, sections 1, 7, 15, 16, 17, and 27 of the California Constitution. (6 CT 1280- 1304.) On May 2, 1996, the prosecution movedto strike from its notice of aggravation as to appellant four previously specified aggravating factors(items8, 9, 10, and 11). (8 CT 1871-1872; 48 RT 7176.) Appellant’s motion to exclude evidence of aggravation was denied on May2, 1996. (8 CT 1877.) On April 1, 1996, appellant moved for a separate penalty jury or, alternatively, to reopen voir dire of the jury on groundsthat a single jury for both the guilt and penalty phases oftrial would violate appellant’s rights to a fair and impartial jury, fair trial, due process of law,and to a reliable determination of penalty guaranteed by the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, sections 1, 7, 13, 15, 16, 17, and 27 of the California Constitution. (6 CT 1318-1323.) Thetrial court held appellant’s motion under submission. On April 17, 1996, both sides rested. (6 CT 1345-1346.) Closing arguments took place on April 22, 1996. (6 CT 1361-1362.) On April 23, 1996, the jury was duly instructed and commenceddeliberations. (6 CT 1361-1362, 1364, 1366.) The jury returned verdicts on April 25, 1996; the verdicts were ordered sealed pendingthe return of verdicts as to codefendant Romero. (6 CT 1370-1371.) The verdicts were unsealed, read, and recorded on April 30, 1996. (8 CT 1715-1723.) The jury found appellant guilty of three countsoffirst degree murder (§ 187) (counts 1, 2, 3) and as to each count foundtrue the special circumstance of robbery-murder within the meaning ofsection 190.2, subdivision (a)(17)(i) and two multiple murder special circumstances within the meaning of section 190.2, subdivision (a)(3). (8 CT 1733-1748.) Thejury also found appellant guilty of five counts of second degree robbery (§ 211) (counts 4, 14, 15, 16, and 19), four counts ofwillful, deliberate, and premeditated attempted murder (§§ 664/187) (counts 5, 9, 10, 18), one count of aggravated mayhem (§ 205) (count 6), one count of attempted robbery (§§ 664/211) (count 7), one count of shooting at an occupied motor vehicle (§ 246) (count 8), one count of second degree burglary (§ 459) (count 11), one count of aggravated vandalism (§ 594, subd. (b)) (count 12), one count of kidnapping to commit robbery (§ 209, subd. (b)) (count 13), and one count of receiving stolen property (§ 496) (count 17). On counts | through 10, 13 through 16, 18, and 19, the jury found that a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1) and on counts 5, 7, 8, 18, and 19 that appellant inflicted great bodily injury on the victim within the meaning ofsection 12022.7. (8 CT 1748-1785.) Onor about April 30, 1996, appellant moved to exclude the admissibility of victim impact evidence duringthe penalty trial.° (CT 1843-1860.) On May 2, 1996, the court took up this motion and appellant’s motion for a separate penalty jury. Both motions were denied. (8 CT 1877.) °/ Thefirst 8 pages of appellant’s motion were omitted from the Clerk’s Transcript on Appeal [CT]. The record was augmentedto include the missing pages; appellant’s motion, dated April 30, 1996, is now foundat corrected and renumbered 8 CT 1836-1860; however, the date on which appellant’s motion was filed is illegible. (See corrected 8 CT 1836.) The penalty trial commenced May6, 1996, On May14, 1996, during the penalty trial proceedings, appellant moved for a mistrial following an improper reference by a witness to a purported false statement by appellant while in jail awaiting trial. Appellant’s mistrial motion was denied on the samedate. (8 CT 1894.) On May 14, 1996, appellant also moved to dismiss andstrike certain allegations in aggravation pertaining to the possession ofjail weapons(“shanks”) on groundsof loss of material evidence and failure to preserve exculpatory evidence in violation of appellant’s rights to fair trial, due process, and a reliable determination of guilt guaranteed by the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (8 CT 1896-1906.) Additionally, appellant movedto suppressall statements allegedly made by him while in custody awaiting trial on groundsthat admissibility of such statements as evidence in aggravation violated his rights to a fair trial, to counsel, due process of law, and to a reliable determination of guilt guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution and Article I, section 15 of the California Constitution. (8 CT 1918-1920.) These motions were also denied. (CT 1920.) Both sides rested on May 20, 1996. (8 CT 1881, 1931-1932.) On May 23, 1996, following closing argumentandthe reading ofjury instructions, the jury commenceddeliberations. (See 9 CT 2021-2084.) The jury returned verdicts on May 28, 1996, fixing the penalty as death on counts 1, 2, and 3. (8 CT 1958-1961; 9 CT 2030, 2086dd-2086G.) On August 16, 1996, appellant moved to reduce the penalty ofdeath to life imprisonment withoutpossibility ofparole and for a new trial pursuant to sections 190.4, subdivision (e) and 1181, subdivision 7. (9 CT 2088-2093.) The court denied appellant’s motions on August 28, 1996 (9 CT 2147-2154A) andthereafter sentenced appellant to death on counts 1, 2, and 3. (9 CT 2148.) Count 1 was imposed consecutive to count 4; count 2 was imposed consecutive to count 1; and count3 consecutive to count 2. (9 CT 2153.) The court also sentenced appellant on counts 1, 2, and 3 to consecutive one-year terms on each count pursuant to section 12022,subdivision (a). (9 CT 2148.) On count 4 (§ 211), the court sentenced appellant to the aggravated term of 5 years and toa consecutive one-year term pursuantto section 12022, subdivision (a). On count 5 (§§ 664/187), the court sentenced appellantto life without the possibility of parole to be served consecutive to count 3. The court also sentenced appellant to a consecutive one-year term pursuantto section 12022,subdivision (a) and to a consecutive thee-year term pursuant to section 12022.7. On count 6 (§ 205), the trial court sentenced appellantto life without the possibility of parole and to a consecutive one-year term pursuantto section 12022, subdivision (a). The court stayed execution of sentence on count6.’ ’/ Abstracts ofjudgmentsfiled on August 30, 1996 and February 27, 2001 erroneously specified a one-year term on the section 12022, subdivision (a)(1) enhancement. (See 9 CT 2176 and 45 Supp CT 13157.) On appellant’s motion, the abstract ofjudgment wascorrected on January 13, 2003 and now provides correctly that the one-year section 12022, subdivision (a)(1) enhancement was stayed. (See 45 Supp CT 13161.) On count 7 (§§ 664/211), the court sentenced appellant to 6 monthsin state prison (or one-third of the middle term of 18 months) to run consecutive to count 5.8 The court also sentenced appellant to a consecutive four-month term (or one third of the middle term of 1-year) pursuant to section 12022, subdivision (a) and to a consecutive three-year term pursuantto section 12022.7. The court stayed execution of the sentence imposed pursuant to section 12022.7.7 On count 8 (§ 246), the court sentenced appellant to the middle term of 5 years. The court also sentenced appellant to a consecutive one-year term pursuant to section 12022, subdivision (a) and to a consecutive three-year term pursuant to section 12022.7. The court then stayed count 8 pursuant to section 654,"° On count 9 (§§ 664/187), the court sentenced appellant to life without the possibility of parole to run consecutive to count 7 and to a consecutive one-year ’/ The original minutes of the August 2, 1996 sentencing proceedingsstated erroneously that appellant was sentenced to one-third of the middle term of “/8 years for a total of 0 years and 6 months.”[Italics added.] On appellant’s motion, the minutes were amended on January 14, 2003 to provide correctly that “the Court imposes 1/3 the mid term of 2 years and 0 months for the total of 0 years and 8 months.” (See 45 Supp CT 13098; see also 9 CT 2154B.) On appellant’s motion, the abstract ofjudgment wascorrected to reflect that a consecutive 8- month term was imposed on count 7. (See 45 Supp CT 13159.) */ The abstract ofjudgmentfiled on August 30, 1996 erroneously omitted the stay and provided that a 3-year term was imposed. (See 9 CT 2175.) On appellant’s motion, the error was corrected. Amended abstracts ofjudgment filed on February 27, 2001 (45 CT 13159) and January 13, 2003 (45 CT 13163) correctly provide that the section 12022.7 enhancementon count 7 wasstayed. '°/ The abstract ofjudgmentfiled on August 30, 1996 omitted the stay and provided that a one-year term was imposed pursuantto section 12022,subdivision (a)(1). (See 9 CT 2175.) On appellant’s motion, the error was corrected. Abstracts ofjudgmentfiled on February 27, 2001 (45 CT 13159) and January 13, 2003 (45 CT 13163) provide that the section 12022, subdivision (a)(1) enhancement on count 8 wasstayed. 10 term pursuantto section 12022, subdivision (a). On count 10 (§§ 664/187), the court sentenced appellant to life without the possibility of parole to run consecutive to count 9 and to a consecutive one-year term pursuantto section 12022, subdivision(a). On count 11 (§ 459), the court sentenced appellant to 8 months in state prison (or one-third of the middle term of 2 years) to run consecutive to count 10. On count 12 (§ 594, subd. (b)), the court sentenced appellant to 8 months in state prison (or one-third of the middle term of 2 years) to run consecutive to count 11. On count 13 (§ 209, subd.(b)), the court sentenced appellantto life without the possibility of parole to run consecutive to count 12 and to a consecutive one- year term pursuant to section 12022, subdivision(a). On count 14 (§ 211), the court sentenced appellant to the middle term of 3 years and to a consecutive one-year term pursuant to section 12022, subdivision (a). The court stayed count 14 pursuant to section 654. On count 15 (§ 211), the court sentenced appellant to a one-year term (or one-third of the middle term of 3 years) to run consecutive to count 13 and to a consecutive term of 4 months(or one-third of the middle term of 1-year) pursuant to section 12022, subdivision (a). On count 16 (§ 211), the court sentenced appellant to a one-year term (or one-third of the middle term of 3 years) to run consecutive to count 15 and to a consecutive term of 4 months (or one-third of the middle term of 1-year) pursuant 1] to section 12022, subdivision (a). On count 17 (§ 496), the court sentenced appellant to the middle term of 2 years but stayed the sentence pursuant to section 654. On count 18 (§§ 664/187), the court sentenced appellant to life without the possibility of parole to run consecutive to count 16. The court also sentenced appellant to a consecutive one-year term pursuantto section 12022, subdivision (a) and to a consecutive three-year term pursuantto section 12022.7. On count 19 (§ 211), the court sentenced appellant to a consecutive one- year term (or one-third of the middle term of 3 years), to a consecutive one-year term pursuantto section 12022, subdivision (a), and to a consecutive one-year term (or one-third of the middle term of 3 years) pursuant to section 12022.7. The court stayed count 19 pursuant to section 654. The court imposeda restitution fine in the amount of $10,000 pursuant to section 1202.4, subdivision (b). (9 CT 2148- 2154.) A judgment of death wassigned by the court on August 28, 1996 and appellant was committed to San Quentin State Prison for execution of sentence," (9 CT 2169-2172, 2183-2184.) This appeal from a judgmentof death following a trial by jury is automatic. (§§ 1237, subd. (a) and 1239, subd.(b).) ''/ The commitment judgmentof death erroneously provides that appellant was twice convicted on count 14 and omits reference to appellant’s conviction on count 19. (See 9 CT 2170.) 12 STATEMENT OF FACTS I. Introduction During a two-month period between early October and early December 1992, twelve separate incidents involving various offenses -- including carjacking, robbery, assault, and burglary -- occurred in Riverside County. Duringthis period, three murders also occurred. These incidents took place throughoutthe greater Riverside metropolitan area, including Lake Mathews, Moreno Valley, Mead Valley, Perris, and Beaumont. The events that ultimately led to the capital charges at issue in this appeal occurred on the October 8, 12, 22, and 26 on November14, 18, 20, 21, 25, and 30 of 1992. Until November 25 and 30, police investigation failed to reveal any apparent connection betweenthe incidents,all of which had been investigated as separate crimes. Predictably, the murders garnered the most attention. On October 12, a helicopter officer conducting a routine patrol in area of Lake Mathews overlooking Riverside spotted a car and a body on the ground. Uponinvestigation of the scene, officers found two bodies, the one observed by the helicopterpilot and another nearby but down-slope from the carin a hilly area covered with brush and rocks. Both male victims had been shot. They werelater identified at Joe Mansand Timothy Jones, the murder victims alleged in counts 1 and 2. Approximately six weeks later, on November 25, 1992, the body of Jose Aragon -- the murdervictim alleged in count3 -- was discoveredin the back ofhis 13 truck in Timoteo Canyon. He had been shot numerous times. In the early morning hours of November30, John Feltonberger was shot by a man who took his wallet and left the scene in Feltonberger’s vehicle. Feltonbergertold police that there were twoassailants. Eventually, police learned that shotgun shell and wading collected from the Feltonberger shooting were identical to those collected at the Aragon crimescene. The bank where Aragon had an accountnotified police that a man, eventually identified as Jose Munoz, had used Aragon’s ATM card on the same day Aragon’s body was discovered. This developmentultimately revealed that the people apparently responsible for several robberies, shootings, and carjackings were also implicated in the deaths of Joe Mans, Timothy Jones, and Jose Aragon. According to various statements given by Jose Munozto police after his arrest, he was one of four persons involved in the murders and other crimesthat occurred between October 8 and December7, 1992.' Munoz namedthree individuals as his accomplices: Daniel Chavez, Orlando Romero, and Christopher Self. Romero and Self were brothers; Romero wasolder than appellant by six years. Self was a high school dropout who had grownupin a violent and abusive family dominated by his mother’s heroin and methamphetamine addictionand the addicts with whom she was involved over the course of appellant’s life. He and '2/ Appellant was not implicated in the offenses that occurred during December 1992. 14 his four siblings witnessed extreme and constant domestic violence betweenhis mother and their father, who wasalso an alcoholic and drug addict, and the other men with whom she associated throughouttheir childhood years. Predictably, appellant began to abuse drugs and alcoholat an early age, and he exhibited dysfunction both at home and at school. Despite these difficulties, appellant’s only contact with the criminal justice system priorto the capital offenses involved a juvenile joyriding charge that ultimately was dismissed. Two weeksbefore commission of the crimes that led to the capital charges, Self turned eighteen years old. Asthe youngest of the four people involved in these offenses, Self was perhaps the most vulnerable to the influenceofothers, especially that of his older brother, Orlando Romero. Romero himself was a dropout, a drug addict, and unsuccessful at holding anysort of a job. Shortly before commencementofthe crimesinvolved in this case, Romero returned to the Riverside area from Northern California where he hadrelocated in order to turn his life around. According to statements Munoz madeto police, Self’s behavior throughoutthe period ofthe offenses seemedto be precipitated and driven by the negative influenceofhis older brother, Orlando Romero. Munoz claimedthat prior to Romero’s return, Munoz wasable to “talk [Self] out of doing stuff.” After Romero returned to Riverside, however, Self seemed to be dominated by a need to impresshis older brother. The offenses that took place between October and December of 1992 were 15 highly sensationalized by the local media. Riverside County, knownforits pro- death penalty climate, was the backdrop for a mediablitz that dominated the case from the very beginning. Indeed, the television and newspaper coverage was so extensive that when Romero and Self were arrested, they were met by a mob of jeering citizens who shoutedinsults and invectives. Although overthree years elapsed betweenthearrests andthe trial, once trial began, the record reveals numerous media requests to broadcast the proceedings. In addition, during jury selection, numerousprospective jurors indicated they had seen, heard, read, and had otherwise been exposed to the media coverageofthis case. Initially, the state charged all four defendants with capital murder. However, the manner in which the case was prosecuted effectively portrayed RomeroandSelf as primarily responsible for the course of events. Although Munoz had prior record of assaultive and dangerous criminal behavior and had participated in virtually all of the charged crimes, he walked away with the best deal of all, despite the leadingrole he played in initiating, planning,facilitating, and carrying out the mostserious offenses, including all three murders. Munoz’ case was severed from those of the other defendants. In exchangefor his testimony against Romero,Self, and Chavez(in his separate trial), Munoz was allowed to plead guilty to his involvement and receive a determinate sentence without special circumstances and without having to face the death penalty. Chavez wastried after the “dual”trial of Romero and Self. The manner of severing the cases not only inured to Munoz’ and Chavez’s benefit, but had the 16 pernicious effect of portraying Romero andSelf as an evil duo, inextricably linked to the offenses by their familial ties and Munoz’ well-rehearsed accomplice testimony. The severance of Munoz’ case and his favorable plea agreement served to enhance Munoz’credibility and believability while at the same time shielding him from the wrath their juries ultimately would display against Romero and Self. Because of the random and unplanned mannerin whichthe offenses occurred, and the continual exchange of various weapons between and amongthe defendants throughoutthe period ofthe crimes, there is no way to know exactly what happenedor precisely who wasresponsible for the specific actions which Munozattributed to virtually everyone but himself. The law of accomplice ~ liability madeit unnecessary for the state to prove with precision which ofthe defendants committed which particular acts. Nevertheless, the state’s case against Self rested primarily on the statements and versions of events given by Munoz, whoat one point told police he would “say whatever they wanted” him to say. During his testimony attrial, Munoz admitted that he had repeatedly lied and prevaricatedin hispretrial statements to police. Yet he was paraded before the jury as the paragon oftruth, despite his evident motiveto lie and to lay the blameat everyone’s feet but his own. In addition to the machinationsofthe state, appellant’s case was also beset by the failure of defense counsel to marshal a cogent and tenable defense. While ineffective assistance of counsel claimsare best raised in collateral habeas corpus 17 proceedings becausethe record on appealrarely reveals the thinking andstrategies of trial counsel, the record in this case is nevertheless telling precisely because of all the thingsthattrial counseldid not do. '? Notwithstanding the clear evidence of excessive publicity regarding the case, for example,trial counsel failed to investigate or move for change of venue. Despite overwhelming evidence of drug use during the time of the crimes; descriptions of Self’s bizarre behavior during the time of the crimes; and Munoz’ observations regarding Self’s ready assent to his older brother’s manipulations, Self?s attorneys never presented any mental health defenses nor any evidence regarding Romero’s dangerous and pernicious influence over Self, whose history of extreme alcohol and drug abuse and dysfunction was barely revealed to the jury. Indeed,it is this overlay ofmany crucial factors never presented or considered by the jury that led inexorably to appellant’s capital conviction and sentence. In addition to their failure to marshal a defense, defense counseleffectively gave thestate carte blanche before the jury. They never objected to the '5/ It is appellate counsel’s view thattrial counsel made seriouserrors and omissionsin their representation of appellantat trial. While vindication of appellate counsel’s position maylie outside the record and, thus, implicates issues better suited for habeas corpus proceedings, the assertions madeherearefair extrapolations from the appellate record, which also establishes the many things counsel did not do. Whether counsel hada strategic basis for their acts and/or omissions remains to be seen. In any event, whatis clear from the record is that the defense presentedat trial did little to challenge the state’s case or to contextualize appellant’s life or his alleged involvementin the offenses. These failings severely prejudiced appellant who,as a result, stood before the jury sitting in judgmentofhim with no explanation or credible defense presented onhis behalf. 18 prosecutor’s frequent overreaching in characterizing and alluding to appellant as the leader or dominantpersonin the group,or to the excessive and improper victim impact evidence whichthe District Attorney proffered and which the court erroneously allowed. Nor did counsel challenge the state’s presentation ofthe alleged aggravation evidence against him that, if true, was also undoubtedly the productofthe life-long mental and psychiatric dysfunction that plagued appellant. Bythe time the jury faced the task of deciding whether Christopher shouldlive or die, the only image they had misportrayed appellant as a remorseless, callous killer, rather than as the psychologically-damaged, mentally-ill and emotionally- unstable youth that he was. In reviewing the case against ChristopherSelf, it is virtually impossible to avoid being overwhelmedbythe sheer quantity and senselessness of the crimes charged against him andthe other defendants. Yet, it is precisely this danger of being overwhelmed that makes the need to adhereto constitutional principle even morecritical. In the face of such troubling facts,it is far too easy to conclude that any error is de minimis, that any prejudice pales in comparison to the harm suffered by the victims and society. But what must also be kept in mind isthat, in such circumstances, what may seem to be minoror harmlesserrors in fact take on even greater weight and significance. In the case against Christopher Self, each and every violation ofhis rights led the jury to find him more culpable and more deserving of death than if the errors had not occurred. It is in this context that the appellate issues raised on Christopher Self’s behalf must be considered. 19 II. Guilt Trial A. Overview andInitial Investigation ‘In Riverside County, during the period between October 8, 1992 and November30, 1992, a series of seemingly unconnected crimes occurred involving several offenses, including murder, attempted murder, kidnapping, carjacking, robbery, assault with a deadly weapon, and vandalism. The crimes occurred throughoutthe county, including Lake Mathews, Moreno Valley, Mead Valley, Riverside, Perris, and Beaumont. During this period, three persons were found murdered: Joey Mans, Timothy Jones, and Jose Aragon. Initial investigation of these incidents by the Riverside Police and Sheriff's Departments yielded few clues, and law enforcementofficials had no inkling that the incidents were connected until November 30, 1992, whenthe police got their first break in the case. Onthat date police were notified by an employee at Security Pacific Bank, where murder victim Jose Aragon held an account, that the bank had obtained information regarding transactions in Sun City, Riverside County, on Mr. Aragon’s account on November25, 1992, the day his body was discovered. The bank also provided an enhanced videotape photograph depicting the person who used Mr. Aragon’s ATM card to withdraw money.'* (36 RT 5489-5496.) On the sameday, during the early morning hours, anotherincident occurred '*/ See People’s Exhibit 250 (ATM photograph of November 25, 1992 transaction). (2 Supp CT (Photographs-Exhibits) 395.) 20 in Moreno Valley. At about 4:00 a.m., Ontario Police Sergeant John Feltonberger while driving home from work was accosted and shot by unknown gunmen wielding a sawed-off shotgun.'* After the shooting, Feltonberger’s Geo Metro was driven away, although he did not see by whom. Feltonberger staggered and crawled to a nearby homelocated at 28766 Kimberly, where he wasassisted by the homeowners until police and emergency medical personnel arrived. When Feltonberger’s shirt was cut off by the emergency medical team, a small, red plastic object (People’s Exhibit 55) was observed underneath Feltonberger’s shirt. (32 RT 4976-4978.) B. The Arrests of Jose Munoz, Appellant, and Codefendant Orlando Romero,Jr. On December 11, 1992, Jose Munoz wasidentified as the subject shown on the ATM videotapeofthe person doing the transactions involving Jose Aragon’s bank account. Munoz wasarrested the same day at his home on Bonham Streetin Mead Valley. At the time of his arrest, Munoz was wearing the samehat seen in the Sun City ATM transaction photograph obtained from Security Pacific Bank. Followinghis arrest, Munoz wasinterrogated by a succession of police officers and prosecutors in various sessions held over the course of the next two days.'© During his interrogation, Munoz madea lengthy statement, naming '5/ This incident was the subject of counts 19 and 20 of the information andis described in greater detail, infra. '?/ During post-arrest interrogation (People’s Exhibit 371A), and apparently in reference to the Feltonberger incident, Munoz told Detectives Wilson and Hudson that if he werestill identified after the victim saw appellant’s picture, “I’ll say anything you want metosay, even if it ain’t true I'll say it.” (45 Supp CT 12958.) 21 appellant, codefendant Romero, and Daniel Chavez as his accomplices in a series of incidents that took place between October 8 and November30, 1992. During the questioning, Munoz volunteered information aboutthe Feltonberger shooting that occurred on November 30. Officers were unaware of his role in that incident until he admitted his involvementduring the interrogation. In exchange for leniency, Munozalso related information regarding other crimes committed by him and his accomplices during October and November 1992, but he did notreveal his role in the Williams-Rankinsincident'’ until he entered into and signed a formal plea agreement with the District Attorney of Riverside County. (39 RT 6029, 6032-6034.) Following up on statements by Munoz, on December 12, 1992,sheriffs investigators located a Dodge Colt belonging to Romero’s girlfriend, Sonia Alvarez. A red toolbox containing motorcycle parts and tools belonging to Jose Aragon was found in Alvarez’s car. (35 RT 5471-5472.) On the sameday, Riverside County Sheriffs Detectives Terry Hudson and Thomas Kimball drove to San Diego, where they contacted Ruben Munoz, Jose Munoz’brother, and Jose Munoz’ mother and father. Munoz’ parents gave Hudson a Craftsman socketset that Jose Munoz had given to them. Ruben Munozretrieved and turned over to the officers a sawed-off .22 caliber rifle (People’s Exhibit 252) that had been cut down and held together with tape. The gun was a .22 caliber Remington Speed 1” This incident took place on October 26, 1992 and wasthe subject of counts 9 and 10 of the information. It is described in greater detail, infra. 22 Master Model 552 with no visual serial numbers. (35 RT 5473-5475.) Based upon Munoz’ statements andhisidentification of appellant and Romero as his accomplices in the Feltonberger crime and other offenses, Sheriff Senior Investigator Joseph Arteaga contacted Florence Daul. Munoz had named Daul as an acquaintance of Romero. On December 17, 1992, Arteaga contacted Daulat her residence, located at 8150 Cypress in Riverside. Daul told Arteaga that Peggy Lopez, the aunt of appellant and Romero, had broughtthe suspects to her home a day or twoearlier. She said that appellant and Romero stayed overnight. (37 RT 5628.) Daul told Arteaga that on the following night she had seen a newsreport on television that appellant and Romero were wanted for murder and that a no bail warrant had been issued for their arrest. She stated that she provided them with food, cigarettes, some blankets, and a sleeping bag, drove them to an abandoned houseat 11952 Magnolia Drive in Riverside, and the next day called Lopeztotell her that appellant and Romero weresafe. She informed Arteaga that they hadleft behind a cellular phone. She put the phone and other items they had givenherinto a box that she left with TammyVilla’® for safekeeping. (37 RT 5628-5631, 5634-5638.) At 4:00 p.m. on December 17, 1992, Arteaga and the Riverside SWAT team arrested appellant and Romero at 11952 Magnolia Drive, the Riverside address proved by Daul. (37 RT 5638-5640, 5649-5664.) Appellant was wearing '8’ Tamara (Tammy) Villa knew and briefly dated Romero in 1992, She met him through Florence Daul, wholived in her apartment building. 23 a pair of British Knights (BK) tennis shoes when arrested. (RT 5728-5733.) Following their arrest, Arteaga searched the vacant house and found ina closet one Colt Gold Cup National Match .45 caliber semiautomatic handgun (People’s Exhibit 244) and one .22 caliber Sturm Ruger semiautomatic handgun (People’s Exhibit 245).'? (37 RT 5639-5649.) In a Dunlop sports bag located in the same closet, Arteaga found a 25-round bananaclip with four .22 caliber long copper- jacketed bullets (People’s Exhibit 248), together with wallets, drivers’ licenses, papers, and other documents belonging to both appellant and Romero.(37 RT 5649-5653.) C. Searches in Connection with the Investigation On December12, 1992, police seized Sonia Alvarez’s Dodge Colt (license 2RJG309) from C & C Transmission in San Bernardino. (37 RT 5675-5678, 6548.) The car was towedto the Riverside County Sheriff's station. On December15, 1992, police searched the car and recovered, amongother items, two ski masks, a red tool box with motorcycle parts and tools belonging to Jose Aragon, shotgun shells, and an empty box of Winchester Western Wildcat .22 caliber ammunition, and seventeen .22 magnum bullets with either full metal jackets orplastic birdshot. (37 RT 5678-5707.) In addition, seven copper-colored shotgun pellets, about size of BBs, were found in the backseat of Alvarez’s car. Two Super-X .22 caliber bullet casings '9/ See People’s Exhibits 15 (photograph of recovered .22 caliber Ruger) and 16 (photograph of recovered .45 caliber semiautomatic). (1 Supp CT (Photographs- Exhibits) 17-20.) 24 were found under the carpet onthe floor in front of the back seat. A sack containing one live Super-X .22 bullet and one expended Super-X .22 shell casing were found underthe rear seat. (37 RT 5696-5702.) A box of Spaulding Legacy Gold golf balls in a pouch (People’s Exhibit 311) was found on the passengerseat. (37 RT 5683-5684.) Twobriefcases were also found in the trunk of Alvarez’s car.”° (37 RT 5686-5687.) One briefcase contained a Federal Premium Hi-Powershotgun shell box, a smaller, red box of BRI Sabot three-inch magnum 20-gauge shotgun shells with two Federal Premium shotgun shells, and two loose shotgun shells tucked into the fold orlining of the briefcase. The text on the box of sabot shells stated in part: “The bullet is a .40 caliber aerodynamically stabilized projectile which is centered in the shotgun bore by a 20-gaugeplastic sleeve (sabot) which breaks away whenthe projectile leaves the muzzle.” (37 RT 5688-5696.) The other briefcase was empty.”’ The word “Chris” in block-letter graffiti had been written inside this briefcase. (37 RT 5687-5688.) The graffiti appeared similar to graffiti drawn or sprayed inside Magnolia CenterInteriors during the break-in on November 13, 1992 charged in counts 11 and 12, as shown in People’s Exhibits 14 (graffiti block letters), 22 (particularly graffiti block-letter “C”), and 194 (block-letter “C”’). (1 Supp CT (Photographs-Exhibits) 15-16, 319-320). *°/ See People’s Exhibits 307-308 (Samsonite briefcase andbriefcase in trunk). (2 Supp CT (Photographs-Exhibits) 460-463.) *1/ See People’s Exhibit 310; see also People’s Exhibits 27 (photograph of open truck) and 28 (interior of Samsonite briefcase with graffiti “Chris”) (1 Supp CT (Photographs-Exhibits) 37-40)). 25 On December 12, 1992, Riverside Sheriff law enforcementofficers executed a search warrantat the home of appellant’s grandmother at 21905 Baily Street in Mead Valley where appellant and Romerolived. (37 RT 5655-5657.) Various items of evidence were seized from bedrooms occupied by appellant and Romeroand from outbuildingsat that location. (37 RT 5657-5660.) In the southeast bedroom,officers found or seized a ring of keys, leather golf bag with a full set of golf clubs, a paperweight with a scorpion encased in a resin bubble, a .22 caliber rifle magazine, and a tackle box containing several different kinds of bullets and bullet casings. (37 RT 5657-5661.) In the southwest bedroom, other keys with tags, one with the name “Magnolia Center Interiors, Jim Murphy,” were also found and seized (37 RT 5662-5663.) A flashlight with the name “Feltonberger” and marked with his initials and badge number was foundin a shed next to the house. (37 RT 5663-5664.) On December21, 1992, Sheriff’s Investigator Thomas Kimball and Detective Thompson searched appellant’s blue Oldsmobile (license 2NGRO72) parked at the home ofhis mother and stepfather, Maria and Phillip Self, located at 21844 Baily in Mead Valley. (32 RT 5034-5036.) Various items of evidence were seized from the interior and trunk of appellant’s car, *” including a plastic Nissan brake cover (People’s Exhibit 57) and a torn Visa ATMtransaction receipt pertaining to the count 4 William Meredith robbery. The torn ATMtransaction 7 See People’s Exhibits 59-61 (photographs of Oldsmobile). (1 Supp CT (Photographs-Exhibits) 90-95.) 26 receipt, dated October 9, 1992 at 6:27 a.m., was found in the ashtray. When reconstructed, the receipt revealed that it had been obtained from a Wells Fargo ATM machine in Woodcrest and bore William Meredith’s Visa account number. (32 RT 5036-5043.) A British Knights shoe box top was foundin the back seat of appellant’s car during the search.”’ (32 RT 5039-5041) The word “Flaco” was written on the box top (32 RT 5040) in graffiti similar in style to the graffiti left on the walls inside Magnolia Center Interiors and the graffiti written inside one ofthe briefcases seized during the search of in Sonia Alvarez’scar. Munoz, appellant, and Romero where charged with various offensesarising from the incidents that took place between October 8 and November 20, 1992. At trial, Munoz wasthestate’s primary witness against appellant and Romero, pursuantto the plea bargain he hadentered into with the District Attorney. A discussion of the offenses charged and the evidence adducedattrial follows. D. The Offenses Charged, Background Information, and the Evidenceat Trial Because of the numerousincidents involved and multiple counts charged against appellant and his codefendants, for the sake ofclarity the charges involving appellant are presented in the order of the counts charged (counts 1-20). For each count, the facts and non-scientific evidence introduced bythestate are *°/ See People’s Exhibits 64 and 65 (photographs of shoe box in car). (1 Supp CT (Photographs-Exhibits) 100-103.) 27 presented, along with a discussion of Jose Munoz’ testimony regarding the particular count or incident, In contrast, and again for the sake of clarity, rather than set out the scientific evidence adduced for each countor offense charged,the entire body ofscientific evidence proffered at trial in connection with all offenses is presented in a separate section. (See SubsectionF,infra.) It should be noted that during defense cross-examinationattrial, Jose Munoz conceded he wasregularly using methamphetamine(“speed”), crystal methamphetamine,as well as marijuana and alcohol, during the period of the crimes charged. (40 RT 6047-6049, 6056.) He also acknowledged on cross- examination that he frequently used methamphetamine, marijuana, and alcohol while in San Diego before moving to Riverside. (40 RT 6054.) Hetestified that he came to Riverside to get away from San Diego where he had been committing crimes, stealing andstripping cars. (40 RT 6050-6051, 6053.) He acknowledged on cross-examination that he had been stopped bythe police in San Diego for gun possession. (40 RT 6052.) During cross-examination, Munoz admitted he lied during his various interviews with police after his arrest. (40 RT 6046-6047.) He acknowledgedthat he specifically told officers that if he were identified in the Aragon shooting,he would say whateverofficers wanted him to say. He admitted that he madethis statement because he did not think he could beidentified in connection with any of the other crimes charged. Hetestified that he expected to receive a sentence of twenty years for his involvementin the crimes. (41 RT 6277-6290.) 28 Munoz’ interrogation tapes (People’s Exhibits 370, 370-A, 370-B, and 370- C) were admitted into evidenceas prior consistent statements and played for the jury. The tapes were nottranscribed duringtrial. (41 RT 6338, 6342-6343, 6349- 6350; 42 RT 6371-6372.) Redacted transcripts of tapes (People’s Exhibits 371, 371-A, 371-B, and 371-C) were given to the jury whenthe tapes were played.” (41 RT 6336-6343; see also 8 CT 1952-1953 (list of exhibits).) At the time of the crimes and incidents involvedin this case, appellant’s mother and stepfather, Maria and Philip Self, lived at 21844 Baily in Mead Valley, Riverside County. (32 RT 5043-5047.) Maria Self’s mother — appellant’s grandmother-- lived nearby at 21905 Baily Street. (32 RT 5046.) For a timein 1992, appellant was house-sitting across the street from his grandmother’s home; after that house wassold, appellant movedinto his grandmother’s residence, where hehad a small room. On September23, 1992, on appellant’s eighteenth birthday, he received a small sum of moneyin settlement of a dog-bite case that occurred when he was a minor. With a portion of the proceeds, appellant bought a car. At the time, he was working as a busboy at Coco’s in Sun City. Except for a minorincident while a juvenile, appellant had noprior criminal record -- no arrests and no convictions. **1 See People’s Exhibit 371 (transcript of Munoz interview with Detectives Hudson and Wilson) (45 Supp CT 12911-12949); 371A (transcript of Munoz interview with Detective Hudson) (45 Supp CT 12950-12991); 371B (transcript of Munozinterview with Detectives Wilson, Hudson, and Thompson, and unidentified fourth person) (45 Supp CT 12992-13030); and 371C (transcript of Munozinterview with Detective Breitkruez) (45 Supp CT 13031-13052). 29 At somepoint during 1992, appellant’s brother, codefendant Romero, returned to the Riverside area from Pacifica, California, where he had been living since July of 1991. Romero did not work and was unable to hold a job. He had a history of serious criminal activity, including involvementin assaults, carjackings, and car thefts. Because of his problems, Romero had movedto Pacificato live with the family of a high-school friend who had offered their help in turning his life around. However, unsuccessful in keeping a job and repeatedly violating the trust of the family who wastrying to help him, Romero ultimately was asked to leave. He eventually returned to the Riverside area and also took up residence in his grandmother’s house where appellant was then living. Appellant first met Jose Munoz in August or September 1992. Munoz had just movedfrom his parents’ home in San Diegoto Riversideto live with his sister and her youngson in trailer owned by their parents. Munoz had beenstealing cars in San Diego; he also liked guns and had been involved in drugs and narcotics in that area. During this period, Munoz wasusing crystal methamphetamine, 1.°° The San Diego police were constantly stopping andmarijuana, and alcoho “hassling” him (40 RT 6049-6050), and he thus had movedto Riverside ostensibly to get away from the police and the drug environmentin San Diego. (37 RT 5608; 40 RT 6050.) The property where Jose Munoz lived was on Bonham Street and was *°/ During his initial post-arrest interrogation (People’s Exhibit 371), Munoz stated that he and appellant also used crystal methamphetaminetogether. (45 Supp CT 12935.) 30 located in back of the property owned by appellant’s grandmother. (37 RT 5586.) Munoz’sister worked with Sonia Alvarez, codefendant Romero’s girlfriend. (39 RT 5951-5952; 40 RT 6077.) At somepoint after October 1992, Daniel Chavez cameto live with Munoz and hissister. (2RT [Chavez] 309.) At that time, Munoz had only just met Chavez; he was dating Munoz’ cousin,Isela. (40 RT 6231-6232; 2 RT [Chavez] 310.)°° In post-arrest interrogation (People’s Exhibit 371), Munoz explained that appellant seemed to changeafter his brother returned to Riverside. (45 Supp CT 12942.) Munoz later explained (People’s Exhibit 371B) that before Romero “came into the picture,” he was able to persuade appellant “from doingstuff.” (45 Supp CT 12996.) After Romeroarrived, appellant was different, more threatening -~“like, you know,you’re next.” (45 Supp CT 12996.) Munozalso said (People’s Exhibit 371B) that appellant participated in shootings when Romero waspresent “to prove himself to his big brother.” (45 Supp CT 13001.) 1. Murders of Joey Mans and Timothy Jones (Counts 1 and 2) While flying helicopter patrol at 1:25 p.m. on October 12, 1992 near Lake *6/ As discussed in the Statementofthe Case, supra, Chavez wasoriginally named as a codefendanton several of the counts, including the murders and special circumstancesalleged in counts 1 and 2. Chavez’s case was severed before trial, and he wastried separately by a jury and convicted, inter alia, of two counts offirst degree murder with special circumstances. Chavez’s trial transcripts (hereafter designated “RT [Chavez]”) are separately bound and have been includedin the record on appeal. Chavez was sentencedto life imprisonment withoutpossibility of parole. 31 Mathews,Riverside Police Officer David Mullins observed a vehicle and a body lying beside the vehicle on a hilltop in the area of Lakepoint Drive, Riverside County.’’ (33 RT 5090-5091.) Thehilltop was a popular spot because ofthe view of Riverside at night. (33 RT 5125-5126.) The body on the hilltop was subsequently identified as that of 21-year-old Joey Mans, the ownerof the vehicle at the scene. Notifying the Riverside County Sheriff, Officer Mullins landed his aircraft and walked aroundthe crest of the hill to look at Mans’ body, which waspartially clad from the waist up.” He waited for sheriffs deputies to arrive. (33 RT 5089-5094, 5101.) A second,fully-clothed body, subsequently identified as that of 21-year-old Timothy Jones, was found about 150 yards down the slope from Mans’ body.” Both Mansand Jones had been shot. (33 RT 5097.) Deputy Sheriff Frederick Breitkreuz was called to the scene at 2:40 p.m. Breitkreuz was designated primary crime sceneinvestigator. Breitkreuz observed an older-model, blue Subaru station wagon on the hilltop with both doors open. *7/ For aerial photographsofhilltop area and hilltop showingthe location of the Subaru and the two bodies, see People’s Exhibits 1A, 2A, 85. (1 Supp CT (Photographs-Exhibits) 131-132; 2 Supp CT (Photographs-Exhibits) 595-596, 3 Supp CT (Photographs-Exhibits) 615-616.) During his testimony, Officer Mullins marked on People’s Exhibit 85 where his helicopter landed. Pursuantto settled statement, Mullins’ mark was no longervisible, and neither the trial attorneys presentnor the court recalled where the witness indicated. (Item 58, Amended Settled Statement (Romero), Sixth Supp CT 134.) *8/ See People’s Exhibits 1B and 1C. (2 Supp CT (Photographs-Exhibits 597- 600).) *?/ For the location of Subaru and area around Jones’ body before and after body was removed, see People’s Exhibit 2B, 2C, 129, 146. (1 Supp CT (Photographs- Exhibits) 219, 220, 239-240; 3 Supp CT (Photographs-Exhibits) 617-620.) 32 Thefront seat of the vehicle seemedto be leaning forward. (33 RT 5098, 5100, 5159-5164.) Deputy Sheriff Thomas Kimball was designated secondary investigator of the hilltop scene. Mans was found supine, face-down on his stomach. He was naked from the waist down and had a gray sweatshirt on top.*° There was a burnt cigarette on the ground nearhisleft hand.*’ There wasa bullet hole through the sweatshirt near the shoulder blades;gunshot residue was present. (33 RT 5098- 5102.) In Kimball’s opinion, the gunshot to Mans’ back lookedlike a contact wound. Manswasshotat close range; it appeared the muzzle of a weapon had been held close to body. There were powderstains aroundthe entranceto the wound. (33 RT 5102-5103.) Mans’ body was moved whenthe coronerarrived. When rolled over, Mans was foundclutchinga cigarette lighter.*’ Mans’ sweatshirt waslifted up. A gunshot wound was observed undermeath the hole in his sweatshirt. Black or brown marks aroundthe hole in the shoulder bladesalso indicated gunshot residue and a close contact shot. (33 RT 5103-5104.) Evidence collected from the area around the Subaru and Mans’body included both .45 and .22 caliber shell casings. Someof the casings appeared *°/ See People’s Exhibits 1D.(3 Supp CT (Photographs-Exhibits) 601-602.) >!) See People’s Exhibits 1E. (3 Supp CT (Photographs-Exhibits) 603-604.) This photograph actually showsthe cigarette butt closer to the right hand. °°) See People’s Exhibit 1F. (3 Supp CT (Photographs-Exhibits) 605-606.) *3/ See People’s Exhibits 1G. (3 Supp CT (Photographs-Exhibits) 607-608.) 33 discolored, suggesting they had been at the scene for a while. Various shoe impressions and footprints were observed near Mans’ body. Mans’ shoes matched only someof the shoe impressions observed and photographedonthehilltop. Numerous BK shoe impressions or footprints were observed on the hilltop andat the edge of the hilltop area continuing downto the location of Jones’ body.* (33 RT 5127-5137.) Sheriff’s Detective William Frogue was designated secondary investigator of the area where Jones’ fully-clothed body was found. (33 RT 5098.) Jones was wearing a bulky jacket.** The body waslying face-downin a rocky andhilly terrain 190 feet north and 275 feet west of the hilltop scene. (43 RT 6552-6553.) There were horizontal abrasions on theleft side of Jones’ lower back area above the belt line.* There wasa bullet wouldto left side of Jones’ head and two additional bullet woundsto the rear of the neck area. Black smudges on Jones’ jacket near the bullet wounds indicated a contact-type wound andsignified that the barrel of the weapon was extremely close or touching the back of Jones’ neck whenbullets were fired. (33 RT 5135-5137, 5145-5146.) Footprints and tracks were noticed around Jones body. BK shoeprints and tracks were observed approximately one anda half feet from Jones’ head. 347 See People’ Exhibits 26, 90-93, 95-98, 100-102, 104-108, 134, 136-138 (BK shoe impressions). (1 Supp CT (Photographs-Exhibits) 35-36, 141-148, 151-158, 161-166, 169-178, 229-230, 233-238.) 35/ See People’s Exhibits 2D, 2E, 2F, 2H. (3 Supp CT (Photographs-Exhibits) 621-626, 629-630.) 36/ See People’s Exhibit 2G. (3 Supp CT (Photographs-Exhibits) 627-628.) 34 Another BK shoeprint was observed 12 feet from his body. One .22 caliber Federal-brand shell casing was found next to Jones’ body. When the coroner arrived, Jones wasrolled over and another .22 caliber Federal brand shell casing was found on the ground near the body. Jones’ body was removed at 11:20 p.m. (33 RT 5137-5148.) The coroner removed Mans’ body at 4:40 a.m. on October 13, 1992. The Subaru was towed to the Riverside Police garage on Spruce Street for forensic processing.’ Detective Kimball searched and photographed the Subaru beforeit was towed. Kimball recalled that it was dirty inside. Paperworkin the car had identification of both Joey Mans and Timothy Jones. The keys were notin the car. On October 14, 1992 Deputy Breitkreuz returned to the scene accompanied by Detective Frogue and Riverside Deputy DA Bill Mitchell. They located and retrieved cowboy boots on the right side of the road as one proceeded upto the hilltop. In a further inspection ofthe hilltop area, Breitkreuz found two .22 caliber Federal shell casings, one near the driver’s side of the Subaru and a second near the front of the vehicle where Mans’ body had been found.** (33 RT 5164-5171, 5177-5182.) Tire tracks and additional shoeprints were also photographed. Shoe impressions near the Subaru also showeda heel with a diamondpattern in the center ofa circular area.*” (33 RT 5104-5119.) *7/ See People’s Exhibits 123-128 (exterior, interior, and cargo area of Subaru photographedat police garage, including open glove compartmentand papers on front seat). (1 Supp CT (Photographs-Exhibits) 208-218.) *8/ See People’s Exhibits 130-133. (1 Supp CT (Photographs-Exhibits) 221-228.) 35 _ Breitkreuz returned to hilltop area again on December16, 1992 after interviewing Jose Munozin jail following his arrest. Munoz had given information aboutthe location of the Subaru car keys. Munoztold Breitkreuz that he had tossed keys out the driver’s side of the vehicle while coming down from the hilltop after the shooting. (33 RT 5171-5173.) Searching the area described by Munoz, Breitkreuz found keys on the dirt road, approximately two-tenths of a mile from where the Subaru had been parked and 10 yards from where the cowboy boots had been found previously in October.” (33 RT 5172-5173.) At later time, Breitkreuz tried the keys in Mans’ Subaru which had been released to Charlotte Thornton, Joey Mans’ sister, and was parked at her apartment complex. The keys worked both the ignition and doorlocks. (33 RT 5173-5177.) During their investigation, police learned that around midnight on Sunday, October 11, 1992, Joseph L. Willmann anda friend drove to the hilltop area where Mansand Jones’ bodies were found to use his CB radio. An older, blue or bluish gray stationwagon wasparked on top of hill. At trial, Willmann identified Mans’ Subaru as the vehicle parked on the hilltop at that time. Willmann testified that he observed three people aroundthe car; one was the uniformedsecurity guard for 3°/ Identification technicians photographed Officer Mullins’ boots and the shoes or boots of all deputies and law enforcementofficers at the scene. No one present was wearing either BK or Nike boots or shoes. (33 RT 5092.) *°/ Duringhis testimony, Breitkreuz marked People’s Exhibit 85 to show where the car keys were found. Pursuantto settled statement, Breitkreuz mark was no longer visible and neither the trial attorneys present northe court recalled where the witness indicated. (Item 58, AmendedSettled Statement (Romero), Sixth Supp CT 134).) 36 the area. The security guard did not have his vehicle on thehilltop. While using the CB radio, Willmann saw the Subaru leavethe hilltop with the security guard. After a while, the security guard returned to hilltop in his own vehicle. The Subaru also returned with the same two guysa little after 2:00 a.m. The security guard then talked to the two guys. The guys were friendly. Willmann andhis friend left the area at 3:00 a.m.. The two guysin the Subaru and the security guard in his vehicle werestill on the hilltop. About 15 to 20 minutesafter he left, and while reattaching his antennato his car, Willmann saw the security guard driving down from the hilltop. (33 RT 5151-5158.) Willmann did not see any othercars going up towardthe hilltop as he andhis friend were driving down. (33 RT 5158.) According to Charlotte Thornton, Mans and Timothy Jones werebest friends. Thornton was familiar with her brother’s Subaru and with things he owned. Thornton last saw Mansand Jones on October 11, 1992. They had intendedto go fishing at Forest Falls, taking Mans’ Subaru onthe trip. Mans had a red milk crate in the hatchback area of his Subaru where he kept magazines and other items. Mans owned a pair of cowboyboots that he kept in his car. Thornton identified a pair of cowboy boots (People’s Exhibit 144) (foundoff the dirt road down from the hilltop by Breitkreuz) as her brother’s boots. Mans alwayscarried a leather wallet with a horse design and twostraps or fasteners. The wallet was found in the Subaru’s glove compartment whenhis car was released to Thornton. There was no moneyin wallet, just Mans’birth certificate. (33 RT 5183-5189.) Dr. Robert DiTraglia, a board-certified anatomic and forensic pathologist, 37 employed by the Riverside County Coroner’s office, performed autopsies on the bodies of Joey Mans and Timothy Jones on October 16, 1992 by. (38 RT 5721, 5745.) Dr. DiTraglia did not observe any abrasions on or trauma to Mans’ body. He observed a gunshot wound on Mans’left back which,in his opinion, was a contact woundbased on the presence of soot or gunsmoke around entranceto the wound.”’ Dr. DiTraglia determinedthat the bullet entered left side of Mans’ back; it perforated the spinal column,lacerated the spinal cord, proceeded throughright lung and heart, and stopped in the right front chest area. Dr. DiTraglia recovered a small, .22 caliber, unjacketed projectile from the wound. In Dr. DiTraglia’s opinion, the single gunshotlikely paralyzed Mans almost immediately and would have killed him rapidly between 5 and 20 minutes, more or less. The mechanism of death was internal hemorrhage,bleeding. (38 RT 5720-5723, 5737-5745.) During the autopsy on Timothy Jones, Dr. DiTraglia observed four gunshot woundsas well as a large numberof abrasions (scrapes) and contusions(or blunt force injuries) to the right side of his face, lower back,left hip area, right palm and wrist.’ The abrasionsresulted from blunt force trauma,consistent with falling down while running in rocky or roughterrain. (38 RT 5745.) Dr. DiTraglia recovered two .22 caliber bullets from Jones’ head and gave them to Deputy *'/ For a photograph of the bullet wound showing soot and powderburns, see People’s Exhibit 1H. (3 Supp CT (Photographs-Exhibits) 609-610.) The List of Exhibits incorrectly describes Exhibit 1H as a “bullet woundfront.” (See 8 CT 1945.) The photograph (People’s Exhibit 1H) shows an entry woundonthe back; the bullet did not exit in front according to Dr. DiTraglia’s testimony. “*/ For photographstaken at the scene ofthese abrasions, see People’s Exhibits 21- 2N. (3 Supp CT (Photographs-Exhibits) 631-642.) 38 Sheriff Kimball whoattended the autopsies. (38 RT 5723-5728, 5756-5759.) In Dr. DiTraglia’s opinion, the cause of Jones’ death was multiple gunshot wounds. (38 RT 5763.) Wound | wasa bullet entry woundbehindtheleft ear.’ A projectile went through the collar of Jones’ jacket, entered the head behindtheleft ear, and embeddeditself in thick bone behind the ear. Although the bullet did not penetrate the brain and the wound wasnotnecessarily fatal, in Dr. DiTraglia’s opinion, a large percentage of people would die from such a wound. There was no soot or gunpowderonthe jacket collar adjacent to the wound. (38 RT 5745, 5753- 5756.) Wound2 waslocated on the back of the neck. It was a through and through woundfrom the backofleft neck exiting on the right side.“ A bullet perforated the skin and subcutaneoustissue right underneath the skin. In Dr. DiTraglia’s opinion, the bullet wound wassuperficial and notfatal. (38 RT 5759- 5761.) Wound 3 was a gunshot woundonthe backside of left shoulder. There was no soot around the wounditself, but there was soot deposition onthe left shoulder of the jacket worn by Jones. The wound 3 bullet exited on the front side of Jones’ left shoulder above the armpit.” In Dr. DiTraglia’s opinion, wound 3 “°) See People’s Exhibit 2T (wound1). (3 Supp CT (Photographs-Exhibits) 653- 654.) “/ See People’s Exhibit 2S (wound 2). (3 Supp CT (Photographs-Exhibits) 651 - 652.) “°/ See People’s Exhibits 20-2P (wound 3 entry wound); 2Q (wound3 exit wound). (3 Supp CT (Photographs-Exhibits) 643-648.) 39 probably wasnotfatal by itself. (38 RT 5761-5763, 5764.) On cross-examination, Dr. DiTraglia acknowledged that Jones could havefirst received either wound 2 or wound3 and then could have run for 150 yards. (38 RT 5801-5805.) Wound4 wasa gunshotto the head,close to left ear and near wound 1. There was no soot associated with the wounditself, although there was soot on Jones’ jacket adjacent to wound. A gunshotentered the backleft side of Jones’ head, went through skull, underlying brain, through the brain stem,across the right side, and lodged in boneofthe skull abovethe right eye. In Dr. DiTraglia’s opinion, wound 4 wasa fatal gunshot wound; it would have rendered the victim immediately unconscious and dead very shortly thereafter. There was high degree of medical certainty that no physical activity occurred after gunshot wound 4. (38 RT 5801-5805.) Jose Munoz’ Testimonyat Trial Munoztestified that he, Romero, Daniel Chavez, and appellant participated in the Lake Mathewskillings on the night of October 11, 1992."7 Munoz made ski masksearlier in the evening. Although he gave masks to Romero, Chavez, and appellant, only he wore a maskto disguise himself. (39 RT *°/ See People’s Exhibits 2V-2W (gruesomeautopsy photographs showing location andtrajectories in head and brain of wounds1 and 4. (3 Supp CT (Photographs-Exhibits) 657-660.) “’/ In his post-arrest interrogation (People’s Exhibit 371), Munozsaid that Romero and appellanttold him they shot two boysin the hills by a lake. (45 Supp CT 12942-12943.) Munozsaid he also read about it in the newspaper. (45 Supp CT 12942-12943.) 40 6004-6005.) Appellant was wearing British Knights (BK) shoes; Munoz was wearing boots. Munoz was armed with a .22 single shot and had a box of .22 caliber bullets in his pocket. (40 RT 6181-6185.) Codefendant Romero was armedwith a .22 caliber Remington rifle that Munoz had previously purchased.*® When he bought the Remington, Munoz knewthat it did not work well and haddifficulty in firing repetitively. The Remington used bullets with an “F” on the casings; Munoz loaded the rifle at homeearlier that evening. (41 RT 6266-6269.). On Sundaynight, October 11, 1992, Munoz, Chavez, and appellant accompanied codefendant Romeroto go stealing.*” Romero drove Sonia Alvarez’s Dodge Colt. While driving around, Romerosaid hehad a feeling that night that somebody wasgoingto die.’ He said it could be oneofthem buthe did not think so. He also said that more than likely it would be somebodyelse. The four drove to the hilltop in the Lake Mathewsarea. They spotted two guys ina car. Munoz was opposedat first to robbing the two men,becauseit did not look like they had anything. Romero and Munoz approachedthe victims’ car; both were armed. They ordered the two guys out of their car at gunpoint. Appellant “8/ In a further statementto police during the interrogation (People’s Exhibit 371), Munozsaid that they were armed only with a twenty-two. (45 Supp CT 12944.) “/ During the interrogation (People’s Exhibit 371A), Munoz said that the plan wasfor him to steal a car. (45 Supp CT 12970.) °°” In his post-arrest interrogation (People’s Exhibit 371A), Munoz said that while driving aroundin search of car to steal, Romero kept saying that “somebody’s gonnadie tonight” and he kept talking about killing somebody. Munoz thought he was notserious. (45 CT 12970-12971; see also 45 CT 13033.) 4] and Chavez drove the Dodge Colt closer to other car, and they also got out. At gunpoint, the two occupants were ordered outoftheir car. The passenger wastold to lie on the ground;the driver was ordered to drop his pants. Romerolit a cigarette for the driver. Munoztook the passenger’s wallet; in order to go through the contents of the wallet, Munoz handed his gun to Chavez. Munoz then took the car keys from the driver and ordered him to lie on the ground nextto his passenger. Munoz wentto the back of the car to look for things to take. While doing do, he heard Romerotell Chavez to shoot.°! Munoz said “don’t shoot.” Codefendant Romerothen shotthe driver in the back. He then tried to shoot the passenger, but his gun clicked and misfired twice. The passenger then got up and took off running downthe hill. Romero told Chavez to shoot. Chavez fired at the fleeing passenger. Romero and appellant ran after the passenger. Romero was armed with the .22 caliber Remingtonrifle as he gave chase. While Romero andappellant were running after the passenger, Munoz spoke with Chavez and continued to remove items from the victims’ car. Munoz heard two to four more shots. Two or three minutes later, Romero and appellant returnedto the hilltop. At this time, appellant was holding the .22; Romero was unarmed. Munoz and appellant got into the back seat of the Dodge Colt; Romero gotinto the front passenger seat, while Chavez drove. On the way >!/ Munoz also said (People’s Exhibit 371A) that while Mans and Jones were lying on the ground nextto their car, Romero told Chavez,“just put the gun here and press the trigger.” Chavez refused. Munozthen heard a shot; he thoughtit was a warning shotjust to scare they guy. (45 Supp CT 12973-12974; see also 45 Supp CT 13038-13039 (Romerotelling Chavez to shootthe driver).) 42 downfrom the hilltop, Munoz threw car keys and a pair of cowboy boots out of the window. They drove to 21905 Baily Street where they went through the items taken from the victims. Appellant said that he caught up with the passenger and beat him down withhis fists. He also found a pipe or something andhit the guy over the head. When Romero approached,appellant tooktherifle.>’ The passenger waslying on the ground with his hands behind his head. Appellant said he had to jam therifle through the victim’s fingers and fire through his hand to shoot him in the head. (39 RT 5894-5926; 40 RT 6081-6103, 6181-6185.) During cross-examinationat trial, Munoztestified that he burned his ski mask and someglovesin his backyard later that night after returning from Lake Mathews. Munoz did not know whatthe others did with their masks. (41 RT 6312-6313.) 2. Murder of Jose Aragon (Count 3) On the morning of November 25, 1992, 22-year-old Jose Aragon loaded his motorcycle and motorcycle gear in his pickup truck at his parents’ homein Redlands. Before leaving home, heleft a note for his parents, telling them he was going motorcycle riding in San Timoteo Canyon near Beaumontin Riverside County (People’s Exhibit 234). (35 RT 5410.) On the afternoon of November25, 1992, G.F.I. motorcycle club member **/ During post-arrest interrogation (People’s Exhibit 371A), Munozsaid that Romero washoldingthe rifle when he and appellant ran after Jones. Healso said that Romero hit Jones once and then gave the gun to appellant because “he wanted everybody to be a part ofit, ... .” (45 Supp CT 12978.) 43 Ted Lehmann,his 10-year-old son, and a friend also went motorcycle nding in San Timoteo Canyon. When Lehmannarrived at approximately 2:00 or 2:30 p.m., he saw a gray pickuptruck anda riderlying in the bed ofthe truck.Lehmann was acquainted with Jose Aragon, who was also a memberofthe sameriding club. Lehmann recognized Aragon’struck and his motorcycle gear. He thought Aragon wasasleep. (35 RT 5421-5427.) About 4:00 p.m., Lehmann’s son, who had ridden his motorcycle close to the truck,said that he thought something was wrong with man whoappeared to be sleeping. Lehmann wentoverto truck and found that Aragon wasnotsleeping. Lehmann observeda large throat injury and other wounds onthe rider. Trying to assist Aragon before realizing he was dead, Lehmannthrew his white motorcycle helmet into the bed of the truck. Onceherealized that Aragon wasdead, Lehmanntold everyone to get way from the truck, and he wentto a nearby Mexicanrestaurant to call the Beaumont Police. (35 RT 5424-5425.) When Aragon did not return by 5:00 p.m., his father drove to San Timoteo Canyon to look for him. It was already dark when he arrived; police vehicles and lights had surroundeda grove of trees where Aragon alwaysusedto parkhis truck. Initially, police informed Aragon’s father that Jose had an accident; later, he was told by police that Aragon had been shot. Aragon’s fathercalled his wife, Aragon’s stepmother, who joined him at Timoteo Canyon. After about two hours, the police told the parents to go homeandthat they would be contacted in the °3/ See People’s Exhibits 3A-3C. (3 Supp CT (Photographs-Exhibits) 661-666.) 44 morning. (35 RT 5409-5413.) Riverside County Sheriff's Detective Terry Hudson wasassigned to the Banning Sheriff's station. On the afternoon of November 25, 1992, Hudson was advised that a male subject had been found dead, with a large holein his neck. His body wasin the back of a pickuptruck parked in an unofficial motorcycle area in San Timoteo Canyon. (35 RT 5429, 5475-5476.) Hudson respondedtothe call and arrived on scene at 6:15 p.m. Other sheriff units and Beaumontpolice officers had already arrived. Hudson observed a motorcycle parked tothe right of a gray pickup truck. The tailgate of the truck was down. A male subject, determined to be Jose Aragon, was lying on his back in the bed of the truck with his legs hanging overtailgate. A motorcycle ramp wason the ground below therider’s feet. The area wastaped off. Since weather and lighting conditions were poor, Hudson called the California Departmentof Forestry for floodlights. (35 RT 5429-5432.) Accordingto his father, Steven Aragon, as a competitive rider Jose Aragon always worefull protective racing gear, including shoulder pads, kidneybelt, thigh pads, racing boots, helmet, goggles, and white AXO gloves (People’s Exhibit 227). Because he wore racing boots while riding, Aragon usually kept his tennis shoesin the truck (People’s Exhibit.236). (35 RT 5413-5414.) He also kept in the truck a red toolbox with tools (People’s Exhibits 230 and 231) as well as a Craftsman socket set (People’s 249). Loose change waskept in the ashtray. (35 RT 5114-5417.) 45 Under Hudson’s direction, the scene was processed for evidence.’ No shoe or footprints were observedin the sandy soil aroundthe truck. The door of truck cab was open with papers on the floor. The ashtray was open. Keys were on the driver’s side floorboard. Hudson did not observe a toolbox or Craftsman socket set in or aroundthe truck, nor did he find Jose Aragon’s wallet or its contents. One .22 caliber bullet casing was found on the ground behindthe truck near the tailgate; seven .22 caliber bullet casings were found in the truck bed near and forward of Aragon’s body. (35 RT 5432-5438.) Of the seven .22 caliber bullet recovered from the truck bed, six were Super X Winchester casings and one was aluminum C brand casing. (35 RT 5441-5444.) Hudsonobserved a white motorcycle helmetin the truck bed; it was subsequently identified as belonging to Ted Lehmann. Aragon’s tennis shoes and gloves were also foundin the bed of the truck. There were bullet fragments near the gloves and under Aragon’s body. (35 RT 5438-5441.) Hudsonattended autopsy of Jose Aragon on December1, 1992. The autopsy was performed by Dr. Robert DiTraglia, the same coroner who autopsied the bodies of Joey Mans and Timothy Jones. (35 RT 5445-5446.) During the autopsy, Hudson observed bloodstains on the left shoulder area of Aragon’s clothing, gunshot residue and powder burnsin the left shoulder area. In Hudson’s **/ In collecting and photographing evidence, the number “B92330010” was assigned to the Aragon crime scene — “B”for Banning; “92”for year 1992; “330” for the 330th day of the year; and “010”for daily report number forthat day. (35 RT 5444-5445.) 46 opinion, the powder burns were caused by close proximity of the firearm when the weapon wasfired. Hudson observed a bloodstain on front of the kidney belt worn by Aragon and a small tear on the inside of the front portion of the kidney belt.” Heobserved scrapes and a tear on the second louver ofthe flak jacket where something had impacted the jacket. He noticed another defect -- the distortion of a small vent hole -- on the upperleft shoulder area of Aragon’s flak jacket.*° He also observed an exit hole caused by a shotgun roundin the back of Aragon’s motorcycle helmet.’ (35 RT 5450-5455.) Altogether, Hudson observed 11 different bullet wounds to Aragon’s body, including one neck woundby shotgun, two bullet wounds in the abdomen and eight chest and shoulder wounds.*® Bullet fragments were removed from Aragon’s body during the autopsy. Shoulder wound 2 was a graze-type wound. Projectiles were recovered from wounds3 through 11. Two plastic fragments,”” from what waslater identified as a sabot round,” were removed from Aragon’s throat. Hudson was unfamiliar with the plastic; he had never seen anythinglike °°/ See People’s Exhibit 3E. (3 Supp CT (Photographs-Exhibits) 669-670.) °°? See People’s Exhibit 3K (flak jacket). (3 Supp CT (Photographs-Exhibits) 68 1- 682.) °’/ See People’s Exhibit 3M. (3 Supp CT (Photographs-Exhibits) 685-686.) *8/ See People’s Exhibits 3P-3Q. (3 Supp CT (Photographs-Exhibits) 691-694. Other extremely gruesome and inflammatory autopsy photographs were admitted into evidence. (See People’s Exhibits 3S-3U (neck and head wounds). (3 Supp CT (Photographs-Exhibits) 697-701.) °*/ See People’s Exhibits 340-341 (photographs ofplastic fragments from sabot shell in Banning SO [Sheriff's Office] Case No. 92330010). (2 Supp CT (Photographs-Exhibits) 484-487.) °° See People’s Exhibit 342 (photograph ofsabot slug shotshell with plastic sleeves and pieces). (2 Supp CT (Photographs-Exhibits) 488-489.) 47 them. (35 RT 5455-5467.) Dr. Robert DiTraglia determined during the autopsy that Aragon had been shot 11 times. Wound | was an uncommon woundto the neck and head, not a contact wound or near-contact wound. The presenceofplastic sabot halves meant that the weapon wasfired close enough for sabots still to be traveling with the projectile, close enough sothat they, too, entered the body. (38 RT 5792-5795.) Dr. DiTraglia had never before encountered sabot-type objects. The entrance wound wasunderthe chin; the exit wound was on left back side of head. There wasno indication of shotgun pellets in gunshot wound 1, and no projectile was found. (38 RT 5788-5792.) Wound 2 was a graze woundto the front left shoulder, and wounds3 through 10 all traveled left to right through the body. Wound 11 was a gunshot woundto the right abdomenthat entered theright side of the abdomen andtraveled through the abdominal wall, colon and kidney, ending in muscle tissue adjacent to the spine on right side. The exit wound wasan exit reentry wound (meaningthe bullet broke the skin on the right lower back but did not go out of the body owing perhapsto the presence of the kidney belt worn). The back area of the kidney belt was stained with blood wherebullet was “attempting to exit.” There was no soot or powder deposition associated with this wound. A projectile was recovered. (38 RT 5782, 5785-5787) In Dr. DiTraglia’s opinion, the cause of Jose Aragon’s death was multiple gunshot wounds,including a very severe, devastating wound to the head and numerous gunshot woundsto the torso. (38 RT 5792) In Dr. DiTraglia’s opinion, 48 while the head wound overshadowed the other wounds, they all contributedto his death. Dr. DiTraglia could nottell order of wounds. (38 RT 5792-5793.) The abdominal wound wasnotabsolutely fatal. Although the victim might have had a chanceif given prompt medicalattention,still, the abdominal wound was a severe wound. Even if the victim had not received the gunshot woundto the throat, he probably would not have survived, because he received too many gunshot wounds through too many vital organs. All wounds were antemortem; the heart wasstill beating when Jose Aragon received the throat wound. (38 RT 5793-5800.) Aragon’s father later retrieved the truck. Bloodstains and bullet indentations werestill visible in the bed ofthe truck and backofthe cab. Aragon’s wallet was missing and never found. The red toolbox was missing, and there was no changein the ashtray (People’s Exhibit 229). (35 RT 5416-5418.) At trial, photographsofthe red toolbox and its contents were shownto Jose Aragon’s father. He identified Aragon’s red toolbox; it had been found in and seized by police from the trunk of Sonia Alvarez’s car.” (35 RT 5414-5416.) He also identified Aragon’s motorcycle pants and repair tools. (35 RT 5472.) Neither Aragon norhis father knew appellant or codefendant Romero. Neither appellant nor codefendant Romero had permission to possess Aragon’s red toolbox. (35 RT 5417-5419.) °! / Pursuantto stipulation (35 RT 5380-5381), Aragon’s red toolbox (weighing 80 pounds) wasnot admitted into evidence but released to the Aragon family. At trial, Aragon’s father identified the toolbox from a photograph.(See also People’s Exhibits 308-310 (photographsof toolbox in trunk of Alvarez’s car). (2 Supp CT (Photographs-Exhibits) 462-467.) 49 Attrial, Virginia Kautzman,formerly customerservices manager at Security Pacific Bank (SPB) where Jose Aragon held an account,testified that monthly customer statements for Aragon showed that his ATM card was used three times on November 25, 1992, the date of his death.” First, it was used at 1:58 p.m. at a Great Western Bank at Sun City to withdraw of $120 from his SPB account.; second,it was used at 2:20 p.m. at a Sun City SPB ATM machinein a purported $500 deposit as to which the money envelope was found empty when processed; and third, Aragon’s ATM card used again at 2:24 p.m. at the same Sun City SPB branch to withdraw $180 against the purported $500 deposit. (36 RT 5479-5488.) The state also introduced the testimony of Ramon Reyesand Christine Tosti, both of whom worked with appellant in 1992 at the Coco’s restaurant in Sun City, California. Both Reyes and Tosti testified that appellant had come to Coco’s in Thanksgiving 1992, accompanied by a couple of Hispanic guys. (36 RT 5497- 5499.) Reyes did not recognize the other guys (36 RT 5499); appellant told Tosti that one of them washis brother. (36 RT 5506.) Tosti, who worked as a waitress at Coco’s, went out on one date with appellant when they worked together at Coco’s. Shetestified that after their date, appellant quit and never came back to work. When she saw appellantat the restaurant around Thanksgiving 1992, Tosti asked appellant how he was doing and °/ See People’s Exhibit 235 (Security Pacific Bank (Bank of America) transaction records for Aragon’s account). (45 Supp CT 12902-12905A.) 50 whathe was doing for money. Tosti recalled that appellantsaid, “I’m getting by” (36 RT 5502-5507, 5513), looked overat his brother, and “kind of smirked,like a funny smirk.” Tosti testified that she did not “really get the joke” and his statement “seemed weird.” (36 RT 5507-5508, 5510.) Tosti identified Romero as the person appellant identified as his brother the day she saw him in the restaurant. Tosti also testified that a Great Western Bank waslocated across from the restaurant. (36 RT 5506-5509.) Investigator Hudson,lead investigator on the Aragoncase,testified that in 1992 both a Great Western Bank and a Security Pacific Bank were located right acrossthe street from the Coco’s restaurant in Sun City.” (36 RT 5522-5524.) Jose Munoz’ Testimonyat Trial At trial, Munoztestified that on November 25, 1992, appellant and codefendant Romero awakened him at his house. They asked for the shotgun and told Munoz to accompany them. Munoz had borrowedthe shotgun from appellant after the Williams-Rankins shooting. (40 RT 6227-6231.) The shotgun was already loaded with a slug shell that appellant had previously purchased. (39 RT 6009-6011.) Munoz loaded the shotgun himself the night before. (41 RT 6269- 6273.) Armed with the shotgun, as well as a .22 caliber rifle with scope, a .45 °°/ See People’s Exhibits 256 (Coco’s restaurant), 257-260 (Great Western Bank). ((2 Supp CT (Photographs-Exhibits) 396-405.) Pursuant to settled statement, People’s Exhibit 257 depicts a scene most consistent with testimony describing the location of the Security Pacific Bank in relation to Coco’s restaurant. (Item 35, Amended Settled Statement (Romero), (Sixth Supp CT 132).) 51 caliber pistol, and a .22 caliber Ruger, the three drove to a deserted area in Banning in Sonia Alvarez’s car. On the way, they drank a 12-pack ofbeer. Munoz wantedto find somebody with gunsso that he could get one of his own.” They spotted a guy riding a motorcycle and stopped the car. According to Munoz, appellant wanted to shoot the rider with the scoped rifle as he wasriding the motorcycle. Romerosaid they should park first and check out the area. (39 RT 5974-5979; 40 RT 6139-6155; 41 RT 6299-6307.) Munoz,appellant, and Romero approached the motorcycle rider and Romero engaged him in a conversation about his motorcycle. Romero then introduced Jose Aragon to appellant and to Munoz. According to Munoz, no one was wearing a mask. Munozclaimedthat he said he was going backto the car to put on his gloves and ski mask because he was cold. Munoztestified that he put on areal ski mask; not the one he had made. (41 RT 6311-6315.) Bythis time, Romero had asked Aragon to show him some motorcycle tricks. Aragon drove away on his motorcycle. Romero told Munoz and appellant that Aragon wasalone and that he was not expected anywherefor a long time. The three agreed to rob him. Munoztestified that appellant again repeated that he wanted to shoot Aragon while he wasriding his motorcycle. (39 RT 5979-5983.) Munoztestified that, at this point, he, appellant, and Romero went back to 7 In histrial testimony, Munozoffered that he only reluctantly accompanied Romeroand appellant because he wasafraid of them. During hisinitial post-arrest interrogation, however, Munozstated that the impetusfor this incident was his owndesire to get a gun. He wanted a gun. They wentout looking for somebody whowas“shooting” from whom they could steal weapons. (45 CT 12982.) 52 Alvarez’s car. Aragon returned and parked his motorcycle to the right of his truck. Munozclaimed that as he started walking toward Aragon to rob him,appellant shot him in the stomach with the .22 scoped rifle. Saying “ow,” Aragon grabbed his side and fell on the ground. Munoz ran to Aragon andaskedfor the keys to his truck. Aragon said everything wasin the truck. (39 RT 5983-5988.) Munozstated that Romero then picked up Aragon and put him in the bed of the truck. Face-to-face, Romero asked Aragon “how doesit feel to get shot?” and “Does it burn?” Munoz noticed that Aragon was nodding out. Munoz,appellant, and Romero began removing things from Aragon’s truck. Munoz claimed that before doing so, he took off his gloves; he admitted he opened the doorof the truck cab with a sweatshirt to avoid leaving fingerprints. (39 RT 5987-5988; 41 RT 6315-6320.) Munoztestified that Romero took a red toolbox from the truck. Munoz took a set of Craftsman tools that he later gave to his father. (39 RT 5994-5995, 6003- 6004.) He also found Aragon’s wallet in the truck. Appellant grabbed a clear plastic box with change and ATMreceipts. Hestated that either he or appellant found Aragon’s ATMcardin the wallet. Munoz and appellant went to back of the truck and asked Aragon for his PIN number. Munoztestified that appellant told Aragon,“Give methe code or I’m going to kill you.” Munoz admitted that he also repeatedly demandedthe PIN number, because Aragon was nodding out. Aragon eventually gave the PIN number to Munoz. According to Munoz, while he kept repeating the PIN numberto himself, appellant pulled out the .22 Ruger and 53 repeatedly shot Aragon on.hisleft side. Appellant held the gun right up to his body,right up to his ribs. When appellant shot Aragon with the Rugerfor the first time, Aragon’s body jerked. Appellant fired other shots one after another, about eight times altogether. Aragon jerked little after the subsequent shots, but not much. Toward the end, he was not jerking. By this time, Romero had already gone back to Alvarez’s car. Munoz wasstanding in back of the truck when appellant shot Aragon. (39 RT 5988-5992; 40 RT 6213; 41 RT 6260-6264.) During his testimony, Munoz denied that he shot Aragonat all. He claimed he only intended to rough him upandsteal his things. Hetestified thatafter shooting Aragon with the Ruger, appellant shot Aragon with the shotgun. Appellant was standing over Aragon whenhefired the shotgun. Hehadeither retrieved the weapon from Alvarez’s car or wascarrying it along with the .22 caliber Ruger. Munoz heardthe shell hit the bed of the truck (39 RT 5993; 40 RT 6217-6224.) Munoztestified that appellant returned to Alvarez’s car and got into the front seat. He said, “Oh, wow, you should have seen the hole it made.” Appellant allegedly demonstrated the size of the hole -- about two anda half inches -- with his hands. Munoz claimedthat appellant also said, “It made hole, went all the way through. Andthenit just closed up with blood” According to Munoz, appellant was “kind of goofy” and “kind of laughing” when he made those remarks. (39 RT 5993-5994.) Munoz, appellant, and Romeroleft the area and droveto Perris, stopping to 54 buy some gas with money taken from Aragon’s wallet. They unsuccessfully tried to use Aragon’s ATM cardat two banksin Perris. They then drove to Sun City where Munoz admitted he used Aragon’s ATM card at a Security Pacific or Great Western Bank. Munoz used the ATM card because he knew howto use the machine to withdraw money. (40 RT 6155.). Aragon first checked Aragon’s balance and then withdrew $120. The three proceeded to a Coco’s restaurant across the street from the bank where they discussed how to get more money with Aragon’s ATM card by making a fake deposit first. Munoz and appellant went to another bankacrossthe street from Coco’s. Theyfirst made a fake $500 deposit and then withdrew $180 from Aragon’s account. (39 RT 5995-6001.) Munoz share of the money was $90; appellant and Romero each got $100.After lunch, Romero drove back to Mead Valley, dropping Munoz off at home. (39 RT 6001- 6003.) Munoz also admitted that he tried to use Aragon’s ATM card the next day or a couple of days later. At one bank, the ATM machinesaid he could notuse it; at a second bank, the ATM machinetookthe card and did notreturn it. (39 RT 6003.) On the day after Aragon waskilled, Munoz brought the .22 caliber Remingtonrifle to San Diego and gaveit to his brother, Ruben. He returned to Riverside the same day. He had worked on the weapon,andit did not function. °°/ Duringpost-arrest interrogation (People’s Exhibits 371A-371B), Munoz said he ended up with a total of $80. Although first given $90, Munoz contributed $10 for lunch, leaving him with $80. (45 Supp CT 12952, 12996.) 55 Munozbelieved that he was going to be caught soon and wantedto getrid ofthe rifle. Munoztestified that he called Ruben from jail after his arrest and told his brother to give the Remingtonto the police. (39 RT 6008-6009; 41 RT 6264- 6266.) 3. Other Charges Against Appellant (Counts 4-19) a. William Meredith robbery (count 4) At approximately 10:30 p.m. on October 8, 1992, William Meredith and an unidentified man weresitting in Meredith’s red 1991 Nissan Pathfinder (license plate “DRMBUIE”) on Day Street in Moreno Valley, Riverside County.® (32 RT 5018-5019.) Meredith’s companion had parked his own white compactnext to Meredith’s Pathfinder. Meredith was seated in the driver’s seat. Looking overhis shoulder, the other man told Meredith “webetter get out of here.” Meredith turned around and saw two men running toward his Pathfinder. (32 RT 5020- 5021.) The two men had gotten out of an older, two-door hardtop, possibly a Buick Monte Carlo or Regal, that pulled up right in back of Meredith’s Pathfinder. Meredith wasnotsure of the type of car; he just knew it was “a larger kind of dark hardtop type.” One of the men approached Meredith on the driver’s side; the other approached the passengerside of the Pathfinder. Meredith’s companion jumped °°/ The identity of Meredith’s companion,ifknown,wasnot revealedattrial, and the man did nottestify. There was no evidenceattrial as to what, if anything, Meredith and the other man had been doingin his car at 10:30 p.m. on the night of the robbery. 56 out of car andtried to get away. Meredith started the ignition. The man who approachedthe driver’s side of the Pathfinder was holding what appeared to be a sawed-off shotgun. That man told Meredith to shut off the engine; Meredith complied. (32 RT 5021, 5032-5033.) Pointing the shotgun at Meredith’s head and face, the gunman ordered Meredith out of his vehicle. He told Meredith to go around bythe front of the Pathfinder and to empty out his pockets on the hood. Scared, Meredith puthis wallet and a money clip with $30 on the hoodof his Pathfinder. Although ordered to removehis jewelry, Meredith did not do so. The gunman ordered Meredith to drop his pants aroundhis ankles and then to step over guardrail.°’ The gunman told Meredith to lie down in the grass and neither to movenorget up until they left. The gunmansaid: “Don’t get up until we leave.” In Meredith’s opinion, the gunman was“kind of excitable” (32 RT 5022-5024.) Meredith did not know what happened to his companion. After few minutes and while still in the field, Meredith heard both his Pathfinder and the car in which the gunmenarrived drive away. Meredith got up andleft the field. Meredith foundthat his wallet, cash, driver’s license, ID card, retired military card, and American Express and Visa cards had beentaken, as well ashis Pathfinder. (32 RT 5203-5205.) Meredith had previously written his PIN number on his Visa card. °7/ See People’s Exhibit 74 (photograph of guardrail and adjacent openfield). (1 Supp CT (Photographs-Exhibits) 120-121.) 57 Leavingthe field, Meredith found that his companion wasstill at the scene. So, too, was his car. The man drove Meredith to a nearby market where Meredith called the police and his wife. (32 RT 5025, 5031.) Later that night, Meredith returned to scene with his wife and found his moneyclip. (32 RT 5024-5025.) Meredith’s Visa card, issued by the Federal Credit Union at March Air Force Base, was used at 11:48 p.m. on October 8, 1992 for a $20.20 gas purchase at a Shell station in Sun City and twice on October 9, 1992 at 6:26 and 6:27 a.m., respectively, for two withdrawals of $100 from a Wells Fargo Bank ATMin Woodcrest.°® (32 RT 5028-5030.) Meredith contested these charges. (32 RT 5062-5071.) At approximately 1:25 p.m. on October 20, 1992, CHP Officer Martin Steven Martinez wascalled to Temescal Canyon, between La Sierra and Cajaclo Roadto investigate a reported vehicle off the road. In the vicinity of so-called Cadillac Hill, Officer Martinez found a red Nissan Pathfinder with license plate “DRMBUIE”backed into a pond. The vehicle wastotaled and the interior stripped.© There wasa ragin the gastank. (33 RT 5084-5088.) Two weeksafter the robbery, Meredith saw his Pathfinder after it had been recovered from the Cadillac Hill area. Police informed him that his car had been °/ See People’s Exhibits 262-263 (photograph ofATM at Wells Fargo Bank).(2 Supp CT (Exhibits-Photographs) 406-409.) °/ See People’s Exhibit 21 (photograph of red Pathfinder after recovery). (1 Supp CT (Photographs-Exhibits) 29-30); see also People’s Exhibits 75 and 76 (stripped interior), 77 (front view Pathfinder exterior), and 79 (left side exterior). (1 Supp CT (Photographs-Exhibits) 122-129.) 58 pushed down an embankmentinto a pond. The vehicle, shownafter its recovery in People’s Exhibit 79, had been totaled. A rag wasstuckin the gas tank; a key on Meredith’s key ring was inthe ignition. (33 RT 5026-5028.) Attrial, appellant’s stepfather, Philip Self, identified a photograph of a blue Oldsmobile andtestified that the car belonged to appellant. It had been parked on Philip Self’s property at 21844 Baily. Appellant boughtthe car from a neighbor. Thecar had to be towed when purchased. Philip Self never saw appellant or anyoneelse driving the car. (32 RT 5045-5047.) ThomasLitzinger, parts manager at Quaid Imports, a Nissan dealer, identified the black plastic cover found in the search of appellant’s Oldsmobile as the cover of an antilock brake system for July 1990 and later Nissan four-wheel drive pickup trucks and Pathfinders. (32 RT 5048-5051.) John Guthrie, a Nissan technician employed by Quaid Imports, had been a Nissan mechanic for 20 years. Guthrie was familiar with Pathfinders and also owned a 1991 Pathfinder. Guthrie identified People’s Exhibit 57 as a cover for a Nissan anti-skid control device installed underneath the radio in the Pathfinder. Photographsofthe interior of Meredith’s Nissan Pathfinder (People’s Exhibit 75) showed that the ABS control unit had been removed. (32 RT 5054-5060; seealso 1 Supp CT (Photographs- Exhibits) [Pathfinder interior showing where brake control device would have been installed] 110-120 ) In Guthrie’s opinion, the ABS control unit could have been mistaken for a radio amplifier if someone did not know whatit was. The part could not be used 59 in another vehicle. (32 RT 5060-5061.) Jose Munoz’ Testimonyat Trial Munoztestified that he, codefendant Romero, and appellant committed the Meredith robbery in early October 1992. Intending to commit a carjacking or robbery, they drove around MorenoValley in appellant’s car one night looking for a victim. (39 RT 5882, 5885-5886.) Romero wasdriving. (39 RT 5885.) He was armed with a .22 caliber sawed-off Remingtonrifle that Munoz and appellant had previously bought in San Diego for $20. (39 RT 5882-5884, 5887; 40 RT 6169- 6179.) Appellant was armed with a .22 caliber single-shot rifle sawed-off front and back. (39 RT 5887; 40 RT 6071.) Therifle was missing the feeding tube but could fire a single shot if pointed down. If pointed in an outwarddirection, the rifle could fire bullets as fast as the trigger was pulled. (39 RT 5884.) While driving in Moreno Valley, Munoz saw two parkedcars, one a Pathfinder, the other a small, compact car. Romero parked in back of twocars. Romeroand appellant got out of the car. Munozrefused to get out but agreed to be the getaway driver. (35 RT 5886.) Romero approacheddriver’s side of the Pathfinder where Meredith was seated; appellant approached the passenger. Munoz overheard Romero orderthe driver to exit the car and lowerhis pants. Appellant held his rifle on the passenger, ordering him to lie down between the Pathfinder and the compactcar. (35 RT 5888.) Munozdid not see the robbery or what was taken from the victims. He saw 60 appellant get into the compact car. Unsuccessful in starting that car, appellant returned to his own car. Hegotinto the front passenger seat next to Munoz. Munoz drove appellant’s car away from the scene. Romero drove away in the Pathfinder to his grandmother’s house on Baily Street. (35 RT 5887-5889.) On their return, Romero, appellant, and Munoz went through a wallet taken from one of the victims, which contained approximately four credit cards, including a Visa with PIN number. Later that night, Munoz, Romero, and appellant used the Visa card at a Shell station to buy gas. The next day, Munozusedthe Visa card at an ATM;he obtained $200,splitting the money with Romero and appellant. (35 RT 5889-5892.) Munoz admitted that he removed the stereo speakers from the Pathfinder and also a box from underthe seat that he thought was an amplifier. The Pathfinder disappeared from the grandmother’s house several days later. Munoz testified that either appellant or Romerosaid they went off-roading somewhere andlet it go off cliff. (35 RT 5982-5894.) b. Mills-Ewy shooting ( counts 5-7) On the night of October 22, 1992, Kenneth M. Mills andhis girlfriend, Vicky Ewy,were driving in Ewy’s two-door, red Nissan along Moreno Beach Drive in Moreno Valley, Riverside County.” While driving, Mills observed two cars approachingin the opposite lane both of which appeared to be driving "/ See People’s Exhibit 148 (front of red vehicle identified as Nissan). (1 Supp CT (Photographs-Exhibits) 241-242.) 61 erratically. One of the cars made a U-turn in front of Mills’ vehicle and then drove in front of Mills on Moreno Beach Drive. Mills followed that car, passing it at the Allesandrointersection. Following Mills’ vehicle as it continued along Moreno BeachDrive, the car turned on its high beams. Mills slowed down at the intersection of Moreno Beach and John F. Kennedy Drives.’’ Mills looked over his left shoulder; he saw the silhouette of a car and a person leaning outofthe passenger window and pointing a gun. Mills saw the muzzle blast from a shotgun. The blast blew outa hole in the driver’s side window where Mills wassitting,” blinding him in theright eye, tearing off his right eyelid, and damaginghisleft eye. (33 RT 5191-5196.) Although barely able to see from his left eye, Mills drove away on JFK Dr. with the other car in pursuit. (33 RT 5196-5197.) After turning on Olive, Mills stopped at some model homesandthen drove onto a golf course path to some homes.” Theother car stopped andleft the area after Mills turned onto the golf cart path. Mills stopped to push out the right front passenger windowthat had also been shattered by the blast.’* Mills and Ewy drove to some "7 See People’s Exhibit 149 (road conditions and visibility on night of shooting). (1 Supp CT (Photographs-Exhibits) 243-244.) For viewsofarea, road conditions, andstreet signs during daytime, see People’s Exhibits 156-161 (1 Supp CT (Photographs-Exhibits) 257-268.) . ”/ See People’s Exhibits 24 and 25 (showinghole in driver’s window and shattered glass) (1 Supp CT (Photographs-Exhibits) 31-34.) ™/ See People’s Exhibits 18 and 150 (aerial photographs of homes, golf course, and golf course path), 162-164 (golf course path adjacent to homes). (1 Supp CT (Photographs-Exhibits) 23-24, 245-246, 269-274.) ™/ See People’s Exhibit 19, 151 (shattered right passenger window) (1 Supp CT (Photographs-Exhibits) 25-26, 245-246.) For other viewsofthe car’s interior and exterior after the shooting, see People’s Exhibits 152 (interior) and 153 (seat with hole) (1 Supp CT (Photographs-Exhibits) 249-252.) 62 homesat the edge of the golf course. Ewy wentup to the houses and banged on doors. When oneof the occupants responded,the police were called. (33 RT 5197-5211.) Mills was taken to a nearby hospital. He lost his right eye and sustained scarring on his face; Mills’ left eye escaped permanent damage,and he eventually regained 20/20 vision. (33 RT 5201.) Mills was unable to describe the car involved in the shooting or its occupants. While in the hospital, he reported that the other car was a late-model, 1980s hatchback, either dark gray or bluein color. (33 RT 5202.) He told police that he saw a man from the waist up pointing a gun; he also said he saw the muzzle blast but not the gun. The blast seemed to come from the front passenger window. Herecalled seeing possibly two occupants in the other car, at least a driver and front passenger. Mills was unable to describe the occupants. (33 RT 5211-5214.) Riverside County Deputy Sheriff Eric Albert was on patrol on the night of October 22, 1992. He was dispatched around midnight to 15615 Thornberry in Moreno Valley and arrived a few minutes after midnight on October 23, 1992. Albert observed a red vehicle on the street with several subjects milling about the vehicle. He observed a young man holdinga rag to his right eye and blood onhis face. He observed an emotionally upset female, distraught and crying. Since Moreno Valley Hospital was nearby, Albert drove Mills to the hospital within two or three minutesafter arriving at the scene. Mills was in considerable pain and emotionally distressed. Mills described the other vehicle as a dark gray or blue, 63 1980s-model hatchback. He said he saw the muzzle flash. (33 RT 5215-5218.) After driving Mills to the hospital, Deputy Albert later returned to the Thornberry address. He was accompaniedbya forensic technician, who photographed Mills’ vehicle.” Albert observed a hole in the driver’s window. He recovered plastic wadding from a shotgunblast on the floor of Mills’ vehicle.”° Albert also observed pellet marks on the upholstery andinside the right passenger door above the passenger handle. He collected pellet fragments from the passenger door and from the flooring. (33 RT 5218-5224.) Criminalist Paul Sham examinedlead pellets recovered from the Mills-Ewy vehicle. Although he wasable to identify them as shotgun pellets, Sham was unable to determine the gauge of the shotgun from which they werefired. Plastic shotgun wadding from the passengerfloor of Mills’ vehicle was identical to one- piece wadding from a 20-gauge Remington shotshell. Pieces of lead removed from the passenger doorwerealso consistent with lead shotgun pellets. (38 RT 5825-5826, 5847-5849.) Jose Munoz’ Testimonyat Trial According to Munoz, he, codefendant Romero, and appellant drove Sonia Alvarez’s car in the area of Moreno Beach Drive on the night of October 22, 1992.’’ Appellant was seated in back; Romero was driving, Munoz wassitting in 1 See People’s Exhibits 20 and 155 (interior of vehicle). (1 Supp CT (Photographs-Exhibits) 27-28, 255-256.) ’®} See People’s Exhibit 154 (shotgun waddingonfloor). (1 Supp CT (Photographs-Exhibits) 253-254.) 64 the front passenger seat. Munoz was armed with a .22 single shotrifle; appellant was armed with a 20 gauge shotgun, sawed-off front and back, that had been purchased from “white boy Dave,” a neighbor wholived a couple of blocks away in area of Bonham and Baily.’® (39 5926-5929; 40 RT 6102-6103, 6106.) Munoztestified that Romero pulled alongside Mills’ vehicle. Munoz pointed the .22 rifle out of the car windowatthe other driver. Romero told him to shoot. Before Munoz could shoot, appellant fired the shotgun loaded with birdshotat the driver over the top of the car from therear left passenger side. In order to shoot, appellant put his head and body out of the rear car window and positioned his upper body and armsoverthe top ofthe car, facing Mills’ vehicle. Appellant only had one shell. Munoz did not shoot. (39 RT 5929-5933; 40 RT 6103-6117, 6185-6190.) After the shooting, Romero continued to follow Mills’ vehicle to an area near someapartments and a hospital. While in pursuit, Munozfired once from his rifle at the fleeing vehicle. When Mills started honking his horn near apartments, Romero drove away and returned to Munoz’ house. (39 RT 5933-5934.) c. Williams-Rankins shooting (counts 9 and 10) In 1992, Randolph Rankins (aka “Pint”or “Half Pint’) acted as a drug "/ In post-arrest interrogation (People’s Exhibit 371B), Munoz said that they had been out drinking beer and brandy before the shooting. (45 Supp CT 13025.) ’8/ In post-arrest interrogation (People’s Exhibit 371), Munoz said that he purchased the shot gun from “white boy Dave.” (45 CT 12933-12934; see also People’s Exhibit 371B (where Munozsaid that appellant purchased the shotgun and three shells from Munoz’ friend David). (45 Supp CT 13014, 13027.) 65 middlemanin addition to using rock cocaine several times a week. Rankins was a runner for drug dealers, taking a cut in drugsof sales he brokered. (34 RT 5253- 5254, 45270-5278, 5281.) In the early morning hours of October 26, 1992, Rankins was stopped by three men in a four-door car (People’s Exhibit 176) in Mead Valley.” Rankins recognized and was acquainted only with appellant, having seen him before in the area. He did not know the other occupants, including the front seat passenger, whoselong hair wasin a ponytail. (34 RT 5253-5255, 5259, 5281-5283.) Appellant and his companions asked Rankinsfor help in buying methamphetamine(“speed”). Rankins did not deal in methamphetamine,but he agreedto help, intending to defraud the buyers by supplying rock cocainerather than methamphetaminein order to acquire a small cut in the deal in the form of rock cocaine for his personal use. Rankinsfirst drove with the buyers to a location in Mead Valley (where he and appellant got out) and next to a house on Markham Street (where Rankins told the three to stay in the car). (34 RT 5255, 5257-5260, 5281.) Rankins was given $20 for methamphetamine. Rankins went into the houseat that location where he met, amongothers, Paulita Williams with whom he had previously smoked rock cocaine. (34 RT 5270-5278.) Instead of methamphetamine, Rankins bought rock cocaine. Taking a small bit of cocaine as his cut, Rankins gave the rest to the buyers who were waiting 1 People’s Exhibit 176 (photographofblue car); see also People’s Exhibit 175 (aerial photograph of Munozresidence and other marked locations described by Rankins).) (1 Supp CT (Photographs-Exhibits) 291-292.) 66 outside. Romero got very upset when Rankins gave them cocaineinstead of methamphetamine. Rankinsrefused to give a refund. Unhappy with Rankins, one of the occupants, later identified as Romero, said he would see him later. (34 RT 5258-5260.) After the sale, Rankins went back into the house. He soonleft again with Paulita Williams, driving away in her VW Scirocco to smokehis share of the rock cocaine. After they smoked the cocaine, Williams agreed to drive Rankins home. While en route, Rankins spotted the buyers’ car; in turn, the buyers spotted Wiliams and Rankins. The buyers’ car pulled up behind Williams. The driver of that car jumped out; he was armed with a gun. Rankins was unableto identify the driver. Rankins told Williamsto get out of there. (34 RT 5227-5230, 5260, 5280- 5290.) Williamsrecalled that while driving Rankins home,she passedthestreet wherehelived. Williams stopped to back up andturn around. Asshedid so, a small car blocked her from behind. Williams only saw the car’s headlights, which blinded her vision. The driver and front passenger of the car got out. As they approachedher car, Williams saw that both were armed with big guns — bigger than pistols. Williamsat first thought they simply had water guns andthat the incident was a joke. Suddenly, Williams felt as though someone had socked her on the side. She realized that she had been shotby a blast from theleft side of her car. Herdriver’s side window was shot out. Rankins started screaming “wait a minute, wait a minute.” He then jumped out of Williams’ car and ran away. 67 Williams did not see Rankinsafter he fled. (34 RT 5229-5240.) Rankinsrecalled that after shooting Williams, the gunmenstarted walking around to the passenger side where he wassitting. He opened the passenger door, jumped out, and ran. Rankins thought three or four shots were fired at him as he ran. Heran into field, fell down, and yelled that he was hit hoping that the gunman would stop shooting. Rankins heard one of the gunmensay,“we got him, we got him down,let’s go finish him off.” Seeing the gunmen coming through field, Rankins got up and started running. More shots were fired at him. Rankins ran around the corner to a dumpster and jumpedin to hide. He hid in the dumpster until 4:00 or 5:00 a.m. (34 RT 5260-5263.) After Rankins fled, Williamstried to removeherseat belt. Then,trying to drive away, Williamsstalled her car. Another man approached Williams on the driver’s side and started cutting her arm with a knife through the shot-out window. Williamsfirst thought that the man wastrying to grab her. Williamsnoticed for the first time that both men ontheherside of the car were wearing ski masks. The third assailant was standing at the rear of Williams’ car; she could nottell if he, too, was wearing a ski mask. (34 RT 5231-5232, 5244-5250; 40 RT 6193.) Williams did not realize immediately that she had been cut. (34 RT 5231.) She did not know if the man wielding the knife was also armed with a gun. (34 RT 5250-5251.) The gunmannextto the one wielding the knife, pushed him away from Williams. That gunman cockedhis gun and placed it to Williams’ head. She 68 screamed, “don’t kill me.” Saying “die bitch,” and standing next to the man with the knife, the gunman shot Williamsin the back with his shotgun. Williamsfell over onto the passenger seat and pretended to be dead. All three menthenleft, driving awayin their car. Although injured, Williams drove her damagedcar to the nearby home ofa friend. Police and paramedics were called. Williams was taken by ambulance to the Riverside General Hospital shortly after 2:30 a.m.. (34 RT 5232-5234.) Deputy Sheriff Robert Masson was dispatched to a house at Rider and Brownin MeadValley at 2:00 a.m. on October 26, 1992. He observed a damaged VW Scirocco (People’s Exhibit 172).°° (34 RT 5293-5300.) Healso found shotgun waddingin the car but no expendedshells. (34 RT 5300-5303.). Inside the house, Masson found Paulita Williams lying on the floor with a gunshot wound, bleeding from herback, neck area, and wrist. Williams said that she had been shot and describedthe locationofthe incident. Masson drove to Alexander and Myron, about quarter of a mile away, where Williams reported the shooting had occurred. Masson saw a puddle ofantifreeze in middle of the street, some broken glass and blood-stained glass fragments, as well as a downedstreetsign.*’ Massonobserved auto collision damageand parts from an automobile in the street. (34 RT 5295-5296.) 8°/ For photographs of Williams’ car and interior after shooting, see People’s Exhibits 169-173. (1 Supp CT (Photographs-Exhibits) 279-288.) 8! See People’s Exhibits 167-168 (puddle ofantifreeze on road). (1 Supp CT . (Photographs-Exhibits) 275-278.) 69 At trial, Williamstestified that she suffered a punctured left lung and sustained a deep, eight or nine-inch long gash on herleft arm that required 80 stitches, a deep gash on her shoulder,a shorter gash onherleft wrist near the palm of her hand, and other cuts.** She stated that despite receiving treatment, her shoulders werestill very sensitive because some shotgun pellets remained embeddedin her body,including in her spine, shoulder, and muscles. Shetestified that she felt the wounds“all the time” and showedherscarred left arm to the jury. (34 RT 5234-5237.) Shetold the jury that, in her opinion, the man who stabbed her seemed“like he was enjoying what he was doing. It was almost like a smirk.” She thought his eyes looked like they were “smiling.” (34 RT 5240-5242.) Rankinsalso testified at trial, identifying Romeroas the driver and appellant as the rear sear passengerin the car that followed Williams. Rankins also detailed his prior felony convictions. He wasrearrested just before trial and given a four-monthjail sentence. He did not wantto return to prison on a parole violation. In exchangefor his testimonyattrial, the prosecutor agreed to contact Rankins’ parole agent, tell him that Rankins had done a goodjob in court and ask for reinstatementof his parole with 120 days jail time. (RT 5258-5259, 5266- 5267, 5277-5278, 5280.) 827 Attrial, Williams indicated by gesture where the gash woundonhershoulder waslocated. Bysettled statement, it is not possible to determine where she indicated the gash on her shoulder had occurred or what her gestures regarding her shoulders were. (Item 24, AmendedSettled Statement (Romero), (Sixth Supp CT 130).) 70 Jose Munoz’ Testimonyat Trial Attrial, Jose Munoz admitted that he disclosed the Williams-Rankins incident only after he signed his plea agreement. (40 RT 6160.) Hetold the authorities he wanted to get the Williams’ incident off his chest. He thoughtthat Williams died in the shooting. Munoz thought, but wasnot sure, that he would not get any additional prison time for shooting Williams. (41 RT 6309-6320.) In order to get a deal with the prosecutor, Munoz understood he would also haveto plead guilty to shooting Paulita Williams. (41 RT 6325.) Munoztestified that on October 26, 1992, four days after the Mills-Ewy shooting, he, appellant, and Romero met “Pint” while looking to buy methamphetamine. Pint got into Sonia Alvarez’s car that Romero wasdriving. Appellant wasin the front passenger seat. Romero drovefirst to one house and then to anotherin search of drugs. Pint bought drugs at the second house with $20 that Romero had given him. Romero brokeoffpiece and gaveit to Pint. Pint then drove away with a womanin a white car. (39 RT 5935-5939.) According to Munoz, he, Romero, and appellant drove back to 21905 Baily Street where they learned that they bought rock cocaine, not methamphetamine. Although not what they wanted, each “snorted”(or nasally ingested) a line of cocaine. Romero becameangry andsaid that they were going to go out and look for Pint, ask him for a refund, or “take him out.” They armed themselves with a single-shot rifle and a shotgun. Driving around, they saw a white car with Pint and a woman in Mead Valley. (39 RT 5939-5941.) 71 Romero blocked the woman’s car from behind. On backing up, the woman hit Romero’s car. Munoz gotout andfired the shotgun loaded with birdshotat the rear of the woman’s car. Armed with a .22 rifle, Romero went aroundto the front of the woman’s car. After Munozfired the shotgun, Pint got out of the car and ran away. Munoz reloaded. Romerothen pointed the .22 single shot at Pint. He later told Munoz and appellant that he pulled trigger but the gun did notfire. (39 RT 5941-5944.) Munoztestified that appellant approached the womanandstarted stabbing her arm with a serrated kitchen knife obtained from Munoz’ kitchen. Appellant was “kind of laughing” while slashing the woman. (39 RT 5945, 5946.) Wearing a mask, Munoz approached the driver’s window andtold appellant to get out of the way. Figuring that appellant was going to kill the woman with the knife anyway, Munoz decidedthat he “might as well just do it and get it over with.” (39 RT 5944-5946; 40 RT 6193, 6207, 6212-6213.) Munoz thusfired his shotgun again directly at the woman from distance of oneor twofeet “so she’d stop screaming.” (40 RT 6131.) Munoz claimed he closed his eyes as he pulled the trigger, so did notsee the effect of the shotgun blast. The three got back into Romero’s car and drove away. They looked for Pint but could not find him. They returned to Munoz’ house. Appellant went into kitchen and ate somecereal, humming while eating. Munoztold appellant to shut up; appellant got up andleft. (39 RT 5934-5949.) Munoztestified that appellant later told him that the blast “splattered her brainsall over windshield”and stated that appellant was laughing 72 like it was funny. (39 RT 5946.) After the shooting, Munoz became concerned that Pint would retaliate. He borrowed a .22 Remingtonrifle for protection from Pint, obtaining the weapon from a neighbor, Al Cole, who gotit from appellant. Munozalsotold his sister about the Rankins incident, who in turn told Sonia Alvarez, since both worked together at a wrecking yard. Romerolater told Munoz that appellant wanted to take him out for talking. Romero also told Munozto tell his sister that he was lying and that he made up everything. Munoztoldhis sister that everything he told her was true but that she should tell Sonia Alvarez that he was lying. (39 RT 5949-5954.) d. Magnolia Center Interiors burglary (counts 11 and 12) At approximately 9:00 a.m. on Saturday, November 14, 1992, James Bradford Murphy, the owner of Magnolia Center Interiors at 6359 Magnolia Drive in Riverside, discovered that his store had been vandalized overnight. A glass panel on the rear door had been broken, permitting entry.*’ Murphyleft the store in good shapeon closing at 5:00 or 6:00 p.m. on November 13, 1992. Glass panels in the rear door were intact when Murphyclosed on Friday night. (34 RT 5354-5355, 6352-5366.) The shop and office areas had been spray-painted and tagged with graffiti. The sample room hadbeen sprayed with the fire extinguisher causing white 8°/ See People’s Exhibits 188 (front of store) and 189 (rear door). (2 Supp CT (Photographs-Exhibits) 309-312.) 73 powder from the extinguisher to cover everything in the store. Footprints had been left in the powderon the floor. The office and shop were in shambles. An antique safe had been turned onits side.** Office and other reupholstered customer furniture had been cutorsliced with scissors.” Otheritems, including office furniture, copier, computers, fax machine, and telephones had been sprayed with glue, permanently damaging mostofthe equipment. *° Graffiti included such expressionsas “sad placein hell see u there,” as well as other, repeated references to death and dying.®” Graffiti in block letters included a drawing of what appeared to be a flower and the number “666.”** The bathroomtoilet was tagged with “now 99 66.you die,” “now is then,” and “67.”"" A sonogram of Murphy’s unborn son appeared to have been stabbed with a pencil or scissors and “You’re going to die” waswritten on the sonogram. set of keys to shop buildings and locks, coins from Murphy’s desk, a World War IH dummypineapple grenade, and a scorpion encased in Lucite were missing from the store. Murphy’s damagetotaled approximately $18,000. (34 RT 5355-5379.) *47 See People’s Exhibit 202. (2 Supp CT (Photographs-Exhibits) 333-334.) ®°/ For photographs of damaged chairs, see People’s Exhibits 10 and 198. (1 Supp CT (Photographs-Exhibits) 7-8; 2 Supp CT (Photographs-Exhibits) 327-328.) 8°/ For photographs of the damage, see People’s Exhibits 23 (chair), 29 (computer), 192, 195 (desk area), 193 (printer), 194 (sewing machine), 195 (fabric bolts and work area), 201 (fax machine). (1 Supp CT (Photographs-Exhibits) 43- 46; 2 Supp CT (Photographs-Exhibits) 315-324, 331-332.) 877 See People’s Exhibits 12, 13, 186-187, 197. (Supp CT (Photographs-Exhibits) 11-14, 2 Supp CT (Photographs-Exhibits) 305-308, 325-326); see also People’s Exhibit 199 (graffiti reference to “white trash”). (2 Supp CT (Photographs- Exhibits) 329-330.) 88/ See People’s Exhibit 14. (1 Supp CT (Photographs-Exhibits) 15-16.) 8° See People’s Exhibit 11. (1 Supp CT (Photographs-Exhibits) 9-10.) 74 Riverside Police Officer Georgina Perez Holderness respondedto the reported burglary at around 9:00 a.m. on November14, 1992. Shelifted four latent fingerprints (People’s Exhibit 203) from rear door brokenglass. (34 RT 5357-5361.) Deputy David F. Collins was working in the Moreno Valley sheriff’s station on December12, 1992. Noting that a numberofkeys had been recovered during the search of 21905 Baily Street on December 12, 1992, Collins contacted Jim Murphy and arranged to meet him at the Moreno Valley Police Department. At the meeting, Collins showed Murphy the keys that had been seized during the search. Except for a square-topped key, Murphyidentified all of the keys as belonging to his business. (34 RT 5377-5378; 37 RT 5668-5669.) Collins released a set of Chrysler vehicle keys to Murphy, since he was aboutto replace the locks on the vehicle. (RT 5669.) e. Alfred Steenblock kidnapping-robbery (counts 13 and 14) The state’s evidenceat trial established that at 1:15 p.m. on November18, 1992, Alfred Steenblock was eating a sandwichin his Pontiac Grand Prix (license number 2BAR803), at a parking lot at Mission Grove Plaza, located at the intersection of Alessandro and TrautweinStreets in Riverside.’ (34 RT 5308- 5309.) A car pulled up and stopped perpendicular to Steenblock’s car. A stocky, Latin male wearing sunglasses, about 5’8”tall and 25 years old, got of the car that *°/ See People’s Exhibits 181-182 (shopping center and parkinglot). (1 Supp CT (Photographs-Exhibits) 295-298.) 75 pulled up and, armed with a pistol, approached Steenblock’s car. From about 6” away, the gunmanpointed the pistol at Steenblock’s head. Steenblock described the weaponasa large-bore, gray pistol with a 6” barrel and no sight-bead. Ina calm voice, the gunman told Steenblock to move over, and he gotinto the driver’s seat. He told Steenblock, “I’m not going tokill you.” While holding the gun in his lap with his right hand, the gunman drove awayfrom the parking lot. The gunmantold Steenblock not to look at him, to keep his eyes down toward the floor, and not to draw attention to them. The gunman drove for a minute or two, about a quarter of a mile to a dead-endstreet next to an empty field.”’ (34 RT 5310-5313.) Someone followed in the gunman’s car and parked behind Steenblock’s car. Steenblock described the gunman as very calm and cool; in his opinion, the gunman knew what he was doing. (34 RT 53115.) After both cars had parked, the gunman asked for Steenblock’s wallet. At the same time, two occupants got out of other car, one of whom approachedSteenblock on the passenger side. The other stayed back behind Steenblock’s car. Steenblocktestified that the person who approached him wasquite belligerent and more uptight and excited than the gunman. He demanded Steenblock’s personal belongings,including his watch. Steenblock handed overhis wallet, his money clip with $80, and his watch to the gunman in his car. The gunman pulled out Steenblock’s ATM card and asked for his PIN number,threatening him by saying they knew his home addressandhis *!/ See People’s Exhibit 183. (1 Supp CT (Photographs-Exhibits) 299-300.) 76 phone number. Steenblock gave the gunman his PIN numberfor his Bank of America account. The gunman then wentthrough the glove compartment and removed its contents. The gunman told Steenblock to get out of the car and to start walking into the adjacent open field. He ordered Steenblock to stay in the field for at least an hour. Steenblock eventually heard both cars pull away. He later saw that his car and the other car were gone. (34 RT 5314-5318.) Steenblock testified that he had a briefcase, cell phone, a box with a dozen gold golf balls, and a full set of golf clubs (woodsandirons)in his trunk. (34 RT 5321-5326.) Once he knewtheassailants were gone, Steenblock walked back to the shopping center where he had been parked andcalled the police and his wife. He attempted to cancelhis credit cards, and he contacted the Bank of America to cancel the ATM card. Hetestified that before he could cancel his cards, his credit card had already been used to withdraw moneyat an ATM machinein SunCity. (34 RT 5326-5328.) Steenblock described the other car at the crime scene as a dark blue or black, early model, Oldsmobile Cutlass or Buick Regal-type sedan. Atthetrial, Steenblock identified appellant as the gunman whofirst approachedhiscar, gotin, and drove with Steenblock to the field area. (34 RT 5318-5319.) Priorto trial, he had identified appellant, first in a line-up at the jail after his arrest and, later, at the preliminary hearing. (34 RT 5319-5320.) Steenblock also identified Daniel Chavez as the belligerent one who approached the passenger side where he was sitting and ordered him outofthe car. (34 RT 5331-5332, 5335-5336.) 77 Deputy Sheriff Giulio F. Simmsrecovered Steenblock’s car on May 31, 1993 in the area of Carousel Drive and Idaleona Road in MeadValley,a rural, mountainous area with numerousdirt roads.” The car had beenstripped. (34 RT 5349-5352.) Steenblock inspected his car after its recovery. Engine components and mostly everything under the dash had been removed. Only one wheel wasleft on the car. The trunk had been forced open and was empty. (34 RT 5336-5337.) At trial, Steenblock identified the box of golf balls found in Alvarez’s car as the one he had boughtat a golf shop in Mission Viejo and which werein his trunk at the time of the robbery. He also identified a Diamond-Tele portable cellular phone (People’s 179) and Samsonite hard shell briefcase (People’s 177), seized during the search of the residence at 21905 Baily Street, as items contained in the trunk ofhis car trunk at the time of the robbery. He recognized his briefcase from a paperclip he routinely kept tucked into a pocket on the lid. His briefcase key alsofit the lock. Steenblocktestified that he did not have any shotgunshells, ammunition boxes, or sabot roundsin his briefcase at the time of the robbery.” (34 RT 5321-5326.) Jose Munoz’ Testimonyat Trial Munoztestified that sometime after the Williams-Rankins incident, he saw Romero with somegolf clubs, a bunch of golfballs, a cellular phone, and a watch. *°7 See People’s Exhibit 180 (front exterior of Steenblock’s car after recovery). (1 Supp CT (Photographs-Exhibits) 203-204.) 37 See People’s Exhibits 17, 303-306 (openbriefcase with paperclip, shotgun shell, and ammunitions boxes). (1 Supp CT (Photographs-Exhibits) 21-22; 2 Supp CT (Photographs-Exhibits) 452-459.) 78 Romeropulled them out of the trunk of Alvarez’s car. Appellant and Daniel Chavez were also presentat that ttme. Romero told Munozthat he stole from somebody.(39 RT 5954-3957.) Munoz later saw the cell phone again in appellant’s room at 21905 Baily Street. (RT 5957.) f. Albert Knoeffler robbery (count 15) Thestate introduced evidence that at 3:30 p.m. on November20, 1992, seventy-year-old Albert George Knoeffler was tending beehives at Markham and Washington Streets in Riverside.” (34 RT 5340.) His 1987 Chevrolet Tahoe pickup truck wasparked nearby. Knoeffler testified that he was approached by a man whostruck up conversation with him about bees. After awhile, the manleft but soon returned armed with a shotgun. Pointing the shotgun directly at Knoeffler and saying he wasnot going to hurt him, the man said he neededthe keys to Knoeffler’s pickup. According to Knoeffler, the man seemed liked a pretty nice guy. Knoeffler handed overhis keys, Another man wearing a ski mask then appeared, having come down the road. Knoeffler did not see another vehicle in the immediate area. The man in the mask got into Knoeffler’s truck while Knoeffler continued working with his bees. The man who demanded Knoeffler’s keys handed the shotgun to the masked man and then approached Knoeffler again, saying he needed moneyfor gas. Knoeffler pulled some money out of his wallet and handedit over. Saying “that’s enough,” the man took only *47 See People’s Exhibit 185 (Knoeffler’s bee boxes in field). (2 Supp CT (Photographs-Exhibits) 303-304.) 79 $40 or $50. More money remained in Knoeffler’s wallet. The man walked back to Knoeffler’s pickup, got in, and both men drove awayin his truck. (34 RT 5340- 5345.) Knoeffler stated that after the robbery, he kept working with his bees. He later decided he should let someone know what had happened. Having no transportation home, he spoke to a young man whowas walking by the area. The young maninvited Knoeffler to his house to use the phone,telling him “my dad’s acop.” The police responded to Knoeffler’s location. (34 RT 5345.) About two weeks later, Knoeffler’s truck was recovered. Knoeffler testified that when he saw his truck at the tow yard, it was “pretty well beat up.” (34 RT 5346.) Only the window onthe driver’s side wasstill intact. All the lights had been vandalized;the alternator and other parts had been removed.” (34 RT 5346.) Knoeffler was unable to identify anyone at the preliminary hearing or at trial. (334 RT 5348.) Jose Munoz’ Testimonyat Trial In his testimony, Munoz admitted that on November 20, 1992, he participated in the robbery of a beekeeper with Romero, appellant, and Daniel Chavez. (39 RT 5957-5958.) Romero was driving Sonia Alvarez’s car. Although Munoz could notrecall for sure, he thought they possibly were armed with the .22 *°7 See People’s Exhibit 184 (photographofvehicle as subsequently repaired by Knoeffler after recovery). (2 Supp CT (Photographs-Exhibits) 301-302.) 80 caliber single shotrifle and a shotgun. Munoz wore a mask. (39 RT 5958-5959; 40 RT 6133-6137, 6225-6227.) Munoztold the jury that Romero parked the car he was driving away from the beekeeper. Armed with the shotgun, Romero walked downthe road to where the beekeeper was working. After awhile, Munoz went to see what wastaking so long; he found Romerotalking to the beekeeper. He overheard him telling the beekeeper he was going to need his truck.”° He saw the beekeepertake out his wallet and offer Romero $25. Saying he needed moneyfor gas, Romerotold the beekeeper, “Give meall of it.” Romero then took about $75 from the wallet. He and Romerothen drove awayin the beekeeper’s truck to where Sonia Alvarez’s car was parked. Daniel Chavez was driving Alvarez’s car. Romero and Munoz drove the truck to an open field and let it go down a hill. Theyall then went to a store and boughtbeer, cigarettes, and “munchies.” (39 RT 5959-5966; 40 RT 6133-6137.) g. Mills robbery (counts 16-17) Between 12:30 and 1:00 p.m. on November 21, 1992, Jerry Mills, Sr. and his 15-year-old son,Jerry, Jr., were target shooting from the back of their Nissan pickup truck about two miles south of the Perris airport in Riverside County. Jerry, Sr. had four firearmsin the truck. (35 RT 5381-5384.) *°/ During post-arrest interrogation (People’s Exhibit 371), Munozstated that he walked down the road to see what was happening and to makesure that Romero was not going to shoot the old man. (45 Supp CT 12979.) 81 As they were reloading their weapons, an older model hatchback pulled up and stopped aboutsix feet from their truck. Mills, Sr. did not hear the car approach because he was wearing earplugs. The front passenger in the approaching car pointed a shotgun at Mills, Sr. Three men got out ofthe car. The man wielding the shotgun approached Mills’ truck. Mills, Sr. decided notto react with guns because his son was standing next to him. Hetold the gunman,“Just take what you want.” Mills and his son weretold to go stand behind a nearby telephone pole. Mills, Sr. looked back and saw the men taking things out of his truck and loading their car. At that point, the gunman with the shotgun, and who now had with Mills’ .45 pistol in his belt, approached and demanded money. He took Mills’ wallet and removed about $150. After taking the money, the gunman wished Mills a merry Christmas. Two men gotinto the car; the third man gotinto Mills’ truck and both vehicles drove away southbound. Mills and his son walked southboundin the direction their truck had been driven. They contacted a man driving a four-wheel vehicle, who said he would call the sheriff. Mills’ son then crossed the river to where somepeople were camping. They drove Mills’ son in a four-wheel drive vehicle back to Mills, Sr. Mills, Sr. hopped into the vehicle with his son, and theyall drove back to the scene of the robbery. Shortly thereafter, sheriffs’ deputies arrived and contacted Mills and his son. (35 RT 5384-5389.) Several sheriffs’ units in the area looked for Mills’ truck. Within half an hour, they located Mills’ truck about a mile down the road. The keys werestill in ‘the truck. The robbers had made off with a jacket, mobile phone adapter,radio, 82 toolbox, a tan ammunition box that opened from the top (People’s Exhibit 247), an assortment of ammunition and cleaning equipment,three pistols, anda rifle. (35 RT 5390.) The weaponstaken included a .45 caliber Colt Gold Cup semiautomatic pistol with red sights, special grips, and an ammunition clip (People’s Exhibit 244) (35 RT 5390-5393), a .22 caliber semiautomatic Ruger (People’s Exhibit 245) with 10-round clip (35 RT 5393-5394), a .22 caliber Ruger semiautomatic 10/22 rifle with dark mahoganystock,leather sling, and telescope sight (People’s Exhibit 246) (35 RT 5394-5397), and a .22 caliber Ruger convertible western-style single action pistol with two interchangeable cylinders (35 RT 5397-5400.) Mills also lost two 10-round magazines and one 25-round curved bananaclip for the .22 caliber Ruger 10/22 rifle (People’s Exhibit 248). (35 RT 5400-5401.) During the investigation, police learned that Carl Rife was married to Sonia Alvarez’s sister. After Alvarez’s home was searched in December1992, she asked Rife to check whether there was a gunin the attic of the Donut Factory located on Bloomington and Cedarin Fontana, San Bernardino County, where Alvarez had worked. Rife checked but did not see one at that time. (42 RT 6399- 6401.) The investigation revealed that Roxanne Boudreau also workedat the Donut Factory in Fontana. Sometime before September 1995, a man namedEric Davenport was helping Boudreau clean up the shop. While in the attic, he found a .22 caliber rifle with a scope but no stock (People’s Exhibit 246). He turned the rifle over to the San Bernardino County Sheriff. (37 RT 5707-5713.) Davenport 83 later testified that although theattic was dirty and dusty, the rifle wasrelatively clean and had minimaldust. (37 RT 5713.). No other items were found along with the rifle. (37 RT 5714.) It was identified as a .22 caliber Ruger 10/22 (People’s Exhibit 246). (37 RT 5711.) Following recovery ofthis rifle, Riverside District Attorney investigator Martin Silva retrieved it from the San Bernardino County Sheriff's substation in Fontana. He impoundedtherifle at the district attorney’s office and later tookit to the Departmentof Justice forballistics analysis. (43 RT 6540-6542.) After appellant’s arrest, Mills, Sr. identified him in a photo line-up andat the preliminary hearing as the person wielding the shotgun during the robbery. (35 RT 5403.) According to Mills, appellant was same person who took money from him and who wished him a merry Christmas. (35 RT 5388-5389, 5401-5405.) Mills identified the .22 caliber Ruger (People’s Exhibit 244), the .45 caliber Colt (People’s Exhibit 245), and the 25-round bananaclip (People’s Exhibit 248) found in the vacant house on Magnolia where appellant and Romero werearrested. He testified that these weapons and the bananaclip for his .22 caliber Ruger 10/22 rifle were taken from him during the robbery on November 21, 1992. (35 RT 5390-5397.) Mills also identified his ammunition box (People’s Exhibit 247); he recognized the cleaning accessories it contained and parts from a convertible pistol. (35 RT 5399-5400.) Finally, he identified the .22 caliber Ruger 10/22 rifle with scope (People’s Exhibit 246) found in the Donut Shopattic as the rifle taken during the robbery on November21, 1992. The rifle was missing its wooden 84 stock and sling; only the working mechanism and scope remained. (35 RT 5394- 5397.) Jose Munoz’ Testimonyat Trial Attrial, Munoz claimed he did not participate in the Mills’ robbery. (39 RT 5966.) He testified that Daniel Chavez told him aboutit. (39 RT 5966.) Munoz stated that he later saw appellant in his backyard shooting some guns,including a .22 caliber Ruger pistol. He claimed he also saw a .22 caliberrifle with a banana clip and scope in appellant’s room at his grandmother’s homeon Baily Street. Munoz identified a .22 caliber rifle without a stock (People’s Exhibit 246) as the samerifle he saw in appellant’s room. Hestated that appellant carried the .22 caliber Rugerall the time and said it was his gun. Munoztestified that there was talk about another gun, and he later saw Romero armed with a .45 caliberpistol that he carried in his waistband. Munoz identified a photograph ofthe .45 caliber pistol (People’s Exhibit 16) as the one carried by Romero. Munozalsotestified that he saw a tackle box that opened from the top in appellant’s room. The tackle box had trays and held bullets. Munoz identified People’s Exhibit 247 as the tackle box he saw in appellant’s room. Finally, Munoztestified that another weapon, a .22 caliber revolver, was sold to a neighbor named Dave.(39 RT 5966- 5972.) Duringhis post-arrest interrogation, Munoz gave varying accounts of what happenedto the revolver (People’s Exhibit 371). He first stated that the .22 caliber revolverlike a “cowboy gun” was sold to white boy Dave. (45 Supp CT 85 12932, 12934.) Later in the interrogation (People’s Exhibit 371A), Munoz said that he sold the gun to Dave. (45 Supp CT 12982.) h. Feltonberger shooting (counts 18-19) At 4:00 a.m. on November30, 1992, Officer John Feltonberger was on his way homefrom work,driving his red 1991 Geo Metro. He wasoff-duty and was dressed in civilian clothes. Near the intersection of Wilmot and Alessandro in Moreno Valley and less than a quarter mile from home,Feltonberger noticed a white foreign-model car. (32 RT 4945-4946.) Thinking that it was the newspaper deliveryman whom heregularly met at that early hour on coming home from work, Feltonberger pulled over. The white car pulled up next to Feltonberger’s car. The front seat passenger got out; he was holding a silver or chrome,single- barrel shotgun in his right hand. Pointing the shotgun downorparallel to the ground, the gunman approached Feltonberger. He ordered Feltonberger out of his car and told him to hand overhis wallet. Feltonberger stated he did not have his wallet. After repeated demands, Feltonberger backed 10 or 15 feet away from the gunman. Feltonberger heard the driver of the white car say “kill him”or possibly “shoot him.” Speaking in a clear, staccato, commanding-type voice, the driver repeatedly said “kill him”or “shoot him”several times. (32 RT 4946-4952, 4966.) Feltonberger told the gunman “nobodyhasto get hurt.” He threw his wallet on the ground. The driver again said, “kill him.” Holding the shotgun in his right hand, the gunman reached for Feltonberger’s wallet, picked it up, and 86 openedit. (32 RT 4952.) Speaking in an accented, soft whisper, the gunmantold Feltonberger, “I ought to shoot you.” Everything the gunmansaid, though, was clearly enunciated in English, and his voice was “never threatening,per se.” (32 RT 4952-4953.) Feltonberger again told the gunman,“nobodyhasto get hurt.” Almost instantaneously, the shotgun went off. (32 RT 4953.) Feltonberger wasstruckin his right chest by a slug fired from the shotgun. His left rib cage was lacerated. Feltonberger also received a woundto his right bicep area. A slug from the shotgun -- not pellets -- went into Feltonberger’s chest, through his right lung, and outhis right back. (32 RT 4953-4954.) Feltonberger’s car was driven away. Feltonberger staggered and crawled to a nearby home where he wasgiven assistance by the homeownersuntil police and emergency medical personnel arrived. (32 RT 4954-4955.) Feltonberger was taken by ambulanceto the Riverside Community Hospital. (32 RT 4955-4956.) Deputy Green followed the ambulanceto the hospital. While in the emergency room with Feltonberger, Green observed the medical staff removed a piece ofred plastic (People’s Exhibit 55) from Feltonberger’s arm. The object was handed to Green, who bookedit into evidence. Green had never before seen anythinglike it. (32 RT 4956, 4979-4984.) Feltonberger remainedin intensive care for three days and then in a ward for seven more days. Attrial, he testified that, as a result of his injuries, his lung capacity was 90% of normal. Feltonberger continued to suffer from breathing problemsand shortness of breath. He subsequently underwent surgery on his right 87 arm. He also suffered knee problems, perhaps from falling on his knees after the shooting. (32 RT 4958-4959, 4968.) Riverside Sheriff's investigator Gary Thompson andpolice technicians collected shotgun wadding and other evidence from the street where the shooting occurred. Thompson identified photographs showingred plastic waddingin the street and a bloodtrail going from thestreet to the driveway of the house on Wilmot where Feltonberger sought assistance. Other photographsidentified by Thompson showedblood smears on the back and rear fenderof the car parked in the driveway at the samelocation, and a pillow, blanket and large pool of blood on the porch area.”’ (32 RT 4990-4998.) Thestate’s evidence established that at 10:45 a.m. on the morning ofthe shooting, Thompson wasnotified that Feltonberger’s car had been recovered in a ravine in the Mead Valley area at Oleander and Day Street.” (32 RT 4999.) The key wasstill in the ignition, but the interior had been ransacked.” Shoeprints with the BK sole pattern of a diamondin a circle were found and photographedat the scene above the ravine where the car was found.'” The car was towed to *”/ See People’s Exhibits 31, 35-37, 43-44 (street, plastic and other pieces of shotgun wadding); 32 (piece of plastic wadding on street), 33 (comparison of shotgun wadding); see also People’s Exhibits 38 (house), 39 (rear view ofcar in driveway), 39 (walkway), and 40-42 (entranceway with blanket and pillow, porch, and front door). (1 Supp CT (Photographs-Exhibits) 47-48, 51-71.) °8/ See People’s Exhibits 45-46 (photographsof vehicle in ravine), 47 (dirt road in area where vehicle recovered), 48 (left side of vehicle after recovery), 78-79 (interior of vehicle). (1 Supp CT (Photographs-Exhibits) 72-81.) 97 See People’s Exhibit 52 (interior of Geo after recovery). (1 Supp CT (Photographs-Exhibits) 86-87.) 88 Riverside for forensic processing. (32 RT 4999-5008.) Forensic technician Kenneth Sorenson processed Feltonberger’s 1991 Geo Metro for fingerprints on December1, 1992. (32 RT 5013.) He located and developed ninelifts, including six comparable lifts. One comparablelift was taken from the exterior of the driver’s door (People’s Exhibit 81). No other latent prints were foundorlifted by Sorensoninside or out. (32 RT 5013-5016.) Feltonberger identified appellant as the shooter in a photo line-up after his arrest. (32 RT 4957.) Feltonbergertestified that he could not be sure whether appellant had eye contact with him when he shot him,although appellant had eye contact just before he said “I ought to shoot you”or “I oughtto kill you.” (32 RT 4967, 4969.) Attrial, Feltonberger also identified appellant as the shooter. (32 RT 4956-4957.) Feltonbergertestified that he next saw his Geo Metro again in January 1993. His flashlight, ammunition pouch, and axe were missing. (RT 4962.) Before the shooting, Feltonberger had never seen appellant. He did not know of any reason before the robbery and shooting why appellant would have touched his car. (32 RT 4962.) In addition to the witnesses’ testimony,the state also introduced physical evidence seized in connection with its investigation and various searches conducted by police. At trial, Feltonberger identified his flashlight (People’s '©°7 See People’s Exhibit 50 (Supp CT (Photographs-Exhibits) 82-83); see also People’s Exhibit 51 (hillside area where shoe print found and Geo recovered)(1 Supp CT (Photographs-Exhibits) 84-85.) 89 Exhibit 54) seized during the search of a shed next to appellant’s home on Baily Street in Mead Valley. Heidentified the flashlight by his initials, “J.F.F.,” written on it, along with the letters “O.P.D. 53” (People’s Exhibit 54), whichsignified Feltonberger’s badge numberat the Ontario Police Department when he wasfirst hired. (32 RT 4960.) He also recognized tape remnantsat the bottom ofthe flashlight. (RT 4960.) Feltonbergeralso identified a leather, double ammunition pouch (People’s Exhibit 53) found in a sleeping bag in the house on Magnolia where appellant and coappellant Romero werearrested. The ammunition pouch wasin Feltonberger’s Geo Metroat the time of the shooting.(32 RT 4962.) He testified there were no bullets or magazines in the pouchatthe timeofthe shooting. Thestate’s evidence showed that when recovered, however, the pouch contained two copper-jacketed .45 caliber bullets." (32 RT 4961.) Finally, the state presented evidence of appellant’s statements in respectto the Feltonberger shooting following his arrest. Detective Hudson interrogated appellantafter his arrest on December 17, 1992. The interrogation was recorded and transcribed. A portion of appellant’s taped interrogation pertaining to the Feltonberger shooting (People’s Exhibit 398) was played for the jury, which was provided transcriptof the interrogation (People’s Exhibit 399) while the tape was being played. (RT 6604-6608; 45 Supp CT 13053-13082 (People’s Exhibit 399).) Appellant told Hudson that Munoz was a “speed freak”and that he had heardthat '"17 See People’s Exhibit 279 (photograph of leather ammunition pouch). (1 Supp CT (Photographs-Exhibits) 3-4.) 90 Munoz shot Feltonberger. (45 Supp CT 13056.) Appellant then acknowledged that he was presentat the time of the shooting and said that he was “outofit,” “amping pretty good,” and “zapped”at the time on crystal methamphetamine. (45 Supp CT 13058-13059, 13063, 13075.) He stated he had used drugs about an hour before the shooting. (45 Supp CT 13075.) Appellant said that he remembered only cruising around in Munoz’ car, some “white guy” standing on the side of the road, and then starting and taking offin his car. (45 Supp CT 13058-13061.) He did not know whyhe approachedthe driver. (45 Supp CT 13075.) The state proffered evidence that during the interrogation, appellantatfirst denied being armedbutlater stated he shot the driver with a chrome 20-gauge shotgun that had both the butt and a portion of the barrel sawed-off. (45 Supp CT 13072.) He claimed the shell in the shotgun was yellow;it was not birdshot. (45 Supp CT 13078-13079.) Appellant stated he had the weapon for about a month (45 Supp CT 13073) and that he boughtthe shells at “Coast to Coast” about two weeks before the shooting. (45 Supp CT 13079-13080.) In his statement, appellant said he wasin the driver’s seat when the driver slammedthe car door on his leg. (45 CT 13061, 13064-13065.) The gun then went off; appellant’s was close enoughto see his face. (45 Supp CT 13065-13066, 13070-13072.) Appellant did not remembertaking the man’s wallet; he did not have it. (45 Supp CT 13066.) After the shooting, Munoz drove away in his own car. Appellant took the other car, ultimately driving back to Munoz’ house. (45 Supp CT 13068.) He did not touch anything in the car, but left Munoz to do 91 anything he wanted with it. He denied taking a flashlight. (45 Supp CT 13069.) He and Munoz dumpedthe car around his neighborhoodbyrolling it downa hill. (45 Supp CT 13062-13063, 13068.) Appellant claimed that whatever Munozsaid was learned by reading the newspaper. (45 Supp CT 13061.) Thestate called Feltonberger’s wife, Marcella Feltonberger, who attended the preliminary hearing when her husbandtestified on January 19, 1993. After her husbandtestified, Marcella remained in courtroom. Attrial, she testified that at the preliminary hearing, appellant, who had been seatedin the jury box, got up, and asked a gentleman seated two rowsin front of her what he thought of Feltonberger’s testimony. Mrs. Feltonberger heard the mantell appellant that“‘it wasconsistent with everything he had read.” Appellant then said: “Do you think he could have rememberedall of that if he hadn’t been a cop? The manreplied: “Probably not.” Mrs. Feltonberger heard appellant state, “Well, I didn’t know he was acop. I thought he was a farmer.” (32 RT 4985-4988.) Jose Munoz’ Testimonyat Trial Accordingto his testimonyat trial, Munoz and appellant robbed Feltonberger on November30, 1992. (39 RT 6012.) In the hours before the crime,both had been drinking.'"* Appellant also used drugs. According to '°7 During post-arrest interrogation (People’s Exhibits 371A-371B), Munozfirst said that he had appellant had been drinking beer purchased from a Ralph’s store. Munozsaid he and appellant were “buzzing”at the time. They droveto the area of the shooting because Munoz wanted to show appellant the location of a job his father had arranged for him. (45 Supp CT 12964, 13000.) Munoz further explained (People’s Exhibit 371B) that before the beer, he and appellant also used crystal methamphetamine. Appellant had called Munoz overto his house because 92 Munoz, appellant shot Feltonberger after picking up his wallet. Munoz denied saying “kill him”or “shoot him.” Munoz said rather, “don’t shoot him.” (39 RT 6014-6015, 6018.) Munoztestified that he drove his sister’s white Toyota Tercel to the scene of the shooting. He and appellant were armed only with a shotgun. (39 RT 6013.) Romerohadthe .45 caliber pistol and appellant had lent the .22 Rugerto a neighborhood kid. According to Munoz,the .22 rifle with scope wastoo big. Munoztold the jury that he followed a Geo Metro in Moreno Valley untilit stopped.'” (39 RT 6013.) While Munoz remainedin thecar, appellant got out. Armed with the shotgun, appellant pointed it at the driver. The driver got out of his car and droppedhis wallet on the ground. As appellant bent over to pick it up, Munoz thoughtthe driver was lunging forward. Heyelled “Chris” and then “don’t shoot.” Munoz again deniedthat he told appellant to “kill him.” (40 RT 6155- 6159.) Munoz saw the driver put hands up and walk backwards about four feet from appellant. Appellant pointed the shotgunat the driver and fired. Theblast he had somepink crystal methamphetamine. Munoz brought his own“little stash” of “speed”to appellant’s house which they also used. (45 Supp CT 12999-13000.) They were thus heavily intoxicated from both alcohol and methamphetamine before the shooting. (45 CT 13000.) '3/ In post-arrest interrogation (People’s Exhibit 371B), Munoz explained how the shooting occurred. “I never wanted to do anything ... , but, it’s like, Ill play the role sometimes, you know,andlike yeah, you know,and yeah,I’ll drive, you know,andI just cruise em’ around the town. Ohit doesn’t look like nothing’s happening. Let’s go home. I do that a lot. And um,that time, you know,he [appellant] was buzzin’. Andthen helike told me, I know it doesn’t have any relevanceto this but um he said um he’s all lets jack somebody. The car wasat a stop sign. I’m all, okay.” (45 Supp CT 13000.) 93 hit the driver in the upperleft chest, and he went down. (39 RT 6015-6016; 40 RT 6232-6242.) Munoz and appellant drove back to appellant’s place on Baily Street. Appellant drove awayin victim’s Geo Metro,arriving back home aboutan hour after Munoz. Munoz and appellant searchedthe car, including the contents of a leather folder. They found the driver’s wallet underneath the front seat, an axe, flashlight, magazine pouch, and gym bag. After looking at papers in the leather folder, Munoz and appellant realized that the driver was a police officer. Appellant kept the flashlight. Munoz threw the axe into the shed in the backyard. Appellant and Munoz later dumpedthe car four blocks away. They pushed the car into a gully. (39 RT 6018-6023.) The next afternoon, coappellant Romero took the leather magazine pouch that he found in appellant’s room. Munoz and appellant told Romero about the carjacking andthe stuff they stole. Munoztestified that he burned the wallet and other disposable items in the backyard. (39 RT 6020-6022.) E. Testimony of Ruben Munoz In addition to Jose Munoztestimony andthe testimony ofthe victims and/or family members who survived the various offenses charged against the defendants, the state also introduced the testimony of Ruben Munoz,brother of Jose Munoz. Ruben Munozlived in San Diego with his parents. His older brother Jose and his sister Margarita lived on Bonham Street in Mead Valley in trailer on 94 a lot their parents owned. In the Fall of 1992, Jose left San Diego and wentto live with Margarita and her son because Jose wasinto drugs and the police were looking for him. (37 RT 5573-5575.) Jose had been stealing cars and had also been caught by the police with his father’s gun. Jose liked to showit off. (37 RT 5609-5610.) Rubentestified that in September 1992, around appellant’s birthday, appellant and Jose drove to San Diego. While in San Diego, appellant bought a sawed-off .22 caliber rifle. Jose helped set up the deal. Jose brought the rifle back to San Diego around Thanksgiving andleft it with Ruben,telling Ruben he did not want to get caught with it. Rubentestified that Jose was nervous when he gave him therifle. (37 RT 5610.) Ruben identified People’s Exhibit 252 as the .22 rifle that appellant bought in San Diego and which Joselater left with Ruben on Thanksgiving. (37 RT 5600-5602.) Rubentold the jury he used to drive to Mead Valley every weekend to pick up his sister Margarita’s son and bring him back to San Diego. On his December 5, 1992 trip, Ruben stated that appellant and Romero asked him to help them dispose of a brown Honda Accord theysaid they had stolen. (37 RT 5575-5577.) At that time, Romero showed Ruben a .45 caliber pistol. Ruben handled it with his shirt to avoid leaving fingerprints and then gave it back to Romero. (37 RT 5614-5620.) As requested, Ruben followed appellant and Romeroin his truck to an area three or four blocks away from Bonham Street, where the Honda was torched and 95 abandonedbehind a big rock. Ruben then drove appellant and Romero back to their grandmother’s house on Baily Street. Ruben was under the impression that neither appellant nor Romero had a car. (37 RT 5582-5586, 5612-5614.) Whentheyarrived at Baily Street, Ruben went with appellant and coappellant Romero into their rooms. Appellant and Romero each had a small room in the house. Once in his room, Romero took off his coat. Ruben saw that Romero had magazineclips on his side and was carrying a gun. The magazine clips were in some kind of holster. Ruben identified People’s Exhibit 53 (Feltonberger’s leather ammunition pouch) as similar to the one that Romero was wearing. In Ruben’s presence, Romero cockedthe .45 caliber pistol and said “look at that hole.” Romero pointed the gun at Ruben, who told Romero notto point the gun at him. At trial, Ruben identified the weapon pictured in People’s Exhibit 16 as the same .45 caliber pistol shown to him that day by Romero. (37 RT 5590-5592.) Romero also pulled out a wad of money from his back pocket and what he described as “some guy’s” driver’s license. Ruben grabbedthe license and looked at it, telling Romero,“Oh, he’s a donor.” Ruben knew that the person was a donor because the license “hadlittle dot on it.” (37 RT 5589.) Romeroreplied, “Well, he was.” Ruben got the impression that something had happenedto the driver. (37 RT 5586-5588.) Ruben also wentinto appellant’s room, where appellant showedhis “stuff,” pulling out a .22 caliber pistol from his right or left leg. According to Ruben, the 96 pistol looked like a Luger. It was fat, pointy, and black. Appellant told Ruben, “This 1s mine. This is my gun.” Ruben identified a gun shownin People’s 15 as the .22 pistol that appellant showed him. (37 RT 5590-5592.) Appellant and Romero asked Rubenfor a ride to Kentucky Fried Chicken. Atthat point, Ruben told them that he did not want to drop them off. (RT 5590- 5592.) Romero then showed Rubena .22 caliber rifle with a bananaclip, scope, and wood stock. Romero mentioned another gun -- “Big Bertha.” Ruben never saw it; Romero said they hadlent it out. (37 RT 5592-5593.) During this incident, Romero also told Rubenthat his brother Jose should have a gun “because he needs one.”” Romerosaid he was going to give him one. Romeroalso told Ruben that Jose was talking too much about what was going on between them andthat he did notlike it. Romero then told Ruben he was going to shoot Jose, kill him, because he wastalking about the business. (37 RT 5598.) In Ruben’s presence, appellant and Romero argued about giving him some moneyfor helping them dispose of the Honda.“ Both Ruben and appellant then went outside and sat down. Ruben sawthat appellant was wearing white BK (British Knights) tennis shoes. Rubenstarted asking appellant “nosy” questions, such as “What are you doing?” and “What would he do if the cops comeafter you guys?” According to Ruben, appellant said that he would run. Ruben asked what would he do if his brother were arrested. Appellant allegedly replied that he '*7 During interrogation (People’s Exhibit 371), Jose Munozstated that Ruben was given $40 for helping dispose of the Honda. (45 Supp CT 12939.) 97 “would jack harder” and told Ruben,“It’s like I’m addicted to it” and “T like it.” Appellant said he liked the feeling, the satisfaction. Appellant told Ruben that they were carjacking. (37 RT 5593-5596, 5599.) Rubentestified that appellant said if the police came for him, “he’s not going to go out without a bang.” Ruben furthertestified that when appellant made these statements, he had an “evil look in his eyes, you know,the way hetold me. It was like, you know,just an evil look in his eyes, basically.” (37 RT 5596-5597.) Rubentestified that after Jose was arrested, but before appellant and Romero werearrested, he was contacted by Riverside sheriff's officers who were looking for them. Jose contacted Ruben from jail and told him to give police the .22 caliberrifle that Jose had given to him on Thanksgiving. Ruben complied and turned it over to Riverside detectives who had traveled to San Diego. (RT 5602.) Rubentold the jury that he was aware that Jose would betestifying and ofthe deal he madein exchangefor his testimony. Ruben claimedthat his testimony would not affect Jose’s deal. He also acknowledged his ownprior conviction of grand theft auto in connection with a car he stole. (37 RT 5602.) Rubentestified that detectives promised him that he would notget in trouble if he talked to them. After Jose’s arrest, the detectives even wrote a statement saying that Ruben was not in trouble and was not an accomplice. (37 RT 5620-5622.) F. Scientific Evidence |. Firearm andballistics evidence California Departmentof Justice criminalist Paul Sham had 19 years 98 experience with shotgun shells and the identification of their components. According to Sham,a sabot roundis a certain type of shot shell designed to be fired in a shotgun. Sabot roundsdo nothavepellets but a lead projectile encased in two plastic sleeves called sabots. Sabotshells, if in stock, could be purchasedat any store selling shotgun ammunition. Any 20-gauge shotgun couldfire a sabot shell or any Remington or Federal shotgun shells. (38 RT 5815, 5849-5850.) Sham obtained an unused BRI sabot round and compared its components with two red piecesofplastic and shot wadretrieved in the Feltonbergercase. Sham determinedthat four items -- (2 pieces of plastic and 2 waddings) -- were componentsof a 20-gauge sabotshot shell manufactured by BRI.'” (38 RT 5813- 5820, 5822.) Sham also received two damagedredplastic sabots from the Jose Aragon investigation. In Sham’s opinion,twored plastic sabots in that case were also consistent with plastic sabots found in 20-gauge sabot shot shells made by BRI. (38 RT 5820-5822.) Sham received clothing taken from Paulita Williams and other evidence retrieved from her car. Holes in Williams’ clothing were consistent with shotgun pellets. Sham found a No.6 lead pellet on the surface of her sleeve. Twoplastic shot shell wadsretrieved from Williams’ car were two different pieces from a single shot shell. One piece was an over-powder wad;the larger piece was the '°7 See also People’s Exhibits 33 (plastic pellet) and 55 (plastic sabot sleeve). (1 Supp CT (Photographs-Exhibits) 52-52, 88-89.) 99 shot cup. Both items were from a 20-gauge shot shell; consistent with a Federal brand 20-gauge shot shell. (38 RT 5822-5825.) Sham received lead pellets from the Kenneth Mills case. He determined they were shotgun pellets. Pieces of lead removed from the passenger door were consistent with lead shotgun pellets. Sham was unable to determineshell gauge. Shotgun wadding from the passenger floor was identical to one-piece wadding from a 20-gauge Remington shotshell. (38 RT 5825-5826, 5847-5849.) Departmentof Justice senior criminalist James Hall was an expert in firearms and firearm identification, also known as “ballistics,” and testified for the prosecution. Hetest fired Jerry Mills’ .22 Ruger and comparedtest-fired bullets with bullets removed from Jose Aragon’s body during his autopsy. In Hall’s opinion, items 20, 21, 23, and 27, removed from Jose Aragon’s body, could have been fired from the .22 Rugeror from any other gun with similar characteristics consistent with a .22 Ruger. In Hall’s opinion, anotherbullet, (item 26) did not have anyrifling impressions that permitted comparison. A bullet taken from Jose Aragon’s abdomen(item 24) had different rifling from thosetest fired from the .22 Ruger. In Hall’s opinion, item 24 could have been fired from a Ruger 10/22 .22 caliber rifle (People’s 246) as it was similar to and consistent with bullets test fired from that weapon. (43 RT 6555-6574.) Hall also compared bullet casings. Casings from thetest-fired .22 Ruger were consistent with a .22 caliber casing (item 22) found in the bed of Jose Aragon’s truck. The casings were also consistent with other .22 casings found at 100 the scene (items 2, 4, and 5). In Hall’s opinion, one .22 casing (item 1) foundat the Aragon crime-scene wasnotfired either by the .22 caliber Rugerpistol or the Ruger 10/22 .22 caliber scoped rifle (People’s 246). (43 RT 6574-6581.) Hall also examined five .22 caliber casings from the Lake Mathews case. A .22 casing found at the lower crime scene (item 26801) and two from the upper scene (items 26802 and 26840) were fired from same weapon. Twoother casings found at the upper scene werefired by two different guns; one of those casings wasold and flattened in appearance and dirt was caked inside. (43 RT 6582-6584.) Hall examined three bullets removed during the autopsies of Timothy Jones and Joey Mans. The bullets were in poor condition and could not be used for comparison purposes. Twoofthe bullets appeared to be .22 caliber longrifles; the third was a lead fragment. (43 RT 6584-6585.) Hall examined a .22 caliber Remington Speedmasterrifle (People’s Exhibit 252). In Hall’s opinion,therifle was “a piece of garbage” and “in pretty bad shape.” The stock had beencut off, and the weapon was missing the safety button, grips, and tubular magazine plunger. Thetrigger was inoperative; the firing pin was stuck in an outward position and fused into position. After test-firing the .22 Remingtonrifle and comparing bullets removed from Jose Aragon, Hall’s opinion wasthat the .22 caliber Remington did notfire any of the bullets removed from Jose Aragon’s body (items, 20-27, and 29). Although Hall did not compare casings fired from the .22 caliber Remington with casings recovered from the Jose Aragon crimescene, he foundthat one casing (item 1) from the Jose Aragon crime 101 scene did not match any other casings recoveredeither in that case or at the Lake Mathewsscene. (43 RT 6585-6587.) Casings found at Lake Mathewsdid not match casingstest fired from the .22 caliber Remington. In Hall’s opinion, casings found at Lake Mathews were not fired by that gun. Indeed, in Hall’s opinion, none of the weaponsgiven to him for testing fired the casings in the Lake Mathewscase. (43 RT 6589-6593.) He testified, however,that his findings and conclusions would be affected if the weaponhad been modified after the shooting. He noted that if the firing pin had been soldered or altered after the shooting,the firing pin impression on casings would have been different. Similarly, if the extractor on the .22 caliber Remington had been broken, different markings might have been left on the casings. (43 RT 6585-6591.) Differences between casings found at Lake Mathewsand casings test-fired from the .22 caliber Remington could be accounted for by changesto the weaponafter the killings. (43 RT 6589-6592.) Hall stated that with the exception of the firing pin, everything else on the .22 caliber Remington, includingthe firing chamber, appeared to be normal. In Hall’s opinion on cross-examination, and contrary to Jose Munoz’ testimony, there was no evidence of a casing having exploded in the chamber. (43 RT 6592-6593.) 2. Fingerprint evidence Riverside Sheriff’s forensic technician Richard Gomesprocessed Sonia Alvarez’s Dodge Colt for fingerprints on December 15, 1992. He located and 102 lifted two latent fingerprints on a chromestrip outside driver’s door, two latent fingerprints from the red toolbox foundin the trunk, and a latent fingerprint from a plastic motoroil bottle. (42 RT 6375-6385.) Two fingerprints on the red toolbox were onthe front pointing down;one fingerprint was pointing across the toolbox. (42 RT 6385-6386.) Riverside Sheriffs fingerprint examiner Yolanda Perez compared Romero’srolled prints with latent prints lifted by Richard Gomesfrom the red toolbox and oil container in Sonia Alvarez’s Dodge Colt. In Perez’s opinion, latent prints from the toolbox matched Romero’s left and right middle fingers and his right thumb. In Perez’s opinion, the latent print from the oil container matched Romero’s left thumb. (42 RT 6490-6496.) Perez compared appellant’s rolled fingerprints with latent prints lifted from the driver’s door of Feltonberger’s Geo Metroafter it had been recovered. In Perez’s opinion,latent prints from the Geo Metro matchedtherolled prints of appellant’s right middle and right ring fingers. (42 RT 6496-6498.) Riverside Police Detective John P. Burtt performedlatent fingerprint examinations for the Riverside Police. He had been qualified on many occasions as an expert in latent fingerprint examination. (37 RT 5547-5548.) On May 27, 1997, Burtt comparedfingerprints on a fingerprint card (“lift card”) collected by Officer Holderness from Magnolia Center Interiors on November 14, 1992 (People’s 203) with Romero’srolled prints taken on December17, 1992. (37 RT 5548-5551.) 103 Comparingthe latent prints lifted from Magnolia Center Interiors with Romero’srolled prints, Detective Burtt determined, in his opinion, that Romero’s right index finger matched (with at least 13 points of comparison) oneofthe latent fingerprints lifted from Magnolia Center Interiors. Burtt also determined,in his opinion, that a secondlatent fingerprint lift matched (with at least 14 points of comparison) Romero’s right middle finger. (37 RT 5551-5554.) On cross-examination, Burtt acknowledged he found no matches with appellant’s rolled fingerprints. (37 RT 5556.) Although requested to compare the prints of four individuals, Burtt could not recall if he had comparedthe rolled fingerprints of Jose Munoz or Daniel Chavez. (37 RT 5557.) 3. Shoeprint evidence Jose Munoz and Daniel Chavez were arrested on December 12, 1992. Whenarrested, Munoz was wearing boots (People’s Exhibit 317), which were seized later that day after his Riverside County Jail interview. When he was arrested, Chavez was wearing blue Air Nike tennis shoes (People’s Exhibit 316). Later the same day, Chavez was driven to Munoz’ homeat 21918 Bonham where Chavez had also been staying. Chavez retrieved for authorities another pair of Nike tennis shoes that he had worn (People’s Exhibit 318). (37 RT 5671-5675.) Sheriff's Detective Terry Hudson was present on December 17, 1992 outside the abandoned houseat Pierce and Magnolia in Riverside when appellant and Romero were arrested. Whenarrested, appellant was wearinga pair of British 104 Knights (BK) tennis shoes. Appellant’s clothing, including his tennis shoes, were taken from him at the Riverside County Jail on the same date. (41 RT 6334-6336, 6543-6548.) There were no observable blood stains or spatters on appellant’s BK shoes. Criminalist Sham wasalso trained in shoeprint impression identification. Hehad previously qualified as an expert in shoe print identification in other California courts. Shoe impressions at crime scenes were commonly preserved by photographs. He compared shoe impressiontest prints taken ofthe soles of British Knight (BK) shoes with photographs ofBK shoe impressionstaken both at the Mans-Jones upper andlowercrimesceneareas andat the Feltonberger scene. (38 RT 5830-5832.) In Sham’s opinion, Photo K, taken at the upper Mans-Jones scene, was made by a BK shoesimilar to the BK shoe obtained from appellant. It was the same size and samesole pattern. There were no observable individual characteristics in either the photograph or the shoe impression,precluding a conclusion that appellant’s shoe and only his shoe could have madethe print shown in Photo K. Sham concludedthat appellant’s left BK shoe impression was generally consistent with impression in Photo K. Shoe impressionsin Photos M, J, and T, also taken at the Mans-Jones scene, were consistent with test prints made from appellant’s BK tennis shoes. The shoe impressions shownin Photos M,J, and T could have been madeby appellant’s right BK shoe. (38 RT 5832-5837.) In Sham’s opinion, the shoe impression shown in Photo AB (lower crime 105 scene) was consistent with and could have been madeby appellant’s left BK shoe or any other pair ofBK shoes of similar sole design and size. (38 RT 5838.) In Sham’s opinion, shoe impression “M”at the scene of the Feltonberger shooting (People’s Exhibit 365) could have been made by appellant’s left BK shoe or any other left BK shoe of the same size and design. (38 RT 5838-5839.) Sham looked at more photos of shoe impressions than those used during his direct testimony. He comparedall photographs with Munoz’ black boots and other shoes examined but found no matches with any other shoes examined. (38 RT 5852-5853.) Sham’s comparisonsalso included the victims’ shoes and photographs of shoes worn byall investigating officers. (38 RT 5853.) 4. Tire tracks Criminalist Sham wasalsotrainedin tire track analysis. He compared photographsoftire impressions taken at the Lake Mathews Mans-Jonescrime scene with tread on the tires mounted on Sonia Alvarez’s Dodge Colt. In Sham’s opinion, photographsoftire impressions on the hilltop near and adjacent to Man’s body and his Subaru, shownin People’s Exhibits 109 through 112 (Supp CT (Photographs-Exhibits) 179-186), were consistent with test prints made from one of the two Goodyear Eagle GT4 tires mounted on the front of Sonia Alvarez’s DodgeColt. (38 RT 5843-5847.) G. Evidence of Escape Attempts Senior Deputy Sheriff Scott Collins arrested Sonia Alvarez in the parking 106 lot of the Riverside County Southwest Detention Center (SDC) near Temeculaat 1:00 a.m. on December 16, 1994. Alvarez gave conflicting statements as to why she had parked in an unauthorized area in the back of B pod anddirectly in front of the window to cell 54. Alvarez reported that she had been visiting appellant; Collins relayed the information to deputies working inside SDC. (42 RT 6504- 6512.) Jail Correctional Deputies Eddie Edmundsonand Jerry Compton were assignedto central control at SDC on December 16, 1994. (42 RT 6514, 6527.) Edmundson received a communication from Deputy Scott Collins advising that he had detained Sonia Alvarez in back ofthe jail. Collins indicated that Alvarez had mentionedthat she had beenvisiting appellant. Accompanied by Deputies Lujan and Compton, Edmundson wentto appellant’s ground-floor cell 54 in B pod. On searching appellant’s cell, the officers observed that appellant had a one-inch cut on thelittle finger of his left hand. Appellant’s cell had a narrow, 6” to 8-inch wide window,with a metal frameset in cinder blocks, 8 feet off the ground. The window looked out onto the parking lot where Alvarez had beenarrested. Appellant was removed from his cell and the cell examined. An examination of appellant’s cell revealed pry marks around the rear window. In order for anyone to get through the window,the frame had to be removed. (42 RT 6517-6519, 6528, 6532-6533.) Paint had been scratched away from the metal window frame. (42 RT 6518.) A metal TV bracket had been removed and was foundin appellant’s cell underneath the TV. There were also gouges and scratchesin the cinder block 107 around the window and aroundthe top of the window frame. Edmundsonalso observed concrete chips on the floor of appellant’s cell and cinderblock chips on appellant’s sheet, blanket, and mattress. (42 RT 6513-6525, 6526-6532.) Ii. Penalty Trial A. Prosecution Evidence in Aggravation During the penalty phase, the state presented extensive victim impact evidence from the family members of Jose Aragon, Joey Mans, and Timothy Jones. In all, the state presented testimony from six witnesses. Jurors heard testimony from Aragon’s stepmother,his sister, and a neighborhood friend. These witnesses not only testified about every aspect oftheir relationship with Aragon and their grieving process after Aragon’s death, but they alsotestified to hearsay statements of others regarding Aragon’s death. Jurors also heard testimony from the family members of Joey Mans and Timothy Jones. Again, the witnesses were permitted to testify not only to the impact of the victims’ deaths on them, but to out-of-court statements of other persons who werenot called as witnesses. In addition to the victim impact evidence, the state also presented incidents in aggravation involving “Factor (b)” evidence. The state presented one incident involving a high schoolaltercation between appellant and a classmate, and four incidents involving assaults in the Riverside County Jail, where appellant was housed followinghis arrest. In the school assault, the state also presented the testimony of a school classmate and friend of appellant’s who witnessed the 108 incidentat the time it occurred and who subsequently visited him in jail. In two of the jail assaults, the state presented hearsay evidence throughthe testimony of investigating officers, rather than the testimonyof the personsallegedly assaulted. 1. Victim Impact Evidence a. Jose Aragon Aragon’s stepmother Lydia Aragon married Jose Aragon’s father, Steven, in 1984. (49 RT 7276.) Jose Aragon wasabout 13 years old at the time. (49 RT 7277.) The family lived in New Mexicoand later moved to Redlands, California. At the time of his death, Aragon wasa seniorat Cal State Poly majoring in engineering. (49 RT 7277.) Lydia described him as shy andstudious. (49 RT 7284.) Lydiatestified that, until he died, she did not know how muchother people respected Aragon. (49 RT 7284-7285.) Lydia told jurors that Aragon andhis brother, Steven, were very close; only 11 months separated them in age. (49 RT 7280-7281.) Aragon wasalso close with his younger brother Carlos and youngersister, Laura. Carlos was 4 years younger than Aragon, and Lydia claimed that Carlos idolized him. (49 RT 7279, 7281- 7282.) Laura was five when Aragon died. Lydia described how whenever Aragon came home,Laura always jumpedinto his arms. (49 RT 7282-7283.) Shetestified that Aragon’s othersister, Stephanie, lived in New Mexico with their birth mother, but remained very close to Aragon as well. (49 RT 7283-7284) Lydia identified photographs of Aragon on his skateboard and on his 109 motorcycle that he rode competitively. (49 RT 7280.) Aragon had a dresserfull of trophies. He used to go every weekend to San Timoteo Canyonto ride. (49 RT 7280.) Sometimes, he used to go with his father. (49 RT 7285.) When Aragon wentriding on November25, 1992,the day before Thanksgiving, he wanted someoneelse to go with him. His father had to work, andhis girlfriend couldn’t go either. Lydia said that it was probably better that no one else went, “because then we would have had two dead people on our hands.” (49 RT 7285.) Lydia described how her husband wentto look for Aragon. Aragonhadleft a note saying that he went riding at San Timoteo Canyon. (49 RT 7287.) Less than an hourlater, Steven called Lydia with the news that Aragon was deadbutthat the police would nottell him how. She initially thought he had fallen off his bike because on a prior occasion Aragon suffered a concussion while riding. (49 RT 7287-7289.) Lydia joined her husband at San Timoteo Canyon whereshe learned that he had been shot. (49 RT 7288.) After Lydia and her husband returned from San Timoteo Canyon,they called everyone to say that Aragon was dead. Aragon’s girlfriend started screaming when she learned. All his friends cameto their house, and they just sat and cried and cried. (49 RT 7290.) The next day, Lydia madethe funeral arrangements. Other people arrived to bring food and comfort, but there was no comfort. (49 RT 7291.) They went to the coroner’s office to identify a photograph of his body. They would notlet them see his body becauseit was too mutilated. (49 RT 7291.) 110 Aragon’s funeral was held at a church in Redlands; it was standing room only. Before the funeral service, the family got to see Aragonforthefirst time after his death. He appeared cold and swollen. They could not even stay for the people who cameto the viewing. After the services, friends and family came to the Aragon home. They flew the body to New Mexico where Aragon wasburied. Aragon had previously told everybody that he wanted to be buried in New Mexico where he was born. Because of snow and severe weather conditions, only half the numberof those who had made arrangementsto attend the funeral actually arrived. (49 RT 7293.) At somelater date, Aragon’sfather picked up his truck from the impound area. It had not been cleaned and wasstill full of blood and dents from bullet holes. According to Lydia, Aragon’s “life’s blood wasjust splattered all over” his truck. (49 RT 7292.) Aragon’s uncle cleaned the truck; the family foundit “too intolerable” to do. (49 RT 7292.) During her testimony, Lydia described in detail how Aragon’s death affected the family. She missed Aragon’s presence. It was like somebody came “along and cut off your arm and you can’t put it back.” (49 RT 7297.) All the energy she putinto their relationship waslost. (49 RT 7297.) Lydiatestified that after the funeral, Aragon’s father became a shadow of the man he was; he wandered around the house. He stayed up and could notsleep. According to Lydia, Aragon’s fatherstill could not sleep three and a half years after Aragon’s death. (49 RT 7295.) Lydia believed that if her husband did not 111 have other children, he would not be alive. (49 RT 7298.) According to Lydia, Aragon’s father seemedto losehis purpose in life; he evenlost interest in the job he loved. Lydia said that her husband wantedto run and hide but could nothide from the pain. (49 RT 7299.) After work, her husband would gointo his bedroom, shut the door, and turn on the television. The family would not see him again. (49 RT 7294.) After Aragon’s death, brother Steven stayed in his room; brother Carlos played “Nintendo and more Nintendo”and studied. He seemed to turn inward and wall himself off from others. (49 RT 7294, 7296.) When Steven did not come homeon time, the parents would wait for him. Lydia and her husbanddid not want brother Carlos to go anywhere because they did not want him to bekilled or to go anywhere where somebody could hurt him. Sister Laura lost everybody, because no one wasthere for her. She was troubled and becamescattered in school. (49 RT 7294-7296.) Laura wasalso fearful and did not want to be alone. She was upset by her mother’s crying and anger. (49 RT 7297.) Lydia recalled that Aragon liked sports, particularly soccer. (49 RT 7278.) There wasa basketball hoop in the backyard where they used to hang out and shoot baskets. Shetestified that after Aragon died, nobody shot hoopsat the house anymore. (49 RT 7285.) For over two years, the family left Aragon’s room untouched,thinking perhapsthat if they did not touch or move anything he would come back. But he never did. Although they yearned for him, he never comes back. (49 RT 7297.) The holidays without Aragon were not the same. (49 RT 112 7298.) Over time, the family attended “all the grief classes,” but it was very difficult for everyone. Lydia told the jurors that a part of them was“ripped out” and they did not know where it went and whatto fill it with. (49 RT 7295.) She described how she and her husband became angry and fought with each other and with the children. (49 RT 7295.) According to Lydia, Carlossaid, “I used to have parents that never fought. And now I haveparents whoareirrational, whotakeall their pain. They take it out on everybody. And that everything I request, every place I wantto go, is always met with ‘No, you can’t go. You haveto stay here.’” (49 RT 7295.) Lydia testified that she thoughtall the time about the last few minutes of Aragon’s life. She described how she imagined him shotandleft to die alone with “no one to cradle him, hold him, and say that you love him and to say good-bye.” Shetold jurors she realized that even if they were there they could not have saved him because he was left for dead, stating “They madesure ofthat.” (RT 7301.) Lydia imagined Aragonlyingin his truck by himself while his ATM card was being used and the moneyin his accountstolen. She told jurors he did not have much money, because she went to the bank herself and closed Aragon’s accounts. She described her concerns aboutthelittle 10-year-old boy who found Aragon and who could notsleep thereafter for “months and months and months.” (49 RT 7301.) In Lydia’s opinion, Aragon wasa kind, gentle, soul who never hurt 113 anybody. She did not know why anybody would do something so senseless like that, intentionally go and search out someonewhois vulnerable and then shoot him. Andask,“does it burn?” “And to laugh.” And to shoot him several more times and then try out a new shotgun on him andsay,““Oh,look at the big hole I left.” That hole was our son. He was a grandson,a friend.” (49 RT 7289.) Aragon’s younger sister Stephanie was 15 years old and living in New Mexico with her mother when Aragon died. Shetestified that she was shockedat his death. She described her brother as quiet and shy. Shetold the jury that he always madeher laugh and alwayslooked after her. (49 RT 7319.) She described her brother Steven as angry whenhe received the news of Aragon’s death. She told the jury that Steven went outside andstarted hitting, punching, and kicking the car. (49 RT 7321-7322.) Stephanie described how shefelt bad at the funeral becauseshe realized on seeing her brother’s body that she was never going to see him again or hearhis voice. (49 RT 7322.) During her testimony, Stephanie read from letter that she had sent to Aragon’s girlfriend in February 1993. In the letter, she described how she had dreamedofher brother. She described how shefelt like a big part of her had been ripped out. She wrote that she did not understand whyhe waskilled. (49 RT 7322-7324.) Stephanie also read from anotherletter describing her feelings and memories of her brother. (49 RT 7324.) She wrote that she was blessed to have been given such a wonderful brother and to have spent 16 yearsof her life with him. She wrote that the thoughtofher brother every day and described a constant 114 pain in her chest that did not go away. (49 RT 7324-7326.) Shefelt that she had been cheated out of so much bylosing her brother. (RT 7326.) She was also constantly angry and had many mixed emotions, including anger, sadness, loneliness, and emptiness. (49 RT 7327.) She explained to jurors that, in memory of her brother, she and most of the membersof her family all got license plates with variations of his name or nickname, ‘“Hoz,” that his friends used to call him. (49 RT 7327.) She went one to describe to the jury how she wasliving her life now with fear, thinking constantly that the same thing was going to happen to her. She told the jury that she and her mother went to the cemetery every weekendto bring her brother cards, flowers, and flags. At Christmas,they took a tree and on Easter they took an Easter basket. Shetestified that Aragon had the cleanest headstone; they took care of him as if he werestill alive. (49 RT 7327-7328.) Stephanie explained that, after Aragon’s death, her mother becameoverly protective, worrying about her safety. Her mothercried a lot and was alwayssad. (49 RT 7328.) Stephanie identified several photographs, offered into evidence, one showing her with her brothers standing next to the old Studebakerthat Aragon’s motherhad given to him; and another showing brothers Jose and Steven. (49 RT 7318-7328.) Stephanietestified that after he died, Aragon’sfriends decided to do something in his memory. (49 RT 7328.) They got together and completely fixed up his truck, inside and out, and paintingit a bright yellow, Aragon’s favorite color. (49 RT 7299, 7328.) 115 Best friend and neighbor Leighette Hopkinsalso testified regarding the impact of Aragon’s death. She met Aragon at Redlands High School. Hopkins saw Aragon nearly every day; they hung out together. He helped her with her studies and homework. Shetestified that Aragon was always calm and had a smile. Hopkinstestified about how Aragon’s death affected his family. She told the jury how she kept a Pepsi bottle with some Pepsi that Aragon had been drinking on the night before he was killed. She also told the jury that, as a result of his death, she felt paranoid and feared getting killed. She did notfeel safe anymore and worried about people breaking into her house. She told jurors it was hard for her to celebrate Thanksgiving. (49 RT 7303-7317.) Hopkinstestified to a conversation she had with Aragon, whotold her about seeing a deer at his house one dayas he returned from school. He called her to comeandseeit, but when shearrived, the deer was long gone. She told jurors that sometimeafter Jose’s death, she wasvisiting his family. Aragon’s father told her that one day, he was onthe front porch, thinking about why this had happened to his son, when he saw a deerstanding in front of him. Aragon’s father told Hopkinsthat the deer took off into an open field acrossthe street. He followed, but the deer’s footprints disappeared in the wet soil. Hopkinstold the jury that she described to Aragon’s father how excited Aragon had been the time he saw a deer in their yard. (49 RT 7306-7307.) b. Joey Mans The state presented testimony from Catherine Mans and Angela Mansin 116 connection with counts 1 and 2 of the charges against appellant, the murders of Joey Mans and Timothy Jones. Catherine Mans, mother of Joey Mans,had five daughters. Joey, whom shecalled “Punckon” when he was growing up, was her only son. (49 RT 7331-7332.) Mans grew up in Riverside and then movedto Florida with his mother in 1986. After about a year, Mansreturned to Riverside. (49 RT 7332.) Catherine last saw Mansabout a year before he died. (49 RT 7332-7333.) She described him as a marvelous son, shy, but very neat and well-mannered. (49 RT 7334.) He was overprotective of his motherandsisters. (49 RT 7333.) He was very good with money and used to save. He always asked his mother whether she needed any money. (49 RT 7336.) ‘Catherine usedto tell him that he should have been born Jewish because he saved every penny. (49 RT 7336.) She recalled he used to stutter because he would try to say too many things at one time. (49 RT 7335.) He loved camping andthe outdoors. (49 RT 7333.) Mansusedto tell Catherine about the view from Lake Mathews. (49 RT 7334.) Catherine described how Mans met Timothy Jones throughhissisters. They knew Jones’ sister. Mans and Jones were alwaysat their house in Riverside; the garage wastheir hangout. (49 RT 7343.) Shetestified that Jones was very nice, police, and quiet. (49 RT 7344.) Catherine told jurors that she last spoke with Mans about a month before his death. Unable to find work, he called to say that he wanted to return to Florida. She wanted him to finish air conditioning school, but he dropped out, 117 unable to pass the math tests. (49 RT 7335, 73377.) Whenshe heard the news of her son’s death, Catherine could not believe that he had been shot. She described to jurors how she wentoutside andstarted screaming and banging on a car. (49 RT 7338.) She could not believe that he was gone. Shetold jurors she did not go to his funeral, because she did not want to see her son in a box. Shetestified that she had never evenvisited his grave, but told jurors she intended to goafter finishing her testimony. (49 RT 7338-7339.) Catherine testified that she wasstill upset, angry, and depressed about Joey’s death. She prayed a lot and had to take tranquilizers. (49 RT 7339-7341.) She described to jurors how she could not get over his death and how she dreamed that she was holding and kissing him. Shetold jurors that in her dreams Manstold her that he was okay. She described how she also dreamed that she asked him what happened andhepointedto his back, saying “it hurts me back here.” He kept saying, though, that he was okay. (49 RT 7339.) Catherine testified that she constantly thought about her son; the thoughts never went away. Shetold jurors he was alwaysaroundher, and shetalked to him;she felt him. (49 RT 7340.) She explained that the hardest thing for her to deal with wasthe fact that he was murdered and that somebody took something, her flesh and blood, away from her. (49 RT 7341.) She described in detail how she kept thinking that Mans was gaspingfor air and struggling to breathe when hedied, because he wasshotin the back of the neck. She thought he wasin pain. (49 RT 7344.) She did not have time to deal with it. Although she was getting better with the passage of time, she 118 still cried a lot, unable to stop. (49 RT 7341.) Catherinetestified that her daughters were affected by her son’s death as well. She explainedto jurors that they talk aboutit all the time and cry and were unable to put it aside. (49 RT 7342.) She identified a photograph of Mansas a four-year old in Illinois with his sister Mary (People’s Exhibit 428); another at age 8 in the backyard swimming pool (People’s Exhibit 427); andstill another of Manswith his father in Las Vegas when oldest daughter Charlotte got married (People’s Exhibit 429). (49 RT 7342-7343.) Mans’ sister Angela was 20 years old when her brother waskilled. He was 26. (49 RT 7346.) She described Mansas very kind and both trusting and gullible. (49 RT 7346.) He looked after Angela whentheir parents separated. After the separation, she, Mans, andtheir father left Florida and moved to Arizona. (49 RT 7347.) Manslovedto play the guitar and make up his own songs. Heliked to work on cars and loved the outdoors. (49 RT 7347.) Angela missed her brother and wished he was here. She was aware ofthe pain her parents were suffering because Manswasthe only boy in the family. When she thought about her brother, she knew he was scared. She saw him in the casket and saw that he had a scared expression on his face. (49 RT 7348.) Not a day went by without her seeing that expression on his face. (49 RT 7349.) When Angela wastold by their father that Mans had been murdered, she started screaming. She did not remember muchelse; she was numb. About an 119 hourafter her father told her the news, she went to church and kept waiting for Mansto comeand say good-byeandtotell her that he was okay. Atthe funeral, Angela kept talking to him, waiting for a response, but he would nottalk back. She felt bad because she was unable to protect him, particularly after he had always protected her. Her father was also very upset. The funeral was hard for both of them. Her father was in a daze, just numb. (49 RT 7350.) Manslater told her in a dream to stop crying and that he was okay. (49 RT 7349-7350.) After Mans’ funeral, the doctor gave Angela’s father a lot of tranquilizers. Although her father’s health was okay bythe timeoftrial, he aged a lot and drank a little more. (49 RT 7350-7352.) He refused to celebrate some ofthe holidays, like Christmas, because the family was not complete. He left town at Christmas even though Angela wanted him to stay. (49 RT 7353.) Angela became very fearful and scared, more paranoid about her surroundings. Her father developed the samefeelings. (49 RT 7351-7352.) Her sister Charlotte also was affected. She became very touchy andlost her patience a lot. She began to talk about Mansconstantly and went to the cemetery all the time. (49 RT 7354.) Charlotte namedher son Joey, after her brother. (49 RT 7355.) Angela herself began to fear that the same thing that happenedto her brother would also happen to her. She started calling home every night on leaving work. She would not walk to her car alone. She was unable to sleep well. At least once a night, she got up and double-checked to make sure everything was 120 locked. (RT 7351.) She always worried about getting hurt and aboutthe safety of her sisters. (49 RT 7351-7352.) Angela still had a lot of anger. She was angry that she could not share herlife experiences with her brother and that she had to go through life without him. (49 RT 7352.) Angela identified a photograph of Manswith his sister Trina at Big Bear (People’s Exhibit 403). She also identified photographsof her brother’s plaqueat the cemetery as well as his grave on Valentine’s Day and onhis birthday (People’s Exhibit 423-425), (49 RT 7354-7355.) Since she wasfive or six, Angela had also known Timothy Jones. Jones used to stay overnight a lot at their home. He was muchlike her brother — quiet, trusting, and shy. Angela identified a photograph showing, amongothers, her fiancé with her father, Mans, and Jones (People’s Exhibit 421). (49 RT 7356.) Angela recalled seeing a video of her sister Charlotte’s wedding in which her father, Mans, and Jones were seen in a car saying goodbyeto her sister Mary and her mother who werereturning to Florida. Jones was also saying good-byeto his dad in the video as well. (49 RT 7357.) c. Timothy Jones James Jones, Timothy’s father, had three children, Timothy, Jimmy, and Darlene (Dottie). He also had two stepchildren. (49 RT 7360.) Timothy was born on December 2, 1969. As a boy, Timothy had a speech impedimentwhich he overcame. Heliked all kinds of sports. According to his father, Timothy wasthe 121 most wonderful kid in the world -- a very loveable kid, his favorite. (RT 7361- 7362.) He never caused any problems. (49 RT 7362-7363.) Jones and Mans were very good friends. The palled around together for years. Mans wasalso a very polite kid. (49 RT 7364.) James last saw his son the night before he died. (49 RT 7365-7366.) Timothy wasstaying at a friend’s house. James went to see if he needed anything. Atthe time, Timothy said he wasnot feeling too well. Whenhis fatherleft. Timothy gave him a hug andtold his father, “I love you pop.” (49 RT 7366.) Whenhis daughter and an officer came to his houseto tell him that Timothy was dead,he did not believe it. They said someone had shot him in the head. (49 RT 7366.) The news of Timothy’s death was devastating. James wished he could have died instead. (49 RT 7367.) The newsalso devastated Timothy’s mother, from whom James had been separated for many years. The mother died from a stroke about a year and a half after Timothy died. James thought that Timothy’s death contributed to her death. (49 RT 7368.) Both James and his daughter took Timothy’s death very hard. If they started thinking about him, the next moment they would be crying. It was very hard after the funeral for James to accept that Timothy was dead andthat he hadto go on with hislife. Timothy’s death was very hard onhis nerves. (49 RT 7369.) Whenholidays came around,they started crying. The family did not celebrate Christmas arounda tree as they hadin the past. (49 RT 7370.) Timothy’s brother Jimmy was paralyzed and in a convalescent hospital. 122 Jamestestified that when he visited Jimmythe day before, Jimmy had pointed out a kid who looked exactly like Timothy. Jimmycalled out “Timmy, Timmy” and they both started crying. (49 RT 7370.) Jamestestified that he did not attend the trial very muchbecause he could notstand the thought of what his son had gone through when Timothy knew he was goingto die and could not do anything about it. James testified that he could not forget his son’s death and could not stand the thoughtof finding out exactly how Timothy died. He believed that Timothy suffered and tried to get away. Hetold jurors that it was more difficult knowing that his son had been murdered,rather than if he had an accident or had gotten sick. He felt he would have been able to understand that type of death, but he just could not understand why anyone would wantto take the life of a kind and generous kid. (49 RT 7370-7371.) Jamestestified that on Memorial Day, he goesto the cemetery. Hetold Jurors he thinks about how much Timothysuffered and he would talk to him even though he knew he wasnot there. He alwaystells his son that they will meet again some day, that everything is going to be okay,andthat he did not have to worry any more about anything. (49 RT 7371.) 2. Prior School Assault a. Milton Solorzano (May 22, 1992) The state presented evidence that on May 22, 1992, Milton Solorzano and appellant were both attending Valley View High School in Moreno Valley. (51 RT 123 7541.) Solorzanotestified that appellant ran up to him while he wasstanding in the cafeteria line at lunch. Solorzanotold the jury that when he movedoutofthe way, appellant hit his head against a wall. Solorzano was not injured. (51 RT 7544.) Solorzanotestified that he then held appellant in a headlock until a teacher arrived. During this time, appellant was swinging at Solorzano and saying “I’m going to get you. Let me go.” Appellant also struggled with the teachers as he wasbeing led away. (51 RT 7545.) Solorzanotestified that he had previous verbal confrontations with appellant -- that they had given each other dirty looks and had exchanged words. (51 RT 7545-7546.) Claribel Bautista testified that she witnessed the cafeteria incident between appellant and Solorzano. (51 RT 7626.) According to Bautista, appellant approached Solorzanoat a fast pace,tripped, and hit his head on the wall. (51 RT 7626-7627.) Bautista testified that Solorzano and appellant had each otherin a bear hug. Bautista claimed shetried to grab appellant’s hand to help him because he washerfriend. (51 RT 7627.) Both Solorzano and appellant were trying to hit each other. (51 RT 7627-7628.) Bautista told the jury that she did not know who the aggressor was. Shetestified that the incident ended when a “narc”or security guard from the school broke up the fight. (51 RT 7625-7629.) Bautista acknowledged during her testimony that in March 1996shevisited appellantin jail and that their conversation was recorded. (51 RT 7629.) Thestate introduced and played a tape recording of Bautista’s conversation with appellant during her visit (People’s Exhibit 442). In the recorded conversation, Bautista and 124 appellant spoke about the Solorzanoincidentat school. (51 RT 7629.) The jury wasalso given a transcript of the tape (People’s 442A) while it was being played. (RT 7629-7631.) Bautista testified that the recording and tape were accurate. (RT 7631.) 3. Subsequent Jail Assaults a. Richard Reyes (July 22, 1992) Deputy Sheriff Alfonso Campatestified that he was working as a tank officer of tank 11/12 at the Riverside County Jail (Robert Presley Detention Center) on July 22, 1994. (51 RT 7550.) He noted that there were six 8-mancells in tank 11 and that at about 5:00 p.m., he respondedto a call for help from cell 5. (51 RT 7551.) Campatestified that inmate Richard Reyes was standingat the bars of cell 11C5 and that he appeared shaken, nervous, and scared. Reyes was bleeding from his gumsandlip and had red marks on his face. Reyes also had a puncture wound and was missing somefrontteeth. (51 RT 7551-7554.) Campastated that he pulled Reyes out of the cell and then conducted a knuckle check on the remaining inmates in the same cell. According to Campa, appellant, who wasalso in cell 5, was hesitant to come forward and havehis knuckles checked. He wasthe last inmate to be checked. Campatestified that he observed some rednessanda fresh cut or small puncture wound on one of appellant’s knuckles. He stated that he believed appellant had just wipedhis knuckle on something becausethere waslittle noticeable blood. Campaalso informedthe jury that he did not observe marksorinjuries to the knuckles or 125 hands of any other inmate in the samecell as appellant and Reyes. (51 RT 7555- 7556.) Campatestified that he spoke further with Reyes after he had been pulled from the cell. (51 RT 7557.) Reyes told Campathat he had just put his food tray by the cell door and when he turned around, he was hit approximately four times in the face. Reyes also told Campathatit happenedso fast he did not see whohit him. (RT 7557-7562.) Campa did not observe any redness on Reyes’ knuckles. (RT 7562-7563.) A tape-recorded conversation between appellant and his mother MariaSelf, during a jail visit on July 24, 1994 (People’s Exhibit 440), was played for the jury. The jury was given a transcript of the tape (People’s Exhibit 440A)to review as the tape was being played. It was stipulated that the transcript was a true and correct transcription of the tape. (51 RT 7575, 7578.) During the conversation, appellant told his mother that he hit an inmate on the mouth and busted out two of his teeth. Appellant told his mother that he asked what the inmate wasin for and was told spousal abuse. Appellant told his motherthat he said, “Oh, are you one of those” andtold the inmate that he did not want him in the cell. When the inmate told appellant he could not get him out, appellant hit him in the mouth as hard as he could. Whenother inmates asked appellant if they should jump him, appellant told them not to do so because the guy wasleaving. (51 RT 7576.) b. Oswaldo Vasquez (June 24, 1993) Oswaldo Vasqueztestified that on June 24, 1993, he was an inmatein the 126 Riverside County Jail. (51 RT 7662.) He was 5’8”and,at the time, weighed about 150 pounds. Vasquez was housedin cell 5B61 for a couple of weeks. Vasquez testified that at approximately 8:30 p.m., he was asked by inmate David Valenzuela to play dominos with him in cell 5B63. (51 RT 7662.) Vasquez told the jury that Valenzuela wasvery insistent. (51 RT 7669-7670.) Vasquez also testified that on several prior occasions, he had given Valenzuela a back massage. (51 RT 7669.) During the game, appellant and another inmate approached Vasquez. (51 7662-7663, 7669.) Vasquez identified appellant as one of the inmates who approached him. (51 RT 7664.) Vasqueztestified that appellant and the other inmate asked Vasquez to give them a back massage, but Vasquez refused. Appellant threatened Vasquez with a sharpened pencil. He said that he wouldstick it in Vasquez’s neck if he did not give them a massage. (51 RT 7663, 7670-7671.) Vasquez gave appellant a back massage. (51 RT 7665.) Vasqueztestified that after the massage, appellant then told him to suck his penis, using the Spanish word “mamon”(51 RT 7664-7665.) Vasquez told the jury that he refused. Appellant and two other inmates prevented Vasquez from leaving the cell and beganhitting him all over his body. (51 RT 7666.) One of the inmates acted as a look-out through the cell door. Vasquez wascut ontheleft eyebrow.(51 RT 7666.) When Vasquezstarted bleeding, appellant and the other inmatesleft the cell. (51 RT 7666.) They told Vasquez not to tell anyone and threatened that something worse would happen to him if he did. (51 RT 7667.) The following day, Vasquez told a jail deputy what had happenedafter an 127 investigation was begun about howhegotcut over his eye. Vasquez first said that he hit his head on a bunk becauseofthe threats that had been made . (51 RT 7667.) Later, Vasquez reported what had actually happened. Heidentified a photograph of appellant and said he was oneof the inmates who attacked him.(51 RT 7668-7669.) Deputy Sheriff Bruce Blancktestified that he was assigned as a housing officer for Cell 5B at the Riverside County Jail on June 25, 1994. (51 RT 7674- 7675.) At 6:55 a.m., Blanck observed that inmate Vasquez had a cut abovehis eye. (51 RT 7676-7677.) Vasquez had been housed in 5B61. (51 RT 7675.) Blanck told the jury that after securing all inmatesin their cells, he spoke with Vasquez, who provided him someinformation aboutthe incident and the number of the cell where the incident occurred. (51 RT 7677-7678.) After obtaining medical treatment for Vasquez, Blanck showed him photographsof the inmates whooccupied cell 5B63. Vasquez identified appellant, David Valenzuela, and Armando Saenz as the inmates involved in the assault. (51 RT 7679.) Blanck acknowledged in his testimony that Vasquez also told him that inmate Saenz had been armed with a pencil and that Saenz wanted him to give Valenzuela a frontal massage or he would kill him. (51 RT 7680.) Blanck told the jury that Vasquez also reported to him that appellant dropped the front of his jumpsuit and said “give me mamon”which, according to Blanck was slang in Spanish for oral copulation. Vasquez told Blanck that after he refused, Valenzuela covered the cell window with a towel. The only other inmates in the cell were 128 appellant and inmate Saenz, who then beat him up with their handsandfeet. (51 RT 7681-7682.) Finally, Blanck testified that Vasquez said that he did not see whohit him. (51 RT 7681-7682.) c. Mario Garcia (May30, 1994) Mario Garcia testified that on May 30, 1994, he wasin tank 11, cell 5, of the Riverside County Jail. (S51 RT 7606.) He had only been in the cell for five or 10 minutes. (51 RT 7606, 7608.) Garcia was being held for second degree burglary. (51 RT 7610-7611.) Garcia told the jury that three inmates assaulted him in the cell. (51 RT 7606-7607, 7610.) One inmatefirst hit him in the mouth, face, and left eye with a closed fist; two other inmates then joined in. (51 RT 7610-7611.) Garcia testified that when he yelled for help, he was pulled from the cell by a deputy. He neededsix stitches to close the cut over his left eye. (51 RT 7608-7609.) Garcia told the jury that within minutes of the incident, deputies showed him photographsof several inmates present in the samecell at the time of the assault. Garcia testified that he identified photographsof three inmates who participated in the assault. He identified appellant’s photograph as the inmate who first hit him. (51 RT 7609-7610.) He recalled the nameofthe principal assailant as Chris Mendoza. (51 RT 7612.) Garcia did not know why appellant hit him. Garcia had just been transferred into the cell. At trial, Garcia again identified appellant as the inmate whohit him. (51 RT 7607.) 129 Deputy Sheriff Leo Marintestified that he was assigned to tanks 10 and 11 in the Riverside County Jail on May 30, 1994. At around 9:00 p.m., he heard and respondedto call for help from cell 11C5 in tank 11. (51 RT 7614.) Hetold the jury that he saw inmate Garcia at the cell door with a cut over his right eye and blood on his face. The inmate appeared nervous and shaken. (51 RT 7615-7616.) Marin explained that eight inmates were housedin the cell at the time. Marin recalled that he had just placed Garcia in the cell between 20 to 40 minutes before the assault. (51 RT 7613-7616.) Deputy Swett testified that he was workingin the jail on May 30, 1994. He investigated the assault involving inmate Garcia, who had been cut abovethe eye. | (51 RT 7618.) Swett told the jury that Garcia informed him after the incidentthat he had been making his bunk after entering the cell. (51 RT 7619.) Garcia also reported that a couple of inmatesstarted hitting him aboutthe face and body with closed fists. (51 RT 7619.) Swett explained to the jury that he pulled booking photographsofall the inmates in the cell with Garcia and showed them to Garcia. (51 RT 7619.) Within 15 or 20 minutesofthe assault, Garcia identified a photographof appellant as one of the inmates who assaulted him. (51 RT 7620.) Swett also testified that Garcia also identified the photograph of a second inmate named Tobaline whowasalso involved. (51 RT 7621-7623.) Garcia only picked two of the photographs shown to him. (51 RT 7621-7622.) Finally, Swett testified that according to jail records, appellant was in cell 11C5 from April 23, 1994 until June 11, 1994. (51 RT 7623-7624.) He was one of 130 the inmates housedin cell 11C5 at the time ofthe incident involving Garcia. (51 RT 7624.) d. Jacob Aramburo (June 4, 1994) Deputy Sheriff Manuel Correatestified that at approximately 1:00 a.m. on June 5, 1995 he was working as a tank officer of tanks 11/12 at the Riverside County Jail (Robert Presley Detention Center). On responding to an inmate’s cry for help, Correa found inmate Jacob Aramburolying bailed-up on the floor next to the door of cell 11C5. (51 RT 7565.) Other inmates in the cell were standing towardthe backnearthe toilet area. (51 RT 7566-7567.) Correa told the jury that he removed Aramburo from the cell. He noticed a small cut on the back of Aramburo’s head, swelling on the right side of his face, and scrapes on his back and chest. Aramburo complained ofpain abouthis left shoulder and lower back. (51 RT 7568.) Correatestified that he then conducted a knuckle check on the other inmatesin the cell, including appellant. (51 RT 7568.) On removing appellant from the cell, Correa noticed that all of his knuckles were red, and he had a small cut on the middle finger of his right hand. Correatestified that inmate Christopher Nevarez also had red knuckles but no cuts on his hands. (51 RT 7568- 7570.) Correa recalled that none of the other inmates had any rednessor injury to their knuckles. (51 RT 7570.) Correatestified that Aramburoreportedthat he fell off his bunk. (RT 7571.) Aramburo later told Correa that he did not want prosecution or anything 131 done about what happened to him. (51 RT 7571-7572.) 4. Possession of Weaponsin Jail a. Possession of Sharpened Toothbrush (September 19, 1993) On September 19, 1993 — his third day of work -- Deputy Sheriff Gregory Harrell was assignedto the day shift floor operations at the Riverside County Jail. At 9:30 a.m., Harrell was working the clothing exchangedetail for tank 11, cell 6, which involved exchanging dirty inmate clothing for clean clothing. The detail also included a search ofthe cells. Appellant was one of eight inmates in cell 6 at the time. (51 RT 7648-7649.) On searching appellant’s property box, Harrell found a toothbrush that had been sharpened to a point at the end of the handle. (51 RT 7650.) The toothbrush looked as though it had been rubbed onthe wall or floor. The toothbrush wasthe first shank he had found on the job. (51 RT 7650-7651.) It was apparent to Harrell that the sharpened toothbrush was capable being used as a weapon. (51 RT 7655- 7656.) Harrell filled out an inmate disciplinary marker for appellant. (51 RT 7652.) After the marker had beenfiled, the toothbrush was destroyed. (51 RT 7646-7653.) It wasstipulated that if called to testify, Sergeant Odgaurd wouldtestify that the shank was destroyedafter a disciplinary citation had been issued to appellant. The destruction of weapons was matter ofjail routine and security. (51 RT 7604-7605.) 132 b. Possession of Other Shanks (November25, 1994) On November25, 1994, Correctional Sergeant David Durazo was working as a pod officer in charge of C pod at the Riverside County Jail Southwest Detention Facility (SDF). (51 RT 7632-7633.) Durazotestified that, on that date, appellant wasbeing housedin single-cell C47 in C pod. He had been there about a month. (51 RT 7633.) All cells in C pod were searched once a week. In a prior search, Durazo observedthat a two- to three-inch piece had been cut from plastic cup in appellant’s cell. (51 RT 7633-7634.) Searching appellant’s cell on November 25, Durazo founda paperclip attached by thread to a pencil. The point of the paper clip had been ground to a point and extended aboutone inch from the endofthe pencil. (51 RT 7636-7637.) Durazo also found the piece of plastic that he had previously observed missing from the cup in appellant’s cell. The piece of plastic had been sharpened to a point and wastaped to the metal bunk. (51 RT 7638-7641.) Durazo also found a sharpened pork chop bone underneath the toilet. One end of the bone had been sharpened to a point, and the point was sharp to the touch. The bone appeared to have been ground down. (51 RT 7641-7642.) In Durazo’s opinion,all three items were shanks or weaponscapable of causing bodily harm to anotherperson. (51 RT 7638, 7641-7643.) Durazo cited appellant with a disciplinary marker. (51 RT 7643.) The items found in appellant’s cell were subsequently destroyed. (51 RT 7644.) 133 B. Defense Evidencein Mitigation Appellant called several family witnesses in mitigation, including his mother, Maria Self; his brother, Anthony Self; his cousin, Sheila Torres; high schoolart teacher; and a Riverside county Deputy Sheriff who workedin the county jail where appellant was housed. At the time of appellant’s arrest, Maria was workingas a bilingual teacher’s aide. (52 RT 7749-7750.) She had workedas an aide for several years. (52 RT 7750.) In 1992, Maria and appellant’s stepfather, Phillip Self, had been married for about 12 years. (32 RT.5044; 52 RT 7698.) Previously, Maria had been married to Orlando Gene Romero, Sr. She married Orlando Gene Romero,Sr. in 1968 when she was 17 years old. (52 RT 7698.) After their marriage, Maria and Romero,Sr. lived in a shack in Perris, Riverside County, for about 6 years. Romero,Sr. ran around with other women; he wasan alcoholic and drug user. Romero Sr. never worked. During the marriage, Maria frequently got drunk and used narcotics, including methamphetamine. She was depresseda lot. (52 RT 7699-7700, 7721.) Maria had four sons by RomeroSr. -- Anthony, codefendant Romero, Timothy, and appellant. (52 RT 7699.) She, as well as Romero,Sr. and his friends, used drugsin front of the childrenall the time. (52 RT 7701-7704.) She hit and beat the children; she did not want them around and never showed them any affection. (52 RT 7704.) Maria often left the children with either the maternal or paternal grandparents or with her family, including brothers Joe and Ernie 134 Valenzuela, who were particularly violent and themselves abusive. (52 RT 7736- 7737.) Maria frequently invited men home andhadaffairs with them in front of the children. (52 RT 7705.) These trysts led to confrontations between Romero, Sr. and Maria; he beat her up many times. These incidents were witnessed by appellant and the other children. Once, Romero,Sr, held a gun to Maria’s face and threatened to kill her. (52 RT 7705-7707.) Just before appellant was born, Maria left Romero,Sr. after he tried to kill her. She and the children movedto Modesto. (52 RT 7697-7707.) She filed for divorce on April 23, 1974. (52 RT 7701, 7707, 7745.) Maria and the childrenfirst lived with her niece, Sheila Torres, in Modesto. (52 RT 7709.) They stayed in Modesto about four years. (52 RT 7709.) Maria testified that, during this period, she used drugs even more, taking anything that she could get her hands on. (52 RT 7709.) From the time of her divorce, until she remarried, Maria had relationships with about 10 different men. (52 RT 7725.) All of them were abusive. (52 RT 7739-7740.) One boyfriend was addicted to heroin. Both Maria and her boyfriends used drugs in her children’s presence. Because ofthe pressure of dealing with four boys, Maria was probably more violent toward them in Modesto than whenthey lived with RomeroSr. (52 RT 7710.) She locked the children in their room; she did not want anything to do with them. (52 RT 7710.) Money from public assistance was spent on drugs. (52 RT 7710.) 135 After an incident in which Maria hit the children and slashed appellant’s face with a fly swatter, she sought assistance from the Department of Mental Health in Modesto. (52 RT 7712-7713, 7751.) The children were removed from her custody and declared wardsof the court. (52 RT 7712, 7750-7751.) Maria’s mother took appellant and Timothy; her sister took coappellant Romero and Anthony. (RT 7751-7752.) Romero Sr. was drunk when he appeared in court. (52 RT 7712-7714.) While living with his maternal grandparents, appellant was again exposed to Maria’s abusive brothers, Joe and Ernie Valenzuela, (52 RT 7738- 7739.) They kept guns in the grandparents’ house and used to shoot them in appellant’s presence. (52 RT 7741.) During the period whenthe children were taken away, Maria was permitted only supervised visitation. (52 RT 7711-7712.) After about a year and a half, Maria got her children back. (52 RT 7713-7714.) Thereafter, she movedfirst to Turlock and then to Stockton. She took up a relationship with a man whodid not want the boys around. He was abusive toward the children. On one occasion, after appellant soiled his pants, Maria’s boyfriend madeappellant stand in the comer with feces on his head. (52 RT 7727.) Shestill used alcohol and drugs, even more so during this time. The children took care of themselves. (52 RT 7715.) In Stockton, she lived with a heroin addict. When she wasnot on drugs, she was shaky and just could not seem to hold herself together. She told the children she hated them,to leave her alone, and just to stay out of her way. (52 RT 7716.) She did not show them anyloveor affection. She never wentto visit their 136 schools. (52 RT 7715-7717.) From Stockton, Maria moved back to Riverside. She wasstill using drugs. Whensoberor off drugs, Maria continued to abuse her children because she did not want them. (52 RT 7719.) Shortly after returning to Riverside, Maria began her relationship with Phillip Self. Eventually, she and the four boys movedin with him. Appellant was aboutfive years old at the time. Self was good to her and the boys; he treated the children as his own. (52 RT 7753-7754.) Hetried to get Maria to stop using drugs; he was very much against drug use. (52 RT 7755.) Self | provided a stable, non-abusive homefor the children. Maria had two daughters with Self. (S2 RT 7755-7756.) Whenhe wasabout 14 years old, appellant moved in with his father, Romero, Sr. After a time, he moved back home. Becauseoffriction with his mother, appellant then wentto live with Maria’s niece, Bernice, for several months. (52 RT 7776.) Unhappy, appellant moved back home. Appellant started using drugs and alcohol aroundthis time. Maria asked him to leave home because he wasbringing drugs and alcohol into the house. (52 RT 7778.) She enrolled appellant in a rehabilitation center, but he stayed only for two weeks. After leaving the rehabilitation center, appellant started using drugs and alcoholagain. (52 RT 7779.) He went to several different high schools and was homeschooled for a time, but he continued to use drugs. (52 RT 7779-7780.) Maria made arrangements to have appellant live with a friend in Los Angeles. (52 RT 7780- 7781.) When that did not work, appellant wentto live with his grandmotherin 137 MeadValley. (52 RT 7782.) Maria recalled that during his early school days, appellant liked art. While in high school, he worked on a muralat Perris High School in memory ofa well- liked teacher who died. (52 RT 7742-7743.) The defense also called as a witness Perris Union High Schoolart teacher Margaret Louie. Louie had appellant in her art class when he was a sophomoreor junior. Louietestified that appellant participated in creating a mural in memory of a teacher who had died during the school year. Louie identified a photograph of the mural (Defense Exhibit DD) on which appellant worked. Louie told jurors that appellant had volunteered his time during and after class to work on the mural. Appellant also volunteered to design the school logo, and he submitted a cover design for the schoolliterary magazine. In Louie’s opinion, appellant was very talented. Louie provided the art supplies delivered to appellant in jail. (53 RT 7859-7865.) Maria acknowledged on cross-examination that she told a defense investigator that she never smoked,drank, or used drugs during her pregnancies. (52 RT 7748.) She said she was outof the housea lot andtriedto find a reliable babysitter. She tried to shield the children from drug use and encouraged them to stay away from drinking and drugs. (52 RT 7761, 7767-7768.) The prosecutor elicited testimony that she taught them to be polite and well-mannered andto be respectful toward their elders. (52 RT 7762-7763.) She took them to church;all of the boys went through First Communion. She wanted them to know about God. (52 RT 7764.) She told them notto fight. (52 RT 7763-7764.) She had them do 138 their school work,although she did not monitor what they did. (52 RT 7765.) Both appellant and codefendant Romero werevery bright, but they got bad grades in both elementary and high school. (52 RT 7766.) Maria acknowledgedthat in ninth grade, appellant got an A in history and English and a B in math. (52 RT 7767.) By the time he got to tenth grade, appellant was not doing the work. (52 RT 7767.) California Deputy State Labor Commissioner Sheila Torres was Maria Self’s niece. (53 RT 7894.) She knew RomeroSr. and had seen him drunk, passed out, in his house. Appellant and his brothers were left completely unattended. (53 RT 7895-7896.) Based on conversations with Maria, Torres was awarethat she was running around with other men. When Maria and twoofher children cameto live with her, Maria took up with a heroin dealer. Later, she associated with other drug dealers and users. She wasin that culture. (53 RT 7897-7898.) Maria was always punishing her children for something; she threw things at them, and she was mean to them. Either she was “riding them for something or not paying any attention to them.” (53 RT 7898-7899.) The entire family was violent. Torres’ brother hanged himself; a niece was beaten to death. (53 RT 7898-7899.) An uncle was convicted of murder andsent to San Quentin. Everyone believed when they were growing up that Maria was suffering from some kind of depression or psychological problems. She acted crazy. Maria was aggressive and disrespectful of men, including RomeroSr. Maria was alwaystelling Torres that men were no good, her husband wasno good, 139 her boyfriend was no good; Maria talked to her sons in the same way. Maria neverleft her children with anyone. When Maria wasout, Torres and her family had to go look for the children. (53 RT 7903-7906.) Torres was acquainted with Phillip Self. (53 RT 7910.) He undertook to be a stepfather to appellant and his brothers. (53 RT 7910.) In Torres’ opinion, Phillip Self was not particularly helpfulin raising the children. (53 RT 7910- 7911.) AnthonySelf, appellant’s oldestbrother, was serving in the United States Armyat Fort Bragg, North Carolina. He had enlisted in 1988 when he was 18. As a combat engineer, paratrooper, and as senior enlisted NCO, Anthony supervised other troops. He helped clear minesin the Gulf War. (53 RT 7910-7911, 7920- 7926.) Anthony recalled that when his mother was living with Bobby Guzman when he was about8 years old, Guzman wasstrict. He treated appellant very hard. On one occasion, Guzman madeappellant stand in the corner for hours with soiled underwear on his head. (53 RT 7913-7914.) All the brothers were reunited when Maria married Phillip Self. (53 RT 7914-7915.) The boys liked him. The children pretty much grew up in poverty with Maria until she met Phillip Self. (53 RT 7919-7920.) Phillip Self was the best man Maria had been with. (53 RT 7915.) Self was very good to the boys after “he camein the picture.” He helped support the family, took the kidsfishing, and did things with the children. However, Self did not take part in disciplining the children as “he was too hot tempered.” He did not give them advice. (53 RT 140 7921.) Maria herself wasstrict with the children. She made sure Anthonydid his homework and wanted the boysto attend school. She told him not to use drugs. (53 RT 7923.) At the same time, she wasvery violent. She threw objects and used to hit appellant with a fly swatter, broom, or anything she hadin her hand. (53 RT 7916-5917.) Ifthe children upset her, she would lash out with whatever she had in her hand. They gotusedto it andtried to avoid herat any cost. (53 RT 7917.) Anthony experimented with marijuana and heroin in high school. He gave appellant heroin once when appellant was in elementary school.(53 RT 7915.) Anthony took alcohol from his mother’s cabinet, but appellant got blamed. Although he denied the accusation, appellant was punished anywayas they did not believe him. (53 RT 7916.) Anthony andhis brothers used to send appellant to go fight their neighboracross thestreet “to see what he could take” and to see “what they could put him through.” The fighting went on for a numberofyears. (53 RT 7918-7919.) Deputy John Bianco workedat the Riverside County Jail (Robert Presley Detention Center) in downtown Riverside. Appellant was being housedin a single cell. (RT 7802.) While permitted out of his cell for two hours a day, appellant was given art supplies. Deputy Bianco obtained three pieces of artwork from appellant (Defense Exhibits FF through HH) that were given to a defense investigator. (52 RT 7802-7804.) Special art supplies were not ordinarily given to inmates. (52 RT 7814.) 141 Inmates were allowed standard pencils and paper but could write or draw anything they wanted. Inmates were able to send drawingsout with letters. They were also permitted to draw on envelopes. (52 RT 7815.) The paper used by inmates, however, was 3” x 6.” (52 RT 7815.) C. Rebuttal Evidence in Aggravation Defense investigator Robin Levinson interviewed Maria Self in 1993 and prepared a transcript of the taped interview. (53 RT 7936-7937.) Maria told Levinson that although she wentout a lot, she did not use drugs around her children. (53 RT 7937.) She may have had a drink or two aroundthe children, but did not recall ever getting “plastered” in front of them. Maria tried to “shield them from that.” (53 RT 7937.) She did not spenda lot of time with the children. She tried to find babysitters. (53 RT 7937.) 142 A. Guilt Trial Issues and Assignments of Error I THE JUROR QUESTIONNAIRE ADOPTED BY THE TRIAL COURT OVER APPELLANT’S OBJECTIONS LED TO THE IMPERMISSIBLE AND IMPROPER DISCHARGEOF PROSPECTIVE JURORS BASED ON RACE AND ETHNICITY, AND RESULTED IN THE SELECTIONOFA BIASED JURY THAT DENIED APPELLANT’S RIGHT TO AN IMPARTIAL JURY REPRESENTING A FAIR CROSS-SECTION OF THE COMMUNITYIN VIOLATION OF ARTICLEI, SECTIONS15 AND 16 OF THE CALIFORNIA CONSTITUTION AND THEFIRST, FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Factual and Procedural Background On October 2, 1995, the prosecutorfiled a proposed jury questionnaire to be used during jury selection in appellant’s trial. (See 5 CT 919-949.) The proposed 28-page questionnaire consisted of 132 questions, often calling for or requiring highly detailed, written explanations. The questionnaire was designed“to elicit information with regard to [the] qualifications [of each prospective juror] to sit as a juror in [appellant’s] case.” (5 CT 921.) Included were questions requiring every prospective juror to specify his or her race and ethnic origin (Question Id). In addition to background questions, generally, (Questions 1-6), the questionnaire also sought highly detailed, often intimate, and personal information about education (Questions 7-8), employment (Questions 10-14), military experience (Question 15), knowledgeofor familiarity with participants 143 (Questions 16-20), attitudes and involvementin judicial and criminal system (Questions 21-29), impact or awarenessofcrimes of violence (Questions 30-36), other personal andattitudinal questions (Questions 37-93) and highly detailed questions about each prospective juror’s views andattitudes toward the death penalty (Questions 94-132). Finally, the questionnaire included an explanation sheet with space to provide additional information if any of the questions were not fully answered becauseof the space limitations on the questionnaire. Appellant objected to the use of the jury questionnaire on December 11, 1995. (4 CT 1080-1081; 10 RT 2021.) He objected to the inclusion of a question on the O.J. Simpsontrial (Question 41). (11 CT 2049-2086.) Defense counsel argued that while the court and parties had the right to question prospective jurors, any such inquiry should be done in open court with other jurors present. (10 RT 2022.) Agreeing with the prosecutor, the trial court ruled that a questionnaire would be used “‘to solicit the juror’s views before we conductthe voir dire with them.” (10 RT 2025[italics added].) As further stated by the court: I think it will not only save time, but I also believe that it’s going to give us a more accurate picture of the juror’s proposed -- or the juror’s views on a number of issues that counsel needs to know aboutin order to determine whether or not the particular individual jurors are right for this case or not. It gives counsel 144 information that they need about the juror’s views on many, many important issues. (10 RT 2025.) Appellant continued to object to the proposed questionnaire, advocating an open forum to discuss and evaluate each prospective juror’s viewson the death penalty. On appellant’s behalf, defense counsel declined to participate in revising or modifying the questionnaire as suggested by the court for the purpose of “com[ing] up with something that you [defense counsel] feel is more -- is better suited to your client’s interests.” (10 RT 2026.) Defense counsel further objected to the use of a questionnaire, stating that “what the questionnaire doesis identify those few jurors to the People who have somereservations about the death penalty. That’s really what it does. And of course in [an] open forum where everybody can discuss these issues in the open, and in a courtroom situation, we can also have a way ofidentifying those people. Butit’s a way also of discussing why maybea person hasthese reservations. [P] They can listen to what other people have to say regarding the death penalty. And we can make a determination, both the prosecution and the defense. It’s a fair means of doing so. Wedoit in every other type of case.” (10 RT 2026.) The court respondedto appellant’s objections that “we would be doing it anyway[voir dire], wouldn’t we, in open court?” (10 RT 2026.) Defense counsel replied 145 that the procedure to be followed would result in “anybody that expresses even a minimalreservation about imposing the death penalty will be struck by the People. Even if that person was the type of person who might changetheir opinion, or who might in an open forum discusstheir reasons and ultimately change their minds,or indicate that they can be fair to both sides ... that doesn’t happen, because we don’t reach to those people. Once they are identified in the meansofthis questionnaire -- by meansofthe questionnaire,it’s my firm belief that the prosecution will strike any juror that expresses even, again, a slight reservation to imposing the death penalty. [P] So, we never get a chanceto discuss with those jurors in open court their views ... .” (10 RT 2026-2027.) Coappellant Romero joined in appellant’s objections, arguing that the proposed death qualification process would not merely result in “death qualifying the jury, but death -- serve a death certain jury. That what we end up with is a jury that is only that further closer to the -- to being able to render a death verdict.” (10 RT 2027.) Appellant’s counsel added he additionally opposed the jury questionnaire because in the process “we single out those that have somepossible reservation but who canalsostill consider the death penalty and allow them to be stricken from the jury. So, that’s why I’m not propounding a questionnaire in this case.” (10 RT 2028.) Thetrial court ruled that the information sought in the questionnaire 146 would come out anyway during the voir dire process, stressing that “I think that the juror’s views with regard to the death penalty, if they are expressed in the questionnaire, then provides for follow-up during the voir dire process, if necessary.” (10 RT 2031.) The court also emphasized inits ruling that the questionnaire would be beneficial “in that it provides the views ofjurors on many important issues, even before the voir dire process, so the attorneys can then pinpoint those areas where they feel that they need follow-up.” (10 RT 2031.) With but few modifications, the questionnaire to be given prospective jurors wasfinalized on January 11, 1996. (See 10 RT 2044-2045; 11 RT 2049-2050.) On the same date, the court again overruled appellant’s objections to the use of the jury questionnaire. (5 CT 1080.) The trial court then explained to counsel how the court would be conducting voir dire. (11 RT 2054.) Significantly, the court informed counsel that “all of the jurors whichwill be voir-dired will havefilled out the questionnaire.” However, the court also informed counselthat not all prospective jurors whofilled out questionnaires would be subject to voirdire. “Um, what I suggest is that we spend a little bit of time in the morning before we undertake voir dire and see if we can agree together that certain of the jurors have stated cause to be excused and that no further voir dire of those jurors need be done just based upon the answers that they put into the questionnaire. I would imagine in every group we will have 147 somejurorsthat fit in that category. Ifall of us can agree, we will just excuse them for cause at that time. Now, after we’ve selected or agreed upon those jurors under Hovey stated cause to be excused, then the group that we have left, we will undertake voir dire with.” (11 RT 2055.) The court thus emphatically madeit clear to counsel its views that the questionnaire responses of some prospective jurors would suffice. “Some prospective jurors, if they have stated cause [in the questionnaire], there is no reason for us to spend any of our precious time on voir dire.” (11 RT 2057.) The court further explained as follows: “I mean if there is no reason to examine this person becausethis person clearly is unacceptable for this jury, they have stated cause, I think that at that time we just agree that person should be excused for cause. Westipulate the person should be excused for cause, and webring in the 15 prospective jurors [in each group], and then tell them, okay, the following individuals have been excused. Thank you very much. ... Then with the groupthat is left over, you’re conducting your voir dire.” (11 RT 2057.) After the court informed counsel of the procedure to be followed during voir dire, including excusing jurors for cause based solely on questionnaire responses, counsel to coappellant Romero objected to the contents of the questionnaire, offering that the questionnaires were going to 148 identify “people who maybeon the fence and have some room to consider things with more of an open mind.” (11 RT 2059.) Counsel for appellant joined in these objections. (11 RT 2060.) After further colloquy on the propriety of certain questions propoundedin the questionnaire, appellant’s defense counsel again emphasized that he preferred an open forum and voir dire to determine the viewsofprospective jurors. (11 RT 2067.) In the end, the court noted the objections but agreed with the prosecutor, adding a revised, multi-part Question No. 41 [formerly proposed Question 46] about prospective jurors’ views on the recently-concluded O.J. Simpsontrial (11 RT 2066) and the following, additional queries as subparagraphs (G) and (H) to the already multi-part, interminably long, and convoluted Question 76 about views on the death penalty: “Would your feelings about the death penalty prevent or substantially impair your ability to conscientiously consider the imposition of the death penalty where appropriate? Would your feelings about the death penalty preventor substantially impair your ability to conscientiously consider the imposition of the penalty oflife without possibility of parole where appropriate?” (11 RT 2069.) Jury selection for appellant’s jury began on February 26, 1996. (See 22 RT 3564.) Groups of prospective jurors were summonedand sworn. Thetrial court gave introductory remarks aboutthe nature ofthe case, the charges, length oftrial, scheduling, and discussed with each group requests for hardship and the completion of a jury questionnaire by those 149 prospective jurors who were not seeking to be excused on hardship grounds. The court informed each group of prospective jurors that since the death penalty potentially was involved, each prospective juror should give “serious consideration”to the issue of capital punishment before completing the questionnaire. (See, i.e., 22 RT 3571, 2582, 3598, 3609, 3643.) The court informed each group of prospective jurors when and whereto return depending on whether hardship would be claimedor the questionnaire filled out. After all financial, medical, and other hardship claims were heard and resolved (see 22 RT 3648-3650; 22 RT 3676-3677; 22 RT 3696-3698; 22 RT 3709-371 1) and after all other jurors had completed their questionnaires, the court scheduled voir dire of prospective jurors in groupsof 15. On March 4, 1996, the trial court began voir dire of prospective juror’s in appellant’s case. Asthe trial court previously informed counsel, before each group of prospective jurors were voir dired, the court asked counselif they would stipulate “that certain individuals have stated cause to be excused from service on this jury and that it is not necessary to conduct voir dire of them.” At the prosecutor’s request, and on stipulation of defense counsel, an initial group of prospective jurors -- LaDonna Flamminio, Adrianne Flores, Olga Varela, and Frank Dinka -- were discharged for cause solely on the basis of their responsesto the juror questionnaire. (23 RT 3731.) Thereafter, other prospective jurors were also discharged for cause solely on the basis of their questionnaire 150 responses. Carol Pickard, Frank Bacon, Yolanda Baum-Moss,!” Mary Leonti, Charles Miller, and Anna Gilmore were excused for cause on March4, 1996 (23 RT 3797, 3799-3801.) On March 5, 1996,thetrial court excused for cause prospective jurors Bernice Vivanco, Joshua Valles,'”” Jeffrey Lewis,'°8 Robert Stevens,'” John Young,'”° and Rochelle Plaxco. (24 RT 3871-3872.) On March 6, 1996, Timothy Murdick, Manuel Munoz, and Marlene Rosales were excused for cause solely on the basis of questionnaire responses. (24 RT 4008, 4015.) In the afternoon session of March 6, 1996, Lorraine Goodland, Kay Tartaglia, Nadine Jackson, Peggy Koehn,''' John Esquivel were excused for cause onthebasis oftheir questionnaire responses.''? (25 RT 4091.) On March7, 1196, the court '°°/ Thetrial court told counsel that Baum-Mossdid notstate grounds to be excused for cause but nevertheless excused her anywaysolely on the basis of her questionnaire. (23 RT 3799.) . '°7/ Thetrial court told counselthat he did not have Mr. Valles listed to be excused for cause but nonetheless agreed to excuse him for cause anyway. (24 RT 3868.) '8/ Jeffrey Lewis was excludedon the prosecutor’s request based on a “weirdness standard” and because some of his answers were “unusual.” (24 RT 3868.) '°/ Robert Stevens indicated he was opposedto the death penalty. (24 RT 3868.) ''07 Young indicated he was opposedto the death penalty. (24 RT 3868.) 1) The prosecutor sought to remove Koehn because “[h]er indication as to the Witherspoon, that she would not be sure if she could -- she was unsure if she would automatically vote against the death penalty” and because indicated ‘“‘a preference for LWOP.” (25 RT 4090.) Koehn indicated she disagreed with the felony murder rule and would vote forlife without parole in such a case. The court agreed to discharge her for cause even though her views andthe nature of her opposition to the death penalty were never explored in voir dire. (25 RT 4090.) 151 excused for cause prospective jurors Joseph Flores, Cynthia Bradley, Michael Jermain, Beatrice Mejia,’ Mathew Fagan, and Randi Douthitt based on their responses to the questionnaire without conducting voir dire. (26 RT 4164-4166.) In the afternoon session of March 7, 1996, prospective 114jurors Gloria Roberts and Emma Koivisto were excused for cause by the trial court on the basis of their questionnaire responses alone. (4243.) On March 11, 1996, Pamela Campbeil,'’° Brian Sheridan,'!® Randy Murphy,'”” 118Ron Uharriet,''® Richard Bergeron, George D’Angelo,''” Michael Horton, Steve Naples, and Kimberly Pavlick’”° were discharged for cause on the '!27 Although excusing KayTartaglia for cause (25 RT 4087), the court observed “she hasn’t said anything to us in court or in her questionnaire that would justify her removal for cause.” (25 RT 4088.) ''?7 The court noted that he only listed Mejia, an Hispanic,“as possible cause.” (26 RT 4162-4163.) Mejia was nevertheless discharged for cause without follow-up voirdire. "47 The court agreed with the prosecutor’s request to excuse Roberts for cause, noting she indicated opposition to the death penalty. (26 RT 4240.) ''S/ On excusing Campbell, the court noted her responses indicated “she would have a difficult time imposing the death penalty.” (27 RT 4314.) ''/ The prosecutor sought to remove Sheridan for cause because he was “uncomfortable” deciding between life and death and because he indicated “he was automatically LWOP on felony murder.” However, the information alleged premeditated and deliberate murder and the multiple murder special circumstance, and the prosecutor later argued that appellant wasthe shooter in two of the murders (27 RT 4314.) ''7/ Granting the prosecutor’s request to discharge Murphy,the court noted that he said in his questionnaire “that he would have a problem in that the defendants are brothers. He also had a problem to Witt questions.” (27 RT 4315.) There was no follow-up voir dire before Murphy was discharged. '18/ The prosecutor sought to discharge Uharriet because her answers were “bizarre and unusual.” (27 RT 4315.) ''?/ D?Angelo was opposed to the death penalty. (27 RT 4315.) 1207 Pavlick was opposed to the death penalty. (27 RT 4315-4316.) 152 basis of their juror questionnaire responses. '*' On March 12, 1996, the court excused for cause Ronald Smith, Raul Haro, Andrew Hruska, and Richard Jones based solely on their responses to the questionnaire, (28 RT 4430, 4439.) On the afternoon of March 12, 1996, the court excused for cause Armanda Allen-Mitchell, Thomas Wilson, Eduardo Perez, and Katherine Mackey-Larson basedsolely on their questionnaire responses. (28 RT 4508-4509, 4512.) On March 14, 1996, Rosaicela Salcido, Theola Hess, Linda Morris, Timothy Lampman, Gary Lee, Vera Gonzales, and Laura Snider were discharged for cause based on their questionnaire responses.” (29 RT 4572-4573, 4575.) After the trial court had qualified 100 prospective jurors, further disqualifications and voir dire were discontinued. From this panel of 100 prospective jurors, appellant’s jury was selected. (See 29 RT 4649.) Duringfinal jury selection, the prosecutor exercised three peremptory challenges, eliminating prospective jurors Anne Briggs, Sharon Garten, and Tracy Wristen. Defense counsel did not exercise a single '*!7 Horton did not complete the questionnaire, particularly the “Witherspoon and Witt questions” as noted bythetrial court. (27 RT 4315.) Althoughthe court asked other prospective jurors in other sessionsto complete their questionnaires or agreed to voir dire other prospective jurors on omitted questions, the court did not bother to do so in Horton’s case, excusing him for cause instead. (See 27 RT 4318.) 227 Robert Gonzales was discharged for cause based on his questionnaire responses which indicated he wasa correctional officer and knew “everything about” both defendants from working in the county jail. (29 RT 4573.) 153 peremptory challenge. (See 30 RT 4758-4762.) On selecting the alternate, the prosecutor peremptorily challenged Linda Lamarre, Isabel Rolon, Ronald Faulkner, Burma Manns (30 RT 4768.) Immediately challenged by the prosecutor, Rolon wasthe only Hispanic in the group from whichthe alternates were selected. Defense counsel peremptorily challenged Nathaniel Glover, a Los Angeles County Deputy District Attorney, Jill Middleton, Patricia Coolman, and Deborah Uebel Matteson. (30 RT 4769, 4775.) The jury selected wasstrikingly homogeneousin character and make-up:all 12 regular jurors initially selected were Caucasian. Ofthe 5 alternates, 2 were Caucasian and 3 were Black. In a county with a substantial Hispanic population, there were no Hispanics on appellant’s Jury, either seated or alternate jurors. B. The Questions on Race and Ethnicity Resulted in the Nonrepresentation of Hispanics on Appellant’s Jury and the Selection of a Biased Jury in Violation of Appellant’s Rights to a Fair Trial, Trial by Jury Drawn From a Representative Cross-Section of the Community, and Due Process Guaranteed bythe Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and by Article I, Section 16 of the California Constitution Oneaccusedof a crime has a fundamentalconstitutional right to a trial by impartial jurors drawn from a representative cross-section of the community. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16; People v. Wheeler (1978) 22 Cal.3d 258, 265.) As previously stated by this 154 Court, the right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to trial by jury guaranteed by the Constitution. (in re Hitchings (1993) 6 Cal.4th 97, 110.) In short, “[t]he right to a fair and impartial jury is one of the most sacred and important guarantees of the Constitution.” (People v. Wheeler, supra, 22 Cal.3d at p. 283; accord Gentile v. State Bar ofNevada (1991) 501 U.S. 1030, 1075 [“Few,if any, interests under the Constitution are more fundamental than the right to a fair trial by ‘impartial’ jurors’”’].) “It is therefore the responsibility of the courts to insure that this guarantee not be reducedto a hollow form of words, but remain a vital and effective safeguard ofthe liberties of California citizens.” (People v. Wheeler, supra, 22 Cal.3d at p. 272.) Theright to a trial by impartial jurors drawn from a representative cross-section of the community is guaranteed equally and independently by the Sixth Amendmentto the United States Constitution and byarticle I, section 16 of the California Constitution. (People v. Sanders (1990) 51 Cal.3d 471, 491.) As discussed in People v. Bell (1989) 49 Cal.3d 502, whether systematic exclusion of a cognizable class of prospective jurors has been established, the federal and state jury trial guarantees are coextensive. (Id. at p. 525, fn. 10.) Theright to a jury drawn from a representative cross-section under the Sixth Amendmentis a fundamental, substantive right. Its violation removes“from the jury room qualities of human nature andvarieties of 155 human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assumethat the excluded groupwill consistently vote as a Class in order to conclude... that its exclusion deprives the jury of a perspective on humanevents that may have unsuspected importance in any case that may be presented. (Peters v. Kiff(1972) 407 U.S. 493, 503-504.) “The injury is not limited to the defendant-- there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts.” (Ballard y. United States (1946) 329 U.S. 187, 195.) As elsewhere observed by the United States Supreme Court, “[t]endencies, no matter how slight, toward the selection ofjurors by any methodother than a process which will insure a trial by a representative group” undermine processes, weakentheinstitution ofjury trial, and should be “sturdily resisted.” (Glasser v. United States (1942) 315 US. 60, 86.) Hispanics, or those with Spanish surnames, constituted a distinctive group entitled to be represented fairly and without disproportionate under- representation on appellant’s jury. (See Castaneda v. Partida (1977) 430 U.S. 482, 495; People v. Morales (1989) 48 Cal.3d 527, 543.) Even assuming, but without conceding, for purposes of argument that Riverside County’s jury selection criteria were neutral with respect to race and ethnicity, the use of race and ethnicity questions in the jury questionnaire in this case led both to the systematic exclusion and 156 complete nonrepresentation of Hispanics on appellant’s jury. Such nonrepresentation alone constituted a prima facie violation of appellant’s fundamentalright to fair trial by a jury comprised of a representative cross- section of the community and to due process of law. The use of questions on race and ethnicity also created “the opportunity for discrimination,” (Batson v. Kentucky (1986) 476 U.S. 79, 95) manifested in the selection of a biased jury (see Argument VIII, infra) and by the impermissible and impropertargeting of Hispanic prospective jurors by the prosecutor during voir dire (see ArgumentII, infra). This, in turn, contributed to the selection of a biased jury and the nonrpresentation of Hispanics on appellant’s jury. (See People v. Bell, supra, 49 Cal.3d at p. 524.) Theuse of race and ethnicity questions in the jury questionnaire was inconsistent with the representative cross-section right of the Sixth Amendment, theright to a fair trial by impartial jury of the Sixth Amendment, and to due process of law guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. For the additional reasons discussed,infra, and in Arguments II and VIII,infra, race and ethnicity questions as used in appellant’s jury questionnaire should be categorically and unequivocally condemnedbythis Court. /// /// 157 C. In the Absence of Voir Dire Examination, Reliance Upon Juror Questionnaires Alone to Discharge or Disqualify Prospective Jurors Violated Appellant’s Rights to a Fair Trial by Jury, Due Process, a Reliable Guilt and Penalty Determination, and Equal Protection of the Laws Guaranteed byArticle I, Sections 15 and 16 of the California Constitution and the First, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution 1. Introduction At the time of appellant’s trial in 1996, the California Code of Civil Procedure section 223 providedin part that, “In a criminal case, the court shall conduct an initial examination of prospective jurors.” Nothing in section 223 contemplates or sanctions the substitution of written questionnaires and review of them outside the presence of the prospective jurors for the required examination in open court. As this Court recently pointed out in People v. San Nicolas (2004) 34 Cal.4th 614, section 223 gives the trial court discretion in the mannerin which voirdire is conducted, so long asit takes place in open court. (/d. at p. 632 and fn.3.) Despite this clear exposition of the law, however, at appellant’strial, the trial court found over 50 prospective jurors to be substantially impaired under Witherspoon/Witt (Witherspoonv.Illinois (1968) 391 U.S. 510; Wainwright v. Witt (1985) 469 U.S. 412) solely on the basis of their written answers to questionnairesdistributed to them bythetrial court, without conducting any examination whatsoever in open court. Thetrial court in appellant’s case used the written questionnaires to excuse these prospective 158 Jurors from the venire, which meantthat they were excluded from the examination process normally used in voir dire proceedings-- and used with respect to all other members ofthe venire -- literally to inquire ofand seek to elicitfromjurors information relevant to their qualifications to serve. The jurors improperly excused by the court’s constitutionally invalid procedure were denied the opportunity to explain, or discuss their answers on the questionnaire, and they were never asked any questions that permitted the trial court to determine if their views substantially impaired theirfitness to serve as jurors in appellant’s trial. Thetrial court’s truncated procedure denied appellant the process due to him under the United States Constitution and state law; violated his right to equal protection;to be tried by an impartial jury; as well as the full panoply oftrial rights to which he was entitled under state and federal law. It was tantamount to a quasi-secret process for selecting the jury that is insupportable in the criminaljustice jurisprudenceof this country, and that violated appellant’s rights under the First, Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution. 2. Argument Section 191 of the California Code of Civil Procedure unequivocally states that “trial by jury is a cherished constitutional right, and ... jury service is an obligation of citizenship.” Moreover,“[i]t is the policy of the State of California that all persons selected for jury service shall be selected 159 at random from the population of the area served by the court; [and]that all qualified persons have an equal opportunity, in accordance with this chapter, to be considered for jury service in the state ....” Indeed, the commitmentto representative juries is reflected in California Code of Civil procedure section 197, subdivision (a), which providesin pertinentpart that, “[a]ll personsselected for jury service shall be selected at random, from a source or sources inclusive of a representative cross section of the population of the area served by the court.” Juries in criminaltrials are formed in the same manneras juries in civil trials. (Code Civ. Proc. § 191.) These standards apply to jury selection in a capital case under both the federal and state constitutions. (People v. Jones (2003) 29 Cal.4th 1229, 1246, citing People v. Rodrigues (1994) 8 Cal.4th 1060, 1146 and Peoplev. Guzman (1988) 45 Cal.3d 915, 955; People v. Heard (2003) 31 Cal.4th 946, 958.) “A prospective juror is properly excludedifhe or she is unable to conscientiously considerall of the sentencing alternatives, including the death penalty where appropriate.” (People v. Jones, supra, 29 Cal.4th at p. 1246.) Appellant was entitled under the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, sections 15 and 16 of the California Constitution to betried by a fair, representative, and impartial jury, “a right of particular significance in capital cases because of the magnitude of the decision and because jury unanimity was required.” (Gray 160 y. Mississippi (1987) 481 U.S. 648, 659, fn. 9; see also id. at pp. 658, 668; Morgan vy.Illinois (1992) 504 U.S. 719, 726-728.) Thetrial court at appellant’s trial was obligated therefore to determine that the people selected to serve on the jury did not hold views concerning capital punishmentthat ocewould “‘prevent or substantially impair the performanceof[their] duties as a juror in accordance with [their] instructions and [their] oath.’” (Wainwright v. Witt, supra, 469 U.S. at p. 424, quoting Adams v. Texas (1980) 448 U.S. 38, 45; U.S. Const., 6th & 14th Amends.; see also Gray v. Mississippi, supra, 481 U.S. at p. 668 [“Witherspoon-Witt standard is rooted in the constitutional right to an impartial jury”]; Darden v. Wainwright (1986) 477 U.S. 168, 178; Witherspoon vy.Illinois, supra, 391 U.S.at p. 522, fn. 21; People v. Cunningham (2001) 25 Cal.4th 926, 975.) In the capital context, the United States Supreme Court has emphasizedthat, “[i]t is important to rememberthat not all who opposethe death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as Jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.” (Lockhart v. McCree 1986) 476 U.S. 162, 176.) The voir dire processis therefore essential to the court’s ability to make these assessments of a juror’s qualifications to serve.J The expectation thatthe critical process of examiningjurors will take 16] place through “live” questioning in open court is well-settled in federal and state law. Moreover,this “open court” examinationis integral to the constitutional validity and integrity of both the jury selection andtrial process. The United States Supreme Court has repeatedly explained that the touchstoneofa fair trial is an impartial trier of fact -- a jury capable and willing to decide the case solely on the evidence beforeit. (Smith v. Phillips (1982) 455 U.S. 209, 217.) “Voir dire examination serves to protect that right by exposing possible biases, both known and unknown,onthe part of potential jurors.” (McDonough Power Equipment Inc. v. Greenwood (1984) 464 U.S. 548, 554.) In addition, the High Court has observedthatthe trial court’s determination of a prospective juror’s bias “has traditionally been determined through voir dire culminatingin a finding bythetrial judge concerning the venireman’sstate of mind... [and] such a finding is based upon determinations of demeanorandcredibility that are peculiarly within a trial judge’s province.” (Wainwright v . Witt, supra, 469 U.S. at p. 429 [italics in original; footnote omitted].) Thus, the literal examination of jurors verbally, in open court, so their demeanor may be observedandtheir views explored,is key to these determinations. 3. Federal Pronouncements Regarding Voir Dire In Morgan vy.Illinois, supra, 504 U.S. 719, the United States Supreme Court discussed at length the critical importance of voir dire to a reasonable 162 determination ofjuror bias. The court observed,inter alia, as follows: [I]t is true that ‘[vJoir dire “is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.’ Ristaino v. Ross, 424 U.S. 589, 594 [] (1976) (quoting Connors v. United States, 158 U.S. 408, 413 [] (1895)). The Constitution, after all, does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury. Even so, part of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors. Dennis v. United States, 339 U.S. 162, 171-172 [] (1950); Morford y. United States, 339 U.S. 258, 259 [] (1950). ‘Voir dire plays a critical function in assuring the criminal defendant that his [constitutional] right to an impartial jury will be honored. Without an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannotbefulfilled.’ Rosales-Lopez v. United States, 451 U.S. 182, 188 [] (1981) (plurality opinion). Hence,‘[t]he exercise of [the trial court's} discretion, and the restriction upon inquiries at the request of counsel, [are] subject to the essential demands of fairness.” Aldridge v. United States, 283 U.S. 308, 310 [] (1931).” (Morgan vy. Illinois, 504 U.S. at pp. 729-730 [footnotes omitted].) The defendant’s interests in this process are equally important and consequently, the High Court has “not hesitated, particularly in capital cases, to find that certain inquiries must be madeto effectuate constitutional protections, see, e.g., Turner v. Murray, 476 U.S. [28,] 36-37 [1986]; 163 Ham vy. South Carolina, 409 U.S. 524, 526-527 [] (1973).” (Morganv. Illinois, supra, 504 U.S.at p. 730.) Thelong line of United States Supreme Court opinions whichset out the principles and proceduresto be used in the selection of an unbiased jury in capital cases all contemplated actual voir dire of potential jurors by the trial court. (See Gray v. Mississippi, supra, 481 U.S. at pp. 651-657; Rossv. Oklahoma (1988) 487 U.S. 81, 83; Darden v. Wainwright, supra, 477 U.S. at pp. 175-178; Wainwwright v. Witt, supra, 469 U.S. at pp. 415-416; Adams v. Texas, supra, 448 US. at pp. 41-42; Witherspoonv.Illinois, supra, 391 U.S. 510, 514-515; see also Lockhart v. McCree, supra, 476 U.S.at p. 166; Patton v. Yount (1984) 467 U.S. 1025, 1027; Davis v. Georgia (1976) 429 U.S. 122 and Davis y. State (Georgia) (1976) 225 S.E.2d 241, 243; Maxwell v. Bishop (1970) 398 U.S. 262, 264-265; Boulden v. Holman (1969) 394 U.S. 478, 482-483; Irvin v. Dowd (1959) 359 U.S. 394, 397; Reynoldsv. United States (1879) 98 U.S. 145, 156-157.) There is no suggestion, direct or indirect, in any of these cases, that a written questionnaire could ever substitute for actual voir dire. On the contrary, the opinions have consistently emphasized the importance ofthe prospective jurors’ physical presence in court for questioningso thatthetrial court can observe them. /// 164 Patton v. Yount, supra, 467 U.S. 1025, is instructive on this point. There, the Supreme Court reflected on the federal statutory rule of deference to trial court determinations of venire members’bias as follows: There are good reasons to apply the statutory presumption of correctnessto the trial court’s resolution of these questions. First, the determination has been made only after an often extended voir dire proceeding designed specifically to identify biased veniremen. Itis fair to assume that the method we haverelied on since the beginning, e.g., United States v. Burr, 25 F.Cas. No. 14,692g, p. 49, 51 (No. 14,692g) (CC Va.1807) (Marshall, C.J.), usually identifies bias. Second, the determination is essentially one of credibility, and therefore largely one of demeanor. As we have said on numerous occasions, the trial court’s resolution of such questionsis entitled, even on direct appeal, to ‘special deference.’” (Patton v. Yount, supra, 467 U.S.at p. 1038.) Quoting from Jn re Application ofNational Broadcasting Co. (1981) 209 U.S.App.D.C. 354, 362, 653 F.2d 609, 617, the Yount Court observedthat “voir dire has long been recognized as an effective method of rooting out such bias, especially when conductedin a careful and thoroughgoing manner[.]’” (Patton v. Yount, supra, 467 U.S.at p. 1038, fn. 13.) The Yount Court also noted that ““Demeanorplays a fundamental role not only in determining juror credibility, but also in simply understanding //l 165 what a potential juror is saying. Any complicated voir dire calls upon lay personsto think and express themselves in unfamiliar terms, as a reading of any transcript of such a proceeding will reveal. Demeanor,inflection, the flow of the questions and answers can make confused and conflicting utterances comprehensible.” (/d. at p. 1038, fn. 14.) Clearly, the live examination ofJurors in open court is integral to the jury selection process. Thus, in Wainwright v. Witt, supra, 469 U.S. 412, 429, the Supreme Court opinedthat “[t]he trial judge is of course applying some kindoflegal standard to what he sees and hears, but his predominantfunction in determining juror bias involves credibility findings whose basis cannot be easily discerned from an appellate record.” Implicit in this observationis the Witt Court’s assertion that “determinations ofjuror bias cannot be reduced to question-and-answersessionsthat obtain results in the manner of a catechism. What commonsense should haverealized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made ‘unmistakably clear’; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. [] Despite this lack of clarity in the printed record, however, there will be situations wherethetrial judge is left with the definite impression that a prospective juror would be unableto faithfully and impartially apply 166 the law. For reasons that will be developed morefully infra, this is why deference must be paid to the trialjudge who sees and hears thejuror.” (Id. at pp. 424-426 [footnote omitted; italics added]; see also Dardenv. Wainwright, supra, 477 U.S. at p. 178 [trial court aided by observing prospective juror’s demeanor].) The Witt Court emphasized that a party who seeks to exclude a potential juror because of bias must demonstrate, through questioning,that the potential juror lacks impartiality. (See Reynolds v. United States, 98 U.S. at p. 157. As explained in Witt, the trial judge must then determine whether the challenge is proper. (Wainwright v. Witt, supra, 469 U.S.at pp. 423- 424.) That is also the standard and procedure outlined in Adams v. Texas, supra, 448 U.S. 38, but it is equally true of any situation where a party seeks to exclude a biased juror. (See, e.g., Patton v. Yount, supra, 467 U.S.at p.1036 [where a criminal defendant sought to excuse a juror for cause and the trial judge refused, the question was simply ‘did [the] juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestations of impartiality have been believed’].) In Morgan vy.Illinois, supra, 504 U.S. 719, the United States Supreme Court specifically focused on the necessity of voir dire in the context of Witherspoon concerns,stating that “the principles first propounded in Witherspoonv.Illinois, 391 U.S. 510 [] (1968) ... demand inquiry into 167 whetherthe views of prospective jurors on the death penalty would disqualify them from sitting.” (/d. at p. 731 [fn. and parallel citations omitted].) The United States Supreme Court opinions in Boulden v. Holman, supra, 394 U.S. 478 and Maxwell v. Bishop, supra, 398 U.S. 262, elucidate this point. These pre-Witherspoontrials, in which voir dire had been conducted, reached the High Court post-Witherspoon, and the Court found the voir dire inadequate becauseit did not sufficiently explore the jurors’ attitudes beyond their simple answers. The Boulden Court found that jurors had been wrongfully excluded because the voir dire was insufficient to determine whether, in spite of statements that they had a fixed opinion against capital punishmentor did not believe in it, those excluded were “able as [jurors] to abide by existing law -- to follow conscientiously the instructionsofa trial judge and to considerfairly the imposition of the death sentence in a particularcase.” (Boulden v. Holman, supra, 394 U.S.at pp. 482-484.) Similarly, in Maxwell, the High Court held that it was constitutionally impermissible to dismiss seven prospective jurors, including one whostated during voir dire that his or her conscientious scruples against the death penalty might prevent him from returning a death verdict even if “convinced beyond a reasonable doubtat the end of[the] trial that the defendant was guilty and that his actions had been so shocking that they would merit the | 168 death penalty” (Maxwell v. Bishop, supra, 398 U.S.at p. 264), and another who answeredthat he did “not believe in capital punishment” whenasked if his feelings against capital punishment would prevent him, or make him have feelings about, returning a death sentence evenif he “felt beyond a reasonable doubtthat the defendant was guilty and that his crime was so bad as to merit the death sentence.” (/d. at p. 265.) These cases makeclear that more than the juror’s answer,it is the thoroughnessof the questioningthatis the sine que non ofa constitutionally-valid voir dire process. If, as these cases make clear, an actual voir dire examination can be constitutionally insufficient to make the determination required by Witherspoon,it necessarily follows that sole reliance on a written questionnaire to determine qualifications, without voir dire examination,is implicitly insufficient. Boulden establishes that the crucial inquiry is not what the individual thinks or feels about the validity of the death penalty as a philosophical question (as posed in the questionnaire used in appellant’s case), but whether the juror can follow the court’s instructions and give fair consideration to the death sentence in a particular case. In appellant’s case, no such inquiry was ever made of those summarily excusedbythetrial court. The notion that in-person questioning of potential jurors is basic to a constitutionally-valid determination of fitness to serve is not new. Over 120 years ago in Reynolds v. United States, supra, 98 U.S. 145, the United States 169 Supreme Court let stand the trial court’s ruling not to exclude an apparently biased juror following voir dire, observing that potential jurors sometimes even “seek to excuse themselves on the ground of having formed an opinion, when, on examination,it turns out that no real disqualification exists. In such cases the mannerofthe juror while testifying is oftentimes more indicative of the real character of his opinion than his words. Thatis seen below, but cannot always be spread upon the record.” (/d. at pp. 156- 157.) Indeed, the literal questioning and examination ofjurors is so crucial to the voir dire function of determining fitness to serve that even when jurors’ answersare indicative of bias, the High Court has still found voir dire inadequate where the questioningis insufficient to fully explore the jurors’ views. 4. California Pronouncements Regarding Voir Dire Like the United States Supreme Court, this Court has emphasized that “a prospective juror who simply would find it ‘very difficult’ to impose the death penalty, is entitled -- indeed, duty-bound-- to sit on a capital jury, unless his or her personal views actually would prevent or substantially impair the performanceofhis or her duties as a juror.” (People v. Stewart (2004) 33 Cal.4th 425, 446.) A review ofthe specific line of cases in which this Court has reviewedtrial courts’ evaluations of prospective jurors under Wainwright 170 establishes that actual voir dire has been the process consistently used in the trial courts to provide information sufficient for makinga reliable determination ofthis nature. (See, e.g., People v. Bolden (2002) 29 Cal.4th 515; People v. Boyette (2002) 29 Cal.4th 381, 417-418; People v. Farnam (2002) 28 Cal.4th 107, 133; People v. Ayala (2000) 24 Cal.4th 243, 275.) In fact, in Bolden, this Court stated that “[t]he trial court may excuse for cause a prospective juror who on voir dire expresses views aboutcapital punishment,either for or against, that ‘would “prevent or substantially impair’” the performance ofthe juror’s duties as defined by the court’s instructions andthe juror’s oath.’” (People v. Bolden, supra, 29 Cal.4th at pp. 536-537.) Thetrial court’s duty with regard to jury selection understate law is the same today as it was when this Court defined it nearly a century ago: “Tt [is] the function of the trial court to determine the true stateof mind of each member of the panel who [is] questioned touching his qualifications to serve as a juror. Frequently there is a conflict between different portions of the testimony given during an examination on voir dire, due not alwaysto the lack of candor on the part of the person examined but to his misunderstanding of the questions asked and of the duties of a juror, until such duties are explained by the court. Whensuch conflict occurs, the trial court must decide, if possible, which of the answers most truly reveals the state of the [venire member’s] mind.” (People v. Loper (1910) 159 Cal. 6, 11.) 171 Thus, the law contemplates that each prospective juror will be examined regarding his or her views. Six years before appellant’s trial, in Lesher Communications,Inc. v. Superior Court (Contra Costa) (1990) 224 Cal.App.3d 774, a case involving public access to juror questionnaires, the Court of Appeal drew distinction between the questionnaires ofpeople questioned during voir dire and those whowere not. In ruling that only the questionnaires ofprospective jurors actually questioned are accessible to the public, the court explained that, “[W]e assume that these questionnaires play no role whatsoever until a prospective juroris actually called to the jury box. The Press- Enterprise Co.[v. Superior Court (1984) 464 U.S. 50] court rested its decision that voir dire must be open to the public on the interest of the public in open criminaltrials. A review of the history and tradition of open criminal proceedings in English and American courts led to the conclusion that an opentrial included an open voir dire. However, venire persons who are never called to the jury box do not play any part in the voir dire or the trial. They fill out the questionnaire only as a prelude to their participation in voir dire. The questionnaire serves no function in the selection of the jury unless the personfilling it out is actually called to be orally questioned.” (id. at p. 779 [italics added].) This lends credence to appellant’s view that the /iteral verbal examination of membersofthe venire is indeed the sine que non ofthe voir dire process. As the Lesher Court’s prounouncement makes clear, without the actual 172 examination ofprospective jurors, the voir dire process has neither substancenorlegal significance. Following Lesher, and on remand from this Court, the Court of Appeal in Copley Press Inc. v. Superior Court (1991) 228 Cal.App.3d 77, a case addressing the First Amendmentrights of the public and the press, held that the public has the right of access to the questionnaires of venire members whoactually are voir dired. (/d. at pp. 80, 87-88.) Although in People v. Brown (2004) 33 Cal.4th 382, this Court relied on Witt to hold that it does not violate the constitution to “leave to the judgmentofthe trial court the determination whether a prospective juror’s attitude toward imposing the death penalty will support an excusal for cause”(id. at p. 403 [citation to Wainwright v. Witt, supra, 469 U.S.at pp. 424-429 omitted]), this in no way vitiates appellant’s position. In Witt, the trial court had conducted actual voir dire. (Id. at pp. 415-416.) Thus, as appellant asserts, the essence of voirdire is the questioning andthetrial court’s failure to conduct such questioning in his case violated appellant’s rights under both the state and federal constitutions. Neither Witt nor any other United States Supreme Court case sanctioned the procedure used in appellant’s case to discharge for cause those jurors whose personal views were unclearasarticulated in their questionnaire responses, but who never categorically stated that their views -- either for or against the death penalty -- would actually prevent or substantially impair their performanceorduties 173 as jurors in this case. In the capital jury selection context, this Court has instructed that “given the frailty of human institutions and the enormity of the jury’s decision to take or sparea life, trial courts must be especially vigilantto safeguard the neutrality, diversity and integrity of the jury to which society has entrusted the ultimate responsibility for life or death.” (Hovey v. Superior Court (1980) 28 Cal.3d 1, 81.) Thetrial court in appellant’s case utterly failed to safeguard the neutrality, diversity, or integrity of appellant’s jury. Indeed,the trial court’s conductin this case completely undermined these laudable and constitutionally-mandated principles which are so crucial to ensuring and protecting a defendant’sright to fair trial and due process. As a direct result of the trial court’s errors in jury selection, appellant’s jury -- including both regulars and alternate jurors -- was not neutral but biased; it was not diverse butstriking in its nonrepresentation of Hispanics. (See also Arguments I] and VIII,infra. ) Appellant was severely prejudiced by the improper procedure used by the trial court to strike prospective jurors without so much as a perfunctory voir dire examination. In appellant’s case, the questionnaires impermissibly reduced the determination of bias to a set of questions and answers that attempted to “obtain results in the manner of a catechism,” (Wainwright v. Witt, supra, 469 U.S. at p. 424) without the benefit of the trial court seeing and hearing the prospective jurors. Those who gave ambiguousresponsesor 174 whowereless rigid in their views were summarily dismissed for cause on the basis of their questionnaire responses alone and thus wrongfully excluded from appellant’s jury selection process. This procedure for excusing prospective jurors directly contravenedthe principles articulated in Witt, supra. It was wholly improper becauseit was insufficient to determine whetherthose jurors would be able to follow conscientiously the instructions of thetrial court and considerfairly the imposition of the death penalty or whether their views would substantially impair their respective abilities to carry out their oaths and duties as jurors. As a result, otherwise qualified jurors were improperly discharged andthe resulting jury was tainted and biased. (See Arguments II and VII, infra.) This violation of appellant’s fair trial and due process rights was further exacerbated by the prosecutor’s misconduct with respect to his improper targeting of Hispanic jurors. Under these circumstances, it was impossible for appellant to receive a fairtrial that comported with state and federal constitutional demands. Where there has been no voir dire examination, the usual rule of appellate review requiring deferenceto a trial court’s decision whether to exclude a potential juror for non-Witherspoon bias does not apply because there is nothing on which the reviewing court’s deference can operate. Deference is conferred wherethetrial court actually engaged in a process which permits the court to observe a venireperson’s demeanorand whichis calculated to elicit evidence of impermissible or other substantial 175 impairmentin a juror’s ability to abide by his oath. Such proceedings would indeed generate evidence or information to which the reviewing court might well defer. The longline of opinions by this Court that have established and relied on the rule of deferenceto trial court rulings concerning juror qualifications all involved determinations of bias madeafter personal questioning of the venire through voirdire. (See, e.g., People v. San Nicolas, supra, 34 Cal.4th at p. 634 [trial court considered questionnaire and asked follow-up questionsin voir dire that “covered the range of issues necessary to establish bias and test the prospective jurors’ feelings and attitudes toward the death penalty’’]; People v. Ghent (1987) 43 Cal.3d 739, 768; Peoplev. Fields (1983) 35 Cal.3d 329, 354-355; People v. Eudy (1938) 12 Cal.2d 41, 44-45; People v. Craig (1925) 196 Cal. 19, 25-26 [trial court’s “position”is superiorto that of reviewing court whose examinationis limited to record]; People v. Loper, supra, 159 Cal. at p. 11; People v. Ryan (1907) 152 Cal. 364, 371; People v. Fredericks (1895) 106 Cal. 554, 559-560; People v. Wong Ark (1892) 96 Cal. 125, 127.) In appellant’s case, therefore, the trial court’s rulings with regard to the multitude of prospective jurors discharged for cause without voir dire are not entitled to deference. Consistent with this reasoning, in Peoplev. Stewart, supra, 33 Cal.4th 425, this Court reversed a capital conviction for Witherspoon- Witt error becausethetrial court excused “five prospective 176 jurors for cause based solely upon their checked responses and written answers on a jury questionnaire.” (/d. at p. 441.) This Court correctly concluded in Stewart that the requisite determination could not be made solely on the basis of the juror questionnaires, explaining that “[b]efore granting a challenge for cause concerning a prospective juror,a trial court must havesufficient information regarding the prospective juror’s state of mind to permit a reliable determination as to whetherthe juror's views would ‘prevent or substantially impair’ the performanceofhis or her duties ...” (People v. Stewart, supra, 33 Cal.4th at p. 445, quoting from Wainwright v. Witt, supra, 469 U.S.at p. 424, and from People v. Ochoa (2001) 26 Cal.4th 398, 431.) The procedure used in appellant’s case is out of line with all the above-cited opinions and principles. Over 50 prospective jurors were discharged for cause on the basis ofjuror questionnaire responsesalone. Somejurors -- including prospective jurors Baum-Moss, Lewis, Tartaglia, and Mejia -- were discharged even thoughthe court itself indicated they had not stated sufficient cause in their questionnaire responses to warrant excusal. One juror was discharged simply because he was uncomfortable with the death penalty (Sheridan). Another juror was discharged because he would havea difficult time imposing the death penalty (Campbell). Still another juror was discharged because of a preferencefor life imprisonment (Koehn). 177 The procedure adopted and followed bythetrial court in this case wasinadequate and constitutionally deficient, becauseit did not sufficiently permit the exploration of prospective jurors’ attitudes beyond their simple questionnaire responsesbefore discharging them for cause. As a consequence, the use of questionnaire responsesin this case denied appellant the right to be fairly tried by an impartial jury drawn from a representative cross-section of the community, to due process, the right to a reliable determination of guilt and penalty, and to equal protection of the laws guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. D. The Trial Court Erred in Excusing at Least Five Prospective Jurors Without Voir Dire Examination Despite Finding That Their Questionnaire Responses Alone Did Not Constitute Sufficient Cause Justifying Discharge Asargued in detail in the preceding sections, decisions of the United States Supreme Court and of this Court makeclear that a prospective Juror’s personal or conscientious objection to the death penalty is not a sufficient basis for exclusion from jury service in a capital case. In Lockhart v. McCree, supra, 476 U.S. 162, for example, the High Court held that “[n]ot all those who oppose the death penalty are subject to removal for cause in capital cases; those whofirmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases as long as they 178 clearly state that they are willing to temporarily set aside their ownbeliefs in deferenceto the rule of law.”(/d. at p. 176.) Thus, a prospective juror may not be excused for cause simply because heorshe hasstrong beliefs about the death penalty. (Lockhart v. McGree, supra, 476 U.S.at p. 176.) This Court’s pronouncements regardingjuror qualifications and | selection closely track federal rulings. A prospective juror whois personally ~ opposedto the death penalty may nevertheless be capable of following his oath and the law andthis Court has held that a prospective juror’s personal or conscientious objection to the death penalty is not a sufficient basis for excluding that person from jury service in a capital case. (People v. Stewart, supra, 33 Cal.4th at p. 446.) Even a juror whose opposition toward the death penalty may predispose him to assign greater than average weight to mitigating factors presented at the penalty phase may not be excluded for ' cause unless that predilection would actually preclude him from engaging in the weighing process and returning a capital verdict. (People v. Kaurish (1990) 52 Cal.3d 648, 699.) A trial court’s ruling regarding a prospective juror’s qualifications must be supported by substantial evidence. (People v. Griffin (2004) 33 Cal.4th 536, 558.) Thus, even assuming for purposes of argumentthatit is constitutionally acceptable for the trial court to excuse a prospective juror for cause solely on the basis of written questionnaire answers, such a determination must be supported by substantial evidence. Moreover, 179 “substantial evidence” surely involves more than a juror’s initial response, particularly where the response is ambiguous or appearsto reflect bias. As the case law makeclear, even a juror’s answers during voir dire may be insufficient to excuse him without thorough exploration ofhis responses. In Stewart, this Court held that it was error to excuse four potential jurors whoseresponsesindicated ambiguity in their attitudes toward the death penalty, concluding that those prospective jurors should have been subjected to voir dire “during which the court would be able to further explain the role ofjurors in the judicial system, examine the prospective juror’s demeanor, and make an assessmentof that person’s ability to weigh a death penalty decision.” (People v. Stewart, supra, 33 Cal.4th at p. 448.) By the reasoning in Stewart, and underthe controlling United States Supreme Court authority previously cited, the prospective jurors improperly and erroneously excused for cause in appellant’s case should have been personally questioned to determine whetherthey could fulfill the duties of a capital juror. A fortiori, then, the procedure used in appellant’s case was constitutionally infirm. In appellant’s case, no less than five prospective jurors were wrongfully excluded from the venire before voir dire proceedings began, based on the court’s unilateral determination that their questionnaires contained inappropriate, ambiguous,or conflicting responses and answers. 180 Despite its concession that their answers did not justify removal for cause, the court nevertheless ordered the excusal of these jurors. Yet, there is no question that their questionnaires should have been followed upby voir dire examination in order to protect appellant’s constitutional rights to due process andtrial by an impartial jury. (People v. Stewart, supra, 33 Cal.4th at pp.45 1-452.) For example,the trial court excused three prospective jurors from appellant’s venire panel even thoughit found their questionnaire responses did not warrant excusal based on bias or substantial impairmentoftheir ability to perform the duties of a juror in a capital case. The court excused Kay Tartaglia for cause (25 RT 4087), while conceding that “‘she hasn’t said anything to us in court or in her questionnaire that would justify her removal for cause.” (25 RT 4088.) Similarly, the court noted that he only listed juror Beatrice Mejia, an Hispanic, “as possible cause” (26 RT 4162-4163), but nevertheless discharged her for cause without follow-up voir dire. Finally, the trial court excused Pamela Campbell for cause, noting that her responses indicated only that “she would havea difficult time imposing the death penalty” (27 RT 4314), but still conducting no voir dire examination into Ms. Campbell’s views or responses on the questionnaire regarding capital punishment. Continuing in this vein, the court ruled that Yolanda Baum-Moss’ questionnaire stated no grounds to excuse her for cause, but excused her 181 anyway,solely on the basis of the responses in her questionnaire. (23 RT 3799.) Although it was the prosecutor who sought to remove Peggy Koehn because “[h]er indication as to the Witherspoon, that she would notbe sure if she could -- she was unsure if she would automatically vote against the death penalty” and because she indicated “‘a preference for LWOP”(25 RT 4090), it was the court that discharged her for cause without proper examination. The court made no attempt to determine if she could set aside her viewsorif they substantially impaired herability to serve as a juror by conducting voir dire to explore the nature of her uncertainty about the death penalty. (25 RT 4090.) Based solely on questionnaire responses, then, no less than five prospective jurors were discharged by the court even though they never stated they were unwilling or unable temporarily to set aside their ownbeliefs and follow the law. (See Lockhart v. McCree, supra, 476 U.S.at p. 176.) These rulings bythetrial court in appellant’s case fly in the face of United States Supreme Court decisions which clearly establish that a juror may not be excused solely because he or she expresses opposition to the death penalty. (See Lockhart v. McCree, supra, 476 U.S. 162.) Moreover, the verdicts ofjuries selected in violation of these principles will not stand: “(I]f prospective jurors are barred from jury service because of their views about capital punishment on ‘any broader basis’ than inability to follow the law or abide by their 182 oaths, the death sentence cannot be carried out.” (Adams v. Texas, supra, 448 U.S.at p. 48.) [I]t is entirely possible that a person who has a ‘fixed opinion against’ or who does not 3‘believe in’? capital punishment might nevertheless be perfectly able as a juror to abide by existing law -- to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case. (Boulden v. Holman (1969) 394 U.S. 478, 483-484.) In Witherspoon, supra, decided in 1968, the Supreme Court held that a defendant cannotbe sentenced to death if the jury that imposed the sentence was chosen by excluding prospective jurors for cause simply because they voiced general objections to the death penalty or expressed conscientiousorreligious scruples againstits infliction. In Witt, the High Court clarified its decision in Witherspoon and held that a prospective juror may be excluded for cause because ofhis or her viewson capital punishmentif those views would prevent or substantially impair the performanceofhis or her duties as a juror in accordance withthetrial court’s instructions andhis or her oath. (Accord, People v. Cunningham, supra, 25 Cal.4th 926, 975.) Neither Witherspoon nor Witt, however, requires that a prospective juror automatically be excused if he or she expresses a personal opposition to the death penalty. Those whofirmly oppose the death penalty may 183 nevertheless serve as jurors in a capital case as long as theystate clearly that they are willing to temporarily set aside their own beliefs and follow the law. (Lockhart v. McCree, supra, 476 U.S.at p. 176; accord, People v. Rodrigues, supra, 8 Cal.4th at p. 1146.) To exclude prospective jurors simply because of their uncertainty about, or reluctance to impose, the death penalty, with no exploration of their attitudes or views to determine their qualification to serve -- as did the trial court in appellant’s case -- deprives a defendantofthe right to the impartial jury to which heis entitled under the law. (Adams v. Texas, supra, 448 U.S. at p. 50.) Having failed to find sufficient cause to justify the discharge of prospective jurors Baum-Moss, Koehn, Tartaglia, Mejia, and Campbell, the trial court here erred in excusing them withoutvoirdire examination,in violation of appellant’s rights to a fair trial by a neutral and impartial jury, due process, and a reliable determination of guilt and penalty guaranteed bytheFirst, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. E. Excusing Jurors for Cause Without Voir Dire in Open Court Also Violated the First Amendment The United States Supreme Court hassaid that “[t]he process of juror selectionis itself a matter of importance, not simply to the adversaries but to the criminal justice system.” (Press-Enterprise vy. Superior Court (1984) 464 U.S. 501, 505.) The underpinningsofthis reasoning pre-date the 184 republic. Indeed, the open nature of criminaltrial proceedings in England ~ stretches back to before the Norman conquest. (/d.) Jury selection proceedings began to be conducted in public in the Sixteenth Century, and “Tpjublic jury selection thus was the commonpractice in America when the Constitution was adopted.” (/d. at pp. 507-508). In Press-Enterprise, the United States Supreme Court explainedthat, “t]he presumption of openness may be overcomeonly by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” (Press- Enterprise v. Superior Court, supra, 464 U.S. at p. 510.) Finding that the presumption had not been overcomein that case, the High Court held that jury selection voir dire must be opento the public unless there is a compelling reason to closeit and the trial court has reasonably concluded that there is no alternative. (/d. at pp. 510-511.) At appellant’s trial, in order to streamline the process of voir dire and jury selection, the trial court excused over 50 prospective jurors from the venire solely on the basis of their questionnaire responses without any further questioning in the presence of other venirepersons. This attemptat judicial efficiency violated appellant’s constitutional rights. In Copley Press v. Superior Court, supra, 228 Cal.App.3d 77, for example, a case 185 addressing the First Amendmentrights of the public and press to inspect the jury questionnaires of venire members, the Court of Appeal observedthat, “(while efficient judicial administration is a praiseworthy purpose and one weapplaud,it does not reach constitutional dimensions. As much as we would like to see judicial proceedings run efficiently and expeditiously, we cannot give much weight to such a goal when comparedto a constitutional interest.” (/d. at pp. 84-85.) Moreover, the purposeofvoir dire is “. .. to ensure a fair impartial jury, not a favorable one. Judges, not advocates, must control that process to makesure privileges are not so abused.” (Press-Enterprise Co.v. Superior Court, supra, 464 U.S. at p. 511, fn. 9.) If there was increased efficiency at appellant’s trial because of the questionnaire procedure, it was achieved by violating the First and Fourteenth Amendmentrights of the prospective jurors, as well as appellant’s fundamentalright to a constitutionally-valid jury selection process underthe First and Fourteenth Amendments and to due process anda fair trial by an impartial jury drawn from a representative cross-section of the community underthe Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. F. Counsel’s Stipulations Did Not Waive Issues Raised in this Assignmentof Error Appellant’s right to be tried by an impartial jury is a fundamental 186 constitutional right and no objection at trial was required to preserve the issue for appeal. (See People y. Vera (1997) 15 Cal.4th 269, 276-277; Sullivan v. Louisiana (1993) 508 U.S. 275, 280; Rose v. Clark (1986) 478 U.S. 570, 578.) Moreover, as a matter of federal and state constitutional law,thetrial court did not have the powerto dispense with the voir dire of prospective jurors, especially in a capital case where a heightened degree of due process was necessary. Trial counsel therefore could not have forfeited the issue or invited the error, because no act or statementoftrial counsel could confer on the trial court the discretion whichit did not legally have. Thus, the issue of the erroneous excusal of potential jurors based solely on their questionnaires is cognizable on appeal regardless of whether appellant objected sufficientlyat trial. In People v. Benavides (2005) 35 Cal.4th 69, this Court held that the defendant was barred on appeal from raising the issue ofthe trial court’s discharge of prospective jurors for cause based solely on questionnaire responses, because counselstipulatedat trial to the excusals. (/d. at p. 88.) Appellant submits, however, that his situation is distinguishable from that presented in Benavides. Although appellant’s trial counselstipulated to the discharge of over 50 prospective jurors for cause,the court itself ruled that, at least as to six prospective jurors, while their questionnaire responsesdid not provide 187 sufficient cause to excuse them, they should nevertheless be excused for cause. By the court’s ownfindings, then, the evidence wasinsufficient to support the discharges, yet it conducted no voir dire whatsoever. Hence, even with counsels’ stipulations, the court erred and abusedits discretion. Moreover, unlike in Benavides, it is indisputable that the trial court here did far more than merely pass on “the adequacyoftrial counsel’s stipulations.” (/d. at p. 8.) The trial court itself initiated and fully participated in the selection and exclusion process. Thetrial court -- abandoningits role as a neutralarbiter of the trial -- independently identified jurors to be discharged for cause based on jury questionnaire responses. The court repeatedly made affirmative findings of substantial impairmentbased solely on its own review and assessmentof the questionnaires and,on that basis, excused those jurors. In doing so, the court abusedits discretion and violated appellant’s rights under federal and state law. Any suggestion that counsel waivedthis error by stipulating to other excusals should be rejected on groundsoffutility. (See People v. Hamilton (1989) 48 Cal.3d 1142, 1184, fn. 27.) Counsel repeatedly objected to the court’s procedure, refused to participate in redrafting the questionnaire, and complained about the inability to rehabilitate arguably qualified jurors. When the court noted counsel’s objections for the record and explicitly ruledthat it would utilize the questionnaire procedure, 188 defense counsel’s objections notwithstanding, any further objections were futile. In any event, the error complained of here does not implicate the excusals to which counselstipulated, but those excusals which the court ordered sua sponte. G. Reversal of the Entire Judgment is Required As demonstrated in Subsection B, supra, the use of race and ethnicity questions in the jury questionnaire led to the systematic exclusion and complete nonrepresentation of Hispanics on appellant’s jury. The nonrepresentation of Hispanics constituted a primafacie violation of appellant’s fundamental rightto fair trial by a jury comprised of a representative cross-section of the community and to due processoflaw. The use of questions on race and ethnicity also created “the opportunity for discrimination,” (Batson v. Kentucky, supra, 476 U.S.at p. 95), manifested in the selection of a biased jury (see Argument VIII, infra) and by the prosecutor’s impermissible and improper targeting of Hispanic prospective jurors during voir dire (see ArgumentII, infra). Together, the questionnaire and the prosecutor’s voir dire tactics contributed to the selection of a biased jury and the nonrepresentation of Hispanics on appellant’s jury. (See People v. Bell, supra, 49 Cal.3d at p. 524.) As demonstrated (Subsection C, supra), appellant was entitled under the Sixth and Fourteenth Amendments to the United States Constitution and 189 Article 1, sections 15 and 16 of the California Constitution to betried by a fair and impartial jury. Thetrial court was obligated to determine that the people selected to serve on appellant’s jury did not hold views concerning capital punishment that would prevent or substantially impair the performanceoftheir duties as jurors in accordance with the instructions and their oath. The United States Supreme Court has emphasized that jury selection is the primary means by which a court may enforce a defendant’s right to be tried by a jury free from ethnic orracial bias or prejudice (Rosales-Lopezv. United States (1981) 451 U.S. 182, 1882), or predisposition about the defendant’s culpability. (Gomez v. United States (1989) 490 U.S.858, 873; Powers v. Ohio (1991) 499 U.S. 400, 411-412.) Moreover, the law is clear that the examination ofjurors is the sine que non ofthe process. (See Gray v. Mississippi, supra, 481 U.S. at pp. 651-657; Ross v. Oklahoma (1988) 487 USS. 81, 83; Darden v. Wainwright, supra, 477 U.S. at pp. 175-178; Wainwwrightv. Witt, supra, 469 U.S. at pp. 415-416; Adams v. Texas, supra, 448 U.S. at pp. 41-42; Witherspoonv. Illinois, supra, 391 U.S. 510, 514-515; see also Lockhart v. McCree, supra, 476 U.S.at p. 166; Patton v. Yount, supra, 467 U.S.at p. 1027; Davis v. Georgia, supra, 429 U.S. 122 and Davis v. State (Georgia), supra, 225 S.E.2d at p. 243; Maxwell v. Bishop (1970) 398 U.S. 262, 264-265; Boulden v. Holman, supra, 394 U.S. at pp. 482-483; Irvin v. Dowd, supra, 359 U.S.at p. 397; Reynolds v. United | 190 States, supra, 98 U.S. at pp. 156-157.) At appellant’s trial, however, without any voir dire examination whatsoever, the trial court found over 50 prospective jurors to be substantially impaired under Witherspoon/Witt solely on the basis of their written answers to questionnaires distributed to them bythetrial court. During jury selection, the trial court was duty-bound to determinethe true state of mind of each prospective memberofthe panel. Yet, here, the trial court completely abandoned that obligation in respect to over 50 prospectivejurors. This Court repeatedly has instructed that when it comesto a jury’s decision to take or sparea life, the trial courts must be vigilant in safeguarding the neutrality, diversity, and integrity of the jury. (Hoveyv. Superior Court, supra, 28 Cal.3d at p. 81.) Here, the trial court failed to exercise this vigilance. Becauseof the trial court’s improperuse ofjury questionnairesas a substitute for a thorough voir dire examination, appellant’s jury was not neutral but biased; it was not diverse but strikingly homogeneous, without a single Hispanic in a county with a substantial Hispanic population. The court’s reliance upon questionnaires alone to determine Witherspoonbias in appellant’s trial violated appellant’s rightto a fairtrial by an impartial jury and due process guaranteed by the Fifth, Sixth, and Fourteenth Amendments. Becausethis violation resulted in actual Witherspoonerrorin that qualified venire members were excludedby the 191 trial court from voir dire and, hence, from the jury, reversal of the entire judgmentis required. (Gray v. Mississippi, supra, 481 U.S.at pp. 660, 665.) Further, thetrial court’s excusal, for cause, of prospective jurors Baum-Moss, Koehn, Tartaglia, Mejia, and Campbell, whose viewsdid not justify their discharge, directly violated appellant’s fundamental constitutional rights underthe Fifth, Sixth, Eighth, and Fourteenth Amendments to due process, fair trial by an impartial jury, and reliable determination of guilt and penalty. For these reasons as well, the entire judgment must be reversed. (Duncan v. Louisiana (1968) 391 U.S. 145, 147- 171.) Finally, the prosecutor’s impermissible use of the race and ethnicity information elicited by the questionnaire to target and disqualify Hispanic venirepersonstainted the entire jury selection process, as well as seated and alternate jurors who heard, observed, and witnessed this misconduct, in violation of appellant’s Fifth, Sixth, and Fourteenth Amendmentrights to trial by an impartial jury drawn from a representative cross-section of the community. (Taylor v. Louisiana (1975) 419 U.S. 522, 537-538; People v. Wheeler, supra, 22 Cal.3d at p. 272; see also ArgumentII, infra.) As this Court stated in Hernandez v. Municipal Court (1989) 49 Cal.3d 713 (overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046), “‘[t]he right to cross-section representation is a demographic requirement, which assures a criminal defendant trial by a jury selected 192 without systematic or intentional exclusion of cognizable economic,social, religious, racial, political and geographical groups. (Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 220 []; People v. Wheeler (1978) 22 Cal.3d 258, 268 [].) It is designed to protect the right to be tried by an impartial jury. (Taylor v. Louisiana (1975) 419 U.S. 522, 530 []; People v. Trevino (1985) 39 Cal.3d 667, 679 []; [People v. Wheeler, supra, (22 Cal.3d] at pp. 266-267.)(Hernandez v. Municipal Court, supra, 49 Cal.3d at p. 716, fn.1 parallel citations omitted].) Both this Court and the United States Supreme Court havestated that if even a single anti-death penalty juror was improperly excluded from the death-qualified pool, appellantis entitled to a new penalty trial. (See People v. Ashmus (1991) 54 Cal. 3d 932, 962, citing Gray v. Mississippi, supra, 481 US. at pp. 666-667 and Witherspoonv. Illinois, supra, 391 U.S. at pp.521- 523.) Relying on this reasoning, appellant submits that he is also entitled to reversal of the guilt verdict due to race and ethnicity discrimination, the nonrepresentation of Hispanics on his jury, and the elimination of prospective jurors withoutsufficient cause. These factors actually resulted in a biased jury,i.e., one that was more proneto find appellant guilty of the charged crime. (Lockhart v. McCree, supra, 476 U.S. at pp.184-206,dis. opn. of Marshall, J.) It is significant that the majority in Lockhart assumedto be correct the premise that pro-death penalty jurors are more likely to convict, but 193 rejected the claim that a properly conducted Witherspoon voir dire denied the defendant a representative cross-section or an impartial jury. (Lockhart v. McCree, supra, 476 U.S.at p. 173.) In appellant’s case, however, the Witherspoon voir dire waseither improperly conductedor, worsestill, not conductedat all. Given the racial and ethnic bias manifest in the jury questionnaires and the prosecutor’s impropertargeting ofjurors based on race and ethnicity, appellant stood no chance of obtaining a fair or impartial jury in this case. Under these circumstances,the need for a reliable guilt determination and a heightened degree of due processin a capital case require reversal of the entire judgment. (Beck v. Alabama (1980) 447 U.S. 625; Woodson v. North Carolina (1976) 428 US 280, 305; Gregg v. Georgia (1976) 428 U.S. 153, 187.) Moreover, even if this Court finds the procedure of excusing potential Jurors on the basis of their questionnaires constitutionally permissible in the abstract, as a result of the prejudice to appellant’s trial rights arising from the trial court’s decision to excuseat least five prospective jurors for cause without finding that they manifested the requisite substantial impairmentin their ability to serve, reversal is required in appellant’s case under Witherspoon/Witt. (Gray v. Mississippi, supra, 481 U.S.at pp. 660, 665.)'”° 37 Additionally, if this Court finds that appellant forfeited any of the issues presented in this assignmentoferror or invited any oftheerrors, it must find in this regard that trial counsel rendered appellant ineffective assistance of counsel under the United States and California Constitutions. (U.S. Const. Amends. 6th, 14th; Cal. Const. Art. 1, §§ 15, 24; Strickland v. Washington 194 (1984) 466 U.S. 668, 687; People v. Ledesma (1987) 43 Cal.3d 171, 216- 217.) There was no possible reason for counsel to concludethat it was in appellant’s best interest for people opposed to the death penalty and otherwise able to perform the duties of a juror, as found bythetrial court, to be excluded from the venire. A reasonable tactical choice is one made with awareness ofthe applicable law. (Strickland v. Washington, supra, 466 U.S. at p. 691.) Defense counsel had a duty to be fully informed aboutthe law. (See ABA Standards for Criminal Justice (3d ed. 1993) Standard 4-5.1; see also Wiggins v. Smith (2000) 539 U.S. 510, 522 [reiterating that ABA standards are the normsfor counsel in capital cases & citing Strickland].) There was no conceivabletactical or strategic reason for trial counsel to agree to the dismissal ofat least five prospective jurors whom thetrial court independently found potentially qualified to sit on the jury in this case. Anyfailure ontrial counsel’s part in this regard thus fell below the standard of vigorous advocacy required of competent counsel. (See People v. Cunningham, supra, 25 Cal.4th at p. 1003 [ineffective assistance claim cognizable on appeal where nosatisfactory explanation could exist to explain counsel’s conduct].) The prejudice caused by counsel’s erroris clear, since it resulted in Witherspoonerror and the other statutory and constitutional violations enumerated above,a biased jury, and unreliable guilt and penalty verdicts. (Strickland v. Washington, supra, 466 U.S.at p. 687 [prejudice shown wherecapital trial’s result is unreliable].) Appellant’s rights to due process and reliable determination of guilt and sentence under the Fifth, Fourteenth and Eighth Amendments to the United States Constitution are also implicated. The entire judgment musttherefore be reversed. While this Court has repeatedly expressed disfavor with ineffective assistance of counsel claims on appeal (see, for example, People v. Dennis (1998) 17 Cal.4th 468, 541 [in response to defendant’s “array” of ineffective assistance of counsel claims, court utilizes deferential review “to avoid the distorting effects of hindsight’”]; People v. Barnett (1998) 17 Cal.4th 1044, 1140 [except in rare cases, an appellate court should not attempt to second- guesstrial counsel]; People v. Hillhouse (2002) 27 Cal.4th 469 502 [noting failure to object establishes ineffective assistance on direct appeal only in - rare cases]), out of an abundance of caution regarding potential state procedural bars, defendant asserts this claim oferror andstates that the facts plead here, if insufficient to warrantrelief, will support, supplement and inform related facts and claims which are cognizable in habeas corpus proceedings and which will be presented in a petition for writ of habeas corpusto befiled on appellant’s behalf. If, despite appellant’s presentation of the operative law andfacts of this claim knownto him atthis time, the Court is inclined to disregard or deny this claim solely because it appears in 195 Alternatively, if reversal of the entire judgment is not compelled, at the very least reversal of appellant’s sentence of death is required. The erroneous exclusion of potential jurors for Witherspoonbiasis constitutional error affecting the composition of the jury pool and requiring reversal per se of the death judgment. (Gray v. Mississippi, supra, 481 U.S. at p. 668.) The United States Supreme Court hassaid that “[t]he nature of the jury selection process defies any attemptto establish that an erroneous Witherspoon-Witt exclusion of a juror is harmless.” (/d. at p. 665.) Ifit is reversible error per se under the Sixth and Fourteenth Amendments to exclude potential jurors who have given equivocal or contradictory answersin actual voir dire, then the exclusion of potential jurors without even questioning them in voir dire mustbe reversible by the samestandard. a footnote rather than in the body of the opening brief, appellant requests leave of court and ample time to prepare and presentthe claim to the Court in a supplementalbrief. 196 II THE PROSECUTOR COMMITTED MISCONDUCTDURING TRIAL IN VIOLATION OF APPELLANT’S RIGHTS TO TRIAL BY JURY, FAIR TRIAL, AND DUE PROCESS OF LAW GUARANTEED BY THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION; THE PROSECUTOR’S MISCONDUCT ALSO UNDERMINEDTHE RELIABILITY OF THE GUILT AND PENALTY DETERMINATIONSIN VIOLATION OF THE EIGHTH AMENDMENTTO THE UNITED STATES CONSTITTION A. Introduction Throughoutthetrial, the prosecutor repeatedly committed serious and prejudicial acts of misconduct. During jury selection, he repeatedly and unfairly targeted Hispanic prospective jurors with pretextual questions based on impermissible considerations of race and ethnicity, designed to disqualify them from service, thereby tainting all regular and alternate jurors who witnessed, heard, and observed his improper and unfair questioning. During jury selection, the prosecutor also repeatedly misrepresented the nature of mitigation, implied that the absence of mitigation constituted aggravation, and thereby insinuated that appellant bore some burdenofproof with respect to mitigation. In so doing, he effectively misled the jury as to its role in sentencing. During guilt phase closing argument, the prosecutor repeatedly vouchedfor the testimony of the state’s primary witness, co-defendant Jose Munoz. Whenconsidered together, the prosecutor’s misconducttainted the 197 integrity of the jury selection process, led to the selection of a biased jury, underminedthe state’s burden of proof at both the guilt and penalty phases, and impermissibly inflamed the jury against appellant, in violation of his rights to a fair trial by impartial jury comprised of a representative cross- section of the community, due processof law, the effective assistance of counsel, equal protection of the laws, and to a reliable determination of guilt and penalty guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. The prosecutor’s misconduct was not harmless beyond a reasonable doubt, and reversal of the judgment of conviction is therefore required. B. The Prosecutor Repeatedly Committed Misconduct 1. The prosecutor unfairly and improperly targeted all Hispanic prospective jurors during jury selection, thereby tainting and prejudicing the jury pool against Hispanics and facilitating the selection of a biased and nonrepresentative jury in which all Hispanics were excluded Appellant’s jury as selected was devoid of Hispanics. The complete nonrepresentation of Hispanics was no accident. Hardship claimsled to the dismissal of many, otherwise qualified low or middle income Hispanic prospective jurors. As demonstrated in ArgumentI, supra, the written juror questionnaire with impermissible questions on race and ethnicity improperly and unconstitutionally further decimated the pool of Hispanic 198 prospective jurors who were otherwise qualified to sit on appellant’s jury. For those Hispanic prospective jurors who survivedtheinitial screening and questionnaire process, the prosecutor then improperly and repeatedly focused on them. In tactics tantamountto exclusion based on race, Deputy District Attorney West concentrated his voir dire on seemingly well-qualified Hispanic prospective jurors after they had been initially screened and passed for cause. The prosecutor’s goal in focusing on Hispanic prospective jurors during voir dire wasclear -- the elimination of all eligible, qualified Hispanic prospective jurors from the final jury pool. These tactics proved successful. Only Caucasians wereinitially selected as regular jurors. No regular or alternate Hispanic jurors were selected. Even the lone Hispanic prospective juror who managedto survive the ethnic culling process and called to serve as an alternate was quickly dispatched by Deputy District Attorney West through a peremptory challenge. In conducting voir dire, Deputy District Attorney West typically gave a brief introduction, using a flow chart to illustrate his comments regarding the guilt and penalty phasesoftrial, and to explain the four decisions, as he remarked, to be made bythejury, including guilt, degree of guilt, special circumstancesfindings, and penalty. (See, for example, 23 RT 3764-3765.) After these comments, West then asked Caucasian 199 prospective jurors one to three general questions regarding their thoughts about sitting on the jury. (See, for example, 23 RT 3766.) Hetypically asked whetherthey could return a “just and necessary verdict” of death (see, for example, 23 RT 3767), and whether they could vote to have appellant executed after spending “three months looking at Mr. Self, knowing that he may have family in the audience.” (See, for example, 23 RT 3768).'** Occasionally, he asked Caucasian prospective jurors about a particular questionnaire response and then followed up with questions about the guilt determinations, the burden of proof, the felony murderrule, or the jury’s role in sentencing. (See 23 RT 3768-3772.) As to other Caucasian prospective jurors, Deputy District Attorney West followed up with questions regarding their responses to the questionnaires or voir dire responses during defense questioning, in order to rehabilitate them and place on the record their willingness to consider both aggravating and mitigating evidenceorlife imprisonment withoutthe possibility of parole as an alternative to death. (See, for example, 23 RT 3773.) In contrast to his questioning of Caucasian venirepersons, Deputy District Attorney West asked far more probing and detailed questions of '247 Tn one session after his introductory comments, West immediately targeted the lone Hispanic prospective juror -- “Let me ask Mr.Villarreal. Let mestart with you” (25 RT 4048) -- asking if he thought he could impose the death penalty in this case. (25 RT 4049.) Jurors Nos. 1 and 5 were amongthe group that heard and observed Westtarget the lone Hispanic prospective jurorin their particular group. (See 25 RT 4015.) 200 Hispanic prospective jurors about the types of mitigating or aggravating evidence they would consider in determining whetheror not to impose the death penalty. (See, for example, 23 RT 3780-3781.) Typically, West asked Hispanic prospective jurors far more detailed and specific questions about their backgrounds; their views on the death penalty and the specific types of evidence that might affect guilt or penalty determinations; their viewson the burden of proof; and their ability or willingness to deliberate. The explanations sought from prospective Hispanic jurors were far more detailed and probing than those sought from Caucasian venirepersons. (See 23 RT 3780-3783.) For example, Hispanic prospective juror Guzman”? was asked 19 detailed and specific questions.'*° Caucasian prospective juror Green, who immediately followed Guzman, wasasked but three. (See 23 RT 3783-3784.) Similarly, prospective juror Gezewski, also Caucasian, wasasked but two. (23 RT 3786-3787.) The samepattern was repeated over and over during voirdire. Deputy District Attorney West routinely targeted Hispanic prospective jurors during voir dire, asking them many more questions than any ofthe Caucasian prospective jurors. Before questioning Hispanic prospective juror Mendoza, ”’ for example, Deputy District Attorney West asked two '257 In his juror questionnaire, Samuel Guzmanindicated he was a 28-year- old Hispanic (Mexican). (See 19 Supp CT 5461-5497 [questionnaire].) '267 Juror No. 7 was among the groupthat heard and observed the prosecutor target Hispanic prospective juror Guzman. (See 23 RT 3728.) 201 Caucasian jurors relatively brief questions about whether they could impose the death penalty. In contrast, prospective juror Mendoza wasasked 19 detailed questions about the circumstances that would justify a verdict of death, the kinds of victims that would call for the death penalty, and his viewson the burden of proof.'”8 (See 23 RT 3830-3832.) After briefly questioning two non-Hispanic prospective jurors after his introductory remarks, Deputy District Attorney West launched into Hispanic prospective juror Parra,’” asking herat least 38 questions.° (25 RT 4129-4135.) After discussing the felony murderrule and accomplice liability (25 RT 4147- 4150), West asked but a single question each of Caucasian prospective jurors Blankenship and Amold. Turning then to Hispanic prospective juror 131 Rolon, West asked her 15 questions about the felony murder and '27/ In his questionnaire, Vietnam veteran Frank Mendozaindicated he was an employed, married, 49-year-old Hispanic (Mexican). (See 31 Supp CT 8830-8866 [questionnaire].) '87 Juror No. 2 was amongthe groupthat heard and observedthe prosecutor target Hispanic prospective juror Mendoza. (See 23 RT 3803.) °/ In her questionnaire, Deborah Parra indicated she was a 38-year-old Mexican American with four children. (See 23 Supp CT 6424-6460 [questionnaire].) ‘597 Juror No. 11 was among the prospective jurorsin this particular group that heard and observedthe prosecutor target Hispanic jurors Parra and Rolon. (See 25 RT 4092.) '3'/ In her questionnaire, 33-year-old Isabel Rolon indicated she was Hispanic (Mexican). She workedas a clerk for the Los Angeles County Sheriff's Department; he spouse was a deputy sheriff. (See 22 Supp CT 6313-6349 [questionnaire].) As the sole Hispanic prospective juror among the final pool of potential alternates, she was immediately peremptorily challenged by Deputy District Attorney West. 202 accomplice liability. (25 RT 4151-4153.) None of the Caucasian prospective jurors was questioned as extensively. Even when the questioning involved matters other than jurors’ views on the death penalty, the prosecutor repeatedly returned to Hispanic prospective jurors to ask additional, follow-up questions. The prosecutor repeatedly returned to prospective juror Mendoza, for example, asking at least seven additional questions beyondhisinitial examination. (See 23 RT 3840, 3842, 3856.) Similarly, he initially asked Hispanic prospective juror Avalos'** seven detailed questions about testimony from witnesses with different backgroundsandlifestyles, whether those witnesses could be truthful, and whether she would weigh and considertheir testimony. (23 RT 3838-3840.) After questioning several other prospective jurors, the prosecutor returned to Avalos with nine additional questions regarding whethershe could return a verdict of death; the views of her Catholic religion and background; and information regarding her church attendance. (See 23 RT 3849-3851.) These questions were not asked of any non- Hispanic prospective jurors. '* 134 Westalso targeted prospective juror Zapata in the same manneras '2/ Tn her questionnaire, Rose Avalos indicated she was a married, 46- year-old Hispanic (Mexican). She worked as a judicial services supervisor for the Riverside Consolidated Courts. (See 31 Supp CT 8793-9092 [questionnaire].) '33/ Juror No. 2 was also among the group that heard and observedthe prosecutor target Hispanic prospective juror Avalos. (See 23 RT 3802.) 203 Avalos, initially asking nine questions about his views on the burden of proofas to both guilt and penalty, eyewitness testimony, and coconspirator testimony. (See 24 RT 3983-3985.) He returned to Zapata again with further questions about the burden of proof and penalty (see 24 RT 3996), followed by a volley of seven more questions on felony-murder, accompliceliability, and penalty. (24 RT 4000-4001.) None of the Caucasian prospective jurors was questioned in this manneror to the same extent.!*° Moreover, unlike Hispanic prospective jurors, vague or non- responsive answers given by Caucasian prospective jurors were not followed by further questioning. Virtually identical, or even clearer, responses by Hispanic prospective jurors invariably were followed with detailed and probing questionsby the District Attorney. For example, prospective juror Guzman wasasked, “What kind of things would you look for to determine whetheror not the death penalty is appropriate?” (23 RT 3780.) After Guzman’s specific response about evidence ofplanning, Deputy District Attorney West followed with several additional, voir dire questions. Yet when Caucasian prospective juror Gezewski answeredthe '47 In his questionnaire, Richard Zapata indicated he was a married, 32- year-old Hispanic claims adjuster with two years of college. (See 26 Supp CT 7423-7459 [questionnaire].) 57 Juror No. 9 was amongthe group that heard and observed the prosecutor target Hispanic prospective juror Zapata. (See 24 RT 3947.) 204 same question with an ambiguousand indecipherablereply, stating “The special circumstance, checking the special circumstances, whether they consisted of -- or how it came about or whatever, to that which way I will go one wayorthe other, death or parole -- without parole,” West asked Gezewski not one follow-up question, instead, immediately turning to question another prospective juror. (See 23 RT 3786-3787.) Beyond any doubt, Hispanic prospective jurors were targeted by West andtreated in a markedly different and unfair manner during jury selection than were Caucasian prospective jurors. This misconducthas constitutional dimension because appellant Self is Hispanic. Appellant wasentitled under the state and federal constitutions to be tried by an impartial jury drawn from a representative cross section of the community, and to protect that right, racial discrimination in the selection of his jury was prohibited. (U.S. Const., 6th, 14th Amends.; Cal. Const. art I, § 16; Powers v. Ohio (1991) 499 U.S. 400; Batson v. Kentucky, supra, 476 U.S. at pp. 84-89; People v. Wheeler, supra, 22 Cal.3d at pp. 276-277.) Asstated by this Court in People v. Wright (1990) 52 Cal.3d 367, 394-395, defendants should be “provided with juries constituting as nearly as reasonably possible a random cross-section of the community.” Becauseracial prejudice can strongly compromisea juror’s impartiality (Miller v. State ofN.C. (4th Cir. 1978) 583 F.2d 701, 706; 205 United States ex rel. Haynes v. McKendrick (2d Cir. 1973) 481 F.2d 152, 157; People v. Bain (1971) 5 Cal.3d 839, 849), even neutral, nonderogatory references to race are improper absent compelling justification. (United States v. Doe (D.C. Cir. 1990) 903 F.2d 16, 25, fn. 63; McFarland v. Smith (2d Cir. 1979) 611 F.2d 414, 416-417, 419.) Clearly, in certain cases, the questioning of prospective jurors on racial prejudice must be undertaken. (See, for example, Aldridge v. United States (1931) 283 U.S, 308 [reversible error for a federal court to fail to inquire into racial prejudice in a case involving a Black defendant accused of killing a White police officer]; Ham v. South Carolina (1973) 409 U.S. 524 [reversible error to fail to question prospective jurors on racial prejudice in the trial of a Black civil rights activist].) Here, however, racial or ethnic prejudice was not in issue. Thus, while prospective jurors could have been properly questioned during jury selection on the issue of racial or ethnic bias (Turner v. Murray (1986) 476 U.S. 28, 36-37), there is no authority permitting the prosecutor to use race and ethnicity ina deliberately unfair and impermissible manner,asit did in this case with respect to the Hispanic venirepersons on appellant’s jury. The result was the absence of any memberofthat group on the jury andthe selection of a biased jury. As the High Court said in Miller-El v. Dretke (2005) 545 USS. 231, quoted in People v. Johnson (2003) 30 Cal.4th 1302, 1327, 206 “(h]appenstanceis unlikely to produce [such a] disparity.” (See also People v. Hall (1983) 35 Cal.3d 161, 168-169 [disparate treatment ofjurors whodiffer only in ethnicity strongly suggestive of bias].) Asshownbythetranscript of voir dire in this case, the targeting of Hispanic prospective jurors involved a sustained and continuouseffort by the prosecutor who manifestly assumedthat all Hispanic prospective jurors were biased, either against the death penalty or perhapsin favorofthe defendants, who are also Hispanic. As this Court held in People v. Johnson (1989) 47 Cal.3d 1194, 1215, “[g]roup bias is a presumption that certain jurors are biased merely because they are membersofan identifiable group distinguished onracial, religious, ethnic or similar grounds.” Here, the improperuse of race and ethnicity by the prosecutor during jury selection wasneither brief nor isolated and should not go unaddressed by this Court. If the fact that a jury included membersof a group allegedly discriminated against may appropriately be considered in determining prosecutorial good faith respecting issues of race prejudice or bias (People v. Ward (2005) 36 Cal.4th 186, 203), the opposite should also follow. Thus, the District Attorney’s clear targeting of Hispanics for removal should also be considered in assessing the prosecutor’s goodfaith asit relates to impermissible race and ethnic considerations in jury selection. All persons, including Hispanic prospective jurors called to serve in 207 -appellant’s case, were entitled to equal treatment regardless of race or ethnicity, yet no Hispanic wasselected to serve on appellant’s jury. (See People v. Jones (1962) 205 Cal.App.2d 460, 465-466, cited with approval in People v. Cudjo, supra, 6 Cal.4th 585, 626 at fn. 8.) Through juror questionnaire questions on race and ethnicity (see ArgumentI, supra) and by the District Attorney’s repeated and selective targeting of Hispanic venire members for more intrusive and extensive questioning during voir dire, a nonrepresentative, biased jury was selected (see Argument VIII, infra) to try appellant’s cause. The prosecutor’s tactics manifested an attitude of racial and ethnic discrimination that amounted to misconduct underthe circumstancesofthis case. 2. The prosecutor repeatedly vouched for the credibility and truthfulness of accomplice Jose Munoz During opening statement, after discussing the three murders and the other crimes with which appellant was charged, Deputy District Attorney Westreferred to Jose Munoz’ interrogation by police, asserting that he initially lied but “then he just broke.” (31 RT 4923.) Continuingin this vein, West asserted: [Munoz] told them everything that he knew about these carjackings. Hetold them everything about the Lake Mathews double [murder], Joey Mans and Jimmy -- Timothy Jones. He told 208 them about [Jose] Aragon. He told them about Mills. And he told about Christopher Self. He told about Gene Romero, and about Danny Chavez. He told essentially what I have beentelling you. (31 RT 4923.) Elsewherein his opening statement, Deputy District Attorney West again vouched for the truth of Jose Munoz’ testimony,asserting as follows: You’re going to hear from an eyewitness who wasat all the murders, and the attempt murders. Now, as we talked about before, who can an eyewitness be when all the innocent people are dead? Whoisleft to tell you what happened? One of the people is guilty. You will hear from Jose Munoz. Jose Munoz has agreed to testify truthfully in exchangefor a deal... He will tell you that he understands that his deal, such asit is, is only good if he testifies truthfully. And he takes that very seriously, because nine months after the arrests there was the crime that we did not know abut. He knew aboutit, the defendants knew about it. But we had not linked it up. Because he was afraid that we would find out about that independently of him and revoke his deal, he brought it up on his own, nine months after the fact, nine months after the arrest, nine months after his initial statement. Hetold us about Paulita William, ... . 209 He knowsthat his deal is only goodif he testifies truthfully. ... (31 RT 4925-4926.) During closing argument, Deputy District Attorney discussed the Mills-Ewy shooting and again vouchedforthe truth of Jose Munoz’ testimony as follows: From the very beginning he said that’s what happened. And who would make a story like that up? Who would make it up? ... Why would he make up somestory like somebody leaning out the window and shooting over the car? He would know that that wouldn’t fit anything. If he were inclined to like in that manner, he would have just said that was Chris Self sitting in that seat with a shotgun. He would have blamed Chris Self. He would have just switchedplaces. He wouldn’t have comeup with this leaning out of the car business. OK Onefinal point about this. Munozis the first person to ever mention this incident. When he was being interviewed, the officers didn’t know -- didn’t even know aboutthis incident. ... And I would submit he did because he knew he wasn’t the one that hadfired the shotgun.... (45 RT 6724-6725.) 210 These were notbrief, passing references to the importance of Munoz’ testimony, but exhortationsto the jury to believe Munoz because the prosecutor said he wastruthful. During his closing argument, the prosecutor asked and answered his own question: “Should you believe Munoz?”“I submit to you that he was frank and straightforward abouthis life and about what he did and what he saw. ... [Y]ou should believe him because “his testimony”is consistent with what the other evidence is showing you, and with things that he has said before.” (45 RT 6738-6739.) Referring to Munoz’ first interview with police, the prosecutor asserted that they wanted the truth from him.(45 RT 6742.) “I would submit he wastoo scared to be making the thing up as he went along.” (45 RT 6742.) Again referringto the first interview, prosecutor West asserted, “I would submit there comes a point with some people where they just break, and he broke, and he wasn’t able to think of things -- he wasn’t able to think of lies fast enough, so he told thetruth.” (45 RT 6743.) Still again, West vouched for Munoz: “Thank God for Munoz. ... His testimony will help you in knowing what occurred so that you can do justice.” (45 RT 6750.) Generally, “doubts about the credibility of [an] in-court witness should beleft for the jury’s resolution.” (People v. Cudjo, supra, 6 Cal. 4th at p. 609.) It is thus well-settled that the attempt to bolster a witness’s 211 credibility constitutes prosecutorial vouching and is improper. (Peoplev. Frye (1998) 18 Cal.4th 894, 975; People v. Turner (2004) 34 Cal.4th 406, 431 [prosecutor improperly vouched for credibility of court-appointed experts in competency hearing on basis of facts outside record, consisting of his personal knowledge of those experts andhis prior use of them]; People v. Hill (1998) 17 Cal.4th 800, 828 [prosecutor may not go beyond the evidence in his argumentto the jury].) Improper vouching for the strength of the prosecution’s case involves an attempt to bolster a witness by referenceto facts outside the record. (People v. Williams (1997) 16 Cal.4th 153, 257.) It is thus misconduct for prosecutors to vouch for the strength of their cases by invoking the prestige or reputation of their office by offering the impression that he has taken steps to assure a witness’s truthfulnessat trial. (See,e.g., People v. Ayala (2000) 24 Cal.4th 243, 288; People v. Medina (1995) 11 Cal.4th 694, 756-758.) It is also improperfor the prosecutor to argue based on his experience with people and witnesses, implying superior knowledge about witness credibility or veracity from sources unavailableto the jury. (People v. Bolton (1979) 23 Cal.3d 208, 213 The United States Court of Appeals also has addressed the issue of improper vouching in a numberofdecisions. In United States vy. Frederick (9th Cir. 1996) 78 F.2d 1370, 1378, the Court of Appeals for the Ninth 212 Circuit restated the rule as follows: “The Ninth Circuit rule on vouchingis clearly expressed in United States v. Roberts (9th Cir. 1980) 618 F.2d 530, cert. denied (1981) 452 U.S. 942). It is improper for the prosecution to vouch for the credibility of a government witness.” In Roberts, the Court of Appeals emphasized: Vouching may occur in two ways: the prosecution may place the prestige of the government behind the witness or may indicate that information not presented to the jury supports the witness’s testimony. Thefirst type of vouching involves personal assurances of a witness’s veracity ... . The second type of vouching involves prosecutorial remarks that bolster a witness’s credibility by reference to matters outside the record. It may occur more subtly than personal vouching, and is also more susceptible to abuse. (Id. at 533.) See also United States v. Sarkisian (9th Cir, 1999) 197 F.3d 966, 989-990; United States v. Jackson (9th Cir. 1996) 84 F.3d 1154, 1158, cert. denied, (1996) 519 U.S. 986; United States v. Sanchez (9th Cir. 1999) 176 F.3d 1214, 1224. Althoughhere, the prosecutor disclosed and discussed the terms of Jose Munoz’ the plea agreement in accordance with his obligation to disclose to the jury any inducements madeto a prosecution witnessto testify (People v. Morris (1988) 46 Cal. 3d 1, 24-34), the prosecutor went 213 far beyondreference to the facts of this case orto the precise termsofthe agreement with Munozin orderto aid the jury’s evaluation of his credibility. During argumentto the jury, Deputy District Attorney West repeatedly referred to Jose Munoz’ testimony and asked, “Did Munoz come in andtestify truthfully?” (45 RT 6791.) Page after page of the prosecutor’s argument was devotedto assertionsofhis belief in the veracity and credibility of Jose Munoz. (See, for example, 45 RT 6791-6794.) The prosecutor repeatedly asserted, “What you got from Munoz was the evidence. And you knowthatthat’s true.” (45 RT 6794.) Referring to the Paulita Williams shooting, Deputy District Attorney stated, “I would submit that he wastelling you aboutthe things he did,... .” (45 RT 6795.) The prosecutor also repeatedly told the jury that Munoz was obligated under his plea agreementtotell the truth or suffer its revocation. The prosecutor explicitly stated that his office had ways-- not disclosed to the jury -- of determining whether Munoz wastelling the truth in his testimony. Asstated by the prosecutor, the deal with Munoz wasnot going to be revoked, becausehe-- the prosecutor -- knew andbelievedthat Munoz hadtold the truth in his testimonyattrial. By virtue of these statements, the prosecutor intended that the jury should give credence to Munoz becauseofhis (the prosecutor’s) special knowledge and 214 information. These assertions crossed the line of proper argument by suggesting both that a determination had been made that Munoz wastelling the truth and that the prosecutor’s office was privy to information bearing on Munoz’ veracity not admitted at trial. Without any doubt, the prosecutor invokedthe prestige and reputation ofhis office, offering the impression that he had taken steps to assure Jose Munoz’ truthfulnessat trial and personally believed as well that Munoz wastelling the truth in his accomplice testimonyat trial. Thus, the prosecutor committed both types of improper vouching discussed by the Ninth Circuit in Roberts. By his remarks, the prosecutor intended the jury to believe that additional inculpatory evidence to support Munoz’ veracity, known only to the prosecution, had been withheld from them.(See,e.g., People v. Green (1980) 27 Cal.3d 1, 35.) Such argument was manifestly improper. (People v. Boyd (1990) 222 Cal.App.3d 541, 571.) Prosecutorial vouching constitutes both a deceptive and reprehensible method employedby the prosecution to persuade the jury to convict. This is particularly true in this case where the prosecutor vouched for and gave his personal endorsementof the most crucial prosecution witness without whose testimony appellant could not have been convicted on virtually every count. /// 215 3. The prosecutor repeatedly misrepresented the nature of mitigation evidence, improperly insinuated that appellant bore a burden of proofas to mitigation, and insinuated that the absence of mitigating evidenceofthe sort described by the prosecutor might amount to aggravation During jury selection both defense counsel and the prosecutor were permitted to voir dire the jury. Aspart of his voir dire, Deputy District Attorney West offered introductory remarks to every group ofprospective jurors. In his remarks, West described guilt and penalty phasesoftrial in the event that the jury convicted appellant of murder and found one or more special circumstancesto be true. West then discussed the penalty trial and the nature of aggravating and mitigating evidence. In respect to mitigating evidence, Deputy District Attorney repeatedly committed misconduct by erroneously characterizing the nature mitigation evidence: You may hear evidence in mitigation, things, perhaps the defendant was a war hero. Perhaps he savedhis platoon in the Persian Gulf and received a Silver Star. Perhaps he once pulled a family from a burning car. Perhaps he once gave bone marrow in a transplant so that a child could survive. Perhaps you may hear evidence that would make you have sympathy for him, all of which you can consider in making your [penalty] decisions. And there is only one decision to make when you are in the penalty phase, that is between life without parole or 216 death. There is no other option in the penalty phase. (23 RT 3765-3766.) In the same vein, the prosecutor described to other prospective Jurors, including Jurors Nos. 8 and 14 (see 24 RT 3873-3874), the following erroneousnature of mitigating evidence: You can also hear evidence of a mitigating nature about the defendant. Perhaps one time he pulled a family out of a burning car; perhaps he once was a bone marrow donor; maybe he was a war hero; maybe he wasa soccer coach and a Scout leader and had a positive effect on young people. (23 RT 3903.) To prospective jurors, including Jurors Nos. 1 and 5 (see 25 RT 4015), the prosecutorstated : In mitigating evidence, you can hear evidence that may militate towards life without parole. Perhaps the defendant was a war hero, perhaps he was a soccer coach, perhaps he once pulled a family out of a burning house, or something like that. (25 RT 4047.) In discussing factors or circumstances to prospective jurors during voir dire, including Juror No. 11 (see 25 RT 4092), the prosecutorstated: 217 You can consider evidence in mitigation. Some examples of mitigating evidence might be that the defendant was a soccer coach or he was a Scout leader and had a good effect on young men. Perhaps he served his country in the military. Maybe he went to the Gulf War or somethinglike that. (25 RT 4126; see also 26 RT 4210 [where prosecutor made virtually same comments to prospective juror, including Jurors No. 3, 16, and 17].) In discussing factors or circumstancesin mitigation to the group of prospective jurors that included Juror No. 12 (see 27 RT 4319), the prosecutorstated: You also have the opportunity to hear mitigating evidence, evidence that would tend to reflect well on the defendant, to help you make a choice between death and life without parole. Perhaps he was a war hero. Perhaps he once pulled a family out of a buming car. Maybe he was a Scout leader and had a goodeffect on young men’s lives. You may have the opportunity to hear evidence that may make you tend to feel sympathy for him, all of which [you] can consider in determining between life without parole and death. (27 RT 4402.) In discussing factors or circumstances in mitigation to the group of prospective jurors that included Juror No. 1 (see 28 RT 4513), the 218 prosecutorstated: You have the opportunity to hear mitigating evidence, things favorable to him. Maybe he was a youth soccer coach and had a positive impact on young people. Maybe he was a Scout leader, maybe he served his country in the armed forces, something like that, which would reflect well on him, Perhaps you would hear things calculated for you to have sympathy for him. All of these things can be considered in making your decision between death and life withoutparole. (28RT 4541-4542.) In discussing factors or circumstances in mitigation to the group of prospective jurors that included Juror No. 15 (see 28 RT 4576), the prosecutorstated: You can hear factors in mitigation, or mitigating circumstances, things that would tend to reflect well on the defendant. Perhaps he was a Scout leader and had a good effect on young boys, or he wasa Little League coach. Perhaps he once saved somebody from a burning building. Perhaps he served his country in the military. You may hear things that are -- that would tend to provoke you to sympathy for the defendant, all of which you can consider and weigh against the aggravating evidence in making your decision here. (29 RT 4612.) 219 It is well-settled that neither the prosecution nor the defense has the burden of proof in the penalty phase of a capitaltrial. (People v. Daniels (1991) 52 Cal.3d 815, 890.) As held by this Court in People v. Rodrigues (1994) 8 Cal.4th 1060, 1190-1191, there is no statutory or constitutional duty to instruct on the prosecutorial burden at the penalty phaseofa capital trial. As the Court further explained in People v. Carpenter (1997) 15 Cal.4th 312, 417 and People v. Bonillas (1989) 48 Cal.3d 757, 790, because capital sentencing is a moral and normative process,it is not necessary to give instructions associated with the usual fact-finding process. Precisely becausethere is no burden ofproof, the jury being the “final sentencer” (Walton v. Arizona (1990) 497 U.S. 639, 653), it is crucial that the jurors be properly informed abouttheirrole, as well as aggravation and mitigation,at all stages ofthe trial and not be misled regarding the sentencing process. Consequently,the Eighth Amendment’s cruel and unusual punishmentclause and the Fourteenth Amendment’s due processclause, as construed in Lockett v. Ohio (1978) 438 U.S. 586, 604, generally require that the jury “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendantproffers as a basis for a sentence less than death.” In the capital sentencing schemein effect in this state, jurors are 220 permitted individually to decide each question relevant to the penalty decision. (See People v. Breaux (1991) 1 Cal.4th 281, 314.) Thus, the mannerin whichthe state argues mitigation has tremendousandcritical impact on the jury’s sentencing determination. Here, the prosecutor’s repeated statements about mitigation to prospective jurors during voir dire andto sitting jurors at trial were highly misleading and improper . These statements permitted the jury to infer that only highly or strongly mitigating evidence would be worthy of consideration in deciding penalty and that appellant was required to introduce strong and compelling evidence of mitigation to counter any evidence in aggravation to establish that he did not warrant death in this case. Thus, not only did the prosecutor mislead the jury as to the nature of mitigating evidence, he improperly insinuated by his commentsthat appellant somehow bore a heavy burden ofproof in order to obtain a sentence less than death -- a burden that did not exist. The prosecutor’s statements to prospective jurors in this case were prejudicially misleading because they set forth an unconstitutionally high standard in defining “mitigation.” By the very nature of the prosecutor’s comments duringjury selection, it is more than reasonablylikely that the jury later applied his remarks in a way that prevented the consideration of constitutionally relevant evidence. (Boyde v. California (1990) 494 U.S. 221 370, 380.) _ In his statements,the prosecutor repeatedly departed from the language of section 190.3, factor(k), effectively urging the jury to disregard the mitigating evidence presented by appellant. The prosecutor’s examples of mitigating circumstances purposely and impermissibly “set the bar” too high, a tactic designed to undermine appellant’s evidence and to characterize him as unworthy ofthe jury’s consideration or of a sentence less than death. Each of the prosecutor’s examples involved an extreme circumstance that the prosecutor knew to be inapplicable to appellant, in theory andin fact. The mitigation presented by appellant included,in part, evidence of his deprived and difficult childhood, the hardships endured by his mother in raising appellant and his brothers, his interest and talent in art, and the fact that his family continued to care for him. All of this evidence qualified as mitigation under section 190.3. (Lockett v. Ohio, supra, 438 U.S.at p. 604). Indeed, in Tennard v. Dretke (2004) 542 U.S. 274, the United States Supreme Court noted that “‘[rJelevant mitigating evidenceis evidence which tendslogically to prove or disprove somefact or circumstance which a fact-finder could reasonably deem to have mitigating value.’”(/d.at p. 284, quoting McKoy v. North Carolina (1990) 494 U.S. 433, 440-441.) Moreover, a fundamental principle in capital casesis that the Eighth 222 Amendmentrequirementofreliability in the penalty determination requires that the jury consider and give effect to all mitigating circumstances surrounding the individual accused. (Skipper v. South Carolina (1986) 476 USS. 1, 4-8; Eddings v. Oklahoma (1982) 455 U.S. 104, 110.) As emphasizedbythis Court, “a sentencing jury may ‘not be precluded from considering as a mitigating factor, any aspect ofa defendant’s character or record and anyof the circumstances of the offense that the defendant proffers as a basisfor a sentence less than death.’” (People v. Easley (1983) 34 Cal.3d 858, 877-878; see also § 190.3, subd. (k).) Based on prosecutor’s definition of mitigation in appellant’s case, it was morelikely than not that none of appellant’s penalty phase evidence was given mitigating effect. Because each of the hypothetical defendants presented in the prosecutor’s examples was so extremein its inapplicability to appellant, it is more than reasonably likely that the jurors believed they could not consider evidence presented by appellant as mitigating unlessit was similarly dramatic. In other words, the prosecutor’s extreme examples distorted “reasonableness” within the meaning of Tennard v. Dretke, supra, 542 US. at p. 284, and McKoy v. North Carolina, supra, 494 U.S.at pp. 440-441. (See Coleman v. Calderon (9th Cir. 2000) 210 F.3d 1047, 1051.) His closing argument exacerbated the prejudicial impact of his improper statements during jury selection by referring dismissively to appellant’s 223 artwork,to testimony of appellant’s mother and cousin, and to the factthat, in essence, appellant had done nothing of import in his life. (See Coleman v. Calderon, supra, 210 F.3d at p. 1051.) Underthese circumstances, there is a reasonable likelihood that the prosecutor’s statements during jury selection, coupled with his closing argumentat the penalty trial, misled the jurors as to what validly constituted mitigating evidence. This improper conducteffectively precluded them from giving effect to the evidence presented by appellant in his penalty trial. While it must be presumed that the jury followedthetrial court’s instructions, the prejudicial impact of the prosecutor’s argument cannot be denied. (People v. Hardy (1992) 2 Cal.4th 86, 208.) In Dardenv. Wainwright (1986) 477 U.S. 168, 181, the United States Supreme Court held that the due process clause requires reversal of a conviction when the prosecutor’s comments so infected the trial with unfairness as to make the resulting conviction a denial of due process. Here, because the prosecutor’s remarks occurred so early in thetrial, they undoubtedly prejudiced the jurors’ perceptions of both appellant and the nature of mitigating evidence throughoutthe entiretrial. This error was not cured by anyofthe instructionsactually given by the trial court. CALJIC No. 8.88 informed the jury that “[a] mitigating circumstance is any fact, condition, or event which as such, does not 224 constitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty.” Based on the prosecutor’s earlier comments at the beginningoftrial, the jury likely concluded that any such “fact, condition or event” had to be as extremeas the prosecutor’s examples even to be considered. Thus, the prosecutor’s statements, repeated throughoutvoir dire, violated appellant’s constitutional rights to due process, a fair trial, and a reliable penalty determination as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and their state constitutional analogues. Appellant acknowledgesthat in People v. Seaton (2001) 26 Cal.4th 598, also a Riverside case, the prosecutor also used language similar to the prosecutor’s remarksin the present case. During voirdire, as here, to illustrate mitigating evidence, the prosecutor also repeatedly mentioned a hypothetical defendant who had received the Congressional Medal of Honor,was a war hero, or had saved someone’s life. (/d. at p. 635.) Relying on (and quoting) People v. Medina, supra, 11 Cal.4th at p. 741, where the prosecutor gaveillustrations similar to those used in Seaton, the Court stated: “The prosecutor’s statements, though somewhat simplistic, were not legally erroneous, and defendant had ample opportunity to correct, clarify, or amplify the prosecutor’s remarks through 225 his own voir dire questions and comments. [P] Moreover, as a general matter, it is unlikely that errors or misconduct occurring during voir dire questioning will unduly influence the jury’s verdict in the case. Any such errors or misconduct ‘prior to the presentation of argumentor evidence, obviously reach the jury panel at a muchlesscritical phase of the proceedings, before its attention has even begun to focus upon the penalty issue confrontingit.’” (/d. at p. 636) The Court’s rulings in both Medina and Seaton on this point should be reexamined. The Court’s premise in Medina (People v. Medina, supra, 11 Cal.4th at p. 741), that prosecutorial statements are unlikely to affect or unduly influence a jury’s verdict, is speculative and unsupported either by empirical evidence or decisional law. Moreover, neither the Medina northe Seaton Court addressed the more fundamental objections to the prosecutor’s statements which,as in appellant’s case, impacted not only the burden of proofas to evidence in aggravation and mitigation, but also permitted the jury to infer that the absence of the noble circumstances in mitigation described by the prosecutor could never overcomethe circumstances in aggravation. C. Appellant Was Prejudiced by the Prosecutor’s Misconduct Prosecutorial misconduct implies the use of deceptive methodsto attempt to persuadethetrier of fact. (People v. Strickland (1974) 11 Cal.3d 226 946, 955.) Crucial to a claim of prosecutorial misconduct1s not the good faith of the prosecutor butthe potential injury to the defendant. (People v. Benson (1990) 52 Cal.3d 754, 793.) Indeed, an appellant need not show that the prosecutor acted in bad faith or with appreciation ofthe wrongfulness of the conduct, nor is a claim of prosecutorial misconduct defeated by a showingofthe prosecutor’s subjective good faith. (Peoplev. Bolton, supra, 23 Cal.3d at p. 214; People v. Price (1991) 1 Cal.4th 324, 447.) Because the misconductin this case necessarily impacted, interalia, appellant’s rights to fair trial by a Jury representative of the cross-section of the community, due process, the effective assistance of counsel, equal protection, and a reliable determination of guilt and penalty guaranteed by the Fifth, Sixth, Eighth, Fourteenth Amendmentsto the United States Constitution, as discussed in Subsection D,infra, the harmlesserror standard articulated in People v. Watson, supra, does not apply. In Chapmanv. California, supra, 386 U.S. 18, the United States Supreme Court madeit clear that before a federal constitutional error can be held harmless, the reviewing court must be able to declare a belief that it was harmless beyond a reasonable doubt. The Chapmantest also requires the reviewing court to consider the entire record as a whole. (United States v. Hasting (1983) 461 U.S. 499, 509.) 227 In People v. Barnett, supra, 17 Cal.4th at p. 1133, this Court held that a defendant’s conviction will not be reversed for prosecutorial misconduct unlessit is “reasonably probable”that a result more favorable to the defendant would have been reached without the misconduct. (See also People v. Cummings (1993) 4 Cal.4th 1233, 1303.) In this case, not only was there a “reasonable probability” that the jury misconstrued and misapplied the prosecutor’s improper and impermissible statements and conduct, the error could not have been harmless beyond a reasonable doubt. The numerousinstances of improper misconductrevealed a prosecutor bent on selecting a biased jury (see Argument VIH, infra) and convicting and imposing a death sentence on appellant at all costs. Although a partisan advocate for a particular point of view,(see Howitt v. Superior Court (1992) 3 Cal.App.4th 1575, 1585), the prosecutor here engaged in wide-ranging misconductfrom the very beginningto the endoftrial, designed to affect not only the composition ofthe jury, but also the jury’s determination of guilt and sentence. The prosecutor repeatedly targeted virtually every Hispanic prospective jurors during voirdire, infecting all other jurors present with notionsofracial and ethnic prejudice against Hispanics. The targeting of Hispanic prospective jurors both tainted the jury selection process andsurely affected the jury’s deliberations 228 as to both guilt and penalty. As previously noted by the United States Supreme Court, “because of the range of discretion entrusted to a jury ina capital sentencing hearing, there is a unique opportunity for racial prejudice to operate.” (Turner v. Murray, supra, 476 U.S. at pp. 30-31.) By targeting Hispanic prospective jurors during voirdire, the prosecutorfacilitated the selection of a biased guilt and penalty jury and encouragedracial and ethnic prejudice against appellant, whois also Hispanic. Against this backdrop ofracial and ethnic discrimination directed at Hispanics, the prosecutor also repeatedly mischaracterized the nature of mitigating evidence during voir dire, implying that the absence of mitigating factors as described by him might be considered evidence in aggravation and, furthermore, that appellant bore a nonexistent burden of proof that subjected him to execution if he failed to meet it. Finally, the prosecutor repeatedly vouched for the credibility of his key witness, who was an accompliceto virtually every crime with which appellant was charged and whosecredibility was essential to the state’s successful conviction of appellantin this case. The instances of misconductcited by appellant did not occur sporadically during the trial. Rather, throughoutthe courseofthetrial as a whole the prosecutor intentionally engaged in these impropertactics, the very purpose of which wasto influence and inflamethe jury against 229 appellant, improperly to embellish the evidence of guilt, and to skew the jury’s determination ofpenalty toward death. Whether viewed separately or cumulatively, the prosecutor’s racial and ethnic bias toward Hispanics, exacerbated by his improper conduct, and insinuations prejudiced appellant’s state and federal constitutional rights. The several acts of misconduct could only have been understood by the jury to mean that appellant, as an Hispanic, was guilty and deserving of death. The prosecutor’s misconduct was pervasive and ongoing and cannotfairly be characterized as “isolated instances”in a lengthy and otherwise well- conducted trial. (See People v. Bonin (1988) 46 Cal.3d 659, 690.) Whenthe entire range of misconductis consideredin light of the record as a whole, there was a reasonable likelihood that the jury’s guilt and penalty deliberations were adversely affected by the prosecutor’s misconduct. Moreover, the prosecutor’s misconduct during jury selection and during the guilt trial contributed to the jury’s verdict in the subsequent penalty trial. Even underthe traditional Watson test, which asks whether the misconduct “helped secure [the] convictions” (People v. Hayes (1989) 49 Cal.3d 1260, 1270), or, whetherit is reasonably probable the verdict was thereby affected (People v. Watson, supra, 46 Cal.2d at p. 836), surely the answer must be in the affirmative and the misconduct deemedprejudicial in 230 this case. Racial and ethnic discrimination should have played norole in the selection of appellant’s jury. Most of the seated jurors and alternates were witnessesto the targeting of Hispanic prospective jurors by the prosecutor during jury selection. Such targeting of Hispanic prospective jurors in the presence of other prospective jurors was no accident, as appellant was himself Hispanic. No Hispanics were represented on appellant’s jury, and the jury ultimately selected was obviously biased (see ArgumentVIII, infra). Other than Jose Munoz, there were no eyewitnesses to mostofthe charged crimes. Asto the murders, appellant’s role and participation were detailed only by Munoz. The prosecution’s case waslargely based on circumstantial evidence and the testimony of an accomplice and fellow- murderer. Through his repeated acts of misconduct, including vouching for the credibility and truthfulness of Jose Munoz, the prosecutor improperly skewed the jury’s guilt and penalty deliberations. Asa result of this misconduct, appellant was denied due process and the full panoply of his rights underthe state and federal constitutions. By any measure, the several and cumulative acts of misconduct committed by the prosecutor cannot be deemed harmless. The reversal of a criminal judgment based on prosecutorial misconductis not designed to punish prosecutors butto protect the fair 231 trial, due process, and other constitutional and statutory rights of defendants. (People v. Bolton, supra, 23 Cal.3d at p. 214; see also Peoplev. Turner (1983) 145 Cal.App.3d 658, 678.) The actions of the prosecutor in this case undermined appellant’s fundamental constitutional rights, and improperly prejudiced the jury against appellant. Considering the nature and substance of the prosecution’s case against appellant and the reasons advanced for death, there was more than a reasonable possibility the misconductinfluenced the verdicts in this case. (People v. Jackson (1996) 13 Cal.4th 1164, 1240; People v. Cain (1995) 10 Cal.4th 1, 79.) In People v. Hill, supra, 17 Cal.4th at p. 819, this Court addressed the standard of review for prosecutorial misconductas follows: The applicable federal and state standards regarding prosecutorial misconduct are well established. “A prosecutor’s . . . intemperate behavior violates the federal Constitution whenit 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.’” Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Espinoza [1992] 3 Cal.4th [806], at p. 820.) 232 In summary,the targeting Hispanic prospective jurors during jury selection, the mischaracterization of the nature of mitigating penalty evidence, and the improper vouchingfor the credibility and truthfulness of Jose Munoz injected improperracial and ethnic bias into jury selection, resulted in the selection of a nonrepresentative and biasedjury. Individually and collectively, the District Attorney’s tactics constituted deceptive and reprehensible prosecutorial misconduct designed to persuade the jury to convict appellant and sentence him to death in violation ofstate law. (People v. Hill, supra, 17 Cal.4th at 819.) Additionally, by injecting impermissible racial and ethnic bias into jury selection, introducing the subject of punishment and penalty into the guilt phase, and improperly vouchingforthe credibility of the key prosecution witness, the District Attorney engaged in pattern of misconduct whichresulted in an unfairtrial by a biased and nonrepresentative jury. Appellant’s conviction and sentence were obtained in violation of due process and the full panoply of trial rights to which he wasentitled under the state and federal constitutions. (/d.) Accordingly, the judgment of conviction must be reversed. /// /// //1/ 233 D. The Prosecutor’s Misconduct Also Violated Appellant’s Rights to a Fair Trial by an Unbiased Jury Representative of the Cross-Section of the Community, Due Process, the Effective Assistance of Counsel, and to Reliable Determinations of Guilt and Penalty Guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution As noted by the United States Supreme Court, improper conduct by a prosecutor can “so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.” (Darden v. Wainwright, supra, 477 U.S. at p. 181; see also Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642; People v. Morales (2001) 25 Cal.4th 34, 44.) By repeatedly mischaracterizing the nature of mitigating evidence during voirdire, thereby implying that the absence of mitigating factors as described by the prosecutor might be considered evidence in aggravation and that appellant bore a nonexistent burden of proofin order to obtain a sentence less than death; by repeatedly targeting virtually every Hispanic prospective juror during voir dire, thereby tainting all other jurors present with notions of racial and ethnic prejudice against Hispanics andfacilitating the selection of a nonrepresentative and biased jury; and by repeatedly vouching for the credibility of accomplice and murderer Jose Munoz,the prosecutor engaged in a pattern of misconduct so pervasivethat it infected the integrity of the guilt and the reliability of the penalty proceedings. For the reasons discussed above, the prosecutor’s actions during voir dire andtrial 234 amounted to an egregious pattern of misconductthat rendered appellant’s trial fundamentally unfair in violation of appellant’s constitutional rights to a fair trial, due process, and a reliable determination of guilt guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) 235 Wi THE TRIAL COURT ERRED AND ABUSEDITS DISCRETIONIN DENYING SEVERANCE OF THE INFLAMMATORY MAGNOLIA CENTER INTERIORS BURGLARY AND VANDALISM COUNTS 11 AND 12 FROM ALL OTHER CHARGED CRIMES; DENIAL OF SEVERANCE UNDER THE CIRCUMSTANCESOF THIS CASE DENIED APPELLANTA FAIR TRIAL BY AN IMPARTIAL JURY AND DUE PROCESS OF LAW GUARANTEEDBY THEFIFTH, SIXTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION, AND PRODUCED AN UNRELIABLE DETERMINATION OF GUILT AND PENALTY ON ALL COUNTS IN VIOLATION OF THE EIGHTH AMENDMENTTO THE UNITED STATES CONSTITUTION A. Factual and Procedural Background Before trial, appellant moved to sever the three alleged murder and special circumstances counts from all other unrelated, non-capital counts. (6 CT 1216.) Appellant argued that joinderofall alleged counts substantially prejudiced him and underminedhis rights to a fair trial and due process of law on the capital charges. (6 CT 1216-1222.) Opposing appellant’s severance motion, the prosecution argued that all of the counts were connected together in their commission, involved the sameclass of crimes, and entailed “substantial” cross-admissibility of evidence. (6 RT 1207.) The prosecutor asserted that there was no undue prejudice from joining all offenses involving appellant and co-defendant Romero “becausetheir activities were horrible and inhuman.” (6 CT 1214.) According to the prosecutor’s argument, if appellant wanted to create a 236 more favorable impression with the jury, he should not have committed so many crimes. Finally, the prosecutor urged that “[a] jury’s righteous disapproval” of appellant’s activities did not constitute undue prejudice. (6 CT 1214-1215.) A hearing on appellant’s severance motion was held on March 14, 1996. (See 29 RT 4683.) At the hearing, appellant concededcross- admissibility of evidence. “No doubt the court would makea finding to that effect looking at the evidence that would be presented in manyofthese cases.” (29 RT 4684.) However, appellant stressed that severance should be granted to protect appellant’s rightsto a fair trial, because the evidence of all non-related crimes would likely overwhelm the jury when considering both appellant’s guilt and penalty for the alleged murders. (29 RT 4684.) Thetrial court denied appellant’s severance motion. The court noted that defense counsel had conceded cross-admissibility as to a “substantial amount”of the prosecution’s evidence. (29 RT 4688.) Finding that all of the crimes were of the sameclass and the evidence cross-admissible except as to counts 11 and 12 involving Magnolia Center Interiors (29 RT 4690- 4692), the court denied appellant’s severance motion asto all counts. In respect to burglary and vandalism counts 11 and 12, the court stated: 237 With regard to Counts 11 and 12, they are not of the same class of crimes as the other charges. This is the burglary and the vandalism charge. I note in regard to those two counts, and again, they are not part of the assaultive crimes against a person, and so therefore are unrelated to the other incidents, but they involved a burglary and extensive vandalism, painted graffiti stating “666,” “Now you die,” and “All shall die and live forever in flame,” and a sonogram of the owner’s unborn son which had been removed from his desk, stabbed with scissors, and had written upon it “Now youdie.” I would further note that there was strong evidence of the defendants’ involvement, the defendants’ involvement in this crime. The stolen items were found in the defendants’ house, Mr. Romero’s fingerprints were found on a piece of glass at the scene, the graffiti matched other graffiti by Self found in the Colt and in his automobile, and Mr. Self’s trademark “BK” tennis shoe print was found in the fire extinguisherdust. I don’t think it can be argued that the incident is significantly less inflammatory than the others, in that the sonogram is extremely inflammatory, that the evidence of these two offenses is significantly stronger or weaker than that of the others, or that this incident did not involve intent to feloniously obtain property. So I find a common thread running through all of the crimes including Counts 11 and 12, and that’s the felonious intent to obtain property. So therefore the motion to sever is hereby denied. (29 RT 4691-4692.) 238 Accordingly, as summarized in the Statement of Facts, supra, the prosecutor introduced evidenceattrial of appellant’s alleged involvement in the Magnolia Center Interiors burglary and vandalism. Owner James Murphytestified that on November 14, 1992 he discoveredthat his store in Riverside had been vandalized. A glass panel on the rear door had been broken, permitting entry. In addition to photographs of BK shoeprints linking appellant to the break-in, the prosecutor introduced other evidence showingthat the shop and office areas had been spray-painted and tagged with graffiti. Through other testimony and photographstaken by police investigating the burglary, the prosecutor sought to demonstrate that Murphy’s store had beenleft in shambles by the burglars. Office and other reupholstered customer furniture had been cutor sliced with scissors. Other items, including office furniture, copier, computers, fax machine, and telephones had been sprayed with glue, permanently damaging mostof the equipment. Murphytestified at trial that a set of keys to shop buildings and locks, coins from his desk, a dummy World WarII grenade, and a scorpion encased in Lucite were missing from the store. Other testimony was introduced to show thatall but one of the missing keys from Murphy’s business were found in appellant’s bedroom after hisarrest. Moresignificantly, Deputy District Attorney West presented 239 photographsofgraffiti left inside the store which included such expressions as a “sad place in hell see u there” and other references to the devil, death, and dying. Graffiti in block letters, similar in format andstyle to graffiti allegedly made by appellant and discoveredafter his arrest, included a drawing of what appearedto be a flower and the number“666”-- apparently a commonly knownor understood reference to satanism. The 99 66bathroom toilet was tagged with “now you die,” “now 1s then,” and “67.” In what was byfar the most inflammatory testimony, Murphy was permitted to describe that a sonogram of his unborn son had been removed from its frame and stabbed with a pencil or scissors. He described how the phrase, “You’re going to die,” was written on the sonogram ofhis then unborn son. A photograph of the defaced sonogram wasintroducedinto evidence and shownto thejury. Contrary to his original theory of admissibility, the prosecutor did not argue that the Magnolia Center Interiors helped prove a commonplan, scheme, or motive, intent, or identity connecting appellant and codefendant Romeroto the capital murders. Rather, the prosecutor arguedthat the Magnolia Center Interiors burglary and vandalism showedthe nature of appellant’s character and his propensity for violence. In referring to the burglary and vandalism during closing argument, the prosecutor argued only that: 240 One of the things that is so instructive about Magnolia Interiors, even thoughit’s just a burglary, and a burglary pales in comparison to the other crimes that he is accused of, but it’s a burglary and a vandalism that are completely about destruction, destroying things, scaring people, taking glue and spraying it into computers, writing, “See you in hell. Sad day in hell. 666.” It’s a case where the sonogram of an unborn child is stabbed with scissors and written on it, “Now you die.” That little burglary teaches us lot about Mr.Self. ... (45 RT 6703.) B. Joinder, Generally Penal Code section 954 authorizes the state to join two or more offenses of the sameclass of crime in one pleading, subject to trial court’s authority to order separate trials. A trial court should exercise this authority whennecessary to accord a criminal defendant the fundamentalrights to due process and fair trial. (Williams v. Superior Court (1984) 36 Cal.3d 441,448.) For example, joinderis preferable when consolidating charges will avoid harassment of the defendantor the waste of public funds involved in placing the same general facts before different Juries. (See People v. Ochoa (1998) 19 Cal.4th 353, 408.) Thefact that joinder may be preferable does not meanthat it is acceptablein all circumstances. Severance may be constitutionally 241 compelled ifjoinder would be so prejudicial as to deny the defendanthis Fifth and Fourteenth Amendmentrights to a fair trial. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1243-1244; see United States v. Lane (1985) 474 U.S. 438, 446, fn. 8.) The concept that a consolidated trial may deprive a defendant of due process has been long-recognizedin thisstate. (See Jn re Anthony T. (1980) 112 Cal.App.3d 92, 101-102; People v. Burns (1969) 270 Cal.App.2d 238, 252.) The decision whetherto join or sever counts is within thetrial court’s discretion. (See People v. Carter (2005) 36 Cal.4th 1114, 1154 [in reviewing denial of severance motion, court applies “the familiar standard of review providingthat the trial court’s ruling maybe reversed onlyif the court has abusedits discretion]; People v. Cummings (1993) 4 Cal.4th 1233, 1284 [denial of severance reviewedfor abuse of discretion].) Fourfactors havetraditionally been used to assess whethera trial court’s refusal to sever counts constituted an abuse of discretion. An abuse of discretion may be found where (1) evidenceof the jointly-tried crimes would not be cross-admissible at separate trials; (2) certain of the charges are unusually likely to inflamethe jury against the defendant; (3) a weak case has been joined with a strong caseso that the spillover effect of aggregate evidence on several charges mightalter the outcome of some or all of the charges; and (4) any oneofthe charges carries the death penalty 242 or joinder of them turns the matter into a capital case. (People v. Sandoval (1992) 4 Cal.4th 155, 172-173; see Williams v. Superior Court, supra, 36 Cal.3d at p. 454 [exercise of discretion viewed with highest degree of scrutiny where joinderitself gives rise to special circumstanceallegation of multiple murder].) Overall, the test is a simple one. A court should order separatetrials of otherwise joinable offenses when it appears that severance is required in the interest ofjustice. (People v. Bean (1988) 46 Cal.3d 919, 935.) Severance “may be necessary in somecasesto satisfy the overriding constitutional guaranty of due process to ensure defendantsa fairtrial.” (/d.) Thus, the criteria developed by appellate courts may be ofaid in arriving at the ultimate decision regarding whetherto severor join offenses, but the final test is whether a denial of severance, or the granting ofjoinder, denied the defendanta fairtrial. The burdenis on the defendant to demonstrate a clear showing of potential prejudice arising from the trial court’s order granting consolidation or denying severance. (People v. Osband (1996) 13 Cal.4th 622, 666.) Essentially, assuming the lack of cross-admissibility,this determination revolves aroundthe likelihood of whether a jury not otherwise convinced beyond a reasonable doubtof the defendant’s guilt of one of the charged offenses might permit the knowledge of the other 243 charged offensesto tip the balance so that it convicts the defendant. (People v. Bean, supra, 46 Cal.3d at p. 936.) Additionally, even if it was not an abuse ofdiscretion forthetrial court to deny a motion to sever counts, reversal maystill be required if consolidation resulted in gross unfairness amounting to a denial of due process. (People v. Arias (1996) 13 Cal.4th 92, 127.) This due process principle is also acknowledged bythe federal courts. For misjoinder of counts to be reversible error under federal constitutional law, the consolidation must have resulted in prejudice so great that it denied the defendanta fair trial. (United States v. Lane, supra, 474 U.S.at p. 445, fn. 8; Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073, 1083.) Thus, as noted by the Court of Appeal in People v. Grant (2003) 113 Cal.App.3d 579 (discussing and quoting Lane and Bean), error involving misjoinderaffects substantial rights and requires reversalif it results in actual prejudice becauseit had substantial and injurious effect or influence in determining the jury’s verdict. (/d. at p. 587.) In making this determination, the reviewing court looks at each count separately to decide if the trial of one count was rendered unfair becauseofthe joinder of that count with one or more ofthe other counts. (Park v. California (9th Cir. 2000) 202 F.3d 1146, 1149.) In Bean v. Calderon, supra, for example, the defendant wastried and 244 convicted for the murders of Beth Schatz and Eileen Fox. The murders occurred three days apart and under similar yet distinct circumstances. The court reversed the defendant’s conviction for the Fox murder, for several reasons. First, the evidence on the two murder charges wasnotcross- admissible, because there was insufficient evidence of a common modus operandi. Second, the prosecution repeatedly urged the jury to consider the two sets of charges in concert. Third, referencing the trial court’s acknowledgementthat the offenses evinced “considerable similarity,” the Ninth Circuit faulted the trial court for failing to instruct the jury that it could not consider the evidence on one charge in determining the defendant’s guilt on the other. Fourth, the evidence that the defendant murdered Schatz wassignificantly stronger than the evidence that he murdered Fox. Based onall these factors, the Bean Court held that the defendant had been denieda fair trial. (/d. at pp. 1084-1086.) The federal courts have thus recognized the high risk of prejudice that ensues when the consolidation of counts permits evidence of other crimesto be introducedin a trial of charges with respect to which the evidence would otherwise be inadmissible. (See Bean v. Calderon, supra, 163 F.3d at p. 1084.) This risk exists because jurors at a joint trial cannot adequately compartmentalize damaging information about the defendant; thus, a joint trial often prejudices the jurors’ conceptions of the defendant 245 and of the strength of the evidence against him or her on each ofthe counts. (United States y. Lewis (9th Cir. 1986) 787 F.2d 1318, 1322.) Also, jurors are prone to regard a defendant charged with multiple crimes with a more jaundiced eye, and to conclude that the defendant must be bad to have been charged with so many offenses. Thus, they may improperly convict on one count based on evidence which only applies to another count. (United States vy. Ragghianti (9th Cir. 1975) 527 F.2d 586, 587; United Statesv. Smith (2nd Cir. 1940) 112 F.2d 83, 85; United States v. Lotsch (2nd Cir. 1939) 102 F.2d 35, 36; see also ArgumentVI, infra.) C. The Trial Court Erred and AbusedIts Discretion by Refusing to Sever the Magnolia Center Interiors Burglary and Vandalism Counts from the Charged Murders The first step in assessing whether a combinedtrial would have been prejudicial is to determine whether evidence on each ofthe joined charges would have been admissible, under Evidence Code section 1101, in separate trials on the others. Evidence of one crimeis cross-admissible if the evidence “would [] have been admissiblein the trial of the other [crime] had they beentried separately.” (People v. Gray (2005) 37 Cal.4th 168, 222.) Joinder is less appropriate where the evidenceis not cross- admissible. (See United States v. Lewis, supra, 787 F.2d at p. 1322.) Cross-admissibility tends to negate prejudice, but it is not essential for that 246 purpose. Although the Court has previously held that cross-admissibility ordinarily dispels any inference of prejudice, it has never held that the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice. (People v. Sandoval, supra, 4 Cal.4th 155, 173; People v. Bradford (1997) 15 Cal.4th 1229, 1314-1316.) Severance was warranted in this case because there was no “significant” cross-admissible evidence concerning the separate Magnolia Center Interiors burglary and vandalism and the charged murders. Stolen keys and other Magnolia Center Interiors property had been found in appellant’s room and residence. That evidence alone linked appellant to the charged burglary and vandalism. Additional evidence pertaining or linking appellant to the charged murders was notprobative of any other contested factual issue relative to Magnolia Center Interiors. Moreover, the fact that graffiti or BK shoeprints were found inside Magnolia Center Interiors did not render that evidence significantly cross-admissible in thetrial of the charged murders. Neither the graffiti nor the BK shoeprints left inside the Magnolia Center Interiors materially assisted in proving either appellant’s role or intent in the charged murders. Evidence in the other crimes charged against appellant already linked him to the BK shoeprints found at the scene of the Mans-Jones murders. BK shoeprints were found at the scene of the Feltonberger 247 shooting, and, at the time of appellant’s arrest, he was wearing that type of shoe. Feltonberger identified appellant as the person who shothim, and a sabot round was used in both the Feltonberger and Aragon shootings. Graffiti in appellant’s name was found inside a briefcase taken from robbery victim Meredith; that briefcase contained an empty box of sabot shells. Thus, there was some degree of cross-admissibility as related to the murder charges andthe other alleged counts. In stark contrast, evidence pertaining to the Magnolia Center Interiors charges had no link with or similarities to the murders or the issues in dispute with respect to those charges. Yet, evidence ofthe graffiti left on the walls and the defacementand destruction of the sonogram ofthe owner’s unborn son wasso inflammatory, appellant waslikely to suffer unfair prejudiceat a joint trial which included those charges. (/d.at pp. 444-445: see People v. Bradford, supra, 15 Cal.4th at p. 1315 [defendant required to makea “clear showing of prejudice” in support of motion for separatetrials].) Thus, even assuming that some of the evidence pertinent to the charged murders would have been admissible at a separate trial on the Magnolia Center Interiors burglary and vandalism,or vice versa, it was still an abuse of discretion to deny severance. The effect of refusing to sever these charges wasthat the jury heard highly inflammatory evidence from the burglary and vandalism that would have beenlargely irrelevant or 248 cumulative at a separate trial of appellant on the charged murders. Therefore, under this Court’s four-part test, the trial court abusedits discretion in ordering a joint trial on these charges, and the guilt verdicts and death judgment must be reversed. (See Williams v. Superior Court, supra, 36 Cal.3d at p. 452.) Evidence of separate charges may also be cross-admissible if an “evidentiary connection” exists between the charges,1.e., if they have distinctive “common marks” which support inferences about identity, motive, or another material fact (People v. Bean, supra, 46 Cal.3d at pp. 936-938; People v. Johnson (1988) 47 Cal.3d 576, 588), or if evidence on one charge “logically support[s]” an inference of guilt on another one. (People v. Arias, supra, 13 Cal.4th at p. 128.) There were no such connections here. As found bythetrial court, the three murder counts and the charged Magnolia Center Interiors crimes were not of the sameclass of crimes undersection 954. The charged murders hadvirtually nothingat all in common with the Magnolia Center Interiors burglary and vandalism that involved only property damage. They weretotally dissimilar crimes. The charged murders and the Magnolia Center Interiors burglary and vandalism involved unrelated offenses with different settings, victims, and alleged motivations. The Magnolia Center Interiors crimes involved the theft of property, property damage, and vandalism. While the murders 249 and other charged assaultive crimes were generally similar in purpose and intent, sharing a common modusoperandithat includedthe use offirearms, there was nothinglike that degree of similarity -- as between the murders and the Magnolia CenterInteriors offenses -- that justified joinder. For evidence of separate crimes to be cross-admissible on the issue of identity, the manner in which they were committed must be so similar as to “amountto a signature.” (People v. Kipp (1998) 18 Cal.4th 349, 370; People v. Catlin (2001) 26 Cal.4th 81, 111.) For evidence of separate crimes to be cross-admissible to show a commonplan or design, they must have “such a concurrence of commonfeatures that [they] are naturally to be explained as caused by a general plan of which they are the individual manifestations.” (People v. Catlin, supra, 26 Cal.4th at p. 111, quoting People v. Ewoldt (1994) 7 Cal.4th 380, 402.) The Magnolia Center Interiors crimes clearly did not meet those standards, because they involved few, if any, “distinctive marks” in common with the charged murders. The only arguably common feature between the Mans-Jones homicides and the Magnolia Center Interiors offenses was the BK shoeprints, but this was hardly distinctive since the “BK”brand was widely available. There were no commondistinctive features between the Aragon killing and the Magnolia Center Interiors property crimes. Evidenceof crimesthat are not distinctively similar canstill be 250 cross-admissible if that evidence has independent evidentiary significance as to each crime,i.e., if the crimes have somefactual connection thatis probative of a disputed issue. (See People v. Arias, supra, 13 Cal.4th at pp. 127-128; People v. Catlin, supra, 26 Cal.4th at pp. 111-112; People v. Price (1991) 1 Cal.4th 324, 388.) In Arias, this Court held that murder and robbery charges from one incident were properly joined with kidnap and robbery charges from another incident which occurred two weekslater becausethe latter charges were “an outgrowth”ofthe defendant’s“desire to flee apprehension”for the earlier crimes. Thus, the murder “supplied evidence of [the] motive”for the kidnapping, while the kidnapping and robbery “indicated consciousness of guilt” as to the murder. (People v. Arias, supra, 13 Cal.4th at pp. 127-128.) Here, none of the evidence about the homicides had independent significance as to the Magnolia CenterInteriors burglary and vandalism, and vice versa. Noneofthe evidence as to the Aragon killing helped prove that appellant committed the Magnolia CenterInteriors burglary and vandalism. Although BK shoeprints were found at the scene of the Mans- Jones killings, that evidence did not directly link appellant to the buglary and vandalism charged in counts 11] and 12. Appellant was wearing BK shoes whenarrested, and that evidence -- not BK shoeprint evidence at the Mans-Jones crimescene-- and his possession of property stolen from 251 inside Magnolia Center Interiors linked him to those crimes. Thus, none of the evidence found inside or pertaining to the Magnolia Center Interiors helped provethat appellant killed any of the three murdervictims or shed any light onhis role, identity, motive, signature, or intent in those crimes. D. The Prejudice From Refusing To Sever These Charges Outweighed the Benefits This Court must weigh the prejudicial effect ofjoinder againstits benefits, a “highly individualized exercise, necessarily dependent upon the particular circumstances of each individual case.” (Williams v. Superior Court, supra, 36 Cal.3d at pp. 451-452; People v. Smallwood (1986) 42 Cal.3d 415, 425-426.) In doing that weighing, the Court must consider the factors used to determine whetherjoinder posesa substantial risk of prejudice, including whether“certain of the charges are unusually likely to inflame the jury against the defendant; . . . and [] any one of the charges carries the death penalty.” (People v. Cunningham (2001) 25 Cal.4th 926, 985.) Here, those factors indicated that joinder would be highly prejudicial. Although thetrial court may have correctly recognized the law’s preference for joinder, it improperly exercised and, therefore, abused its discretion in denying appellant’s severance motion. While, as discussed above, cross-admissible evidence “is not the sine qua nonofjoint trials” (People v. Marquez (1992) 1 Cal.4th 553, 572), no 252 court has said that charges mustbetried jointly simply because they involve some cross-admissible evidence. Such a rule would conflict with the purpose behind severanceof counts -- avoiding undue prejudice. (See Williams v. Superior Court, supra, 36 Cal.3d at p. 447.) The dispositive question is whethera jointtrial will be prejudicial to the defendant. Here, even assuming that these charges did involve some cross-admissible evidence, joining them wasstill an abuse of discretion, because the effect wasthat the jury heard highly inflammatory evidence concerning the Magnolia CenterInteriors burglary and vandalism that would have been irrelevant and inadmissible at a separate trial of the charged murders, and vice versa. In deciding appellant’s guilt of the charged murders,it was only because these charges weretried jointly that the jury heard testimonythat appellant hadleft graffiti with references to death, dying, and Satan inside the Magnolia Center Interiors shop. Only because the charges weretried jointly was the jury permitted to hear in deliberating the charged murders that a sonogram of the Magnolia Center Interiors’ owner had been stabbed with scissors and defaced with graffiti saying “you’re goingto die.” Conversely, in deciding appellant’s guilt on the burglary and vandalism charges, it was only because the charges werejointly tried that the jury was permitted to hear that appellant also participated in the shooting deaths of three young men. 253 Hadappellant been tried separately on the charged murders,there would have been no conceivable evidentiary value in introducing the Magnolia Center Interiors graffiti or the sonogram of the owner’s unborn son. Similarly, had appellant been tried separately on the Magnolia Center Interiors burglary and vandalism, there would have been no conceivable evidentiary value in introducing evidence of appellant’s role and participation in three murders. The burglary and vandalism graffiti particularly was extremely inflammatory andlikely to stir the passions of the jury and causestrong feelings of anger and indignation. That evidence, which was completely irrelevant to any of the issues concerning the charged murders, was highly prejudicial. In deciding appellant’s culpability for the charged murders, the jury undoubtedly wasinfluenced by the inflammatory Magnolia Center Interiors evidence. Thetrial court was required, but failed, to assess and weigh the potential prejudice against the benefits ofjoinder (People v. Smallwood, supra, 42 Cal.3d at p. 430), and should haverealized that a joint trial would not yield any substantial benefits. These cases involved only a few common witnesses, and since the evidence of the charges wasnot cross-admissible in any significant way, “there simply wasno significant judicial economy to be gained from joinder.” (People v. Smallwood, supra, 42 Cal.3d at p. 430.) Moreover, even if separate trials would have involved moretime or expense thana jointtrial, they would have been more efficient because they 254 would have producedverdicts untainted by the prejudicial effect of admitting “other crimes” evidence. (See People v. Smallwood, supra, 42 Cal.3d at p. 428.) Even the prosecutor’s argumentat the conclusionoftrial vividly illustrated that the Magnolia Center Interiors burglary and vandalism had not been offered for any probative purpose other than to inflame the jury. As stressed by the prosecutor, the graffiti and vandalism evidence were only revelatory of appellant’s character-- a penalty-phase issue -- not his guilt. Thus, it was an abuse of discretion to deny appellant’s severance motion as to counts 11 and 12, E. The Denial of Severance of the Magnolia Center Interiors Crimes Rendered the Trial of the Charged Murders Fundamentally Unfair; Reversal of Guilt and Penalty Determinations is Required Evenif the Court decidesthatthe trial court’s denial of the severance motion wascorrectat the time it was made,it must reverse the judgmentif appellant showsthat the jointtrial actually resulted in gross unfairness amounting to a denial of due process. (People v. Arias, supra, 13 Cal.4th at p. 127.) The general law regarding the standards that apply in makingthis determination is discussed in Subsection B, supra. Application of those standards to this case reveals the type of gross unfairness that compels reversal. Appellant wasactually prejudiced by the joinder. As previously 255 discussed by this Court, where two crimesor, as here, two sets of crimes, are tried jointly and the evidence of one set would not have been admissible in the trial of the other had they beentried separately, the potential for prejudice is increased. “This is because the jury in a jointtrial will be exposed to additional evidence of the defendant’s criminal behavior, raising the possibility the jury will be swayed by the evidence of the defendant’s bad character.” (People v. Gray, supra, 37 Cal.4th at p. 222; People v. Memro (1995) 11 Cal.4th 786, 850.) Thatis precisely whatoccurredhere, particularlyconsidering the prosecutor’s guilt phase argumentinviting the jury to use the Magnolia Center Interiors crimes as evidence of appellant’s bad character and disposition contrary to the explicit provisions of Evidence Code section 1101, subdivision(a). In ruling on appellant’s severance motion,the trial court should have been awarethat, in a jointtrial, the jurors deciding whether appellant committed three robbery-murders would be improperly influenced by the inflammatory testimony,graffiti, and other evidencerelating to the Magnolia Center Interiors burglary and vandalism. Any testimony or repugnantgraffiti evidence about death, dying, Satan, and the stabbing of a sonogram of an unborn child defaced with “you’re going to die”graffiti would be inherently inflammatory and would adversely affect the outcome of the trial on unrelated charges. No jury could compartmentalize such evidence,particularly when crimes unrelated to the Magnolia Center 256 Interiors involved the alleged murders of three young men. This case is thus a prime example ofthe “spillover effect” that can render the failure to sever charges fundamentally unfair. (See United States v. Lewis, supra, 787 F.2d at p. 1322; Drew vy. United States (D.C. Cir. 1964) 331 F.2d 85, 88.) The refusal to sever the Magnolia Center Interiors crimes permitted the state to use evidence from an unrelated case to convince the jury that appellant committed three murders and deserved to die. That fundamentally unfair procedure violated appellant’s right to a fair trial, due process, and to a reliable determination of guilt and penalty guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the Untied States Constitution. Both this Court and the United States Court of Appeals have found reversible error in conducting a joint trial involving murder charges where there was no cross-admissible evidence and where the procedure deprived the defendantofa fair trial or due process of law. (People v. Smallwood, supra, 42 Cal.3d at pp. 425-426; Bean v. Calderon, supra, 163 F.3d at pp. 1083-1087; People v. Turner (1984) 37 Cal.3d 302, 313, overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104; Panzavecchiav. Wainwright (Sth Cir. 1981) 658 F.2d 337, 341 [reversible error to join homicide and firearm possession charges becausethe jury heard prejudicial evidence about defendant’s prior counterfeiting conviction that was only relevant to the possession charge].) This Court should do so again, and reverse appellant’s convictions, special circumstances findings, and death 257 sentence. Trying the murder charges with the Magnolia Center Interiors burglary and vandalism also violated appellant’s right to be tried by an impartial jury, underarticle I, section 16 of the California Constitution, and the Fifth, Sixth, and Fourteenth Amendmentsto the federal Constitution, whichis a structural defect requiring reversal per se. (People v. Wheeler (1978) 22 Cal.3d 258, 265-266; Gray v. Mississippi (1987) 481 U.S. 648, 663-668.) Further, given the prejudicial effect of the denial of severance in this case, the jury’s verdict cannot be considered reliable, and therefore cannotstand in the face of the Eighth Amendmentprohibition against cruel and unusual punishment. (Beck v. Alabama (1980) 447 U.S. 625, 638.) 258 IV THE EVIDENCE WASINSUFFICIENT TO SUPPORT APPELLANT’S COUNT 15 ROBBERY CONVICTION (KNOEFFLER) IN VIOLATION OF APPELLANT’S RIGHTS TOA FAIR TRIAL, DUE PROCESS, A RELIABLE DETERMINATION OF GUILT, AND EQUAL PROTECTION OF THE LAWS GUARANTEEDBY THEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Factual and Procedural Background Asset forth in the Statement of the Case, supra, appellant was charged in count 15 with the November 20, 1992 robbery of beekeeper Albert Knoeffler in Riverside in violation of section 211. As summarized in the Statement of the Facts, supra, beekeeper Albert Knoeffler testified that he was robbed while tending his bees in Riverside. He was approachedfirst by a man whostruck up conversation with him about bees. After awhile, the manleft but soon returned armed with a shotgun. Pointing the shotgun directly at Knoeffler and saying he was not going to hurt him, the man said he needed the keys to Knoeffler’s pickup. According to Knoeffler, the man seemedliked a pretty nice guy. Knoeffler handed over his keys. At this point, another man wearing a ski mask then appeared, having come downthe road. Knoeffler did not see another vehicle in the immediate area. The man in the mask gotinto Knoeffler’s truck while Knoeffler continued working with his bees. The man who demanded Knoeffler’s keys handed the shotgun to the masked 259 man and then approached Knoeffler again, saying he needed moneyfor gas. Knoeffler pulled some moneyout of his wallet and handed over about $40 or $50. Both men then drove away in Knoeffler’s truck. Knoeffler was unable to identify anyone at the preliminary hearing or at trial. (34 RT 5348.) Jose Munozin his testimony stated that he, Daniel Chavez,'° appellant, and codefendant Romero were driving around Riverside on the day of the Knoeffler robbery. Codefendant Romero wasdriving Sonia Alvarez’s car. Munoz did not remember where appellant wasseated in the car. Although Munoztestified that their purpose was “to go out stealing again” (39 RT 5958), he did notattribute in his testimony any specific statements to appellant showingthat it was appellant’s idea to commit the robbery or that appellant actively encouragedor participated in the robbery in any manner. (See 40 RT 6225.) Munoz did nottestify that appellant carried or used a mask during the robbery. (40 RT 6226.) While Munoz recounted in detail what Romero said, he offered no testimonyas to any statements specifically uttered by appellant before, during, or after the robbery. Munoz did nottestify that appellant ever got out of Alvarez’s car or helped facilitate the robbery in any '5°/ Following his separate trial, Chavez was acquitted of the Knoeffler robbery, although he purportedly served as a getaway driver and thus, unlike appellant, played somerole in committing the crime. As in appellant’s case, the only evidence of Chavez’s role and involvement was through Jose Munoz’ uncorroborated accomplice testimony. 260 way. (40 RT 6137, 6227.) Munozdid nottestify that appellant was at any time armed while in the car or that appellant handled either weapon before, during,or after the robbery. Munoztestified that only he and codefendant Romero handled the two weaponsinvolved. (40 RT 6137.) Appellant did not drive either Knoeffler’s truck or Sonia Alvarez’s car after the robbery. Indeed, Munoz testified that Daniel Chavez drove Alvarez’s car after the robbery. (39 RT 5964.) Munoz recalled that only he and codefendant Romero abandoned Knoeffler’s truck in an open field. Appellant stayed in Alvarez’scar. Munozdid nottestify that appellant helped in disposing of Knoeffler’s truck after the robbery. (39 RT 5965.) Nor did Munoztestify that money taken from Knoeffler was ever divided, given to appellant, or that appellant otherwise benefited or received money in connection with the crime. Although Munoz, codefendant Romero, Chavez, and appellant went to the store sometimeafter the robbery, Munozdid not testify that appellant ever handled, received, or personally spent any of the money obtained from Knoeffler. (39 RT 5966.) B. Standard of Review In evaluating a criminal conviction challenged as lacking evidentiary support, a reviewing court must consider the whole record in the light most favorable to the judgment to determine whetherit discloses substantial 261 evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonabletrier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) A judgment should be upheldif, after viewing all the evidencein the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. (People v. Miranda (1987) 44 Cal.3d 57, 86.) In addition, in reviewing the sufficiency of the evidence of a robbery conviction,all inferences must be drawn in support of the verdict that can reasonably be deduced from the evidence. The same standard of review applies to cases in which the prosecution has relied mainly on circumstantial evidence (Peoplev. Rodriguez (1999) 20 Cal.4th 1, 11.) In addition, the reviewing court must accept logical inferences that the jury might have drawn from the circumstantial evidence. (/d. at p. 11.) However, the judgment must be supported by “substantial evidence,” which has been defined as evidence that reasonably inspires confidence andis of solid value. (People v. Bassett (1968) 69 Cal.2d 122, 139; People v. Javier A. (1985) 38 Cal.3d 811, 819.) C. Constitutional Due Process Standards A conviction that is not supported by sufficient evidence violates both the due process clause of the Fourteenth Amendmentof the United States Constitution and the due processclauseofarticle I, section 15 of the 262 California Constitution. (People v. Rowland (1992) 4 Cal.4th 238, 269.) This rule flows from the requirementthat the prosecution must prove beyond a reasonable doubt every element of the crime charged against the defendant. (/n re Winship (1970) 397 U.S. 358, 364.) Under the federal due processclause, the test is “whether, after viewing the evidencein the light most favorable to the prosecution, any rationaltrier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319 [italics omitted].) Underthis standard, a “mere modicum”of evidence is not enough, and a conviction cannot stand if the evidence does no more than makethe existence of an element of the crime “slightly more probable” than not. (/d. at p. 320.) Under California law, the reviewing court similarly inquires whether a ‘““‘reasonabletrier of fact could have found the prosecution sustainedits burden of proving the defendant guilty beyond a reasonable doubt.’” (People v. Memro (1985) 38 Cal.3d 658, 694-695, quoting Peoplev. Johnson (1980) 26 Cal.3d 557, 576.) The evidence supporting the conviction mustbe substantial, i.e., evidencethat “reasonably inspires confidence” (People v. Bassett, supra, 69 Cal.2d at p.139, cited with approval by People v. Morris (1988) 46 Cal.3d 1, 19) and is of “credible and of solid value.” (People v. Green (1980) 27 Cal.3d 1, 55; see Peoplev. Bolden (2002) 29 Cal.4th 515, 533.) Mere speculation cannot support a conviction. (People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Reyes 263 (1974) 12 Cal.3d 486, 500.) Although the evidence is viewedin the light most favorable to the judgment, the reviewing court “doesnot... limit its review to the evidence favorable to the respondent.” (People v. Johnson, supra, 26 Cal.3dat p. 577 [internal quotations omitted].) Instead, it “must resolve the issue in light of the whole record -- i.e., the entire picture of the defendant put before the jury -- and maynot limit[its] appraisal to isolated bits of evidence selected by the respondent.” (/bid.[italics omitted]; see Jackson v. Virginia, supra, 443 U.S. at p. 319 [“all of the evidence is to be consideredin thelight most favorable to the prosecution”(italics omitted)].) D. Insufficiency of the Evidence Substantial evidence must support each essential element of an offense. If the circumstances reasonably justify the jury’s verdict, the reviewing court will not interfere with the jury’s determination. However, if evidenceor testimonyis lacking in indiciaofreliability, an appellate court mustnot hesitate to reverse the judgmentof conviction. (People v. Lang (1974) 11 Cal.3d 134, 139.) Robbery is defined as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by meansofforce or fear.” (§ 211.) The elementof force or fear is satisfied if the force or fear caused the victim to 264 give up his or her property. (People v. Briton (1991) 232 Cal.App.3d 316, 325.) Here, there was absolutely no direct or circumstantial evidence -- and no testimony by Jose Munoz-- that appellant actually committed the Knoeffler robbery, or was even present when Knoeffler was confronted and robbed. Since the prosecution never soughtto prove, and did not argue,that appellant personally robbed Knoeffler, his liability could only have been predicated on an aiding or abetting theory. An alder and abettor is a person who,acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commissionofthe offense; (3) by act or advice aids, promotes, encouragesorinstigates, the commission of the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259, quoting People v. Beeman (1984) 35 Cal.3d 547, 561.) In this regard, there was no evidence proving, or corroborating the testimony of Jose Munoz,that appellant was evenin the car or otherwise present at the scene on the day Knoeffler was robbed. Evenif it is conceded, arguendo,that appellant was in the car, there was no direct or circumstantial evidence-- and no testimony by Munoz -- that appellant was armedorthat he furnished or handled the weaponsused by codefendant Romero and Munoz. There was no evidence that appellant knew that codefendant Romero and Munoz were going to rob Knoeffler, nor evidence of any sort that he did anythingto facilitate or encourage them,or by act or advice aided, promoted, instigated, or 265 encouraged them, with the requisite intent to rob beekeeper Knoeffler as charged in count 15. Even Munoztestified that appellant effectively did nothing to facilitate the robbery. He did not drive the car; he did not serve as a getaway driver. Hedid notact as a look-out. He did not approach codefendant Romero, as did Munoz, to try to hurry commission of the crime, nor did he even approachthe victim. To determinethe sufficiency of the evidence to support a conviction, an appellate court reviewsthe entire record in the light most favorable to the prosecution to determine whetherit contains evidencethatis reasonable, credible, and of solid value, from which a rationaltrier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) In respect to count 15, review ofthe entire record in this case is not sufficiently persuasive to permit the conclusion that any rationaltrier of fact could have foundeither that appellant personally committed the robbery of Knoeffler or aided and abetted the commission of that crime. There was no evidence corroborating Jose Munoz’ testimony that appellant was present in the car when the robbery was committed or that he in any manneraided,assisted, encouraged, or facilitated the robbery. Absent any evidentiary support, appellant’s count 15 conviction also violated Fifth and Fourteenth Amendment due process under the United States Constitution, as well as the due process clause of 266 article I, section 15 of the California Constitution. (People v. Rowland, supra, 4 Cal.4th at p. 269.) Appellant’s conviction on this count also violates Eighth Amendmentreliability principles. 267 V THE EVIDENCE WASINSUFFICIENT TO SUPPORT APPELLANT’S CONVICTIONS ON COUNTS5-7 (MILLS-EWY) IN VIOLATION OF APPELLANT?’S RIGHTSTO A FAIR TRIAL, DUE PROCESS, A RELIABLE DETERMINATIONOF GUILT, AND EQUAL PROTECTION OF THE LAWS GUARANTEEDBY THEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Factual and Procedural Background Asset forth in the Statement of the Case, supra, appellant was charged with and convicted on counts 5 through 7 of three crimes involving Kenneth Mills and Vicky Ewy that occurred on October 22, 1992: one count of willful, deliberate, and premeditated attempted murder in violation of sections 664/187, subdivision (a) (count 5); one count of aggravated mayhem in violation of section 205 (count 6); and one count of attempted robbery in violation of sections 664/211 (count 7). Asdiscussed in the Statement of Facts, supra, Mills and Ewy were driving a two-door Nissan along Moreno Beach Drive in Moreno Valley on the night of October 22, 1992. At the intersection of Moreno Beach Drive and John F. Kennedy Drive, Mills, who wasdriving, looked overhisleft shoulder. He saw the silhouette of a car and a person leaning outof the passenger window and pointing a gun. Mills saw the muzzle blast from a shotgun. The blast blew out a hole in the driver’s side window where Mills wassitting, blinding him in the right eye, tearing off his right eyelid, and 268 damaginghisleft eye. (33 RT 5191-5196.) Although barely able to see from his left eye, Mills drove away on JFK Dr. with the othercar in pursuit. (33 RT 5196-5197.) Mills stopped at some model homesand then drove onto a golf course path to nearby homes. The othercarleft the area after Mills turned onto the golf cart path. Initially, Mills was unable to describe the car involved in the shooting or its occupants. While in the hospital, he reported that the other car was a Jate-model, 1980s hatchback,either dark gray or blue in color. (33 RT 5202.) He told police that he saw a man from the waist up pointing a gun; he also said he saw the muzzle blast but not the gun. The blast seemed to comefrom the front passenger window. Herecalled seeing possibly two occupants in the othercar, at least a driver and front passenger. Mills was unable to describe the occupants. (33 RT 5211-5214.) Pieces of lead and pellets recovered from the Mills-Ewy vehicle were identified as shotgun pellets. The gauge of the shotgun could not be determined from the size of the pellets. However, plastic shotgun wadding recovered from Mills-Ewy vehicle wasidentical to one-piece wadding from a 20-gauge Remington shotshell. According to Jose Munoz,he, codefendant Romero,and appellant drove Sonia Alvarez’s car in the area of Moreno Beach Drive onthe night of October 22, 1992. Munoztold the jury that appellant was seated in back; Romerowasdriving; and he wassitting in the front passenger seat. Munoz 269 was armed with a .22 single shotrifle; appellant was armed with a sawed-off 20 gauge shotgun. (39 5926-5929; 40 RT 6102-6103, 6106.) Munoztestified that Romero pulled alongside Mills’ vehicle. Munoz pointed the .22 rifle out of the car window atthe other driver. Romero told him to shoot. Before Munoz could shoot, appellant fired the shotgun loaded with birdshot at the driver over the top of the car from therear left passenger side. Munoztestified that in order to shoot, appellant put his head and body out of the rear car window and positioned his upper body and armsover the top of the car, facing Mills’ vehicle. Appellant only had one shell. Munoz said he did not shoot. (39 RT 5929-5933; 40 RT 6103-6117, 6185-6190.) After the shooting, Romero continued to follow Mills’ vehicle to an area near some apartments and a hospital. While in pursuit, Munoz fired once from hisrifle at the fleeing vehicle. When Mills started honking his horn near apartments, Romero drove away and returned to Munoz’ house. (39 RT 5933-5934.) B. Standard of Review In evaluating a criminal! conviction challenged as lacking evidentiary support, a reviewing court must consider the whole record in the light most favorable to the judgment to determine whetherit discloses substantial evidence -- that is, evidence whichis reasonable, credible, and of solid value -- such that a reasonabletrier of fact could find the defendant guilty beyond 270 a reasonable doubt. (People v. Hillhouse, supra, 27 Cal.4th at p. 496.) A judgment should be upheldif, after viewing all the evidencein the light most favorable to the prosecution, any rationaltrier of fact could have found the elements of the crime beyond a reasonable doubt. (People v. Miranda, supra, 44 Cal.3d at p. 86.) In addition, in reviewing the sufficiency of the evidence of a robbery conviction,all inferences must be drawn in support of the verdict that can reasonably be deduced from the evidence. The samestandard of review applies to cases in which the prosecution hasrelied mainly on circumstantial evidence (Peoplev. Rodriguez, supra, 20 Cal.4th at p.11.) In addition, the reviewing court must accept logical inferences that the jury might have drawn from the circumstantial evidence. (/d. at p. 11.) However, the judgment must be supported by “substantial evidence,” which has been defined as evidence that reasonably inspires confidence andis of solid value. (People v. Bassett, supra, 69 Cal.2d at p. 139; People v. Javier A., supra, 38 Cal.3d at p. 819.) C. Constitutional Due Process Standards A conviction that is not supported by sufficient evidence violates both the due process clause of the Fifth and Fourteenth Amendmentsto the United States Constitution and the due processclauseofarticle I, section 15 of the California Constitution. (People v. Rowland, supra, 4 Cal.4that p. 269.) This rule flows from the requirement that the prosecution must prove 271 beyonda reasonable doubt every element of the crime charged against the defendant. (Jn re Winship, supra, 397 U.S. 358, 364.) Underthe federal due process clause, the test is “whether, after viewing the evidence in the light most favorable to the prosecution, any rationaltrier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia, supra, 443 U.S. at p.319 [italics omitted].) Underthis standard, a “mere modicum”of evidenceis not enough, and a conviction cannot standif the evidence does no more than makethe existence of an elementof the crime “slightly more probable” than not. (/d. at p. 320.) Under California law, the reviewing court similarly inquires whether a ““‘reasonabletrier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.’” (People v. Memro, supra, 38 Cal.3d at pp. 694-695, quoting People v. Johnson, supra, 26 Cal.3d at p. 576.) The evidence supporting the conviction must be substantial, i.e., evidence that “reasonably inspires confidence” (People v. Bassett, supra, 69 Cal.2d at p. 139, cited with approval by People v. Morris, supra, 46 Cal.3d at p.19) andis of “credible and of solid value.” (People v. Green, supra, 27 Cal.3d at p. 55; see People v. Bolden, supra, 29 Cal.4th at p. 533.) Mere speculation cannot support a conviction. (People v. Marshall, supra, 15 Cal.4th at p. 35; People v. Reyes, supra, 12 Cal.3d at p. 500.) Although the evidence is viewedin the light most favorable to the 272 judgment, the reviewing court “does not. . . limit its review to the evidence favorable to the respondent.” (People v. Johnson, supra, 26 Cal.3dat p. 577 [internal quotations omitted].) Instead, it “must resolve the issue in light of the whole record — 1.e., the entire picture of the defendant put before the jury — and maynotlimit [its] appraisal to isolated bits of evidence selected by the respondent.” (Jbid. [italics omitted]; see Jackson v. Virginia, supra, 443 U.S.at p. 319 [“all of the evidenceis to be consideredin the light most favorable to the prosecution”(italics omitted)].) D. Insufficiency of the Evidence No conviction can be had uponthe testimony of an accomplice unless such testimonyis corroborated by other evidence tending to connect the defendant with the commission ofthe offense. (§ 1111.) Because Jose Munoz was an accomplice, section 1111 required that his testimony had to be corroborated by independent evidenceof appellant’s guilt. Section 1111 serves to ensure that a defendant, as appellant, will not be convicted solely upon the testimony of an accomplice because an accomplice, as Munoz,is likely to have self-serving motives. (People v. Davis (2005) 36 Cal.4th 510, 547; People v. Belton (1979) 23 Cal.3d 516, 526.) Undersection 1111, there had to be evidence tending to connect appellant with the crimes charged in counts 5 through 7 withoutaid or assistance from the testimony of Munoz. Such independent evidence “need 273 not corroborate the accomplice as to every fact to which hetestifies butis sufficientif it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably maysatisfy a jury that the accompliceis telling the truth.” (People v. Perry (1972) 7 Cal.3d 756, 769.) Here, other than Munoz’ accomplice testimony, there was no direct or circumstantial evidence placing appellant in Alvarez’s car together with codefendant Romero and Munoz whenthe shooting occurred. There was no evidenceofidentity or linking appellant in any way to these crimes. There was no independentevidence even establishing appellant’s presence at the scene or showing that he was the shooter. There was no evidencethat appellant ever made any statements to any person abouthis role or participation in the Mills-Ewyshooting. Significantly, Munoz’ testimony wasrefuted in key respects by Mills at trial and henceinsufficiently corroborated as required by law. Munozsaid that he, codefendant Romero, and appellant werein thecar. Mills said he saw only two occupants Mills testified that when he looked over his left shoulder, he saw the silhouette of a car and a person leaning out of the front passenger window andpointing a gun. Munozsaid he, not appellant, wassitting in the front passenger seat. Mills nevertestified that 274 there wasa third person in the car or corroborated Munoz’ testimonyin this regard. After the shooting, Mills was unable to describe the car involved in the shooting or its occupants. While in the hospital, however, Mills, reported that the other car was a late-model, 1980s hatchback,either dark gray or blue in color. (33 RT 5202.) Notably, Mills told police that he saw a man from the waist up pointing a gun; he also said he saw the muzzle blast but not the gun. He reported that the blast seemed to come from the front passenger window,not from the rear as Munoz hadtestified. Mills also recalled seeing two occupants in the othercar -- the driver and front passenger-- and not three as Munoz hadstated. (33 RT 5211-5214.) Mills’ statements to police after the shooting andhis testimonyattrial were thustotally at odds with Munoz’trial testimony. Mills said he saw only two occupants; Munozsaid there were three. Mills said the shooter fired from the right front passenger window; Munoztestified appellantfired the shotgun overthe top of the car from the left, rear window ofthe car. In Jn re Stephen P. (1983) 145 Cal.App.3d 123, 129-130, the Court of Appeal discussed the meaning of the phrase “other evidence tending to connect the defendant with the crime.” The court also noted that the section 1111 phrase was defined by this Court in People v. Perry, supra, 7 Cal.3d 756, which stressed that corroborating evidence must do more than raise a 275 conjecture or suspicion of guilt. In Jn re Stephen P., the court pointed to other evidencethat established the minor’s presence at the scene of the crime. (/d. at p. 131.) Other than Munoz’ testimony, there was no evidenceas to appellant’s presenceat or participation in the Mills-Ewy shooting. No evidence placed appellant in Alvarez’s car or at the scene of the shooting; nothing corroborated Munoz’ testimonythat appellant was the shooter. There was no evidence that appellant was seen with or was in the presence of codefendant Romero or Munozeither before or after the shooting. There was no evidence that appellant was armedthat night, before or after the shooting. Appellant never at any time madeany statementto anyoneor to the police which directly or indirectly implicated him in these crimes. There was no consciousnessof guilt evidence. Substantial evidence must support each essential element of an offense. If the circumstances reasonably justify the jury’s verdict, the reviewing court will not interfere with the jury’s determination. However, if evidence or testimonyis lacking in indicia of reliability, an appellate court must not hesitate to reverse the judgment of conviction. (People v. Lang, supra, 11 Cal.3d at p. 139.) In light of the of the entire record, the absence of any evidence corroborating the testimony of Jose Munoz, and the absence ofdirect or 276 circumstantial evidence of appellant’s presence orparticipation in these crimes, the evidenceis not sufficiently persuasive to permit the conclusion that any rationaltrier of fact could have found that appellant was present, fired a shotgun blast, or personally committed attempted murder, attempted robbery, and mayhem as charged in counts 5 through 7. Appellant’s convictions on these counts also violated both the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution and the due processclause of article I, section 15 of the California Constitution. (People v. Rowland, supra, 4 Cal.4th at p. 269.) The convictions also violated Eighth Amendmentreliability principles. 277 VI THE TRIAL COURT ERREDIN FAILING TO INSTRUCT THE JURY SUA SPONTE NOT TO AGGREGATE EVIDENCE OR INCIDENTS TO CORROBORATE THE ACCOMPLICE TESTIMONY OF JOSE MUNOZ AND TO DETERMINE GUILT; THE ERROR VIOLATED APPELLANT’S RIGHTS TO A FAIR TRIAL, UNANIMOUS VERDICT, DUE PROCESS OF LAW, AND TO A RELIABLE DETERMINATION OF GUILT AND PENALTY GUARANTEEDBYTHEFIFTH,SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION AND CALIFORNIA CONSTITUTIONAL COUNTERPARTS A. Introduction Appellant was charged with 19 separate crimes, including three murders, involving ten separate incidents. The crimes and incidents have been described in detail in the Statement of Facts, supra. At the conclusionoftrial, the court instructed the jury in the language of CALJIC No. 17.02 as follows: “Each count charges a distinct crime. You must decide each count separately. The defendant may be found guilty or not guilty of anyorall of the crimes charged. Yourfinding as to each count must be stated in a separate verdict.” (7 CT 1473; 45 RT 6859.) Althoughthe trial court’s instruction pursuant to CALJIC No. 17.02 advised jurors that they were to decide each countseparately, the instruction did not address the morecritical issues regarding whether the jurors could rely on or consider evidence pertaining to one crimeor incident to corroborate the testimony of Jose Munozasto the other counts charged against appellant. Given the numerous offenses charged against appellant and the different evidence required to prove each offense, the failure to instruct the jury properly in this regard left it free 278 to consider any given offense as proof that appellant was guilty of the other offenses charged against him. For example, the evidenceat trial showed that the counts 1 and 2 murder victims Joe Mans and Timothy Jones were killed by .22 caliber bullets. However, the bullets retrieved from the bodies of Mansand Jones did not match any of the other bullets or weaponsused in any of the other shootings or incidents. Yet, in the absenceof a proper limiting instruction, the jury would conclude that because Jose Aragon wasshot with both .22 caliber bullets and a sabot shotgun shell, and the evidencelinked appellant to the weaponsand bullets used in the Aragon killing, appellant also must have been involved in the murder of Timothy Mans, who wasalso killed with .22 caliber ammunition. In other words, it was more likely than not the jury would treat evidence of appellant’s involvement on some counts as evidenceofhis guilt on other, unrelated counts charged against him. The same dangeralso arose in respect to the accomplice and accomplice corroboration instructions given bythetrial court. Accomplice testimony, for good reason,has historically been viewed with great suspicion. Although the rules of evidence generally provide that the testimony of any one witnessis sufficient proof of any fact, there is an exception for accomplice testimony. Section 1111 providesin part as follows: “A conviction cannot be had uponthe testimony of an accomplice unless it be corroborated by such other evidenceas shall tend to connect the defendant with the commission of the offense; and the corroborationis not sufficient if it merely shows the commission ofthe offense or the 279 circumstancesthereof... .” The prosecution has the burden of producing independent evidence to corroborate the testimony of an accomplice. (People v. Cooks (1983) 141 Cal.App.3d 224.) An accomplice’s testimony must be sufficiently substantiated so as to establish his credibility and satisfy the jury that he istelling the truth. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128; People v. Szeto (1981) 29 Cal.3d 20, 27; People v. Martinez (1982) 132 Cal.App.3d 119, 132.) Because an accomplice “has a natural incentive to minimize his own guilt before the jury and to enlarge that of his cohorts; accordingly, the law requires an accomplice’s testimony be viewed with caution to the extent it incriminates others.” (People v. Brown (2003) 31 Cal.4th 518, 555.) The corroborative evidence “mustrelate to someact or fact which is an elementof the crime”so that it directly connects the defendant to the charged offense. (See e.g., People v. Rodrigues, supra, 8 Cal.4th 1060, 1128; People v. Zapien (1993) 4 Cal.4th 929, 982). It must be sufficient, without aid from the testimony of the accomplice, to implicate the defendant. If the remaining evidence requires interpretation and direction by the accomplice’s testimony to give it value, the corroboration is not sufficient. (People v. Reingold (1948) 87 Cal.App.2d 382, 392-393; People v. Falconer (1988) 201 Cal.App.3d 1540, 1543.) Corroboration of an accomplice’s testimony as to non-inculpatory facts is also insufficient becauseif there is no inculpatory evidence, there is no corroboration, though the accomplice may becorroborated in regard to any 280 numberof facts sworn to by him. (People v. Morton (1903) 139 Cal. 719, 724.). Evidencethat only givesrise to a suspicion, even a “grave” suspicion, of guilt will not corroborate an accomplice’s testimony. (People v. Szeto, supra, 29 Cal.3d 20, 43.) Extrajudicial statements of accomplices are also insufficient to corroborate accomplice testimony because,although the out-of-court statementis not part of the testimony,it still “comes from a tainted source.” (Peoplev. Andrews (1989) 49 Cal.3d 200, 214; People v. Belton (1979) 23 Cal.3d 516, 524- 526.) Evidence of mere opportunity to commit a crimeis not sufficient corroboration. (People v. Boyce (1980) 110 Cal.App.3d 726, 737.) Accomplice testimony may be corroborated by “direct physical evidence that does notrely on witness credibility.” (People v. Narvaez (2002) 104 Cal.App.4th 1295, 1305.) In accordance with the aboveprinciples and in respectto the testimony of Jose Munoz,the trial court instructed the jury on accomplices, generally, in the language of CALJIC No. 3.10 as follows: “An accomplice is a person whois subject to prosecution for the identical offense charged in all counts except XI- XIV,'?” XVI, XVI’? XX-XXIII,’”or by otherwise being a principal in the charged offense against the defendantontrial by reason of aiding and abetting.” (6 CT 1419; 45 RT 6823.) The court also instructed the jury in the language of '377 Counts 11 and 12 involved Magnolia Center Interiors; counts 13-14 involved the kidnapping and robbery of Alfred Steenblock. '38/ Count 16 and17 involvedthe robbery of Jerry Mills, Sr. and son. '3°/ Counts 21-23 pertained only to coappellant Romero. 281 CALJIC No.3.11 (1990 Revision) as follows: “A defendant cannot be found guilty based upon the testimony of an accomplice unless such testimonyis corroborated by other evidence which tends to connect such defendant with the commission ofthe offense. [P] Testimony of an accomplice includes any outof- court statement purportedly made by an accomplice received for the purpose of proving that what the accomplice stated wastrue,” (6 CT 1420; 45 RT 6823.) The trial court also instructed the jury in the language of CALJIC No. 3.12 as follows: To corroborate the testimony of an accomplice there must be evidence of someact or fact related to the crime which,if believed, by itself and withoutaid, interpretation or direction from the testimony of the accomplice, tends to connect the defendant with the commission of the crime charged. However, it is not necessary that the evidence of corroboration be sufficient in itself to establish every element of the crime charged, or that it corroborate every fact to which the accomplicetestifies. In determining whether an accomplice has been corroborated, you must first assume the testimony of the accomplice has been removed from thecase. You must then determine whether there is any remaining evidence which tends to connect the defendant with the commission of the crime, If there is not such independent evidence which tends to connect defendant with the commission of the crime, the testimony of the accomplice is not corroborated. If there is such independent evidence which you believe, then the testimony of the accomplice is corroborated. (7 CT 1422; 45 RT 6823-6824.) Next,the trial court instructed the jury in the language of CALJIC No.3.16 282 as follows with regard to the testimony of Jose Munoz andhis status as an accomplice: “If the crimes charged in the Information except counts XI-XIV, XVI, XVII, XX-XXIII was committed by anyone, the witness Jose Munoz was an accomplice as a matter of law andhis testimonyis subjectto the rule requiring corroboration.” (7 CT 1423; 45 RT 6824.) Finally, the court instructed the jury in the language of CALJIC No. 3.18 that the testimony of an accomplice “oughtto be viewed with distrust.” (7 CT 1424; 45 RT 6824.) Thetrial court’s accomplice corroboration instructions, given in conjunction with CALJIC No. 17.02, failed to inform the jury that evidence corroborating Jose Munoz’ accomplice testimony was required for each specific count and each incident-related count. Instead, by virtue of the accomplice corroboration instructions, including CALJIC No. 3.12 which referred to “some act or fact related to the crime,” the jury could well have believed that accomplice corroboration as to a single countsatisfied the accomplice corroboration requirementas to all counts. Thetrial court’s failure to provide an instruction informingjurors they could not use evidence pertaining to a particular crime or each group ofincident- related counts to corroborate Jose Munoz’ accomplice testimony or to prove appellant’s guilt on other counts or in respect to other charged crimesviolated appellant’s rights to a fair trial, unanimousverdict, and due process of law guaranteed by the Fifth, Sixth, and Fourteenth Amendmentsto the United States Constitution andarticle I, sections 7, subdivision (a), and 15, of the California 283 Constitution. Thetrial court’s instructional failure also deprived appellant of his right to an unbiased jury andhis rightto a fair and reliable penalty determination. (U.S. Const., 5th, 6th, 8th, and 14th Amends.; Cal. Const., art. I, §§ 15, 16, and 17.). Finally, by permitting the use of evidence on one count to support a conviction on a separate and distinct count, the trial court impermissibly and improperly undermined the accomplice corroboration instructions pertaining to Jose Munoz and lowered the prosecution’s burden of proofin violation of the Fifth and Fourteenth Amendmentsto the United States Constitution. B. The Trial Court Erred By Failing to Instruct the Jury Sua Sponte That All of the Evidence Introduced Pertaining to All Counts Could Not Be Used to Corroborate Jose Munoz’ Accomplice Testimony or Determine Appellant’s Guilt on Each Separate Countor Incident-Related Counts The most significant general legal principle that governed the jury’s consideration of these consolidated charges was that where a defendantis tried in a proceedingthat includes more than one charge, a conviction for each charged offense may be rendered only whenthe conviction is based upon evidencethat is relevantto that particular offense. The Courts of Appeal have specifically rejected an argument that because two or more counts maybe properly joinedfortrial, the fact finder may considerall of the evidence in assessing guilt on all of the charges. The state made this argumentin Jn re Anthony T. (1980) 112 Cal.App.3d 92. The Court of Appeal held that each countin a pleading charges a separate anddistinct offense, and the trier of fact may not consider the supporting evidence in one case 284 when rendering a judgmenton the othercase. (/d. at p. 101.) This concept has been recognized by subsequent Court of Appeal decisions addressing the notion that consolidation of charges is acceptable because of the assumption that cases will betried in a mannerthat effectuates this principle. For example, the Court of Appeal has recognizedthat it is arguably inappropriate for a prosecutor to make an argumentto a jury that asks jurors to aggregate the evidence when considering guilt on separate counts which are being tried together. (People v. Stewart (1985) 165 Cal.App.3d 1050, 1057, fn. 9.) Courts also indulge the presumption that the reason it is permissible to try separate offenses together is because reasonable efforts will be made to impress upon thejury that it must not aggregateall of the evidence when determining the defendant’s guilt of each charge, but rather that the jury should separate the evidence and the charges and makeindividual determinations of guilt. This can be achieved by properinstruction from thetrial court and the vigilance of defense counsel in preventing a prosecutor from arguing that evidence should be aggregated. (See Verzi v. Superior Court (1986) 183 Cal.App.3d 382, 389; see also People v. Cunningham (2001) 25 Cal.4th 926, 985-986 [prejudicialeffect of joinder dispelled by instruction not to consider defendant’s status as a felon in deciding other charges].) Here, the trial court failed to instruct the jury in this manneror give an appropriate limiting instruction to prevent the jury from ageregating the corroborating and other evidenceonall counts. Federal courts had endorsed the same principles. Different United States 285 Courts of Appeals have observed that a defendantis not prejudiced by joinder of unrelated charges whenaninstruction is providedto the jury that advises the jurors to compartmentalize the evidence applicable to each charge. (See Beanv. Calderon (9th Cir. 1998) 163 F.3d 1073, 1084-1085; Herring v. Meachum (2nd Cir. 1993) 11 F.3d 374, 378 [joinder of separate murder charges not prejudicial because jury instructed not to use evidence of one charge to determine defendant’s guilt of another charge].) In California, a trial court has a duty to give cautionary instructionsthat may be called for by the state of the evidence. (People v. Ford (1964) 60 Cal.2d 772, 799.) The failure to provide these cautionary instructions, and the guidance they provide to the jury in determining the proper methodforjudging the defendant’s guilt, calls for reversal whenit is reasonably probable that the defendant would have obtained a morefavorable result if the instruction had been given. (People v. Beagle (1972) 6 Cal.3d 441, 455; People v. Lopez (1975) 47 Cal.App.3d 8, 13.) The CALJIC No. 17.02 instruction the court gave here instructed the jurors on the procedure they were to follow in assessing appellant’s guilt of each of the individual charges. Theinstructiontold the jurors that they were to consider guilt of each count separately and return a verdict for each count, thereby directing a procedural approach rather than directing a substantive mannerof consideration. Thus, this instruction fulfilled a procedural purpose by directing the jury as to the appropriate mannerof deliberation. However, it utterly failed to provide proper 286 direction to the jury regarding the more substantive issue of whether it was appropriate to aggregate the evidenceofall charges when deciding the key question of accomplice corroboration and ultimately appellant’s guilt on any one charge. The necessity for providing this type of instruction can be seen by looking at the analogoussituation of the introduction of other-crimes evidence pursuantto Evidence Codesection 1101. It is a violation of the due process clause to admit evidence of other crimes committed by a defendant without giving the jury a limiting instruction identifying the purpose for which the evidence was admitted. (Panzavecchia v. Wainwright (5th Cir. 1981) 658 F.2d 337, 341.) The reason for this requirement, as recognized by this Court, is that evidence the defendant committed other crimes cannotbe used to show his criminal propensity in deciding whether the defendant is guilty of the crimeat bar. (People v. Alcala (1984) 36 Cal.3d 604, 631.) This Court has noted the “potentially devastating impact of other-crimes evidence that permits the jury to conclude that a capital defendant has a propensity to commit murder.” (People v. Garceau (1993) 6 Cal.4th 140, 186; see People v. Gibson (1976) 56 Cal.App.3d 119, 129 [admitting other-crimes evidence poses severe risk of prejudice becauseofits possible misuse as propensity evidence].) Thus, if a defendant requests a limiting instruction regarding this type of evidence, the trial court has a duty to accurately describe the precise purpose for which the evidence was admitted. (People v. Key (1984) 153 Cal.App.3d 888, 898-899.) 287 In appellant’s case, however, the necessity to provide an instruction which guides the jury not only in how to evaluate and apply the instructions regarding the corroboration required of testimony, but also in how properly to marshal and apply the relevant evidence as the jury considers each count, far exceeded the situation typically presented when other crimes evidence has been introduced. Here, the need for an instruction directing the jury to apply correctly the accomplice corroboration requirement and to marshal the evidence took on heightened importance, both because of the inordinate numberof offenses and because proof of appellant’s culpability on virtually every count charged rested solely on the testimony of Jose Munoz. Indeed, muchofthe evidence placed before the jury was simplyirrelevant evidence, serving only a limited purpose. Yet the court’s failure properly to instruct the jury in this regard effectively permitted the jury to apply the evidence “across offenses,” so to speak, in a discretionless, unguided mannerthat assured appellant’s conviction on all counts, without regard to the standard ofproof required. Thus, the jury could find, for example, that because Munoz’ testimony with regard to the Feltonberger offenses wassufficiently corroborated, his testimony regarding the other offenses was also true. In this way, Munoz’ testimony improperly becamethe proxy for proofof the elements required to find appellant guilty of the other offenses charged. Asa further example, other than Jose Munoz’ testimonyas to the Mills- Ewy shooting, there was no evidence linking appellant to that crime andvirtually no evidence to corroborate Munoz’ assertions that appellant was both present and 288 fired the shotgun blast into the Mills-Ewy vehicle. By virtue ofthe trial court’s instructions, however, while the jury had to consider the Mills-Ewy shooting separately from the other counts, the jury was notobligated at the same time to determine whether Munoz’ testimony had been independently corroborated by evidencerelating to that specific incident alone. The jury could well have used Feltonberger’s corroborating testimony as to counts 18 and 19 to find the requisite corroboration on unrelated counts 5 through 7. The same wastrue of the Mans-Jones (counts 1 and 2) and Aragon (count 3) murders. Jose Munoz’ testimony wascrucial in proving appellant’s presence, participation, intent, state of mind, and special circumstancesliability. Munoz’ testimony wasalso crucially important in proving appellant’s attitudes and reactions before, during, and after the killings, all of which werelater certainly considered by the jury in weighing the appropriate penalty. In the absence of eyewitnesses to the Mans-Jones and Aragonkillings, Jose Munoz’ testimony was vital to secure appellant’s convictions on the capital counts. By virtue ofthetrial court’s instructions, Munoz’ accomplice testimony as to counts 1 and 2 could have been corroborated by the victim’s testimony in the unrelated William Meredith robbery (count 4) or by Randolph (Half Pint) Rankins testimony in respectto the shooting involved in counts 9 and 10. Once corroborated by unrelated evidence or testimony on other, unrelated counts, the court’s failure properly to instruct the jury resulted in it deeming Jose Munoz’testimonyreliable and sufficient for all other counts, including the charged murders. 289 Only relevant evidence may be admitted against a defendantattrial. (Evid. Code, § 350.) Relevant evidence is defined as any evidence having a tendency in reason to prove or disprove any disputed fact of consequence to determination of the action. (Evid. Code, § 210.) There can belittle doubt that much ofthe evidence admitted against appellantat trial was irrelevant to one or more ofthe charges brought against him. For example, noneofthe acts relating to the Mans- Jones murders bore any relevance to the murder of Jose Aragon. The weapons used in each incident were different. Thus, the evidence of appellant’s guilt on counts ] and 2 wasirrelevantto the issue of his guilt of the Aragon murder, since none of the Mans-Jones evidence tended to prove any disputed fact relating to the Aragon offense. Becauseall crimes were joined togetherin a single trial, all of this evidence was placed before the same jury. Under these circumstances, the only way to protect appellant’s right to have the jury properly evaluate and consider Jose Munoz’ accomplice statements and testimony and to render a constitutionally valid and reliable verdict on each count wasforthetrial court to provide the jury with an appropriate limiting instruction. Section 1111 is designed to prevent the conviction upon suspect evidence. Hence,the lack of the requisite corroboration rendered the accomplice’s testimony insufficient and suspect, and the court’s failure to instruct the jury in this regard enhanced the possibility that appellant was unjustly convicted and sentencedto death. A capital conviction obtained under such circumstancesviolates the heightenedreliability and due process requirements of the Eighth and Fourteenth 290 Amendments to the United States Constitution. (Woodson v. North Carolina (1976) 428 U.S. 280, 305; Gilmore v. Taylor (1993) 508 U.S. 333, 334; Johnsonv. Mississippi (1987) 486 U.S. 578, 584-85; Zant v. Stephens (1983) 462 U.S. 862, 879.) Appellant had and continues to have a constitutionally-protected liberty interest of “real substance” in section 1111, which providesthat “no conviction shall be had” on uncorroborated accomplice testimony. (See Sandin v. Conner (1974) 515 U.S. 472, 478). To uphold his conviction, whenthestate failed to proffer evidence sufficient to corroborate the accomplice testimony on each count, would be arbitrary and capricious and thus violate due process. (Vitek v. Jones (1980) 445 U.S. 480 [“‘state statutes that may create liberty interests are entitled to the procedural protections of the due process clause of the Fourteenth Amendment.]; Hicks v. Oklahoma (1980) 447 U.S. 343.) Furthermore, depriving appellant of the protection afforded underthe principles discussed aboveis a misapplication of a state law that constitutes a deprivation of a liberty interest in violation of the due process clause of the Fourteenth Amendmentto the federal constitution. (Hicks v. Oklahoma, supra, 447 U.S.at p. 346; Ballard v. Estelle (9th Cir. 1991) 937 F.2d 453, 456.) C. The Circumstancesof this Case Required a Sua Sponte Alteration of CALJIC No. 17.02 to Direct the Jury to Segregate the Accomplice Corroboration and Other Evidence Pertinent to Each Count or Incident A trial court must, on its own motion and without request, instruct the jury 291 on all general principles of law relevantto the case. (People v. Horton (1969) 1 Cal.3d 444, 449.) The generalprinciples of law governing a caseare those principles closely and openly connected with the evidence adduced before the court which are necessary for the jury’s proper consideration of the case. (People v. Wilson (1962) 66 Cal.2d 749, 759; see People v. Marks (1988) 45 Cal.3d 1335, 1345.) Underthe facts ofthis case, the trial court was obligated to provide an instruction to the jury that advised the jury of the proper mannerfor assessing both the sufficiency of the evidence of accomplice corroboration and appellant’s guilt of each of the charged offenses. This instructional obligation could have been donereadily andeasily by altering CALJIC No.17.02 to inform the jury thatit should decide each count separately on the law and the evidence applicabletoit, including accomplice corroboration. Thetrial court’s failure to providethis instruction denied appellant due processanda fairtrial. This Court has previously addressed the necessity for sua sponte instructions regarding both the limited admissibility of evidence and the necessity for providing an instruction pursuant to CALJIC No. 17.02. An analysis of these cases is helpful for understanding whythetrial court had a sua sponte duty in the present case to provide a properinstruction regarding the general principles of evidentiary use and accomplice corroboration rather than merely instructing the Jury pursuant to the standard version of CALJIC No. 17.02. This Court has held that as a general principle there is no duty for trial 292 court to instruct sua sponte on the limited admissibility of evidence of past criminal conduct. (People v. Collie (1981) 30 Cal.3d 43, 63-64.) However, the Court has also noted that there may be an occasional extraordinary case where a trial court may need to provide such an instruction sua sponte in order to protect a defendant’sfair trial rights. (/d. at p. 64.) Even thoughthis case does not involve other crimes evidence admitted pursuant to Evidence Codesection 1101, the principles applicable to sua sponte instructions for that type of evidence offer guidancein this case. In both cases, limited admissibility of evidence in the section 1101 context requires a sua sponte limiting instruction. The same considerations apply in this case where CALJIC No. 17.02 alone wasinsufficient to apprise the jury ofits duties as to how the evidence respective to each count and/or incident, including accomplice corroboration, should be utilized in its deliberations. (See People v. Catlin (2001) 26 Cal.4th 81, 153.) The same considerations militating in favor of a sua sponte instruction, as discussed by this Court in People v. Collie, supra, 30 Cal.3dat p. 64, existed at appellant’s trial. Accomplice Jose Munoz’ testimony formed the “dominantpart”of the prosecution’s evidence against appellant and was “‘so obviously important to the case that sua sponte instruction would be needed to protect” appellant -- even “from his counsel’s inadvertence.” (Jbid.) Regarding the necessity for instructing on the principles reflected by CALJIC No. 17.02, this Court has similarly held that such an instruction need not be given sua sponte (see People v. Beagle, supra, 6 Cal.3d at p. 456, overruled on 293 other grounds in People v. Castro (1985) 38 Cal.3d 301), while leaving open the possibility that under some circumstances there may be a sua sponte obligation to provide such aninstruction in a capital case. (See People v. Morris (1991) 53 Cal.3d 152, 215, overruled on other grounds in People v. Stansbury (1995) 9 Cal.4th 824.) Although thetrial court provided instruction pursuant to CALJIC No. 17.02 in this case, an analysis of the cases where this Court found no error whena trial court failed to instruct sua sponte with CALJIC No. 17.02 sheds light on whythe instruction given here represented an incomplete statementof the legal principles applicable to appellant’s case. The seminal case for the proposition that there is no sua sponte duty to instruct pursuant to CALJIC No. 17.02 is People v. Beagle, supra, 6 Cal.3d 441. Beagle specifically stated this proposition and cited to two cases: Peoplev. Holbrook (1955) 45 Cal.2d 228 and People v. Bias (1959) 170 Cal.App.2d 502. However, current examination of both Holbrook and Bias reveals that the trial courts in both of those cases gave exactly the type of instruction appellant contends was warrantedin this case. In Holbrook, the issue on appeal was actually whetherthe trial court should have sua sponte given the jury a limiting instruction that it could not consider specific evidence pertaining to one count whenit considered guilt of the other count. This Court held that the trial court had no sua sponte duty to highlight the particular evidenceat issue since it had “properly instructed the jury that each count charged a separate offense and that the jury ‘must consider the evidence 294 999applicable to each offense as though it were the only accusation.’” (Peoplev. Holbrook, supra, 45 Cal.2d at p. 233.) It was the Court’s view that if the defendant desired a pinpoint instruction he should have requested one. Thus, rather than support Beagle’s proposition thatthe trial court need not sua sponte instruct that the jury must decide each countsolely on the law and evidence applicable to it, Holbrook supports the proposition that such an instruction is a correct statement of the law. Sincethetrial court in Holbrook gave such an instruction, the Holbrook Court neveractually reached the point asserted in Beagle, but rather merely held that if a defendant desired a more specific instruction than one on the general principle of law, the defendant needed to specifically request it. All appellantis assertinghere is that he wasentitled generally to the same typeofinstruction that was found appropriate in Holbrook with additional reference to accomplice corroboration. Bias is similar to Holbrook. Thetrial court in Bias also instructed the jury to consider only the evidence applicable to each countin arrivingatits verdict. The appellant in Bias was actually challenging that instruction on appeal and the appellate court found that the instruction was proper. (People v. Bias, supra, 170 Cal.App.2d 502, 510.) Once again, the appellate court’s decision in Bias hardly supports the notion that in an exceptional casethis type of instruction need not be given sua sponte. Thefinal point to note regarding Beagle is that in Beagleall of the evidence was deemedto be relevant as to both counts before the jury. (People v. Beagle, 295 supra, 6 Cal.3d at p. 456.) Here, that is not the case. Jose Munoz provided the most crucial evidence against appellant on the murder counts,special circumstances, and all other non-capital crimes. His testimony wasthe linchpin of the prosecution’s case against appellant, more so than any other testimony or evidence. Nevertheless, the law requires that Munoz’ accomplice testimony had to be corroborated on a count-by-count, crime-by-crime,or incident-by-incident basis. However, someofthe corroborating evidence wasrelevant only to particular counts and could not be used across-the board to corroborateall ofhis testimony, generally, or as a matter of law. Not even the broadest interpretation of the sufficiency or admissibility of accomplice testimony permits corroboration of accomplice testimony as to someactsorincidents to applyto all other counts or crimes. Recently, this Court revisited the use of an instruction seemingly like the one appellant asserts should have been givenin this case. In People v. Catlin, supra, 26 Cal.4th 81, the defendant requested an instruction that evidence should be considered only asit related to each offense chargedas if that offense were the only accusation before the jury. This Court held that such an instruction was properly refused because the other-crimes evidenceat issue was admissible as to both of the counts and because the evidence regarding the murderofone ofthe victims would have been cross-admissible at a trial of the murderofthe other. This Court also found that to the extent the defendant was seeking to have the jury arrive at a verdict as to each countseparately,the trial court’s instruction pursuant 296 to CALJIC No. 17.02 protected that right. (/d. at p. 153.) Catlin is instructive because it demonstrates that this Court doesin fact recognize that there is a difference betweenthe right of the jury to considerall of the admissible evidence as supportive of guilt on all of the counts and the procedural concept of arriving at separate verdicts for each count. In Catlin, the jury wastold to reach its verdicts by considering each count separately, but there was no needfor a separate instruction addressing the evidentiary issue because the other-crimes evidence was relevant to both counts and the evidence of each murder was cross-admissible as to the other murder. Onceagain,that is different from the instant case, where Jose Munoz’ accomplice testimony was not completely cross-admissible absent some corroboration on a count-by-countor incident-by-incident basis. That Munoz’ accomplice testimony wassufficiently corroborated as to count3 did not signify that his testimony in respect to counts 1 and 2 separately was also admissible absent the requisite corroboration as to those particular counts as well. An examination of the cases, both pre-Beagle and post-Beagle, which address situations where it may have been appropriate for the trial court to instruct in a manner which appellant claims was necessary here, leads to the conclusion that the statement in Beagle that such an instruction is not necessary sua sponte is without support. A more appropriate phrasing might be thatit is unnecessary to provide such an instruction where the evidenceat issue is Evidence Codesection 1101 evidence whichis relevant to all of the counts or where all of the evidenceis 297 cross-admissible. In this case, section 1101 evidence is not involved, and notall of Munoz’ accomplice testimony was generally admissible in the absence of corroboration on a count-by-countor incident-by-incident basis. Thus, the limiting instruction should have been given. The United States Supreme Court has recognized that when a defendant is being tried for multiple offenses, and is thus subject to a situation where evidence relating to one crime may influencethejury asto totally different charge, the defendantis protected becausethe jury is given an instruction limiting the evidenceto its proper function. (Spencer v. Texas (1967) 385 U.S. 554, 562.) This is what ensures that the defendantis receiving due process anda fair trial. A sua sponte instruction was necessary here to protect appellant’s right to due process and a fairtrial. Thesituation here is also analogousto that in People y. Castillo (1997) 16 Cal.4th 1089, where the Court recognized that misleading instructions“implicate the court’s duty to give legally correct instructions. Even if the court has no sua sponte duty to instruct on a particular legal point, when it does chooseto instruct, it must do so correctly.” (/d. at p.1015.) Here, having protected one aspect of appellant’s rights with respect to accomplice corroboration,thetrial court needed to go further to ensure that Jose Munoz’crucially important accomplice testimony be evidentially corroborated on each and every count charged and not misused or misapplied to find appellant guilty of the offenses for which there was no corroboration. 298 A defendantis entitled to a reversal when a conviction is not based on admissible evidence submitted under properinstruction. (People v. Houts (1978) 86 Cal.App.3d 1012, 1019.) As to each ofthe ten incidents involved inthis case, there was an overwhelming amount of accomplice testimonythat had to be corroborated before it could properly be considered as evidence of appellant’s guilt. The jury was nevertheless permitted to consider appellant’s guilt in the absence ofan instruction which informed the jurors that they could not consider Jose Munoz’ testimony as to appellant’s guilt on particular counts unless his testimony on those counts hadfirst been sufficiently corroborated by separate evidence of appellant’s guilt on those counts. Absent appropriate instruction, appellant was denied due process anda fair trial on each affected count. D. The Trial Court’s Failure To Provide a Proper Instruction to the Jury Against Aggregating Accomplice Corroboration and Other Evidence of Guilt on Each Count Impermissibly Lessened the State’s Burden of Proof For a defendantto receive a constitutionally-acceptabletrial the jury must be correctly instructed on the defendant’s presumption of innocenceand the meaning of reasonable doubt. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277- 278.) In this case, the jury was instructed pursuant to CALJIC No.2.90 as follows: A defendantin a criminal action is presumed to be innocentuntil the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown,heis entitled to a verdict of not guilty. This 299 presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. Reasonable doubtis defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. (6 CT 1409; see also 45 RT 6817.) The combination ofthis instruction withthe trial court’s failure to provide a properinstruction regarding the mannerin whichthe jury wasto assess the sufficiency of accomplice corroboration evidence andto refrain from aggregating evidence of guilt stemming from unrelated incidents, generally, resulted in a lowering of the state’s burden of proof below a constitutionally acceptable level. True, the jury was properly instructed that before it could render a conviction it needed to find appellant guilty beyond a reasonable doubt. However, the jury wasalso instructed in the sameinstruction that it could arrive at this determination after an “entire comparison and consideration ofall of the evidence.” (6 CT 1409; 45 RT 6817.) This instruction, coupled with the court’s failure to instruct the jury that Jose Munoz’ accomplice testimony on each count had to be corroborated independent of the evidence on any otheroffenses, severely prejudiced appellant. Absent such an instruction, the jury would not have understood that guilt on any single charge could only be appropriately found by 300 considering the evidence which related to that charge and onlythat charge. Without such aninstruction, the jury would naturally aggregate all of the corroborating evidenceto find appellant guilty of all offenses, irrespective of the legal sufficiency of the evidence on any particular count. Theerror thus enabled the jury to render a guilty verdict on any one count without performingthe constitutionally-mandated function of determining whether appellant’s guilt independently had been proven beyond a reasonable doubtwith respect to each and every count. As a consequence, the state’s burden of proof was impermissibly lessened. The recent case of People v. Armstead (2002) 102 Cal.App.4th 784 demonstrates that appellant’s claim oferror rests on well-established legal principles. In Armstead, the defendant wastried on multiple charges before a single jury. During deliberations in that case, the jury sent out the following note: “CALJIC [No.] 2.90 includesthe phrase “consideration of all the evidence” in the second paragraph. Doesthis phrase mean,(1) all of the evidence presented throughoutthetrial, or (2) all of the evidence presented per count? In other words, do we base our judgmenton each countbasedsolely on the evidencerelated specifically to the exact robbery and/or victim? (/d. at p. 790.) This question by the jury brings the issue into sharp focus. The Armstead court provided an answer whichtold the jury it could consider evidence of the other charged crimes in deciding each count, but that such consideration waslimited to showing identity, motive orintent. (/d. at pp. 301 790-791.) Because this issue wasnotlitigated during the course ofthe trial, the Court of Appeal foundthat thetrial court’s answerconstituted a due process violation. (/d. at p. 795.) Nevertheless, as the juror note in Armsteadreveals, appellant’s concern regarding the jury’s improper aggregation of evidence wholly irrelevant to or insufficient to prove certain charges is well-founded. The law is clear that barring its proper introduction under sometheory, such as other-crimes evidence, a jury should not be permitted to convict a defendant of a crime alleged in one count by using accomplice corroborating or other evidencerelevant solely to another count. That is exactly what happened here. The principle of law that our legal system does not countenance a conviction underthese circumstancesis one that is essential to a defendant’s rightto a fair trial. Particularly in a capital case, with its heightenedreliability and due process requirements, thetrial court’s failure sua sponte to instruct the jury in accordance with this principle violated the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and prejudiced appellant’s rights. The impairmentof the burden ofproofin this case and the violation of appellant’s rights to procedural and substantive due processof law,fair trial, and to a reliable determination of guilt and penalty, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, constituted fundamental structural defects that rendered the guilt, and derivatively the penalty, proceedings unfair regardless of the evidence. (See People v. Flood (1998) 18 Cal.4th 470, 489-490; People v. Wims (1995) 10 Cal.4th 293, 312-314.) These 302 rights obviously involve “basic protections” to which both this Court (Peoplev. Wims, supra, 10 Cal.4th at pp. 312-313) and the United States Supreme Court (Sullivan v. Louisiana, supra, 508 U.S. 275, 281-282) have referred, the violation of which constitutes a structural defect in the course and conduct ofappellant’s trial. As elsewhere stressed by this Court in People v. Cahill (1993) 5 Cal.4th 479, 493, somefederalconstitutional errors are not subject to the ordinary or generally applicable harmless error analysis and may require reversal of the judgment “notwithstanding the strength of the evidence containedin the record in a particular case.” (/d. at p. 493.) Evenifthe trial court’s federal constitutional errors are not deemed prejudicial per se, they muststill be deemed prejudicial under the alternatively applicable standard of review. Under the Fourteenth Amendmentto the United States Constitution, prejudice is presumed unless the governmentestablishes that the errors were harmless beyond a reasonable doubt.(See, e.g., Rosev. Clark (1986) 478 U.S. 570, 576-579.) Because thetrial court erred in violation of appellant’s rights to due process,fair trial, andtrial by a fair and impartialjury, and to a reliable determination ofguilt (and penalty), the proper standard of review (if the error is not otherwise prejudicial per se) is the stricter beyond-a-reasonable- doubt standard reserved for errors of constitutional dimension (Chapmanv. v. California (1967) 368 U.S. 18, 24), not the harmless error standard announced in People v. Watson (1956) 46 Cal.2d 818, 836 for assessing the prejudicial effect of state error. Becausethetrial court’s failure to instruct on the appropriate 303 principles of law prevented appellant from receiving a fair trial and impacted his right to due process of law, the prosecution bears the burden of demonstrating beyond a reasonable doubtthat the error was harmless. (Chapman v. California, supra, 368 U.S. at p. 24.) Underthe facts of this case, the state cannot meetthat burden; there is no way to determine on which accomplice corroborating testimony or evidencethe jury may haverelied on any particular count. As a consequence,the judgment of conviction on all counts and the penalty of death mustbe reversed. 304 Vil THE USE OF CALJIC 2.90 INCONJUNCTION WITH OTHER JURY INSTRUCTIONS IMPERMISSIBLY UNDERMINED AND DILUTED THE BURDEN OF PROOF BEYOND A REASONABLE DOUBTIN VIOLATION OF APPELLANT’S RIGHTSTO A FAIR TRIAL, UNANIMOUS VERDICT, AND DUE PROCESS OF LAW, AND RENDERED THE GUILT AND PENALTY DETERMINATIONS UNRELIABLE IN VIOLATION OF THEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Factual and Procedural Background The fundamental federal constitutional guarantee of due process of law embodied in the Fourteenth Amendmentto the United States Constitution protects every accused, including appellant, against conviction except upon proofbeyond a reasonable doubt of every fact necessary to constitute the crime with whichheis charged.” (In re Winship (1970) 397 U.S. 358, 364; accord, Cage v. Louisiana (1990) 498 U.S. 39, 39-40; People v. Roder (1983) 33 Cal.3d 491, 497.) “The constitutional necessity of proof beyond a reasonable doubtis not confined to those defendants who are morally blameless.” (Jackson v. Virginia (1979) 433 U.S. 307, 323.) The reasonable doubt standard is the “bedrock ‘axiomatic and elementary’ principle ‘whose enforcementlies at the foundation of the administration of our criminal law’” (/n re Winship, supra, 397 U.S.at p. 363) and at the heart of the rightto trial by jury. (Sullivan v. Louisiana (1993) 508 U.S. 275, 278 [jury verdict required by the Sixth Amendmentis a jury verdict of guilty beyond a reasonable doubt”].) 305 Jury instructions violate these constitutional requirements if “there is a reasonablelikelihood that the jury understood the instructions to allow conviction based on proofinsufficient to meet the Winship standard” of proof beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S.1, 6.) In this case, the trial court gave a series of standard CALJIC instructions, beginning with No. 2.90, which separately and in the aggregate violated the above principles and enabled the jury to convict appellant on a lesser standard than is required under both the state and federal constitutions. Because the instructions violated the United States Constitution in a mannerthat never can be “‘harmless,” the judgmentin this case must be reversed. (Sullivan v. Louisiana, supra, 508 USS. at p. 275.) B. CALJIC No. 2.90 Erroneously Implied that Reasonable Doubt Requires Jurors to Articulate Reason for Their Doubt Thetrial court instructed the jury in the language of CALJIC No. 2.90 as follows: A defendant in a criminal action is presumed to be innocentuntil the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People [the Deputy District Attorney Mr. West]'*° the burden of proving him guilty beyond a reasonable doubt. '°7 Bracketed language was added bythe court to the standard jury instruction. (See 45 RT 6817.) 306 Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to humanaffairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration ofall the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. (6 CT 1409; 45 RT 6817.) The reasonable-doubtstandard “plays a vital role in the American scheme of criminal procedure.” (In re Winship, supra, 397 U.S.at p. 363; see also Cage v. Louisiana, supra,, 498 U.S. at p. 40. “Amongother things,‘it is a prime instrument for reducingthe risk of convictions resting on factual error.’” (/d.at p. 40.) According to the High Court, unique and invaluable interests are at stake when someoneis formally charged with a crime. Defendants standto lose their liberty if convicted,andto suffer the social stigma that only criminal conviction can bring. (In re Winship, supra, 397 US.at p. 363.) In the High Court’s view, the reasonable doubt standard,like the presumption of innocence, was essential to protect innocent persons from erroneousfindingsof guilt. (/bid.) Anessential conceptual underpinning of the presumption of innocenceis that the accused bears no burden of proof whatsoever. It is not the obligation of the accusedto “raise” or “create” any specified threshold of doubt. (See People v. Loggins, (1973) 23 Cal.App.3d 597, 601-604.). As explained, for example, in People v. Frazier (2005) 128 Cal.App.4th 807, 819 [quoting Loggins], “California 307 law has ‘long barred instructions placing upon the defense any burden of 999 persuasionas to the elements of the crime.’” Noris the jury required to “find” any particular degree or amountof doubt before it may acquit. Rather, the jurors must acquit underall circumstances unless they find that the prosecution has proven every fact essential to conviction beyond a reasonable doubt. Accordingly, it is constitutionally erroneous expressly to require the jurors to articulate concrete reasonsfor their doubt. (People v. Antommarchi (N.Y. 1992) 80 N.Y.2d 247, 252, 604 N.E.2d 95, 98, 590 N.Y.S.2d 33, 36). When jurors are required to articulate reasons for acquitting “‘[t]he burden ... is thus cast on the defendant, whereasit is on the state to make out a case excluding all reasonable doubt.” State v. Cohen (1899) 108 Iowa 208, 78 N.W. 857, 858). In short, “jurors are not boundto give reasonsto others for the conclusion reached.”(/d. at p. 858.) In the present case, the jurors were not expressly instructed that they must articulate reason and logic for their doubt. However,the instructional language embodied in CALJIC No. 2.90 implied as much. By requiring more than “mere possible or imaginary doubt”the instruction suggested to the jurors that the reason and logic for their doubt shouldfirst be articulated and then evaluated against the “mere possible or imaginary” standard. In the context of the instruction as a whole, and for the reasons additionally discussed, infra, as reasonably interpreted by the jurors (Estelle v. McGuire (1991) 502 U.S. 62, 72), CALJIC No. 2.90 impermissibly required an articulation of their doubts before such doubts could be considered sufficient to acquit, contrary to due process and jury trial principles 308 embodiedin the Fifth, Sixth, and Eighth, and Fourteenth Amendmentsto the United States Constitution. C. CALJIC 2.90 Unconstitutionally Admonished the Jury that a Possible Doubt Is Not a Reasonable Doubt The second paragraph of CALJIC No. 2.90 admonishedthejury that “reasonable doubt”is “ is not a mere possible doubt ... .” (6 CT 1409; 45 RT 6817.) This instructional admonition was unconstitutional, becauseit failed adequately to limit the scope of possible doubt. Unlike an imaginary doubt, a possible doubt may be based on fact. When driving on a two-laneroad,for example, reasonable drivers do not pass on a blind curve becauseit is “possible” that a car may be approachingin the other lane. Cautious investors regularly forgo higher returns and optinstead for the lowerreturn of an insured bank account becauseit is “possible” they may lose principal in a more lucrative but riskier investment. In other words, merely because a doubtis only possible does not makeit unreasonableorinsignificant. Contrary to the language of CALJIC No.2.90, the question of reasonable doubt should be measured by reasonablereliance rather than possibility. If the doubtis sufficient to cause a juror to reasonablyrely on it in making important decisions then the doubt is reasonable evenif it is merely possible. (See, e.g., Victor v. Nebraska, supra, 511 U.S. at pp. 20-21 [hesitate to act language “gives a commonsense benchmark for just how substantial such a [reasonable] doubt must be]”). 309 This formulation of reasonable doubt was approved in United States v. Wilson (1914) 232 U.S. 563, 570, and has since been endorsed by a numberof state and federal courts. (See, e.g., Holland v. United States (1954) 348 U.S. 121,140; Hilbish v. State (Alaska App. 1995) 891 P.2d 841, 850-851.) For example, the Eighth Circuit Court of Appeals clarifies “possible doubt” by relating the concept to the notion of reliance: A reasonable doubt is a doubt based upon reason and commonsense,and not the mere possibility of innocence. A reasonable doubtis the kind of doubt that would make a reasonable personhesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would nothesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt. (See 8th Circuit Model Jury Instructions -- Criminal 3.11 (Reasonable Doubt) (2000); see also Kevin F. O’Malley, Jay E. Grenig & William C. Lee, Federal Jury Practice and Instructions, § 12:10 (Presumption of Innocence, Burden of Proof, and Reasonable Doubt) (West, 5th ed. 2000). Alternatively, it may be said that reasonable doubt does not mean a captious or speculative doubt, or a doubt from mere whim,caprice, or groundless conjecture. In the present case, however, reasonable doubt wasnotso defined. Instead, the jury was admonishedthat a doubt is not reasonable if it is “merely possible.” Such a definition unconstitutionally allowed the jurors to reject a doubt as unreasonable even if they would reasonably haverelied on a similar degree of doubt in their own importantaffairs. 310 Moreover, by stating that mere possible doubt was unreasonable,the instruction unconstitutionally implied some obligation on the part of appellant accusedto raise a probable doubtasto his guilt. It is unconstitutional to require the accused to assume any burdenofproofas to reasonable doubt. (Jn re Winship, supra, 397 US.at p. 364.) D. CALJIC No. 2.90 WasDeficient and Misleading by Failing Affirmatively to Instruct that Appellant Had No Obligation to Present or Refute Evidence Theinstructional language defining and explaining the presumption of innocence wasthefirst paragraph of CALJIC 2.90 which provided as follows: “A defendantin a criminal action is presumedto be innocent until the contrary is proved,andin case of a reasonable doubt whetherhis guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the prosecution the burden of proving him guilty beyond a reasonable doubt.” (6 CT 1409; 45 RT 6817.) CALJIC No. 2.90 omitted one of the most fundamental underpinnings of the presumption of innocence,i.e., that the accused need not present any evidencefor the jury to have a reasonable doubt. This omission,in light of other instructions and the likely interpretation given to them by the jury, erroneously conveyed the impression that the evidence presented by the defense must raise a reasonable doubt in order for appellant to attain acquittal on any of the 19 counts with which he wascharged. The essence of the presumption of innocenceis that the defense has no 311 obligation to present evidence, refute the prosecution evidence or to prove or disprove any fact. (In re Winship, supra, 397 U.S. 358; see People v. Hill (1998) 17 Cal.4th 800, 831 [“to the extent (prosecution) was claiming there must be some affirmative evidence demonstrating a reasonable doubt, she was mistakenasto the law, for the jury may simply notbe persuaded by the prosecution’s evidence]; see also State v. Miller (1966) 197 W.Va. 588, 610, 476 S.E.2d 535, 557 [if requested, court must instruct that defendant has no obligation to offer evidence]; United States v. Maccini (ist Cir. 1983) 721 F.2d 840, 843; Federal Judicial Center, Pattern Criminal Jury Instructions, 22 (1988) [“[A] defendant has an absolute right not to ... offer evidence’’]). Asthe judge told the jury in Maccini: I take this occasion to state to the jury one of the fundamental principles of American jurisprudence, which is that the burden is upon the [prosecution] in a criminal case to prove every essential element of every alleged offense beyond a reasonable doubt. That is, the burden is upon the [prosecution] to prove guilt beyond a reasonable doubt. This burden never shifts throughout thetrial. The law does not require a defendant to prove his innocenceor to produce any evidence. There’s no burden on [defendant] to produce any evidence. In every case, and I have no doubtin this case as well, the defendant will be presenting evidence by way of cross- examination of [prosecution] witnesses. The defendant relies upon evidence elicited by cross-examination. So that the opportunity that [defendant] will have, as the defendant in every case has, to bring out certain facts by way of cross-examination and by way of argument and 312 analysis to the jury, does not in any way imply a necessity on the part of the defendant to produce any evidence. That’s fundamental. There is no need of the defendant to produce any evidence. There is no needin law for him to take advantage of the opportunity. He doesn’t have to put a single question on cross- examination if counsel decides not to do so. The bottom line is that the burden is on the [prosecution] to prove guilt beyond a reasonable doubt. There is no burden on the defendant to prove his innocence, and there’s no burden on the defendant to come forward with a single item of evidence or testimony. (United States v. Maccini, supra, 721 F.2d at p. 843.) Aninstruction explaining that the defendant has no obligation to produce evidenceis especially important in cases where the defense does present affirmative evidence becausethe jurors will be naturally inclined to view their duty as deciding whether the defense evidence has provedor disprovedthefacts in issue. Of course, in appellant’s case no affirmative defense was presented. In light of the instructions as a whole (CALJIC No. 1.01) and presumed by law to be faithfully followed by the jury (People v. Hardy (1992) 2 Cal.4th 86, 208; People v. Lawson (1987) 189 Cal.App.3d 741, 748; see also Francis v. Franklin (1985) 471 U.S. 307, 324-325, fn. 9 [High Court presumed jury followed language ofinstructionsgiven]),it is reasonably likely that jurors concludedthat appellant had the burden ofproducingsufficient evidence to raise a reasonable doubtofhis guilt. The followinginstructions given by thetrial court, in addition 313 to CALJIC No.2.90,virtually assured this outcome. First, the trial court instructed the jury in the language of CALJIC No.1.00, which described the duties ofjurors to “determine the facts from the evidence receivedin the trial” and required the jury to “consider and weigh the evidence”in “reach[ing] a just verdict. (6 CT 1376; 45 RT 6804-6805.) This initial instruction -- the first instruction read to the jury -- explicitly imposed a weighing process on the jury which would reasonably be interpreted as the duty to consider the evidence presented by both the prosecution and defense to determine what happened. Such a weighing process, however, was at variance with presumption of innocence by which the jury was not bound to determine “ultimate truth” but rather to determine exclusively whether the prosecution had proved guilt beyond a reasonable doubt. Consequently, the jury’s fact-finding and deliberative functions as described by CALJIC No. 1.00 were misleading and at odds with CALJIC No. 2.90. Second,thetrial court instructed the jury in the language of CALJIC No. 2.11 which provided as follows: “Neither side is required to call as witnessesall persons who may havebeenpresentat any of the events disclosed by the evidence or who mayappear to have some knowledgeofthese events,or to produceall objects or documents mentioned or suggested by the evidence.” (6 CT 1389; 45 RT 6809-6810.) This “missing witness” instruction exacerbated the deficient presumption of innocenceinstruction by implying that appellant had the obligation to present evidence. By expressly telling the jury that neitherside is requiredto 314 “call ... all” potential witnesses to an event or “produceall objects or documents,” the instruction suggested that the production of some evidenceby both sides was required.(See e.g., Commonwealth v. Bird (1976) 240 Pa.Super. 587, 590, 361 A.2d 737, 739 [reversible error to instruct jury that it could draw inference against defendantfor failure to call bystander as witness even thoughthe instruction also permitted the jury to draw an inference against the prosecution forits failure to call the same witness]; State v. Mains (1983) 295 Or. 640, 647, 669 P.2d 1112, 1117.) Third,the trial court instructed the jury on circumstantial evidence in the language of CALJIC No. 2.01. This circumstantial evidence instruction exacerbated the deficiencies of the presumption of innocenceinstruction bystating that each fact which is essential to complete a set of circumstances must be proved beyond a reasonable doubt. While the second paragraph of CALJIC No.2.01 referred to establishing the defendant’s guilt and addressed only the prosecution’s evidence, the instruction as a whole did nothing to explain how the defense evidence should be consideredin light of the prosecution’s burden. Fourth,the trial court instructed the jury in the language of CALJIC No. 2.60 on the impactof the defendantnottestifying and that no inference of guilt may be drawn: “A defendantin a criminaltrial has a constitutional right notto be compelled to testify. You must not draw any inference from the fact that a defendantdoesnottestify. ...” (6 CT 1400; 45 RT 6813.) This instruction was limited explicitly to the defendant’s failure to testify. It did not apply to the failure 315 to present evidence. Hence, the instruction reinforced the misconception that appellant had the burden of producing some evidenceto raise a reasonable doubt of his innocence on the various counts with which he wascharged. Fifth, the trial court instructed the jury in the language of CALJIC No.2.61 as follows: “In deciding whetheror notto testify, the defendant may chooseto rely on the state of the evidence and uponthefailure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him. No lack of testimony on defendant’s part will make up for a failure of proof by the People so as to support a finding against him on any such essential element.” (6 CT 1410; 45 RT 6813-6814.) However, by limiting its applicability to the decision whetheror not to testify and by admonishing the jury that “no lack of testimony on defendant’s part will supply a failure of proof,” the instruction, by implication, did not apply at all to appellant’s failure to present evidence generally or the implication that the burden of proof might thereby be affected as a consequence. Sixth, the trial court instructed the jury in the language of CALJIC No. 2.21.2 that a “witness, whois willfully false in one material part of his or her testimony,is to be distrustedin others” and that the testimony of a witness who hastestified falsely as to a material point maybetotally rejected “unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.” (6 CT 1395; 45 RT 6812.) By referring to the “probability of truth,” this instruction conveyed the implication that appellant was required to 316 produce evidence to raise a reasonable doubtof his innocencein orderto be acquitted. When generally applicable instruction is madespecifically applicable to one aspect of the charge and not repeated with respect to anotheraspect, the inconsistency may prejudicially mislead the jurors. In weighing conflicting testimony and in determining an issue of fact, the jury was further instructed in the language of CALJIC No.2.22 to evaluate the “convincing force”of the evidence, again implying lesser standard of proof. (See 6 CT 1396; 45 RT 6812.) Finally, the jury wasinstructed in the language of CALJIC No. 2.27 which provided asfollows: “You should give the uncorroborated testimony of a single witness whatever weight you think it deserved. However, testimony by one witness which you believe concerning any fact whose testimony aboutthat fact does not require corroboration, is sufficient for the proof of that fact.” By specifically referring to any fact required to be established by the prosecution,” this instruction impermissibly suggested by implication that some facts were required to be proven by the defense. Hence, the instruction contributed to the misleading messageofthe instructions as a whole that the defense has a burden as to affirmative defense theories to raise a reasonable doubt. In sum,the instructions as a whole perpetrated the misconception that the defense had the burden ofraising a reasonable doubt. “It is critical that the moral force of the criminal law not be diluted by a standard of proofthat leaves people in doubt whether innocent menare being condemned.” (Jn re Winship, supra, 397 U.S.at p. 364.) Each of the disputed 317 instructions here individually served to contradict and impermissibly dilute the constitutionally-mandated standard that requires the prosecution to prove each necessary fact of each element of each offense “beyond a reasonable doubt.” Taking the instructions together, no reasonable juror could have been expected to understand -- in the face of so many instructions permitting conviction upon a lesser showing-- that he or she mustfind appellant not guilty unless every element of the offenses was proven by the prosecution beyond a reasonable doubt. The instructions challenged here violated the constitutional rights set forth in Subsection A of this argument, supra. E. CALJIC 2.90 Failed to Inform the Jury that the Presumption of Innocence Continues Throughout the Entire Trial, Including Deliberations Asgiven by thetrial court, CALJIC 2.90 instructed the jury in pertinent part, as follows: “A defendant in a criminal action is presumed to be innocentuntil the contrary is proved... .” (6 CT 1409; 45 RT 6817.) Use of the term “until” in this instruction undermined the prosecution’s burden of proof. Use of the word “until” is less clear and definitive than “unless.” Thatis, “until” implies that the proof will be forthcoming, while “unless” implies that sufficient proof might not ever be presented. In apparent recognition of how use of the term “until”fails to comport with Winship and thusrisks misleading the jurors, other standard pattern instructions throughoutthe nation use “unless” or “unless and until.” (See, e.g., Jdaho Criminal 318 Jury Instructions ICN No. 1501 (“unless”); Oklahoma Uniform Jury Instruction Crim (2nd ed.) No. 1 (same); State v. Hutchinson (Tenn. 1994) 898 S.W.2d 161, 172 [same]; Criminal Jury Instructions--New York CJI (New York)(Ist ed. 1983) No. 3.05 [“unless and until]; Ky. Rev. Stat. § 532.025 [same]; Criminal Jury Instructions For The District ofColumbia, Instr. 1.03 (Bar Association ofthe District of Columbia, 4th ed. 1993) [same]; Uniform Criminal Jury Instructions (Oregon) No. 1006 [same]; Ist Circuit Model Instructions Criminal No. 1.01 [same]; Eighth Circuit ModelInstructions, Criminal No. 1.01 [same]. It is also well recognized that the presumption of innocence continues throughoutthe entire trial and applies to every stage, including deliberations. (See Clarke v. Commonwealth (1932) 159 Va. 908, 919, 166 S.E. 541, 545-46 ; see also State v. Goff(1980) 166 W.Va. 47, 55, 272 S.E.2d 457, 463 [burden of proof nevershifts to the defendant]). Hence,it is improper to give the jury the impression that the presumption of innocence continues “until” the jury,in its discretion, decidesthat it should end. (See United States v. Payne (9th Cir. 1990) 944 F.2d 1458, 1462-63; see also People v. Johnson (1972) 4 WLApp.3d 539, 541, 281 N.E.2d 451, 453; People v. Attard (1973) 346 N.Y.S.2d 851; State v. Tharp (1980) 27 Wash.App. 198, 211, 616 P.2d 693, 700); Washington Pattern Jury Instructions -- Criminal, WPIC 1.01 (Advance Oral Instruction-Introductory) comment(West, 2nd ed. 1994) [words “during your deliberations” were added to instruction “to avoid any suggestion that the presumption could be overcome before all the evidenceis in]”.) 319 “Tt has been held that an instruction as to the presumption of innocence which correctly told the jury that it attends the accused throughoutthetrial, but whichthe trial court qualified by adding, ‘until such time,if at all, as it is overcome bycredible evidence’is erroneous, because the jury may haveinferred from this that, at somestageofthe trial before its conclusion, sufficient evidence had been adduced to overcome the presumption,thus shifting the burden upon the accused.” (Wisconsin Jury Instructions- Criminal, WIS-JI-Criminal 140 [Burden of Proof and Presumption of Innocence] commentp. 4 (University of Wisconsin Law School, 2000). Here, as given in the present case, CALJIC 2.90 was deficient becauseit did not assure that the jury would not shift the burden to the defense at some point prior to completing its deliberations. The instruction was deficient becauseit implied that the prosecution would meetits burden of proof. Finally, the instruction also failed to assure that the presumption of innocence would remain in place throughoutthe trial and during deliberations. F. The Jury Should Have Been Instructed that a Conflict in the Evidence and/or a Lack of Evidence Could Form the Basis of Reasonable Doubt as to Guilt Asnoted by the Court of Appeal in Estate ofObernolte (1979) 91 Cal.App.3d 124, 129, equal probability does not satisfy the burden ofproof. CALJIC 2.90 was thus incomplete and misleading becauseit failed expressly to inform the jury that reasonable doubtor the failure of proof could be based on a 320 conflict in the evidence and a lack of evidence, or both. Reasonable doubt mayarise from a conflict in the evidence, lack of evidence, or a combination of the two. See Georgia Suggested Pattern Jury Instructions - Criminal Cases part 2 (D) p. 7 (Instruction D) (Carl VinsonInstitute of Government, University of Georgia, 2nd ed. 2000). This is so because two equally probable conflicting inferences do not overcomea burden of proof. When conflicting inferences are equally probableor, in other words, when the evidence is in equipoise, “the party with the burden of proof loses.” (Simmonsv. Blodgett (9th Cir. 1997) 110 F.3d 39, 41-42 ; see also Rexall v. Nihill (9th Cir. 1960) 276 F.2d 637, 644; Reliance Ins. v. McGrath (N.D. Cal. 1987) 671 F.Supp. 669, 675.) G. The Court Should Reconsiderits Prior Rulings Upholding the Defective Instructions Although CALJIC No.2.90, in conjunction with the other instructions challenged above, supra, violated appellant’s federal constitutional rights by lessening the prosecution’s burdenand by operating as a mandatory conclusive presumptionofguilt, this Court has in the past rejected various or other constitutional challenges to the burdenofproofinstruction (see, e.g., People v. Maury (2003) 30 Cal.4th 342, 428-429; People v. Samuels (2005) 36 Cal.4th 96, 131); to former or currentlanguage (see, e.g., People v. Robinson (2005) 37 Cal.4th 592, 637 [rejecting argumentthat phrases such as “moral evidence” and “moral certainty” are incomprehensible to modern juries]; People v. Monterroso (2004) 34 Cal.4th 743, 766); and to assertedly unconstitutional combinations of 321 CALJIC 2.90 and other standard instructions. (See, e.g., People v. Riel (2000) 22 Cal.4th 1153, 1200 [addressing false testimony and circumstantial evidence instructions]; People v. Crittenden (1994) 9 Cal.4th 83, 144 [addressing circumstantial evidenceinstructions]; People v. Noguera (1992) 4 Cal.4th 599, 633-634 [addressing CALJIC Nos. 2.01, 2.02, 2.21, 2.27)]; People v. Crew (2003) 31 Cal.4th 822, 848 [rejecting challenge to CALJIC Nos. 1.00, 2.01, 2.51, and 2.52 which referred to “guilt or innocence,” concluding that “innocence” means evidenceless than that required to establish guilt, not that defendant must establish innocenceorthat the prosecution has any burden other than proof beyond a reasonable doubt]; People v. Robinson, supra, 37 Cal.4th at p. 637 [rejecting joint challenge to CALJIC Nos. 2.01 and 8.83]; People v. Jennings (1991) 53 Cal.3d 334, 385-386 [rejecting joint challenge to CALJIC Nos. 2.90 and 2.01].) While recognizing the shortcomings of someofthe instructions, this Court has consistently held that the instructions must be viewed “as a whole,” rather than singly, and that CALJIC No. 2.90 is but one “of a panoply of other instructions that guided the jury’s consideration of the evidence.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 101.) While repeatedly emphasizing that the jury instructions as a whole plainly meanthat the jury should reject unreasonable interpretations of the evidence and should give the defendantthe benefit of any reasonable doubt, the Court has consistently concludedthat jurors are not misled whenthey are instructed with CALJIC No. 2.90 regarding the presumption of innocence. The Court’s analysis is flawed. 322 First, what this Court has characterized asthe “plain meaning”of the instructions is not what the instructions say. (See People v. Jennings, supra, 53 Cal.3d at p. 386.) Asthis Court itself has repeatedly stressed, the question is whetherthere is a reasonable likelihood that the jury applied the challenged instructions in a way that violates the Constitution (Estelle v. McGuire (1991) 502 U.S. 62, 72); and, contrary to the import of the Court’s prior decisions(see, ¢.g., People v. Coffman and Marlow, supra, 34 Cal.4th at p. 101), there certainly is a reasonablelikelihood that the jury applied the challenged instructions according to their express terms. Second, this Court’s essential rationale -- that the flawed instructions were “saved” by the language of CALJIC No. 2.90 -- requires reconsideration. (See People v. Crittenden, supra, 9 Cal.4th at p. 144.) An instruction thatdilutes the standard of proof beyond a reasonable doubton a specific point is not cured by a correct general instruction on proof beyond a reasonable doubt. (United States v. Hall (5th Cir. 1976) 525 F.2d 1254, 1256; see generally Francis v. Franklin, supra, 471 U.S. at p. 322 [“Language that merely contradicts and doesnot explain a constitutionally infirm instruction will not suffice to absolve the infirmity”), People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1075, citing People v. Westlake (1899) 124 Cal. 452, 457 [if an instruction states an incorrectrule of law,error cannotbe cured by giving a correct instruction elsewhere in the charge]; People v. Stewart (1983) 145 Cal.App.3d 967, 975 [specific jury instructionsprevail over general ones].) “It is particularly difficult to overcomethe prejudicial effect of a 323 misstatement whenthe badinstruction is specific and the supposedly curative instruction is general.” (Buzgheia v. Leasco Sierra Grove (1997) 60 Cal.App.4th 374, 395.) Even assuming that the language of a lawful instruction somehow can cancel out the language of an erroneousone-- rather than vice-versa --- the principle does not apply in this case. The allegedly curative instruction was overwhelmedby the unconstitutional ones. Appellant’s jury heard at least six separate instructions, each of which contained plain language that was antithetical to the reasonable doubt standard. Yet the charge as a whole contained only one countervailing expression of the reasonable doubtstandard: the oft-criticized and confusing language of Penal Code Section 1096 as set out in former CALJIC No. 2.90. This Court has admonished “that the correctness ofjury instructionsis to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” (People v. Wilson (1992) 3 Cal.4th 926, 943 [citations omitted].) Underthis principle, it cannot seriously be maintained that a single, quite imperfect instruction such as CALJIC No.2.90is sufficient, by itself, to serve as a counterweightto the massof contrary pronouncements given in this case. The effect of the “entire charge” wasto misstate and underminethe reasonable doubt standard, eliminating any possibility that a cure could berealized by a single instruction inconsistent with therest. 324 H. The Errors Violated the United States and California Constitutions; the Errors Were Prejudicial Per Se Forall of the above reasons CALJIC 2.90 andrelated instructions failed properly to instruct the jury on the prosecution’s burdenofproof. The failure properly to instruct on the prosecution’s burden to prove every essential element of the charge beyond a reasonable doubtviolated appellant’s state and federal constitutional rights to due process andfair trial by jury. (U.S. Const., 6th and 14th Amendments; Cal. Const.art. I, §§ 1, 7, 15, 16 & 17; In re Winship, supra, 397 U.S. 358; see also Sullivan v. Louisiana, supra, 508 U.S. 275; Nederv. United States (1999) 527 U.S. 1, 19; Cage v. Louisiana, supra, 498 U.S. 39; Jacksonv. Virginia, supra, 443 U.S. 307. Moreover,the error also violated the due process and cruel and unusual punishmentclausesof the federal constitution which require heightened reliability in the determination of guilt and death eligibility before a sentence of death may be imposed. (U.S. Const., 8th and 14th Amendments.; Beck v. Alabama (1980) 447 U.S. 625, 627-46 (1980); see also Kyles y. Whitley (1995) 514 U.S. 419, 422; Burger v. Kemp (1987) 483 U.S. 776, 785.) Furthermore, verdict reliability is also required by the due process clause of the federal Constitution. (U.S. Const, 14th. Amendment; White v. Illinois (1992) 502 U.S. 346, 363-364; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 646.) Because appellant wasarbitrarily denied his state created right to properinstruction on the burden ofproof, under the state Constitution and Evidence Code,including 325 sections 500, 501 and 502, the error violated his right to due process under the Fourteenth Amendmentto the United States Constitution. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346; Ferterly v. Paskett (9th Cir. 1991) 997 F.2d 1295, 1300; see also People v. Sutton (1993) 19 Cal.App.4th 795, 804; Hernandezv. Yist (9th Cir. 1991) 930 F.2d 714, 716. The giving of an instruction which dilutes the standard of proof for conviction is reversible error per se. Any error in defining reasonable doubt for a jury cannot be deemed harmless becausethe error goesto the very heart of the system of criminaltrials and deprives the criminal defendantof the right to be . convicted only upon a finding bythe jury of guilt beyond a reasonable doubtas correctly defined. (Sullivan v. Louisiana, supra, 508 U.S. at pp. 280-282.) This Court has reached a similar conclusion. (People v. Vann (1974) 12 Cal.3d 220, 225-226. Moreover, becausethe error violated appellant’s federal constitutional rights, the judgment should be reversed unless the prosecution can demonstrate beyond a reasonable doubt that there is no reasonable possibility the error could have affected the proceedings. (Chapmanv. California, supra, 386 U.S.at 24; see also In re Rodriguez (1987) 119 Cal.App.3d 457, 469-70 [Chapman standard applied to combined impactofstate and federal constitutional errors]; People v. Williams (1971) 22 Cal.App.3d 34, 58-59.) Given the substantial impact of the error, the prosecution cannot meet this burden. Therefore, the judgment should be reversed under Chapman. 326 B. Penalty Phase Issues and Assignments of Error Vill APPELLANT’S JURY INCLUDED JURORS WITH ACTUAL PENALTY BIAS IN VIOLATION OF APPELLANT’S RIGHTSTO A FAIR TRIAL, TRIAL BY IMPARTIAL JURY, DUE PROCESS, AND A TO RELIABLE ETERMINATION OF PENALTY GUARANTEED THEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS; THE CONSTITUTIONAL VIOLATIONS AS TO PENALTY ARE REVERSIBLE PER SE A criminal defendantis entitled to a fair trial and impartial jury under the Fifth, Sixth, and Fourteenth Amendmentsto the United States Constitution and Article I, section 16 of the California Constitution. (See, e.g. Morgan v. Illinois, supra, 504 U.S.at p. 727 [and authorities cited therein]; People v. Wheeler, supra, 22 Cal.3d at p. 272.) Of course,“the decision whether a man deservesto live or die must be madeonscales that are not deliberately tipped toward death.” (Witherspoonv. Illinois (1968) 391 U.S. 510, 521-522,fn. 20.) Hence, when the “pro-life” side of the spectrum is excluded,the state “crosse[s] the line of neutrality,” “produce[s] a jury uncommonly willing to condemn a manto die,” and violates the Sixth and Fourteenth Amendments.(/d. at pp. 520-521.) Wherea biased juror has actually been seated, the defendant has been deprived of his fundamentalrightto trial by a fair and impartialjury. (See, e.g., Morganv.Illinois, supra, 504 U.S.at p. 729; People v. Weaver (2001) 26 Cal.4th 876, 910; People v. Boyette (2002) 29 Cal.4th 381, 416; United States v. Gonzalez (9th Cir. 2000) 214 F.3d 1109, 1111; United States v. Eubanks (9th Cir. 1979) 591 F.2d 513, 517.) Without qualification, the United States Supreme Court has 327 unambiguously declared that where such a violation has occurred and “the death sentence is imposed,the State is disentitled to execute the sentence.” (Morgan v. Illinois, supra, 504 U.S.at p. 729; see also United States vy. Martinez-Salazar (2000) 528 U.S. 304, 316 [if trial court’s denial of challenge for cause “result(s) in the seating of any juror who should have been dismissed for cause . . . that circumstance would require reversal”’].) In the present case,at least eight actually biased jurors deliberated appellant’s fate and therefore his penalty must be reversed. This error does not concern the process by whichthe biased jurors were seated. Assuch,this error does not lay the blame uponthe court or trial counsel for failing to conduct adequate voir dire. Instead, the penalty must be reversed because biased jurors were seated on appellant’s jury. In People v. Boyette, supra, 29 Cal.4th 318, this Court held that a juror who gave answersstrikingly similar to many jurors’ answersin this case should have been excluded for cause from a capital jury under the Witt standard. (See Wainwright v. Witt (1985) 469 U.S. 412, 424.) In Boyette, the prospective juror indicated both that he wasstrongly in favor of the death penalty and that he was ‘somewhat pro-death.” (/d. at pp. 417-418.) Heinitially stated that the death penalty should automatically be imposed on defendants convicted of multiple murder. (/bid.) Like all of the biased jurors in the present case, the prospective juror in Boyette agreed that he could vote forlife if it was appropriate, but that he would “probably have to be convinced”to vote forlife and “would be more 328 inclined to go with the death penalty.” (/bid.) He “equivocated when asked whether he would exclude considerationofa life term, saying, ‘Never having been in that situation, I have no idea.’” (/bid.) Finally, he stated that he could not “assume”that“life without parole means whatit says.” (/bid.) Thetrial court denied the defendant’s challenge for cause under Witt. This Court held that the juror was biased and therefore the trial court erred in denying a defense challenge for cause: “This was not a case in which the juror gave equivocal answers: He was strongly in favorofthe death penalty and was not shy about expressing that view. He indicated he would apply a higherstandard (“I would probably have to be convinced”) to a life sentence than to one of death, and that an offender (such as defendant) who killed more than one victim should automatically receive the death penalty. ...” (People v. Boyette, supra, 29 Cal.4th at p. 419.) In the presentcase, the responses of Juror Nos.1, 2, 4, 6, 8, 9, 11, and 14 -- all seated and regular jurors -- were remarkably similar or equivalentto the biased juror’s responses in Boyette. They did not simply give equivocal answers but, as in Boyette, were strongly in favor of the death penalty and should have been dismissed for cause. For example, Juror No. | believed in the death penalty. She stated too many condemnedprisoners were neverexecuted. (3 Supp CT [Redacted Juror Questionnaires] 653; see also 25 RT 4030 [“so manyon death row for 20, 30 years and nothing happens”].) Juror No. | indicated that she would only vote for life imprisonment withoutthe possibility of parole if the killing had been 329 accidental or unintentional and the defendant did not “fit the normal criminal mode.” (3 Supp CT [Redacted Juror Questionnaires] 660.) Juror No. 1 was dubious of mitigating evidence. (3 Supp CT [Redacted Juror Questionnaires] 659.) Indeed, Juror No. | indicated she would not consider mitigating evidence,stating that if the defendant had been involvedin a death, “they should pay for the crime.” (3 Supp CT [Redacted Juror Questionnaires] 660.) Juror No. | suggested that she would virtually have “no choice” on imposing the death penalty undercertain circumstances. (25 RT 4031.) Juror No. 2 believed in the death penalty and that it was used too seldom. In her opinion,a lot of people were sentenced to death but werestill alive. (5 Supp CT [Redacted Juror Questionnaires] 1208; see also 23 RT 3821.) Juror No. 2 readily agreed that she could vote to have appellant executed. (23 RT 3829.) Juror No.2 did not express any reluctance to impose the death penalty even whenthe defendantdid notactually kill anyone but simply may have influenced anotherto kill: “he might as well have been the one doing the murder.” (23 RT 3855.) Juror No. 2 equated reckless indifference with intent to kill. (23 RT 3855-3856.) Juror No. 2 was unsure whether background information could ever be relevant to penalty. (5 Supp CT [Redacted Juror Questionnaires] 1208.) Juror No. 4 strongly believed in the death penalty. She stated that its use might make people think twice, presumably about committing crimes. She believed that the death penalty was too seldom used. (26 RT 4249.) Juror No. 4 did not believe that life imprisonmentwithout possibility of parole was 330 sufficiently harsh as comparedto the death penalty. She thought that too many multiple murderers had gotten off without the death penalty and had gotten off to commit more murders. (26 RT 4250.) With particular relevance to the present case, Juror No.4 believed that the death penalty was used too seldom andthat such multiple murderers were permitted to “live out their lives after taking several others.” (3 Supp CT [Redacted Juror Questionnaires] 764; see also 26 RT 4250.) Juror No. 4 also indicated that her strong views on the death penalty were based on the Bible’s injunction of an “eye for an eye.” (3 Supp CT [Redacted Juror Questionnaires] 765.) Juror No. 6 had worked in law enforcement. (26 RT 4263.) Shelost her brother in a homicide-- ‘“‘Hemet’s first triple murder” -- this case obviously was also a triple murder. (3 Supp CT [Redacted Juror Questionnaires] 822, 826.) Indeed, Juror No. 6 mentioned that two brothers (as here) were responsible for her brother’s murder. (3 Supp CT [Redacted Juror Questionnaires] 832.) Juror No. 6 manifested bias and prejudice against appellant simply because he had beenarrested; indeed, according to Juror No. 6, appellant was probably guilty because he hadbeenarrested and wasin custody. (3 Supp CT [Redacted Juror Questionnaires] 834.) Juror No. 6 favored the death penalty and expressed “no problem”with it, noting as well that the death penalty was used too seldom: “we don’t use it often in this state -- it takes years to happen.” (3 Supp CT [Redacted Juror Questionnaires] 838.) Juror No. 6 indicated that her views in support of the death penalty were deeply rooted andoflong duration. (26 RT 331 4263-4264.) As to whether Juror No. 6 was willing to consider appellant’s background on considering penalty, she indicated, by her answer, that background criminal history was possibly relevant but probably not his upbringing. (See (3 Supp CT [Redacted Juror Questionnaires] 844.) Interrupting and without waiting for the prosecutor to complete his question, Juror No. 6 emphatically stated that she could reach a death verdict. (26 RT 4283.) Juror No. 8 expressed total opposition to drug abuse. (4 Supp CT [Redacted Juror Questionnaires] 939.) In respect to the death penalty, Juror No. 8 stated that while it was a “shame we haveto have the death penalty,”if one of her loved ones had been killed and the person responsible were found guilty, she would probably impose the death penalty. (4 Supp CT [Redacted Juror Questionnaires] 949.) Indeed, Juror No. 8 indicated that she would automatically vote for the death penalty if someone wentout and shot another person 141 intentionally. (24 RT 3899.) Here, appellant was alleged to have been involved in three intentional killings and several other intentional shootings. Juror No. 9 believed in the death penalty for first degree murder. (4 Supp CT [Redacted Juror Questionnaires] 986.) Juror No. 9 indicated that if a defendant were guilty, intended to kill and premeditated, he would strongly favor the death penalty. (24 RT 3969.) Juror No. 9 wasin favorofthe death penalty simply if the evidence of guilt were strong. (9 RT 3969.) Asto factors in '*'/ Appellant’s challenge of Juror No. 8 for cause was denied bythetrial court. (24 RT 3934-3936.) 332 mitigation, Juror No. 9 indicated he would only considerthat the defendant was a first-offender. (4 Supp CT [Redacted Juror Questionnaires] 992.) In response to the prosecutor’s single question, Juror No. 9 manifested absolutely no reluctance or hesitation to return a death verdict. (9 RT 3986.) Juror No. 11 was a CDCcorrectional officer at the California Rehabilitation Center in Norco. (4 Supp CT {Redacted Juror Questionnaires] 1004-1005; 25 RT 4107.) She believed that “in today’s world,” the laws were in favorof the criminals. (4 Supp CT [Redacted Juror Questionnaires] 1008.) Juror No. 11 was biased against psychiatrists and psychologists, stating that they were unjustifiably used as a way out orfor getting a lesser sentence. (4 Supp CT [Redacted Juror Questionnaires] 1012.) She was biased against drug users, noting that the use of alcoholor drugs also caused individuals to commit crimes. (4 Supp CT [Redacted Juror Questionnaires] 1013.) Juror No. 11 strongly believed in the death penalty for murder. Asto life imprisonment without possibility of parole, Juror No. 11 expressed a strong opinion that it was a waste to the taxpayers for a defendantto spendhislife in prison. She believed that the death penalty was used too seldom. (4 Supp CT [Redacted Juror Questionnaires] 1023; 25 RT 4107.) Juror No. 14 -- originally Alternate Juror No. 2 -- becamea seated juror on the first day oftrial in substitution of Juror No. 3 who was discharged for hardship at that time.'*” (See 27 RT 4360; 4861-4862, 4866; 3 CT 742.) Juror No. 14 1427 After substitution Alternate Juror No. 4 was designated Self Juror No.14. (See, for example, 27 RT 4866 [redacted pages].) 333 (Alternate Juror No. 2) stated that some crimes“required” the death penalty and that a single murder would be sufficient to warrant the death penalty. (24 RT 3909-3910.) Juror No. 14 (Alternate Juror No. 2) indicated that she would only consider backgroundinformation about a defendantasit pertained to the particular case, suggesting thereby that she would notfully consider or evaluate the range of mitigating evidence that might be offered during the penalty trial. (See 3 Supp CT [Redacted Juror Questionnaires] 696.) The United States Constitution guarantees a defendant“the right to a jury that will hear his case impartially, not one whotentatively promisesto try.” (Wolfe v. Brigano (6th Cir. 2000) 232 F.3d 499, 503 [mere statements by prospective jurors that they would try to decide the case based on the evidence insufficient to support finding of impartiality]; see also Nance v. State (Ga. Supreme Court 2000) 526 S.E.2d 560, 567 [court erred in denying challenge for cause to juror whostated that she would vote for death although ultimately agreeing she would “listen” to the law and facts and choose the appropriate sentence].) In addition, a juror who will not consider mitigating evidence must be excused. (See, e.g., Morgan vy.Illinois, supra, 504 U.S.at p. 507.) Under the - foregoing principles, Juror Nos. 1, 2, 4, 6, 8, 9, 11, and 14 -- two-thirds of the entire panel -- were actually biased and should not havesat on appellant’s jury. Both state and federal cases are clear that when an actually biased jurorsits, the penalty must automatically be reversed. Trial counsel’s failure to object or failure to conduct further voir dire matters not when a biased juror actually decides 334 a capital defendant’s fate. There is not a single case in which any court has held that a seated juror was biased, but also that counsel either waived his client’s right to challenge the constitutional violation by failing to exhaust his peremptory challenges or was notineffective in failing to removethat juror with a peremptory challenge. (See, e.g., People v. Farnham (2002) 28 Cal.4th 107, 132-133 [claim not preserved because exhaustion requirementnot met, but also concluding jurors not biased]; People v. Hillhouse, supra, 27 Cal.4th at pp. 486-488 [same].) To apply the exhaustion requirement to avoid such a constitutional violation on appeal, or to analyze the effectiveness of counselin failing to exercise a peremptory challenge or challenge for cause to prevent a biased juror from being seated, presupposes that counsel may waivehisclient’s right to have an impartial jury decide whetherhisclient lives or dies. (Cf United States v. Quintero-Barraza (9th Cir. 1995) 78 F.3d 1314 (dis. opn. of Tang, J. at pp. 1353-1354) [discussing majority’s dual holdingthat juror was not biased and counsel was notineffective for failing to strike him: majority’s “reasoning is confusing becauseeither(the juror) is biased orheis not biased. If he is not biased, then counsel simply made no error in impaneling an unbiasedjuror. If [he] is biased, then the issue is whether counsel can functionally waive the defendant’s right to an impartial jury.”].) But this simply is notso. oe The starting pointfor this analysis is the fundamentalrulethat “‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and ... ‘do not presume acquiescencein the loss of 335 fundamentalrights.’” (Johnson v. Zerbst (1938) 304 U.S. 458, 464.) Of course, as this Court has observed,““[b]y choosing professional representation, the accused surrendersall but a handful of ‘fundamental’ personal rights to counsel’s complete control of defense strategies and tactics.’” (nm re Horton (1991) 54 Cal.3d 82, 95 {and authorities cited therein].) However, as to certain fundamental personal rights, waiver may not be implied through counsel’s action or inaction; they require the defendant’s personal and express, knowing,andintelligent, waiver. Determining the mannerin which certain rights may be waived(if they may be waivedatall) often turns on a numberoffactors. First and foremost, whether the defendant’s express personal waiveris required turns on whethertheright at issue is a “fundamental personal” one. (/n re Horton, supra, 53 Cal.3d at p. 95; see also, e.g., People vy. Collins (2001) 26 Cal.4th 297, 310.) If so, the nature of the right alone may require the defendant’s express, personal, knowing, and intelligent waiver. In addition, courts may examinethe significance of the fundamental personal right. If it is so critical that its violation amountsto a structural defect undermining the integrity of the trial and requiring reversal per se (see, e.g., Vasquez v. Hillery (1986) 474 U.S. 254, 263-264), it is ordinarily the kind of right that the defendant must personally and expressly waive. (See,e.g., People v. Collins, supra, 26 Cal.4th at p. 310; People v. Webster (1991) 54 Cal.3d 411, 438 [concludingthat right to peremptory challenges not “fundamental”right requiring personal waiver in part because, unlike violation of right to jury trial which requires automatic reversal, improper denial of peremptory challenge 336 requires showingofprejudice].) Finally, if the waiverof a particular right can neverbe ascribed to “defense strategies and tactics” (In re Horton, supra, 54 Cal.3dat p. 94), it would follow that it is not the kind of right that counsel may waive on his client’s behalf, but rather is one requiring the defendant’s express personal waiver. Underthese principles, a defendant’s state and federal constitutional right to trial by jury is a fundamentalpersonalright, the violation of which amounts to structuralerror. (See, e.g., Sullivan v. Louisiana, supra, 508 U.S.at pp. 281-282; Duncanv. Louisiana (1968) 391 U.S. 145, 156-158; People v. Collins, supra, 26 Cal.4th at pp. 310-311; People v. Ernst (1994) 8 Cal.4th 441, 449.) Therefore,it requires the defendant’s express personal waiver under both state and federal law. (See, e.g., Patton v. United States (1930) 281 U.S. 276, 308-312 [express personal waiver required underfederal constitution]; Fed. Rules of Crim. Proc. Rule 23 [express, written waiver required under federal rules]; People v. Collins, supra, 26 Cal.4th at pp. 304-305 and n.2 [express waiver in open court required understate and federal law]; see also Cal. Const., Art. I, § 16.) Accordingto the very text of the Sixth Amendment, trial by jury means trial by an “impartial jury.” (See also People v. Wheeler, supra, 22 Cal.3d at pp. 265-266 [although right to impartial jury is not explicitly stated in California Constitution, it is implied].) The right to an impartial jury “““‘is an inseparable and inalienable part ofthe rightto trial by jury guaranteed by the Constitution.” [Citations].” (In re Hitchings, supra, 6 Cal.4th at p. 110.) Hence, it is as much a 337 critical, “fundamental personalright”asis the right to trial by jury. (Peoplev. Boulerice (1992) 5 Cal.App.4th 463, 473 [observing right to trial by impartial jury is “fundamental personalright”]; accord, e.g., Rogers v. McMullen (1 1th Cir. 1982) 673 F.2d 1185, 1189-1190 and fn. 5, cert. denied, 459 U.S. 1110 (1983).) Indeed, “[t]he right to a fair and impartial jury is one of the most sacred and important guarantees of the Constitution” (People v. Wheeler, supra, 22 Cal.3d at p. 283.) As the United States Supreme Court has emphasized,“[flew, if any, interests under the Constitution are more fundamental thantheright to a fair trial by ‘impartial’ jurors ... .” (Gentile v. State Bar ofNev. (1991) 501 U:S. 1030, 1075.) Moreover,it is deeply personal right, particularly in the capital context. Indeed,it is difficult to conceive of a right more “personal” than a defendant’s right to have a fair and impartial decision-maker declare whetherheshalllive or die. Moreover, the fundamental right to an impartial jury is so important that the seating of even a single biased juror“taints the entire trial” (Wolfe v. Brigano, supra, 232 F.3d at p. 503), amounts to structural error, and requires reversal perse. (See, e.g., Morganv. Illinois, supra, 504 U.S. at p. 729; People v. Weaver, supra, 26 Cal.4th at p. 910; /n re Carpenter (1995) 9 Cal.4th 634, 654 [“‘a biased adjudicatoris one of the few ‘structural defects in the constitution, which defy analysis by “harmless error” standards’”]; Hughes v. United States (6th Cir. 2001) 258 F.3d 453, 463 [seating of biased juroris structural defect]; Johnsonv. Armontrout(8th Cir. 1992) 961 F.2d 748, 755 [“trying a defendant before a biased 338 jury is akin to providing him with notrialat all]; United States v. Gonzalez, supra, 214 F.3d at p. 1111 [seating of even one biased juror requires reversal per se]; United States v. Eubanks, supra, 591 F.2d 513, 517 [same]; see also Grayv. Mississippi (1987) 481 U.S. 648, 668 [“impartiality of the adjudicator goes to the very integrity of the legal system;” hence, violation requires reversal per se].) Finally, the waiverof the right to an impartial jury cannotbeascribed to “defense strategies and tactics.” (In re Horton, supra, 54 Cal.3d at p. 94.) “The question of whetherto seat a biased juror is not a discretionary or strategic decision.” (Hughes v. United States, supra, 258 F.3d at p. 463; cf Gardnerv. Florida (1977) 430 U.S. 349, 361 [Court refuses to find that counsel’s failure to object waivedright to challenge court’s consideration of undisclosed report in imposing death sentence because,inter alia, “there is no basis for presuming that the defendant himself made a knowingandintelligent waiver, or that counsel _ could possibly have madea tactical decision”notto object].) For all of the foregoing reasons, “if counsel cannot waive a criminal defendant’s basic Sixth Amendmentrightto trial by jury ‘without the fully informed and publicly acknowledged consent ofthe client,’ [Citation], then counsel cannot so waive a criminal defendant’s basic Sixth Amendmentrightto trial by an impartial jury.” (Hughes v. United States, supra, 258 F.3d at p. 463; accord McCulloughv. Bennett (N.D.N.Y. 2003) 317 F.Supp.2d 112, 119.) Even assuming for purposes of argument that counsel could technically waivehis client’s right to an impartial jury through inaction alone, the outcome 339 would not change. It is beyond dispute that: (a) an attorney’s failure to remove a biased juror falls below an objective standard of reasonableness and cannot be Justified by any conceivabletrial “tactic;” and (b) such deficient performance underminesconfidence in the outcomeof the case because a biased juror was seated. (Hughes v. United States, supra, 258 F.3d at pp. 463-464; accord Peoplev. Weaver, supra, 26 Cal.4th at p. 911 [“because the presence of even a single juror compromising the impartiality of the jury requires reversal, counsel would be constitutionally ineffective if he had failed to” preserve the claim].) In other words, establishing the bias of a deliberating juror necessarily establishes that counsel wasconstitutionally ineffective in failing to remove that juror with a challenge for cause or peremptory challenge. (/bid; see also Strickland v. Washington, supra, 466 U.S.at pp. 693-694.) As a consequence,regardless of the analytical approach and whetherthe blamefor the violation is placed on the shouldersofthe trial court, trial counsel, or both, the result is that the defendant was deprived ofhis right to an impartial jury. (Cf People v. Estrada (1998) 63 Cal.App.4th 1090, 1096 [“The direction of a blow is less important than the woundinflicted.”]; Tejada v. Dubois (ist Cir. 1998) 142 F.3d 18, 24-25 [“It is unnecessary for us to attempt to divide the blame between lawyer and judge. .. . Instead, our constitutional focus is on the defendant... and he lost regardless” of the offender].) The reasons for the deprivation are immaterial and do not changethe factthat, if a biased juror is actually seated on a jury that fixes the punishmentat death, the state is disentitled 340 from executing the death judgment.(See, e.g., Morgan v. Illinois, supra, 504 U.S. at p. 729; People v. Weaver, supra, 26 Cal.4th at p. 910.) Consistent with the foregoing principles, other jurisdictions recognize that the seating of a biasedjuror violates the Sixth and Fourteenth Amendments and therefore requires reversal without regard to counsel’s action or inaction. Some courts simply refuse to find waiver underthese circumstances.(See, e.g., United States v. Martinez-Salazar, supra, 528 U.S. at p. 316 [we “reject the contention that under federal law, a defendant is obliged to use a peremptory challenge to cure a judge’s error” in denying a challenge for cause; if court’s ruling “result[s] in the seating of any juror who should have been dismissed for cause... that circumstance would require reversal”; Johnson v. Armontrout, supra, 961 F.2d 748, 754 [rejecting state’s argument that counsel’s failure to object to seating of biased juror waived claim for review: “When a defendantfails to object to the qualifications of a juror, he is without remedy only if he fails to prove actualbias. (Citations.) If a defendant provesthat jurors were actually biased, the conviction mustbeset aside (Citations)”]. Other jurisdictions have reversed by finding counselconstitutionally ineffective for the reasons discussed above.(See, e.g., Hughes v. United States, supra, 258 F.3d at pp. 463-464; Johnson v. Armontrout, supra, 961 F.2d at pp. 754-755; McCullough v. Bennett, supra, 317 F.Supp.2d at p. 119.) Still others apply both analyses and reach the same conclusion. (See, e.g., Johnson v. Armontrout, supra, 961 F.2d at pp. 754-755.) In sum, where,as here,it has been shownthat one or more biased jurors actually sat on a jury which 341 returned a death verdict, the state is disentitled from executing the death judgment regardless of whethertrial counselsatisfied the exhaustion rule. As such, penalty reversal is required. 342 IX THE TRIAL COURT ERRED BY ADMITTING, AND THE PROSECUTOR COMMITTED MISCONDUCT BY OFFERING AND ARGUING, IMPROPER, HIGHLY INFLAMMATORY,AND PREJUDICIAL VICTIM IMPACT EVIDENCE DURING THE PENALTY TRIAL IN VIOLATION OF APPELLANT’S RIGHTSTO A FAIR TRIAL, DUE PROCESS OF LAW, AND TO A RELIABLE DETERMIINATION OF PENALTY GUARANTEEDBYTHEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Factual and Procedural Background Prior to the penaltytrial, appellant moved to exclude victim impact evidence on groundsthat the admission of this evidence would violate appellant’s rights to a fair trial, due process of law, and to a reliable penalty determination guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution. Appellant also asserted that evidence of victim impact in this case would be highly prejudicial and fundamentally unfair and should therefore be excluded pursuant to Evidence Code section 352. (8 CT 1836-1860.) Opposing appellant’s motion, Deputy District Attorney West argued that victim impact evidence wasnotonly relevant to the jury’s determination of penalty but broadly admissible beyond mere impact on the victim’s family and friends. (See 8 CT 1861-1870.) West stressed, however, that he would “narrow the scope ofthe evidence ... to just family members.” (8 CT 1870.) A hearing washeld on appellant’s motion to exclude victim impact evidence on May2, 1996. At the hearing, Deputy District Attorney West 343 indicated, contrary to his earlier representation, that he did not intend to limit victim impact evidence to family members. In respect to the impact of Jose Aragon’s death, District Attorney West additionally asserted that he also intended to offer testimonial evidence by a closefriend of the victim “‘as to the effect of [his] death on her.” (48 RT 7175.) Satisfied that the proffered evidencerelated to the “impactof the loss of the victim ontheir lives,” to be amplified by personal characteristics of the victims themselves(as represented by prosecutor West), the trial court denied appellant’s motion to exclude victim impact evidence during the penalty trial. (48 RT 7176.) As more fully summarized in the Statement of Facts, supra, Deputy District Attorney West subsequently presented victim impact evidencein respectto all three murder victims. The stepmother,sister, and neighbor of Jose Aragon; the mother andsister of Joe Mans; and the father of Timothy Jonesall presented testimony as to the impact of the respective victims’ deaths on their lives. However, as also summarized in detail in the Statement of Facts, supra, the victim impact evidence actually admitted was not limited in scope or purpose in accordance with the trial court’s initial ruling. Numerous photographs, showing Jose Aragon,his brotherandsisters, family and friends, as well as his many awards andtrophies for athletics and motorcycling racing, were introduced into evidence during victim impact testimony by his stepmother, sister, and neighbor. (See 2 CT [Photographs- Exhibits] 525-552.) 344 Lydia Aragontestified about Jose Aragon’s background, upbringing, education, andrelationships with his family,siblings, and friends both in California and New Mexico. Shetold the jury about his engineering studies, interest in motorcycles, as well as his various achievementsin sports andathletics. She was permitted to testify that Jose Aragon wantedhis fatherorgirlfriend to "accompany him on the day he was murdered and expressed her highly prejudicial and speculative opinion to the jury that it was probably better that no oneelse went, “because then we would have had two dead people on our hands.” Lydia Aragon described how she and her husband wentto search for Jose Aragon, how they learned of his death, and the immediate and longer-term reactions of family and friends. She was permitted to describe in graphic terms the retrieval and cleaning of Jose Aragon’s bloodytruck after his death. Lydia Aragon was encouragedto describe the funeral arrangements for Jose Aragon, describing as well for the jury his “cold and swollen appearance”at the funeral. As victim impact evidence, Lydia Aragon said that Jose Aragon’s “life’s blood wasjust splattered all over”his truck. Aragon’s uncle cleaned the truck; the family found it “too intolerable”to do. Although not present when the murder occurred, Lydia Aragon was encouraged bythe District Attorney to testify how she thoughtall the time about the last few minutes of Jose Aragon’s life. In highly inflammatory and prejudicial testimony, Lydia Aragon described how she imagined Jose shotandleft to die alone with “no one to cradle him, hold him, and say that you love him and to say 345 good-bye.” Shetold jurors she realized that they could not have saved Jose because he wasleft for dead, stating “They made sure ofthat.” Lydia Aragon told the jury she imagined Jose Aragon lying inhis truck by himself while his ATM card was being used and the moneyin his accountstolen. She told jurors Aragon did not have much money,because she wentto the bank herself and closed Aragon’s account. She also was permitted to describe her feelings for the little boy who found Jose Aragon and who,assertedly, could not sleep thereafter for “months and months and months.” Victim Jose Aragon’s youngersister Stephanie described herbrother, her reactionsat his death, and the funeral. During her testimony, Stephanie was encouraged by the prosecutor to read from letter that she had sent to Jose Aragon’s girlfriend in February 1993, describing how she dreamed ofher brother and herfailure to understand whyhe waskilled. Stephanie was also encouragedto read from anotherletter describing other feelings and memories of her brother. She told the jury that she and her mother went to the cemetery every weekend to bring her brothercards, flowers, and flags. Shetestified that Jose Aragon had the cleanest headstone; they took care of him as though he werestill alive. Best friend and neighbor Leighette Hopkinsalsotestified, describing how she met Jose Aragonandherrelationship with him. Hopkins used to see Aragon nearly every day; they hung out together. He helped her with her studies and homework. Shetold the jury how,after his death, she kept a Pepsi bottle with some Pepsi that Jose Aragon had been drinking on the night before he waskilled. 346 Hopkinstold the jury about a conversation she had with Jose Aragon sometime before his death about seeing a deer outside his house. She related to the jury a subsequent conversation with Aragon’s father whenhe, too, saw and followed a deer on their property. Deputy District Attorney West also presented victim impact testimony from Joe Mans’ mother, Catherine Mans, and sister, Angela Mans. Living in Florida, Catherine Manshad not seen her son, whom shecalled “Punckon” when he was growingup,for at least a year before his death. In additionto testifying about Mans’relationship with his sisters and family, Catherine Mans described how her son had met Timothy Jones and how they had been friends for years. Catherine | Mansoffered testimony as to her immediate reactions to her son’s death, how she went outside and started screaming and banging ona car, and howsherefused to believe that he had died. Shetestified that she had nevervisited his grave buttold jurors she intendedto go after finishing her testimony. Catherinetestified that she wasstill upset, angry, and depressed about Joe’s death. Although getting better with time, Catherine Mansstill cried a lot, unable to stop. She also prayed a lot and hadto take tranquilizers. She described to jurors how she could not get over his death and how she dreamedthat she was holding and kissing him. Shetold jurors that in her dreams Manstold her that he was okay. She described how in her dreamsshe asked her son what had happened, and he pointedto his back, saying “it hurts me back here.” Joe Manskepttelling his motherin her dreamsthat he was okay. 347 Catherine Manstestified that she constantly thought about her son; the thoughts never went away. She told jurors Joe Mans was always aroundher, she talked to him, and she felt him. She explained that the hardest thing for her to deal with wasthe fact that her son was murdered and that somebody took something, her flesh and blood, away from her. She described in detail how she kept thinking that Joe Mans was gaspingfor air and struggling to breathe when he died, because he wasshotin the back of the neck. She thought he wasin pain. Angela Mansdescribedherbrother, his interests and close relationship with all membersof the family. Angela told the jury she missed her brother and wished he werealive. In addition to other details about Joe Mans’ life, Angelatestified about the pain her parents were suffering, including her father’s increased use of alcoholas a result of her brother’s death. In highly improper, speculative, and prejudicial testimony, Angela was encouragedto tell the jury that when she thought about her brother, she knew he was scared whenhewaskilled. In further highly improper, speculative, inflammatory, and prejudicial testimony, Catherine was permitted to testify that on seeing her brother in his casket at the funeral, she saw that he had a scared expression on his face. Angela told the jury that she kept talking to her brother at the funeral, waiting for a response, but he would nottalk back. Angela felt bad because she was unableto protect her brother, particularly because he had alwaysprotected her. Joe Mans later came to Angela in a dream and told her to stop crying and that he was okay. In addition to this testimony, 348 Deputy District Attorney West introduced photographsof Joe Mans’ grave with his nickname “Puncken”engraved on his tombstone;a birthday sign athis gravesite; his sister with balloon sitting by his gravel; his family with balloons and birthday signs at the gravesite; and childhood and other photographs were offered and introduced during the testimony of his mother andsister, Catherine and Angela Mans. (See 2 CT [Photographs-Exhibits 565-581]. Thejury also heard from James Jones, father of Timothy Jones, who described his son Tim as a very loveable kid, his favorite. During his testimony, photographs of Tim withhis sister, his family, and as a child in his baseball uniform, were introduced and shownto the jury. (See 2 CT [Photographs- Exhibits] 553-564.) | Jamestold the jury that Tim never caused any problems. Jameslast saw his son the night before he died. Timothy wasstaying at a friend’s house. James went to see if Timothy needed anything. At the time, Timothy said he wasnotfeeling too well. Ashis father left. Timothy gave him a hugandtold him,“I love you 9pop. Jamesdid not believe the newsof his son’s death. Timothy’s death was devastating. James wished he could have died instead. The news devastated Timothy’s mother; she died from a stroke about a year anda half after Timothy died. James believed that Timothy’s death contributed to his mother’s death as well. Both James and his daughter took Timothy’s death very hard. If they 349 started thinking about him, the next moment they would be crying. It was very hard to accept that Timothy was dead. Timothy’s death was very hard on James’ nerves. When holidays came around,the family started crying. The family did not celebrate Christmas arounda tree as they hadin the past. James was permitted to relate to the jury an incident involving Timothy’s brother Jimmy. Jimmy was paralyzed and lived in a convalescent hospital. James told the jury that whenhevisited Jimmyat the hospital the previous day, Jimmy pointed out a kid who looked exactly like Timothy. Jimmy called out “Timmy, Timmy.” Both father and son started crying. Jamestestified that he did not attend the trial very much because he could not stand the thought of what his son had gone through when Timothy knew he was going to die and could not do anything aboutit. Jamestestified that he could not forget his son’s death and could notstand the thoughtof finding out exactly how Timothy died. In highly impropertestimony, Jamesstated that he believed Timothy suffered when he was killed. Hetold jurors that it was more difficult knowingthat his son had been murdered, rather than if he had an accident or had gotten sick. He felt he would have been able to understand that type of death, but he just could not understand why anyone would wantto take the life of a kind and generouskid. With insidious and impermissible religious undertones, the court also permitted the District Attorney to elicit testimony from James Jones that when visiting his son’s grave, he alwaystells his son that they will meet again someday, 350 that everything is going to be okay, and that he did not have to worry about anything any more. Thevictim impact evidence described abovewasexcessive, improper, inflammatory, andhighly prejudicial. It is telling that, years after the conclusion oftrial, the trial court vividly and emotionally described on the record (during record settlement and correction proceedings) the impact of the victim impact evidence. “Some things that happened duringtrial I have a very vivid recollection of, one of them wasthe date we had victim witness testimony, which was a very painful and agonizing date for everyone who wasin the courtroom. Wehad the victims, including the motherandfather ofthe three people that were killed, testify and asked as to how that affected their lives. We had best friends andother relatives testifying. I would say there wasn’t a dry eyein the courtroom. Everybody wascrying that day. It was a very emotional day for everyone. That’s the day that I will always have with me. Andthat’s somethingthat-- that had, had an impact on myself and everybody else that was in the court that day. ...” (3 RT [September 9-10, 2002] 318.) Clearly, the court’s impartiality was undermined by that overwhelmingly prejudicial and inflammatory testimony. B. Victim Impact Evidence Was Admitted Without the Safeguards Needed to Confine the Evidence Within Constitutional Bounds The language of an opinion must be construed with reference to the facts presented by the case, and the positive authority of a decisionis coextensive only 35] with such facts. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 734- 735.) To determine the scope of the victim impact evidence permitted by Paynev. Tennessee (1991) 501 U.S. 808, the facts that were before the United States Supreme Court in Payne must be examined. Payne involved a single victim impact witness whotestified about the effects of the murder of a mother and her 2-year old daughter on the woman’s 3- year-old son, who washimself present at the scene of the crime and suffered serious injuries in the attack. (/d. at pp. 811-812.) The boy’s grandmother testified that he cried for his mother andsister, that he worried abouthis sister, and that he couldn’t seem to understand why his mother did not come home.(Jd. at pp. 814-815.) To be consistent with the facts and holding ofPayne, the admission of victim impact evidence, if such evidence is admitted at all, must be attended by appropriate safeguards to minimizeits prejudicial effect and confineits influence to the provision of information thatis legitimately relevant to the capital sentencing decision. There are three such safeguards that apply to the natureofthe evidenceitself.‘ None of those safeguards was employedin the instant case. First, victim impact evidence should be limited to testimony from a single '°/ Other necessary safeguards are a pretrial hearing to explore the precise nature of the victim impact evidence the prosecution intends to present and a cautionary instruction to the jury on howsuchevidence should be considered. Those safeguards are discussed in separate arguments,infra. 352 witness,like the testimony from the grandmother in Payne. In somestates,this limitation is imposed by judicial decision, as in New Jersey (State v. Muhammad (N.J. 1996) 678 A.2d 164, 180), or by statute,as in Illinois (Illinois Rights of Victims and Witnesses Act, 725 ILCS 120/3(a)(3); see People v. Richardson(Ill. 2001) 751 N.E.2d 1104, 1106-1107). The Supreme Court ofNew Jersey explained the reason for this limitation as follows: The greater the number of survivors who are permitted to present victim impact evidence, the greater the potential for the victim impact evidence to unduly prejudice the jury against the defendant. Thus, absent special circumstances, we expect that the victim impact testimony of one survivor will be adequate to provide the jury with a glimpse of each victim’s uniqueness as a human being andto help the jurors make an informed assessment of the defendant’s moral culpability and blameworthiness. (State v. Muhammad, supra, 678 A.2d at p. 180.) Here, the victim impact witnessestestified at length aboutthe lives and characteristics of each victim andthe impact of their deaths on family and friends. Second, victim impact evidence should be limited to testimony which describes the effect of the murder on a family member who waspresent atthe scene during or immediately after the crime. Third, victim impact evidence should be limited to those consequences that were knownor reasonably apparentto the defendantat the time he committed the crime or were properly introduced to prove the chargesat the guilt phase of the trial. Again, these 353 limitations are consistent with Payne, where the victim impact evidence described the effect of the crime on the son and brotherof the victims who was himself present at the scene of the crime and whoseexistence andlikely grief were therefore well-knownto the defendant. These limitations are also necessary to make the admission of victim impact evidence consistent with the plain language of California’s death penalty statutes and to avoid expanding the aggravating circumstancesto the point that they become unconstitutionally vague. In California, aggravating evidenceis only admissible whenit is relevant to one ofthe statutory factors (People v. Boyd (1985) 38 Cal.3d 762, 775-776). Victim impact evidence is admitted on the theory thatit is relevant onlyto factor (a) of Penal Code section 190.3, which permits consideration of the “circumstances ofthe offense” (People v. Edwards (1991) 54 Cal.3d 787, 835 [emphasis added]). Appellant acknowledgesthat this Court has previously rejected the argumentthat evidence of a victim’s characteristics unknownto his killer at the time of the crime should be disallowed. (People v. Roldan (2005) 35 Cal.4th 646, 732.) The Court did not analyze this contention in Roldan, stating simply that it disagreed the principle asserted by the defendantin that case. (/d.) Appellant here offers that such a limitation, although rejected by Roldan without discussion or analysis, is necessary to ensure such evidence remains relevant to assessing the moral culpability of the offender as required by the Eighth and Fourteenth Amendmentsto the United States Constitution. (See People 354 v. Bacigalupo (1993) 6 Cal.4th 457, 476.) To be relevant to the circumstances of the offense, the evidence must show the circumstancesthat “materially, morally, or logically” surround the crime. (People v. Edwards, supra, 54 Cal.3d atp. 833.) The only victim impact evidence which meetsthis standard is evidence of“the immediate injurious impact ofthe capital murder” (People v. Montiel (1993) 5 Cal.4th 877, 935) and evidenceof the victim’s personal characteristics that were known or reasonably apparentto the defendant at the time of the capital crimes and the facts of the crime which were disclosed by the evidence properly received during the guilt phase (People v. Fierro (1991) 1 Cal.4th 173, 264-265 (conc. and dis. opn. of Kennard,J.)). In Payne, the United States Supreme Court said that the prosecution had a legitimate interest in presenting evidence aboutthe victim’s personal characteristics to counteract similar evidence about the defendant. Illustrating the potential unfairness that would result if evidence about the victim were barred,the High Court noted that the defendanthad presented evidence abouthimself. Here, appellant offered no similar or countervailing mitigating evidence. In contrast, the victim impact evidence included numerousdetails of the victims’ lives, activities, and achievements, beginning with their childhood and continuing through their deaths. In addition, the victims’ relatives described years of emotional anguish following the victims’ death, including highly inflammatory and speculative assertions aboutthe victims’ pain, fear, and suffering that could only have inflamed thejurors’ sentiments against appellant. 355 Moreover, an interpretation of “circumstancesof the crime”so broadthatit would allow for admission of the excessive, irrelevant, and impropervictim impact evidence in this case would render factor (a) unconstitutionally overbroad and vague. (U.S. Const., 8th and 14th Amends.; Cal. Const., art. I, §§ 7, 15, and 17.) As stressed by this Court in People v. Dunkle (2005) 36 Cal.4th 861, 925 in regard to victim impact evidence,“[t]he sentencing jury in a capital case “must never be influenced by passion or prejudice.” As also explained by the United States Supreme Court, victim impact evidence must show the direct impact on the victims’ friends and family. The numerousspeculative yet inflammatory assertions madeby the victim impact witnesses in this case went far beyond the conceptofdirect impact previously articulated by this Court and the High Court. (Payne v. Tennessee, supra, 501 U.S. at pp. 825-827; see also People v. Pollock (2004) 32 Cal.4th 1153, 1180.) Things that happened manyyears before the crime (as the victims’ activities as children) or manyyearsafter (as the continuing reactions ofthe victims’ relativesright up to the penalty trial) do notconstitute “direct impact” or fall within any reasonable common-sensedefinition of the phrase “circumstances of the crime.” All these types of testimonyas set forth in the Statementof the Facts and Subsection (A), supra, and more, were introduced underthe rubric of victim impact in this case. Such evidence effectively rendered factor (a) of Penal Code section 190.3 unconstitutionally vague. (But see People v. Boyette (2002) 29 Cal.4th 381, 445, rejecting a similar argument where substantial, but less 356 extensive, victim impact testimony waspresented.) C. Irrelevant and Prejudicial Opinions About the Crimes and Appellant Were Improperly Admitted as Victim Impact Evidence In Booth v. Maryland (1987) 482 U.S. 496, 502-503, 508-509, the United States Supreme Court held that it was error to admit evidence of the opinions held by murdervictim’s relatives on the crime and the defendant. The admission of such opinions, the Court held, is clearly inconsistent with the reasoned decision- making required in capital cases and henceviolates the Eighth Amendmentto the Constitution of the United States. This portion ofBooth was not overruled by Payne and remains good law today. (Payne v. Tennessee, supra, 501 U.S.at p. 830, fn. 2; Hain v. Gibson (10th Cir. 2002) 287 F.3d 1224, 1238-1239; State v. Bjorklund (Neb. 2000) 604 N.W.2d 169, 214; State v. Bernard (La. 1992) 608 So.2d 966, 971-972.) The admission of opinion evidence on these twotopicsidentified as improper in Booth would be grave constitutionalerror. In this case, the trial court permitted the state to introducethe very typeof inflammatory opinion evidence prohibited by theprinciplesarticulated in Booth and left intact by Payne. Regardingthe crimeitself, Lydia Aragontestified that Jose Aragon’s “life’s blood”was“splattered all over” his truck. Although not present when the murder occurred, Lydia Aragonalsotestified that she thoughtall the time aboutthe last few minutes of Jose Aragon’slife. She described how she imagined him shot and 357 left to die alone with “no oneto cradle him, hold him, and say that you love him and to say good-bye.” Shetold jurors she realized that they could not have saved Jose because he wasleft for dead, stating “They madesure ofthat.” Lydia Aragontold the jury she imagined Jose Aragon lying in his truck by himself while his ATM card was being used and the moneyin his accountstolen. Finally, Lydia Aragon was encouraged to describe her feelings for the little boy who found Jose Aragon. In respect to the murder of her son, Catherine Manstold jurors that in her dreams Manstold her that he was okay. She described how in her dreams she asked her son what had happened, and hepointedto his back, saying “it hurts me back here.” She described in detail how she kept thinking that her son was gasping for air and struggling to breathe when he died, because he wasshotin the back of the neck. She thought he wasin pain. Angela Mandescribed seeing her brotherin his casket at the funeral and that, in her opinion, he had a scared expression on his face. James Jonestestified that he did not attend the trial very much because he could not stand the thought of what his son had gone through. Hetold the jury nevertheless that Timothy knew he wasgoingto die but could not do anything about it. In James’ opinion, Timothy suffered when he waskilled. This improper opinion evidenceviolated appellant’s due processright to a fair trial under the Fourteenth Amendmentto the United States Constitution and article I, sections 7 and 15 of the California Constitution andhis right to a fair and 358 reliable penalty trial under the Eighth and Fourteenth Amendmentsto the United States Constitution andarticle I, section 17 of the California Constitution. (Booth v. Maryland, supra, 482 U.S. at pp. 502-503, 508-509.) Admission of the improper opinion evidence also invaded the province of the jury (Summers v. A.L, Gilbert Co. (1999) 69 Cal.App.4th 1155, 1182-1183; People v. Torres (1995) 33 Cal.App.4th 37, 46-48), the entity charged with the responsibility of determining the appropriate sentence, thereby depriving appellant of his state and federal constitutional rightto trial by jury. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16.) In addition, these opinions wereirrelevant. Relevant evidence includes evidence “having any tendencyin reason to prove or disprove any disputed fact that is of consequenceto the determination ofthe action.” (Evid. Code, § 210.) The admission ofunproved, inflammatory opinionsbyrelatives of the victim aboutthe factual circumstancesofthe crime violated Evidence Codesections 350 and 352 and appellant’s due processrightto a fair trial (U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7 and 15; cf. Bruton v. United States (1968) 391 U.S. 123, 131, fn. 6; People v. Castro (1985) 38 Cal.3d 301, 313) and arbitrarily deprived appellant of a state statutory right in violation of due process of law (U.S. Const., 14th Amend.; Hicks v. Oklahoma (1980) 447 U.S. 343, 346; Vitek v. Jones (1980) 445 US. 480, 488). //1 /// 359 D. Accounts of the Victims, Including Their Activities, Achievements and Awards, Were Improperly Presented to the Penalty Jury The penalty retrial should have focused on appellant’s background and character and the circumstances of the crime. (Zant v. Stephens (1983) 462 U.S. 862, 879; People v. Mickey (1991) 54 Cal.3d 612, 692.) Instead, the penalty trial was diverted from its proper purpose and converted into what amounted to a memorial service for the victims and tribute to their lives. This clearly violated the teachings of Payne. The victim impact evidence wasnotlimited to a “quick glimpse”ofthe victims’ lives approved in Payne v. Tennessee, supra, 501 U.S. 808. Indeed, the evidence wentfar beyond a discourse on howthe victims’ survivors were impacted by their deaths. Rather,it turned into a cathartic outpouring ofgrief in which the surviving family membersandfriends were able to express and declare every dream, passing thought, speculative supposition, and imagined sense of suffering that entered their minds in connection with the deaths oftheir loved ones. Deputy District Attorney West, as the prosecutor in Moore v. Kemp (11th Cir. 1987) 809 F.2d 702, sought not merely to let the jury know whothevictims were, but rather to urge the jury to return a sentence of death because ofwho the victims were (id. at p. 749 [conc. and dis. opn. of Johnson,J.]), rendering the penalty retrial unconstitutionally unreliable and unfair. In Payne v. Tennessee, supra, 501 U.S. at pp. 822-823, the United States Supreme Court held that a state could allow the admission of evidence providing 360 ““a quick glimpseofthe life’ which a defendant ‘chose to extinguish’” in order “to i: . oye : 144 show ... each victim’s ‘uniqueness as an individual human being.’” Payne noted, however, that “In the event that evidence is introduced that is so unduly prejudicial that it rendersthe trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendmentprovides a mechanism forrelief.” (/d. at p. 825.) In People v. Edwards, supra, 54 Cal.3d at pp. 835-836, this Court suggested additional limitations, emphasizing that “we do not hold that factor(a) necessarily includesall forms of victim impact evidence and argumentallowed by Payne, supra, ....’ The Court further warned that: “Our holding also does not meanthereare no limits on emotional evidence and argument. In Peoplev. Haskett [(1982)] 30 Cal.3d [841] at page 864, we cautioned, “Nevertheless, the jury mustfaceits obligation soberly and rationally, and should not be given the impression that emotion may reign overreason. [Citation.] In each case,therefore, the trial court must strike a careful balance between the probative and the prejudicial.” (/d. at p. 836, fn. 11 [emphasis added].) Although this Court has notestablished detailed guidelines for the '*/ Payneitself did not involve any evidence of this type. Therefore, this statement in Payne, purportedly to overrule the contrary holding of Booth,in which such evidence was introduced, may be nonbinding dicta. (People v. McKay (2002) 27 Cal.4th 601, 612 [Court refused to accept United States Supreme Court dicta]; see also People v. Mendoza (2000) 23 Cal.4th 896, 915 [a decision is not authority for everything said in opinion butonly for the points actually involved and actually decided; only ratio decidendi of opinion hasprecedential effect]; Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 123 [Court declined to apply dicta from prior case becauseprior situation unlike that in current case]; Gomezv. Superior Court (2005) 35 Cal.4th 1125, 1155 [Court not boundby dicta].) 361 admission of evidence about a victim’s character, the cases in which the admission of such evidence has been approved generally involve evidence that wasbrief, factual, and noninflammatory. (See, e.g., People v. Wash (1993) 6 Cal.4th 215, 267 [evidence of the victim’s plan to enlist in the Armyat time of her death]; People v. Montiel, supra, 5 Cal.4th at pp. 934-935 [evidence that victim was in excellent health at time of his death, that he needed to use a walker to get around, and that he couldstill enjoy life]; People v. Edwards, supra, 54 Cal.3d at p. 832 [photographsofthe victims shortly before their deaths].) Other states have established more specific guidelines or standards. The Supreme Court of Tennessee, for example, has held that “Generally, victim impact evidence [about the victim’s character] should be limited to information designed to show those unique characteristics which provide a brief glimpse into the life of the individual who has beenkilled.” (State v. Nesbit (Tenn. 1998) 798 S.W.2d 872, 891.) Similarly, the Supreme Court ofNew Jersey has held that victim character evidence “‘can provide a general factual profile of the victim, including information aboutthe victim’s family, employment, education, and interests,” but that “testimony should be factual, not emotional, and should be free of inflammatory commentsor references.” (State v. Muhammad, supra, 678 A.2d at p. 180.) The needfor restraint in the admission of victim character evidence was also emphasized by the Supreme Court of Louisiana. Althoughit held that the prosecutor could “introducea limited amountof general evidence providing 362 identity to the victim,” it also warned that special caution should be used in the “introduction of detailed descriptions of the good qualities of the victim” because such descriptions create a danger “ofthe influenceofarbitrary factors on the jury’s sentencing decision.” (State v. Bernard, supra, 608 So.2d at p. 971.) The Supreme Court ofNew Mexicolikewiseheld that “victim impactevidence,brief and narrowly presented, is admissible” in capital cases. (State v. Clark (N.M. 1999) 990 P.2d 793, 808 [emphasis added].) While these out-of-state rulings are not binding onthis Court, they are instructive nevertheless. If ever there was a case that elucidates the dangers offailing to exclude improper and excessive victim-impact evidence,it is appellant’s case. Here, the evidence about each victims’ character, particularly that pertaining to Jose Aragon, far exceeded the “quick glimpse”oftheir lives otherwise approved in Paynev. Tennessee, supra, 501 U.S.at pp. 822-823, or the “general factual profile of the victim” approved in State v. Muhammad, supra, 678 A.2d at p. 180. The victims’ virtues were explored through highly emotional and redundantinflammatory testimony that included details regarding not only their activities and achievements, but their survivors’ tortured imaginings aboutthe pain the victims suffered and the fear they must havefelt. The survivors were permittedtotestify at length and withoutlimitation regarding dreams they had in whichthevictims lamented, inter alia, that “it hurts back there.” Noneof this testimony was based in fact, yet it was elicited by the District Attorney to devastating and prejudicial effect against appellant. 363 Beyondits highly prejudicial and unduly inflammatory nature, muchof the impact evidence wasalsoirrelevant. (Evid. Code § 350.) In Cargle v. State (Okla.Crim.App. 1995) 909 P.2d 806, where analogouslife history evidence was introduced through the testimony ofa single witness, the court noted that “portraying [the victim] as a cute child at age four in no way providesinsightinto the contemporaneousandprospective circumstances surrounding his death,”(id.at p. 829) and found that the probative value ofthe life history evidence was substantially outweighedbyits prejudicial effect (id. at p. 830). The presentation of extensive evidence concerning the outstanding qualities and characters of the homicide victimsalso created the risk that arbitrary and irrelevant comparisons would influence the sentencing decision. (Booth v. Maryland, supra, 496 U.S.at p. 506 and fn. 8; State v. Carter (Utah 1995) 888 P.2d 629, 652; Alvarado v. State (Tex.Crim.App. 1995) 912 S.W.2d 199, 222 [conc. opn. of Baird,J.].) It is wrong to allow “such a decision to turn on the perception that the victim was a sterling member of the community rather than someoneof questionable character.” (Booth v. Maryland, supra, 482 U.S.at p. 506.) Whether the comparisonis phrased as a comparison betweenvictims or a comparison between the defendant andthe victims, the effect is exactly the same, and the result is a death sentencethat is not only arbitrary and unfair (Booth v. Maryland, supra, 482 U.S.at p. 506) but also a violation of the equal protection of the laws (Village of Willowbrook v. Olech (2000) 528 U.S. 562, 564). (U.S. 364 Const., 8th and 14th Amends.; Cal. Const., art. I, §§ 15 and 17.) The most obvious discrimination is unique to the capital punishment context -- the danger that defendants whose victims are perceived asassets to society will be more likely to receive the death penalty than equally culpable defendants whosevictimsare perceived as less worthy. (Booth v. Maryland, supra, 482 U.S.at p. 506.) However, a more familiar form of discriminationis lurking as well -- discrimination based on race orethnicity. “[I]n manycases, expansive [victim impact evidence] will inevitably make wayfor racial discrimination to operatein the capital sentencing jury’s life or death decision.” (Blume, Ten Years ofPayne: Victim Impact Evidence in Capital Cases (2003) 88 Cornell L.Rev. 257, 280 [hereafter cited as Blume].) “Because of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected.” (Turner v. Murray (1986) 476 U.S. 28, 35.) That dangeris particularly acute where the jury, as here, is virtually all Caucasian -- as were two of the victims -- and appellant is Hispanic. (/d. at p. 37.) Overt prejudice is not the only danger. There are many subtle ways in which conscious or unconscious racism or bias against Hispanics can colorthe jurors’ perception of the defendant, their evaluation of his defenses, and their assessmentofthe seriousness of his crime. (Turner v. Murray, supra, 476 USS.at p. 35.) Evidence which focuses the jury’s attention on the character of the victims gives these improper influencesfree rein, causing jurors from the dominantculture 365 to view the crimeas especially serious because they empathize and identify with the victims. (See Berger, Payne and Suffering — A Personal Reflection and a Victim-Centered Critique (1992) 20 Fla.St.U.L.Rev. 21, 25, 48.) A death sentenceis surely unconstitutional“if it discriminates against [the defendant] by reasonofhisrace, .. . or ifit is imposed under a procedurethat gives room forthe play ofsuch prejudices.” (Furman v. Georgia (1972) 408 U.S. 248, 242 [emphasis added] [conc. opn. of Douglas, J.].) Therefore, while it may be impossible to eliminate the perniciouseffect of race from capital sentencing altogether (McCleskey v. Kemp (1987) 481 U.S. 279, 308-314), the courts should engage “in ‘unceasing efforts’ to eradicate racial prejudice from our criminal Justice system”(id. at p. 309) and disapprove any procedures whichcreate an unnecessary risk that racial prejudice will come into play (Batson vy. Kentucky (1986) 476 U.S. 79, 99; Turner v. Murray, supra,at pp. 35-37.) Here, the presentation of emotional or inflammatory biographical evidence about the virtues and accomplishments of the homicide victims invited both arbitrary or invidious comparisonsand, especially in cross-racial cases like this one, arbitrary comparisonstainted by racial bias against Hispanics. In State v. Carter, supra, the Utah Supreme Court prohibited the admission of victim impact evidence as a matter of state law and explained: In our society, individuals are of equal value and must be treated that way. We will not tempt sentencing authorities to distinguish among victims 366 -- to find one person’s death more or less deserving of retribution merely because he or she washeld in higher or lower regard by family andpeers. Such a schemedrawslines in our society that we think should not be drawn. The worth of a human life is inestimable, and we do not condemn those who take life more or less harshly because of the perceived value or quality of the life taken. [Citation.] Indeed, society is probably incapable of even-handedness in such judgments. (State v. Carter, supra, at p. 652.) The Utah death penalty statute was later amendedto abrogate Carter’s blanket prohibition on the admissionofall victim impact evidence, but the new statute retained Carter’s prohibition on evidence of comparative worth, providing that in capital sentencing proceedings, evidence maybe presentedon “the victim and the impactof the crime on the victim's family and community without comparisonto other persons or victims.” (Utah Crim. Code, § 76-3-207, subd. (2)(a)(iii) [emphasis added].) The majority in Payne v. Tennessee, supra, 501 U.S. 808, discounted the concern in Booth v. Maryland, supra, that the admission of victim character “evidence permits a jury to find that defendants whose victims were assets to their communities are more deserving of punishment than those whose victimsare perceivedto be less worthy.” (Payne v. Tennessee, supra, 501 US.at p. 809.) The only reason given for its position wasthe assertion that, as a general matter, “victim impact evidence is not offered to encourage comparative judgmentsofthis kind.” (/bid.) Yet this is precisely what victim-impact evidence does, even when 367 limitations on such evidence are imposed. How muchgreater the danger and harm, then, when no limitations whatsoever are imposed,as in appellant’s case. Payne in no way held or suggested that evidence and argumentthat was offered to encourage such comparative judgments would be permissible. The excessive testimony, photographs, and argumentin this case reveals that the evidence of the victims’ character was clearly offered to encourage and provokethe type of comparative evaluations found impermissible in Booth. The relatives’ testimony alone created an unacceptablerisk that the jury’s attention would be focused on improper considerations. Not only were the victims described as a kind, compassionate, honest, patient, helpful, studious, hard- working, dedicated, and modest young adults, (information about Mans’ and Jones’ drug use having been conveniently kept from the jury bythetrial court on granting the District Attorney’s in limine motion), they were also described as generous,patient, protective, caring, thrifty, and hard-working children -- in stark and disturbing contrast to the defendants. The goal of the District Attorney was not merely to humanizethe victims, as permitted by Payne v. Tennessee, supra, 501 U.S. 808, but to deify them and in so doing, to convincethe jury that their virtues-- compared to the defendants whotooktheirlives -- justified imposition of a sentence ofdeath. The victim impact evidence presentedto the jury also created therisk that the death sentence was improperly imposed based on a comparison between the victims and appellant. (See, e.g., Burns v. State (Fla. 1992) 609 So.2d 600, 610.) 368 That comparison had the same effect as a comparison between victims: If two defendants have identical backgrounds and commit crimes of equal gravity, the defendant whokilled a victim regarded as an asset to the community will fare worse in the comparison than the defendant whokills a less worthy victim and hencewill be morelikely to receive the death penalty. Even though victims are not compareddirectly,it is the difference in the worth of the victims that causes different sentences to be imposedin otherwise identical cases. '*° Mostcourts that have considered the question have held that comparisons between the worth of the victims and the defendant are improper. For example,in State v. Koskovich (N.J. 2001) 776 A.2d 144,the trial court instructed the penalty phasejury to “balance[] the victim’s background and circumstances against the defendant’s background. Balance them.” (/d. at p. 179.) The New Jersey Supreme Court held that the court’s remark was improper becauseit was “akin to asking the jury to compare the worth of each person.” (/d. at p. 182.) Commonexperience compels the conclusion that any comparisons between convicted murderers and their victims are inherently prejudicial as all convicted defendants in those circumstances invariably will be deemed by jurors more reprehensible that the victims. For these reasons, victim impact testimony should ‘57 In State v. Humphries (S.C. 2002) 570 S.E.2d 160, 167, the court concludedin dicta that “the comparison prohibited by Payne is one between the victim and other membersofsociety,” not one between the victim and the defendant, but the analysis in Humphries is flawed becauseit fails to recognize that the comparisons inject equally arbitrary considerations into the sentencing calculus and prejudice defendants in identical ways. 369 not be used as an aggravating factor or for purposes of weighing the life of the defendant against the worthinessof the victims. In State v. Storey (Mo. 1995) 901 S.W.2d 886, the prosecutortold the penalty jury that, “[I]t comes downto one basic thing. Whoselife is more important to you? Whoselife has more value? The Defendant’s or[the victim’s]?” The Missouri Supreme Court heldthatthis argument was improper, noting that the jury must “consider a wide array of aggravating and mitigating circumstances,” but the question of whoselife was more important was not amongthem.(/d. at p. 902; see also Utah Crim. Code, § 76-3-207, subd. (2)(a)(ili), which permits the introduction of victim impact evidencebutonly “without comparison to other personsorvictims.”) Judge Johnson reached the same conclusion in Moore v. Kemp, supra, 809 F.2d 702, finding that the trial court’s decision to admit the testimony ofthe victim’s father, who briefly recounted his daughter’s achievements and aspirations,“and the prosecutor’s suggestion to the jury that it weigh therelative values of the two personsto society is, I think, error of the grossest sort.” (Jd.at p. 748 (conc. anddis. opn. of Johnson,J.].) In this case, an improper comparison between appellant’s worth and the worth ofthe victims was a major themein the District Attorney’s case for death. In closing argumentto the jury during the penaltytrial, prosecutor West focused extensively on the impactof the crimes on the victims. Indeed, West’s references to and discussion of the impact of appellant’s crimes on families and friends take up a large portion of his closing argument, including the impact of Jose Aragon’s 370 death on Lydia Aragon,her family, and friends (54 RT 8087-8091); the impact of Joey Mans’ death on his mother, sister, and family of Joe Mans (54 RT 8091- 8095); and the impact of Timothy Jones death on his father James Jones, family, and friends. (54 RT 8096-8098.) West argued, for example,that “the harm and the pain and the heartache and the fear that this man has causedis so overwhelmingthatit is difficult to hear aboutit, let alone to have lived throughit or died from it.” (54 RT 8082.) Such argument exacerbated the prejudice inherent in impropervictim impact evidence presented. In describing the weighing process and the evidenceto be considered in aggravation, Deputy District Attorney Westtold the jury: “Can you weigh and consider the harm doneto the victims, to their families, to their friends, and to our community in deciding just how grotesque these crimes are? And in weighing, what the response needs to be? Whatis the just punishment.” (54 RT 8085.) Urging the jury in effect to compare victim Jose Aragon with appellant, West stated: “You can consider Jose Aragon, a young man whospray-pained his own shoes[inferentially as opposed, of course, to appellant whoallegedly spray- painted Magnolia CenterInteriors during a burglary], played soccer, helped friends with homework, watched TV with his sister. He wanted to be an engineer.” (54 RT 8085.) Shortly thereafter, West again told the jury that, “In considering the weight to assign -- the aggravating weight to assign Mr.Self’s conduct, you can consider the impact that his death had on others.” (54 RT 8087.) Hethen quoted at length the testimony of Lydia Aragon and urgedthejury to 371 consider what “she had to say.” (54 RT 8087.) Extensively quoting verbatim muchofthe victim impact testimony, Deputy District Attorney Westurged thejury to “consider Stephanie Aragon”in deciding between death andlife imprisonment withoutthe possibility of parole: “You can consider Stephanie Aragon, when you consider how strongly we wish to condemn this conduct, a young woman whoisfilled with fear and anger and dark and violent thoughts.” (54 RT 8090.) West repeatedly exhorted the jury to choose death based on this improper evidence. He urged the jury to compare the murder victims andtheir families (54 RT 8091-8098), as well as the non-capital victims, to the defendants. (See 54 RT 8098-8101.) West continued to return to this theme, arguing, “You know,during the break I wassitting here looking at the photo of Timmy[Jones]. Many of you have lookedat it and have yourreaction: Nice young man.” (54 RT 8107.) And then comparing Jonesto appellant, stating that appellant’s “reaction upon meeting him [Jones] was to put a bullet in his head, two of them.” (54 RT 81078.) Surely, the comparisons of worthiness between the victims and appellant that the prosecutor was urging the jury to make were notlost on the jurors. There can be no doubtthat the excessive victim impact evidence presentedto the jury violated appellant’s right to an individualized andreliable sentencing determination by causing the jury to base its decision on facts related to the survivors’ sense ofgrief and loss rather than upon appellant’s moralculpability and blameworthiness. Consequently, the erroneously admitted victim impact evidence wasprejudicial. 372 E. Inflammatory and Emotionally-Charged Evidence About the Impact of the Crime on the Victims’ Survivors Was Erroneously Admitted and Undermined Appellant’s Right to a Fair Trial, Due Process, and a Reliable Determination of Penalty . In People v. Edwards, supra,this Court stressed that its holding permitting victim impact evidence “only encompasses evidencethat logically shows the harm caused by the defendant.”(People v. Edwards, supra, 54 Cal.3dat p. 835.) The Court advised thattrial courts should weigh the probative value ofthe victim impact evidenceagainstthe prejudicial effect. “‘On the one hand,it should allow evidence and argument on emotional thoughrelevant subjects that could provide legitimate reasonsto sway the jury to show mercyor to imposetheultimate sanction. On the other hand,irrelevant information or inflammatory rhetoric that diverts the jury's attention from its properrole or invites an irrational, purely subjective response should becurtailed.” (/d. at p. 836, quoting People v. Haskett (1982) 30 Cal.3d 841, 864.) In People v. Harris (2005) 37 Cal.4th 310,this Court stressed that while the Eighth Amendmentto the United States Constitution permits the introduction of victim impact evidence generally, or evidence of the specific harm caused bythe defendant, when admitted in order for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, such evidence nevertheless violates the Fourteenth Amendment’s due process clause whenit is so unduly prejudicialthat it renders the trial fundamentally unfair. (/d. at p. 351.) As the Court has elsewherestressed, irrelevant information or inflammatory rhetoric that 373 diverts the jury’s attention from its properrole orinvites an irrational, purely subjective response should be curtailed. (People v. Edwards, supra, 54 Cal.3d at p. 836; People v. Zapien (1993) 4 Cal.4th 929, 992; People v. Haskett, supra, 30 Cal.3d at p. 864.) The victim impact evidence in this case was neither brief (as in People v. Panah (2005) 35 Cal.4th 395, 495) nor limited simply to the residual impactof the murders on the victims. Indeed, at the beginning of the penalty trial, in his opening statement, Deputy District Attorney West repeatedly emphasizedthat the relatives were direct victims in this case, suggesting that injury and harm to the victims’ relatives constituted separate, distinct, and additional factors in aggravation as other crimes committed by appellant. Although in People v. Stanley (1995) 10 Cal.4th 764, 832, the Court found no misconductin a prosecutor’s argument on victim impact because “it was not so inflammatory or emotionalas to divert the jury’s attention from its proper role or invite an irrational, purely subjective response,” the same cannotbe said about the prosecutor’s statements in the presentcase. Here, prosecutor West correctly emphasized that an aggravating factor increases the enormity ofthe crime or addsto its injurious conduct above and beyondthe elementsofthe crimeitself. (See 48 RT 7250.) He then stressed, however,that in weighing the aggravating circumstances, the jury could consider all of the circumstances of the murders andthat the crimes were “even worse” than what the jury had already heard in the guilt phase precisely because the bullet that 374 killed Joe Mans, for example, destroyed the lives of others. “[I]t struck his mother and destroyed a part of her. It went to Arizona whereit struck his sister and destroyed a part of her.” Deputy District Attorney West repeated this same themein respectto Timothy Jones and Jose Aragon. (See 48 RT 7252-7253.) Ashetold the jury: “You'll learn the pain that the defendant has imposedon the others and fathers, brothers and sisters, and friends of Jose Aragon and Joey Mansand Timothy Jones. ... These innocent victims have received a life sentence imposed by the defendant from which there will be no parole. What punishment then should be accorded to the defendant?” (48 RT 7252-7253.) In the evidentiary phase ofthe penalty trial, the victims’ relatives testified at length regardingthe grief, pain, and enduring sense ofloss they suffered as a result of their deaths. Setting the stage for the emotionally-charged victim impact evidence, the victim’s stepmother provided a touching description oftheir last contact with Jose Aragon. James Jonestestified in the same fashion abouthis final meeting with his son. All of the witnesses emphasizedthat their grief had not abated with the passage of time. Jose Aragon’s fatherlost his purposeinlife, according to Lydia Aragon. Further emphasizing the permanencyofthe loss, each of the victim impact witnessestestified that the holidays were not the sameafter the murders. Holidays, formerly celebrated, became occasionsfor further grief and pain. Catherine Mans’ father, for example, refused to celebrate someofthe holidays, because the family was not complete. If celebrations occurred, they 375 were moved from the hometo the cemetery. At Christmas, Jose Aragon’s sister and mothertooka tree to his grave; at Easter, an Easter basket. These accounts of pain and permanency converged in wrenching testimony about Jose Aragon’s headstone and Joe Mans’ funeral. This testimony went far beyondthe brief victim impact testimony in Payne v. Tennessee, supra, 501 U.S. at pp. 814-815, and tainted the penalty proceedings with unchecked emotion. It would defy reality to characterize asrelatively dispassionate (cf. People v. Boyette (2002) 29 Cal.4th 381, 445) testimony like that given by Lydia Aragon, whotestified that part of her family had been “ripped out,” or that the hole caused by the shotgun blast to Jose Aragon’s neck “was our son”; or by Catherine Mans, whotestified that her family talked about Joe Mans’ murderall the time and cry and were unableto put it aside; by Angela Mans’ testimonythat her brother appeared scared when she saw himin his casket; or by Timothy Jones’ father, whotestified that his son must have suffered before his death andthat, in imaginary conversations with his son he alwaystells him that they will meet again some day and that everything would be okay. In People v. Gurule (2002) 28 Cal.4th 557, 622, this Court characterized as “highly inflammatory”the briefportion of a guilt phase stipulation which stated that the victim’s mother had hugged him goodbye on the morningofhis death. (/d. at p. 622; see also id. at pp. 654-655 [noting that the evidence about the hug would have been potentially prejudicial if it had been introducedat the penalty phase].) In this case, an even more extensive description of Timothy Jones’ touchinglast 376 visit with his father was introduced during the penalty phase through the victim impact testimony of James Jones. Seeing his father the night before he died, Timothy gavehis father a hug and told him,“I love you pop.” This testimony was as equally and unfairly inflammatory as in Gurule, if not more so. In Welch v. State (Okla.Crim.App. 2000) 2 P.3d 356, 373, the court held that it was error to admit evidence that the victim’s son put flowers on his mother’s grave and brushedthe dirt away because that evidence “hadlittle probative value of the impactof[the victim’s] death on her family and was more prejudicial than probative.” In this case, the evidence was far more egregious. Lydia Aragon waspermitted bythe court to testify at length aboutthe funeral arrangements and funeral of Jose Aragon. Catherine Aragon described how she and her mother went to the cemetery every weekendto bring cards, flowers, and flags to her brother’s grave. Shetestified that Jose Aragon had the cleanest headstone in the cemetery and that she and her mother took care of him in the grave as though he werestill alive. Catherine Manstold the jury that she did not attend her son’s funeral because shedid not wantto see her son in a box. She wenton to add that she had nevervisited his grave and expressed herintentions to do so immediately after her testimony. James Jonestestified he visited his son in the cemetery every Memorial Day and wouldtalk to him even though he knew he wasnot there. Such testimony clearly inflamed the jurors’ sentiments against appellant but had absolutely no relevance to the issue of appellant’s culpability or blameworthiness. 377 All of these aspects of the victim impact testimony -- its volume, substance, and highly inflammatory language -- demonstrate that the trial court failed in its duty carefully to limit or monitor the victim impact to evidence to ensure that emotion did not take precedence over reason. The prosecutor repeatedly exploited this evidence both at the beginning and conclusion ofthe penalty trial in argumentto the jury. Under these circumstances, the admission of highly emotional and inflammatory victim impact testimony was undoubtedly prejudicial, undermining appellant’s constitutional right to a fair and reliable capital sentencing proceeding. (U.S. Const., 6th, 8th, and 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, and 17.) F. The Erroneous Admission of Improper Victim Impact Evidence Requires Reversal From the beginning ofthe penaltytrial to the end, the prosecutor sought to keep the jury’s attention focused on the victims’ relatives and friends. The prosecution’s case in aggravation at the penalty phase relied heavily on victim impact testimony. As discussed in Subsection E, supra, in his opening statement Deputy District Attorney West repeatedly told the jury that the families and friends of the Jose Aragon, Joe Mans, and Timothy Jones werealso victimsin this case, in essence inviting the jury to consider the impact of the murders on them as additional aggravating factors. Addressing the jury at the commencementofthe penalty trial, prosecutor West stressed the emotional impact of the evidenceto be admitted and its consideration by the jury in determining penalty: 378 You will find as you’ve probably already found that murder in real life is different from murder on TV, the way that we’ve become accustomed to murderin oursociety; ... . On TV,they don’t show muchabout the victim’s life. Maybe you get a couple of minutes before the victim is killed, but on TV they don’t show you much aboutthe victim’s life because they don’t want you to know them too well. They don’t wantto upset you emotionally as you watch the show for entertainment. Butreal life is different. Each of these families had over 20 years to get to know and love and appreciate their sons. You will get to know and love and appreciate their sons. These people can’t change the channel and move onto somethingless painful. Their pain doesn’t end at the top of the hour. Every morning when they awaken,they are hit again with the reality that their sons have been murdered, that their sons, the young men that they raised, counseled, loved, their babies were murderedfor the amusementof that man overthere (indicating). (48 RT 7252-7253 [emphasis added].) The seven victim impact witnesses were the lead-off penalty trial witnesses in the prosecution’s case-in-chief. As stated by the trial court during record correction proceedings, the entire courtroom wasin tears during this phase of the penalty trial. Even thetrial court observed that it was the most emotionaltrial session in which the court had everparticipated: “[T]he date we had victim witness testimony ... was a very painful and agonizing date for everyone who was in the courtroom. ... I would say there wasn’t a dry eye in the courtroom. Everybody wascrying that day. It was a very emotional day for everyone. That’s the day that I will always have with me. Andthat’s somethingthat -- that had, had 379 an impact on myself and everybodyelse that wasin the court that day. ...” (3 RT [September 9-10, 2002] 318.) In his opening and closing statements to the jury, Deputy District Attorney Westrepeatedly referred to the victim impact testimony andrelied heavily on that evidence in urging the jury to sentence appellant to death. West’s penalty-phase closing argument comprises 33 pagesof transcript on appeal. (See 54 RT 8082- 8106, 8107-8116.) Fully a third of his argumentreferenced the victim impact evidence, including lengthy quotationsof the relatives’ testimony. (See 54 RT 8087-8098.) This evidence was repeatedly urged as justification for imposing death. “Evidence matters; closing argument matters; statements from the prosecutor matter a great deal.” (United States v. Kojayan (9th Cir. 1993) 8 F.3d 1315, 1323.) The improper and excessive victim impact testimonyin this case was voluminous, detailed, and emotionally-charged. In addition to narrations about the victims’ lives, descriptions of their characteristics and nature as children and young adults, poignant and emotionally-charged vignettes and anecdotes illustrating the devastation caused bytheirs deaths, the testimony included the survivors’ opinions regarding the crimes, the defendants, and grieving accounts of how theyall had been adversely affected. Deputy District Attorney West’s opening and closing arguments magnified the inflammatory nature of the evidence and the improperuse to whichit wasto be used. Overwhelmedby highly emotional testimony and numerous 380 photographsof the murdervictims, the jurors could notgive appellant’s evidence or the argumentof defense counsel the consideration they deserved. (See Lev. Mullin (10th Cir. 2002) 311 F.2d 1002, 1016.) All of improperly admitted victim impact evidence violated appellant’s right to a fair andreliable capital sentencing hearing andto effective assistance of counsel and due process by makingthe penalty trial fundamentally unfair. (U.S. Const., 8th and 14th Amends.; Cal. Const., art. I, §§ 7, 15, and 17; Tuilaepa v. California (1994) 512 U.S. 967; Payne v. Tennessee, supra, 501 U.S. 808; Booth v. Maryland, supra, 482 U.S. 496.) Understate law, error at the penalty phase of a capital trial requires reversal of a death judgmentif there is a reasonable possibility that the error affected the penalty verdict. (People v. Jackson (1996) 13 Cal.4th 1164, 1232.) This standard “4s the same, in substanceandeffect, as the harmless beyond a reasonable doubt standard of Chapmanv. California, supra, 386 U.S. at p. 24.” (People v. Jones (2003) 29 Cal.4th 1229, 1264, fn. 11.) Violations of the United States Constitution require reversal unless the prosecution can show that the errors were harmless beyond a reasonable doubt. (Chapmanv. California, supra.) In view of the nature and extent of the evidence and the exploitation of that evidence by the prosecutor during opening and closing argument, the errors must be deemed prejudicial. That wasthe conclusion of the Supreme Court of Florida in Burns v. State (Fla. 1992) 609 So.2d 600, which involved the murderofa police officer during 381 the performanceofhis duties. In Burns, only one type of victim impact evidence, evidence of the victim’s character, was improperly introduced, but the court concluded:“Reverting to our earlier finding that it was error to admit the background evidence of the deceased, we cannot with the samecertainty determineit to be harmless in the penalty phase. The testimony was extensive and it was frequently referred to by the prosecutor. The prosecutor described the defendantas an evil supplier of drugs and contrasted him with the deceased. These emotional issues may have improperly influenced the jury in their recommendation.” (/d. at p. 610.) In appellant’s case, where the evidence was even more extensive, involving three victims, three families, and irrelevant, highly inflammatory evidencethat, by the trial court’s own account, affected everyone in the courtroom,the error cannot be deemed harmless beyond a reasonable doubt and reversal of penalty is required. 382 Xx THE TRIAL COURT ERRONEOUSLY AND PREJUDICIALLY FAILED TO INSTRUCT THE JURY ON THE APPROPRIATE USE OF VICTIM- IMPACT EVIDENCE IN VIOLATION OF APPELLANT’S RIGHTS TO A FAIR TRIAL, DUE PROCESS, AND TO A RELIABLE DETERMINATION OF PENALTY GUARANTEEDBY THEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Factual and Procedural Background In his proposed penalty jury instructions, appellant proffered Special Jury Instruction No. 9 [Cautionary and Limiting Instruction on Victim Impact Evidence] whichstated as follows: Evidence has been introduced for the purpose of showing the specific harm caused by the defendant’s crime. Such evidence, if believed, was not received and may not be considered by you to divert your attention from your proper role of deciding whether defendant should live or die. You must face this obligation soberly and rationally, and you may not impose the ultimate sanction as a result of an irrational, purely subjective response to emotional evidence and argument. Onthe other hand, evidence and argument on emotional though relevant subjects may provide legitimate reasons to sway the jury to show mercy. (8 CT 1942; 9 CT 2086.) Appellant argued that the proffered instruction was required to protect appellant’s rights to due process of law, equal protection, andto a reliable penalty determination guaranteed by the Eighth and Fourteenth Amendmentsto the United States Constitution. (8 CT 1942-1943.) Thetrial court denied appellant’s request 383 and refused appellant’s proffered jury instruction. (9 CT 2086.) As summarized in the Statement of Facts and Argument IX, supra, the prosecution introduced extensive and highly emotional victim impact evidence in respect to all three murder victims. This highly emotional and inflammatory testimony overwhelmedall other penalty phase evidence. Indeed, thetrial court later vividly described the victim impact evidence as perhaps the most emotional day oftrial: “Somethings that happened duringtrial I have a very vivid recollection of, one of them wasthe date we had victim witness testimony, which was a very painful and agonizing date for everyone who wasin the courtroom. Wehadthe victims, including the mother and father of the three people that were killed, testify and asked as to how that affected their lives. We hadbest friends and otherrelatives testifying. I would say there wasn’t a dry eye in the courtroom. Everybody wascrying that day. It was a very emotional day for everyone. That’s the day that I will always have with me. And that’s somethingthat -- that had, had an impact on myself and everybodyelse that was in the court that day. ...” (3 RT [September 9-10, 2002] 318.) In closing argumentto the jury during the penalty trial, Deputy District Attorney West focused extensively on the impactof the crimes on the victims. Indeed, references to and discussion of the impact of appellant’s crimes on families and friends take up a large portion of his closing argument, including the impact of Jose Aragon’s death on Lydia Aragon,her family, and friends (54 RT 8087-8091); the impact of Joey Mans’ death on his mother, sister, and family (54 384 RT 8091-8095); and the impact of Timothy Jones’ death on his father James Jones, family, and friends. (54 RT 8096-8098.) Thetrial court did not give any instruction or the use, consideration, or evaluation of victim impact evidence. The jury was notinstructed that such evidence was to be considered within the meaning of factor (a) of CALJIC No. 8.85, nor instructed that victim impact evidence did not constitute separate aggravating circumstances as was done in People v. Harris (2005) 37 Cal.4th 310, 358-359.) Noinstructions were given that in any way informedthejury of the law regarding the proper consideration of victim-impact evidence. B. The CourtFailed to Instruct the Jury on the Proper Use of Victim-Impact Evidence Underwell-settled California law, the trial court is responsible for ensuring that the jury is correctly instructed on the law. (People v. Murtishaw (1989) 48 Cal.3d 1001, 1022.) “In criminal cases, even absent a request, the trial court must instruct on generalprinciples of law relevantto the issues raised by the evidence.” (People v. Koontz (2002) 27 Cal.4th 1041, 1085.) The court mustinstruct sua sponte on those principles which are openly and closely connected with the evidencepresented and are necessary for the jury’s proper understanding ofthe case. (People v. Breverman (1988) 19 Cal.4th 142, 154.) In this case, the trial court breachedits instructional obligation by denying appellant’s proposed jury instruction on victim-impact evidence andby failing otherwise to instruct the jury on the proper use of victim-impact evidence. The 385 victim impact evidencein this case was highly emotional and inflammatory. Even the trial court acknowledged this many yearsafter the trial. (See Subsection A, supra). Unlike the situation in People v. Harris, supra, 37 Cal.4th at p. 352, wherechallenged portions of victim impact testimony wasvery brief and consumed but a few lines of transcript, here the victim evidence wasextensive, detailed the victims’ virtues, their closeness to their families and friends, and the impact of their deaths on the lives of their families. As discussed above, during his penalty-phase closing argumentto the jury, the prosecutor repeatedly quoted lengthy portions of the victim impact testimony and constantly remindedthejurors of the victim-impact evidence, stressing its import in the jury’s penalty determination calculus. While, generally, victim impact evidence and argumentis permissible (Payne v. Tennessee (1991) 501 U.S. 808 , 827; People v. Edwards (1991) 54 Cal.3d 787, 835 [§ 190.3, factor (a), allows evidence and argumenton specific harm caused by defendant, including impact on family of victim]), given the highly inflammatory nature of the crimesin this case, all involving young men in their formative years, there was a very real danger that emotions engendered by the victim-impact evidence would preclude the jury from makinga rational penalty decision unless the trial court provided some guidance on how thevictim- impact evidence should be used and considered. Absent appropriate instructions as to its use or consideration, such victim impact evidence would serve only to incline the jury towardirrational or purely emotional responsesuntetheredto the 386 facts appropriate to the penalty phase determination. (See People v. Pollock (2004) 32 Cal.4th 1153, 1180.) Some guidanceor appropriate limiting instruction, as proposed by appellant, was thus necessary for the jury’s proper understanding of the case, and therefore it should have been given as requested by appellant, or on the trial court’s own motion. (See generally People v. Koontz, supra, 27 Cal.4th at p. 1085; People v. Breverman, supra, 19 Cal.4th at p. 154; People v. Murtishaw, supra, 48 Cal.3d at p. 1022.) “Because of the importance of the jury’s decision in the sentencing phase of a death penalty trial, it is imperative that the jury be guided by properlegal principles in reaching its decision.” (Turner v. State (Ga. 1997) 486 S.E.2d 839, 842.) “Allowing victim impact evidence to be placed before the jury without proper limiting instructions has the clear capacity to taint the jury’s decision on whether to impose death.” (State v. Hightower (N.J. 1996) 680 A.2d 649, 661.) “Therefore, a trial court should specifically instruct the jury on howto use victim impact evidence.” (State v. Koskovich (N.J. 2001) 776 A.2d 144, 181.) The highest courts of Oklahoma, New Jersey, Tennessee, and Georgia have held that, in every case in which victim-impact evidenceis introduced,the trial court must instruct the jury on the appropriate use, and admonish the jury against the misuse, of the victim-impact evidence. (Cargle v. State (Okla.Crim.App. 1995) 909 P.2d 806, 829; State v. Koskovich, supra, 776 A.2d at p. 181; State v. Nesbit (Tenn. 1998) 978 S.W.2d 872, 892; Turner v. State, supra, 486 S.E.2d at p. 842.) Similarly, the Supreme Court of Pennsylvania has recommendeddelivery of 387 a cautionary instruction. (Commonwealth v. Means (Pa. 2001) 773 A.2d 143, 159.) Althoughthe language of the required instruction varies in each state, depending uponthe role victim-impact evidenceplaysin that state’s statutory scheme, commonfeatures are an explanation of how the evidence can properly be considered and the admonition not to base a decision on emotionor the consideration of improperfactors. If not appellant’s proposedinstruction, an alternative instruction for California would read as follows: Victim impact evidence is simply another method of informing you about the nature and circumstances of the crime in question. You may consider this evidence in determining an appropriate punishment. However, the law does not deem the life of one victim more valuable than another; rather, victim impact evidence shows that the victim, like the defendant, is a unique individual. Your consideration must be limited to a rational inquiry into the culpability of the defendant, not an emotional response to the evidence. Further, you must not consider in any way what you mayperceive to be the opinions of the victims’ survivors or any ‘other persons in the community regarding the appropriate punishmentto be imposed. Thefirst four sentences of this instruction duplicate the instruction suggested by the Supreme Court of Pennsylvania in Commonwealth v. Means, supra, 773 A.2d at p. 159. The last sentence is based on State v. Koskovich, supra, 776 A.2dat p. 388 177,'%° This Court addressed a different proposed limiting instruction in People v. Ochoa, supra, 26 Cal.4th at p. 445, and held that the trial court properlyrefused that instruction because it was covered by the language of CALJIC No. 8.84.1, an instruction which wasalso given in this case.'*’ (See 9 CT 2034.) However, CALJIC No.8.84.1 does notrefer specifically to victim impact evidence or cover any ofthe points madebythe instruction proposed here by appellant. It does not tell the jurors why victim-impact evidence wasintroduced. It does notcaution the jurors against anirrational decision, such as imposing death based on the prosecutor’s comments regarding the defendant’s supposed courtroom demeanor. '47 In State v. Koskovich, supra, the New Jersey Supreme Court held: “Weare mindful of the possibility that some jurors will assumethat a victim-impact witness prefers the death penalty when otherwise silent on that question. To guard against that possibility, trial courts should instruct the jury that a victim-impact witness is precluded from expressing an opinion on capital punishment and, therefore, jurors must draw no inference whatsoever by a witness’s silencein that regard.” (/d. at p. 177.) '477 The version of CALJIC No. 8.84.1 given to appellant’s jury read as follows: “You will now beinstructedasto all of the law that applies to the penalty phase ofthistrial. “You must determine what the facts are from the evidence received during the entire trial unless you are instructed otherwise. You must accept and follow the law that I shall state to you. Disregard all other instructions given to you in other phasesofthis trial. “You must neither be influenced by bias or prejudice against the defendant, nor swayed by public opinion or public feelings. Both the People and the Defendant have a right to expect that you will consider all of the evidence, follow the law, exercise your discretion conscientiously, and reach a just verdict.” (9 CT 2034.) 389 (See United States v. Schuler (9th Cir. 1987) 813 F.2d 978, 979-982 [prosecutor’s reference to non-testifying defendant’s courtroom behavior violated defendant’s due processrights to a guilt determination based on evidence andhis constitutional right not to testify, and was reversible error].) It does not warn the Jurors not to consider what they may perceive to be the opinionsofthe victim- impact witnesses -- a clearly improper factor. (See Payne v. Tennessee, supra, 501 U.S. at p. 830, fn. 2; People v. Pollock, supra, 32 Cal.4th at p. 1180; People v, Smith (2003) 30 Cal.4th 581, 622.) Nor does it admonish them not to employ the improperfactor of vengeancein their penalty determination. These potential abuses were addressed in appellant’s proposed Special Jury Instruction 9, which properly cautioned the jury against focusing on impermissible considerations and which CALJIC No.8.84.1 failed to address. Yet this violation of appellant’s fair trial rights was inevitable given the overwhelmingly emotional and inflammatory nature of the victim-impact evidence introducedbythestate. Although CALJIC No. 8.84.1 does admonish the jury that, “You must neither be influenced by bias nor prejudice against the defendant, nor swayed by public opinion or public feelings” (9 CT 2034), nothing in the instruction’s language explicitly refers to victim impact evidence. Arguably, the sorrowful testimony of family and friends do notfall within the ambit of the “public opinion or public feelings” languagerecited in the instruction. Given the common-sense meaning of these terms, it would be reasonable for jurors to conclude that the victim impact evidence was not covered by this language. Similarly, the jurors 390 would reason that the admonition against being swayed by “public opinion or public feeling” (9 CT 2034)did not apply to the private opinionsofthe victims’ relatives, or to any exhortation by the District Attorney to seek vengeance on behalf of the victims’ families or society as a whole. In every capital case, “the jury must face its obligation soberly and rationally, and should not be given the impression that emotion may reign over reason.” (People v. Haskett (1982) 30 Cal.3d 841, 864.) The limiting instruction proposed by appellant would have conveyed that messageto the jury; none of the instructions given at the trial did. Consequently, there was nothing to dissuade the jury from incorporating these considerations into the sentencingcalculus, including vengeance and the wishes of the victims’ families. Thefailure to deliver an appropriate limiting instruction violated appellant’s right to a decision by an impartial and properly-instructed jury, his due process rightto a fair trial, and his right to a fair and reliable capital penalty determination. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16, & 17.) The violations of appellant’s federal constitutional rights require reversal unless the state can show that they were harmless beyond a reasonable doubt. (Chapman vy.California, supra, 381 U.S. 18, 24.) Theviolations of appellant’s comparableor equivalentstate rights also require reversalif there is any reasonable possibility that the errors affected the penalty verdict. (Peoplev. Jackson (1996) 13 Cal.4th 1164, 1232; People v. Brown (1988) 46 Cal.3d 432, 447-448.) Althoughthis standard has been considered the same, in substance and 391 effect, as the harmless beyond a reasonable doubt standard of Chapmanv. California, supra, 386 U.S. 18, 24 (People v. Jones (2003) 29 Cal.4th 1229, 1264, fn. 11), in People v. Brown, supra, the Court stressed the applicability of a more exacting standard of review whenassessingthe prejudicial effect of state-law errors at the penalty phase ofa capital trial. (People v. Brown, supra, 46 Cal.3dat pp. 447-448.) The reason for the heightened standardis the different level of responsibility and discretion held by the sentencerin the penalty phase. In People v. Ashmus, supra, 54 Cal.3d at pp. 983-984,the Court again invoked Brown, explaining that the prejudice standard required the reviewing court to reverse based on even thepossibility that a hypothetical juror might have reached a different decision absent the error. “We mustascertain how a hypothetical ‘reasonable juror’ would have, or at least could have, been affected.” (People v. Ashmus, supra.) Given Brown and Chapman, supra, which equate the reasonablepossibility standard under state law with the federal harmless beyond a reasonable doubt standard,thetrial court’s instructional error cannot be considered harmless,particularly in view of the purely emotional and excessively inflammatory nature of the victim-impact evidence presentedin this case, and the prosecutor’s effective and extensive use of that evidence during his closing argument. Reversal of the death judgmentis required. 392 XI THE FAILURE TO PROVIDE INTERCASE PROPORTIONALITY REVIEW VIOLATES APPELLANT’S RIGHTS TO A FAIR TRIAL, DUE PROCESS, EQUAL PROTECTION OF THE LAWS, AND PROTECTION FROM THE ARBITRARY AND CAPRICIOUS IMPOSITION OF THE DEATH PENALTY GUARANTEEDBY THEFIFTH, EIGHTH AND, FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION California does not provide for comparative appellate or intercase proportionality review in capital cases, althoughit affords such review in noncapital criminal cases. The failure to conduct intercase proportionality review of death sentences violates appellant’s right to be protected from the arbitrary and capricious imposition of capital punishment guaranteed by the Eighth Amendment to the United States Constitution, and his Fifth, Eighth, and Fourteenth Amendmentrightsto a fair trial, due process, and equalprotection of the laws. A. The Lackof Intercase Proportionality Review Violates Appellant’s Eighth and Fourteenth Amendment Protections Against the Arbitrary and Capricious Imposition of the Death Penalty The United States Supreme Court has lauded proportionality review as a methodofprotecting against arbitrariness in capital sentencing. Specifically,it has pointedto the proportionality reviews undertaken by the Georgia andFlorida Supreme Courts as methods for ensuring that the death penalty will not be imposed on a capriciously selected group of convicted defendants. (See Gregg v. Georgia (1976) 428 U.S. 153, 198; Proffitt v. Florida (1976) 428 U.S. 242, 258.) 393 Thus, intercase proportionality review can be an importanttool to ensure the constitutionality of a state’s death penalty scheme. Despite recognizing the value of intercase proportionality review, the United States Supreme Court has held that this type of review is not necessarily a requirementfor finding a state’s death penalty structure to be constitutional. In Pulley v. Harris (1984) 465 U.S. 37, the Supreme Court ruled that the California capital sentencing scheme wasnot“so lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review.” (/d. at p. 51.) Accordingly, this Court has consistently held that intercase proportionality review is not constitutionally required and that intercase proportionality review does not render California death penalty law unconstitutional.(See People v. Farnam, supra, 28 Cal.4th at p. 193; People v. Harris (2005) 37 Cal.4th 310, 366.) However, as Justice Blackmun observed, the holding in Pulley v. Harris, supra, was premised upon untested assumptions about the California death penalty scheme: (I]n Pulley v. Harris, 465 U.S. 37, 51, [citations omitted] (1984), the Court’s conclusion that the California capital sentencing scheme was not “so lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review” was based in part on an understanding that the application of the relevant factors “‘provide[s] jury guidance and lessen{s] the chanceofarbitrary application of the death penalty,”” thereby “‘guarantee[ing] that the jury’s discretion will be guided andits consideration deliberate.’” Jd., 394 at 53, [citations omitted], quoting Harris v. Pulley, 692 F.2d 1189, 1194, 1195 (CA9 1982). As litigation exposes the failure of these factors to guide the jury in making principled distinctions, the Court will be well advised to reevaluate its decision in Pulley v. Harris. (Tuilaepa v. California (1994) 512 U.S. 967, 995 (dis. opn. of Blackmun,J.).) In its now time for the Court to reevaluate its reliance on Pulley v. Harris, supra. Comparative case reviewis the mostrational-- if not the only -- effective means by which to ascertain whether a statutory scheme as a wholeis producing arbitrary results. Thus, unlike California, the vast majority of the states that sanction capital punishment require some type of comparative or intercase proportionality review. 4s 487 See Ala. Code § 13A-5-53(b)(3) (1982); Conn. Gen. Stat. Ann. § 53a- 46b(b)(3) (West 1993); Del. Code Ann.tit. 11, § 4209(g)(2) (1992); Ga. Code Ann. § 17-10-35(c)(3) (Harrison 1990); Idaho Code § 19-2827(c)(3) (1987); Ky. Rev.Stat. Ann. § 532.075(3) (Michie 1985); La. Code Crim. Proc. Ann.art. 905.9.1(1)(c) (West 1984); Miss. Code Ann. § 99-19-105(3)(c) (1993); Mont. Code Ann. § 46-18-310(3) (1993); Neb. Rev. Stat. §§ 29-2521.01, 29-2522(3) (1989); Nev. Rev. Stat. Ann § 177.055 (d) (Michie 1992); N.H. Rev. Stat. Ann. § 630:5(X1)(c) (1992); N.M.Stat. Ann. § 31-20A-4(c)(4) (Michie 1990); N.C. Gen. Stat. § 15A-2000(d)(2) (1983); Ohio Rev. Code Ann. § 2929.05(A) (Baldwin 1992); 42 Pa. Cons. Stat. Ann. § 9711(h)(3)(iii) (1993); S.C. Code Ann. § 16-3- 25(c)(3) (Law. Co-op. 1985); S.D. Codified Laws Ann. § 23A-27A-12(3) (1988); Tenn. Code Ann. § 13-206(c)(1)(D) (1993); Va. Code Ann. § 17.110.1C(2) (Michie 1988); Wash. Rev. Code Ann. § 10.95.130(2)(b) (West 1990); Wyo.Stat. § 6-2-103(d)(iii) (1988). Other states have judicially instituted similar review. (See, for example, State v. Dixon (Fla. 1973) 283 So.2d 1, 10; Alford v. State (Fla. 1975) 307 So.2d 433, 444; People v. Brownell(Ill. 1980) 404 N.E.2d 181, 197; Brewery. State (Ind. 1980) 417 NE.2d 889, 899; State v. Pierre (Utah 1977) 572 P.2d 1338, 1345; State v. Simants (Neb. 1977) 250 N.W.2d 881, 890 [comparison with other capital prosecutions where death has and has not been imposed]; Collins v. State (Ark. 1977) 548 S.W.2d 106, 121.) 395 The capital sentencing schemein effect in 1996,at the time of appellant’s trial, was the type of schemethat the Pulley Court had in mind whenitsaid that “there could be a capital sentencing system so lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review.” (Pulley v. Harris, supra, 465 U.S. at p. 51.) Even assuming for purposesof this argumentthat the scope of California’s special circumstancesis not so broad as to render the scheme unconstitutional, the open- ended nature of the aggravating and mitigating factors -- especially the circumstancesof the offense factor delineated in section 190.3, subdivision (a)-- coupled with the discretionary nature of the sentencing instruction under CALJIC No. 8.88 (1989 Revision) given bythetrial court in this case (9 CT 2081), effectively grant a jury virtually unfettered discretion in making the death- sentencing decision. (See Tuilaepa v. California, supra, 512 U.S.at pp. 986-988 (dis. opn. of Blackmun,J.).) Indeed, as applied in California, section 190.3, subdivision (a) not only fails to “minimiz[e] the risk of wholly arbitrary and capricious action” in the death process,it affirmatively institutionalizes such a risk. As more thoroughly discussed and demonstrated in Argument XII, Subdivision B, infra, [and incorporated by reference herein], prosecutors throughout California have argued for the death penalty in almost every conceivable circumstance ofthe crime, even those that -- from case to case -- reflect starkly opposite circumstances-- e.g., arguing in one case that the defendant struck with many blowsand,then in 396 another, that he struck with a single blow; that the defendant killed with a purportedly aggravating motive and that the defendantacted without any motive at all; that the defendant engaged in a cover-up to conceal his crime and that the defendant did not engage in a cover-up; that the defendant madethe victim endure terror and that the defendantkilled without any warning; arguing that the victim had children and, then in another, that the victim had not yet had a chance to have children; arguing that the victim struggled and, and then in another, that the victim did not struggle; arguing that the defendant was a complete strangerto the victim and, then in anotherthat the defendant did not knowthevictim. California’s authorization of the death penalty for felony-murder worksin combination with the far-reaching and malleable statutory sentencing factors and unfettered jury discretion at the selection stage to infuse the state capital sentencing scheme with flagrantarbitrariness. Section 190.2 immunizes few kinds of first degree murderers from death eligibility, and section 190.3 provideslittle guidance to juries in making the death-sentencing decision. Thus,the statute fails to provide any methodfor ensuring that there will be some consistency from jury to jury when renderingcapital sentencing verdicts. Consequently, defendants with a wide range ofrelative culpability, criminal history, and backgroundsare sentenced to death. California’s capital sentencing schemeneither operates in a manner to ensure consistency in penalty phase verdicts nor in a mannerto prevent arbitrariness of verdicts in capital sentencing. Therefore, California is 397 constitutionally compelled to provide appellant with intercase proportionality review. The absenceof intercase proportionality review violates appellant’s Eighth and Fourteenth Amendmentrights not to be arbitrarily and capriciously condemned to death, and requires the reversal of his death sentence. B. The Lack of Intercase Proportionality Review Also Violates Appellant’s Rights to a Fair Trial, Due Process, and Equal Protection of the Laws Guaranteedby the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution The United States Supreme Court repeatedly has directed that a greater degree ofreliability in sentencing is required when death is to be imposedandthat courts mustbe vigilant to ensure proceduralfairness and accuracyin fact finding. (See, e.g., Monge v. California (1988) 524 U.S. 721, 731-732.) Despite this directive, California provides far fewer procedural protections for ensuring the reliability of a death sentence than it does for ensuring the reliability ofa noncapital sentence. This disparate treatment violates equal protection of the laws guaranteed by the Fourteenth Amendmentto the United States Constitution. Appellant acknowledgesthat the Court has previously held, albeit with little analysis, that the absenceof intercase proportionality review doesnotviolate a defendant’s right to equal protection of the law under the Fourteenth Amendment. (People v. Prieto (2003) 30 Cal.4th 226, 276; People v. Moon (2005) 37 Cal.4th 1, 48.) The Court has also held that equal protection does not require that capital defendants be afforded the same sentence review afforded other felons under the determinate sentencing law. (People v. Dunkle (2005) 36 Cal.4th 861, 398 940; People v. Blair (2005) 36 Cal.4th 686, 753; People v. Morrison (2004) 34 Cal.4th 698, 731.) For the reasons discussed below, however, these decisions should be reevaluated; under Fourteenth Amendmentequalprotection principles, appellantis entitled to the same sentence review afforded other felons under the Determinate Sentencing Law (DSL). At the time of appellant’s sentence, California required intercase proportionality review for noncapital cases. (See § 1170, subd. (d).) The Legislature thus provided a substantial benefit for all prisoners sentenced under the Determinate Sentencing Law -- a comprehensive and detailed disparate sentence review.(See generally /n re Martin (1986) 42 Cal.3d 437, 442-444 {detailing how system workedin practice].) However, personssentenced to death, the most extreme penalty, are unique among convicted felons in that they are not accorded this review. This distinctionis irrational and unjust. To succeed on a claim underthe equal protection clause, a defendantfirst must show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (United States v. Batchelder (1979) 442 U.S. 114, 123-125; Manduley v. Superior Court (2002) 27 Cal.4th 537, 568; In re Eric J. (1979) 25 Cal.3d 522, 530.) In considering whetherstate legislation violates the equal protection clause of the Fourteenth Amendment,the Court applies different levels of scrutiny to different types ofclassifications. Classifications affecting fundamental rights are given the most exacting scrutiny. (Clark y. Jeter (1988) 486 U.S. 456, 461.) Sincelife itself and freedom from the 399 arbitrary imposition of death are perhaps the most elemental aspects of the fundamentalconstitutional rights to life and personal liberty,the strict scrutiny test is necessarily applicable. (People v. Olivas (1976) 17 Cal.3d 236, 250-251 [personalliberty is a fundamentalinterest, second only to life itself].) In People v. Allen (1986) 42 Cal.3d 1222, this Court rejected a claim that the failure to provide disparate sentence review for persons sentenced to death violates the constitutional guarantee of equal protection of the laws. The contention raised in A//en also contrasted the death penalty schemewith the disparate review procedure provided for noncapital defendants, but this Court rejected the argument. The reasoning of Allen, however, was flawed. The Allen Court initially distinguished death judgments by pointing out that the primary sentencing authority in a California capital case is a jury: “This lay body represents and applies community standardsin the capital sentencing process underprinciples not extended to noncapital sentencing.” (People v. Allen, supra, 42 Cal.3d at p. 1286.) Although the observation maybetrue, it ignores a more significant point, i.e., the requirement that any death penalty scheme must ensure that capital punishment is not randomly and capriciously imposed. It is incongruousto provide a mechanism to assure that this type of arbitrariness does not occur in noncapital cases, yet not provide that same mechanism in capital cases where so much moreisat stake for the defendant. Further,jurors are not the only bearers of community standards. Legislatures also reflect community normsin the delineation of special 400 circumstances (§ 190.2) and sentencing factors (§ 190.3), and a court of statewide jurisdiction is well-situated to assess the objective indicia of community values that are reflected in a pattern of verdicts. (See McCleskey v. Kemp (1987) 481 USS. 279, 305.) Principles of uniformity and proportionality remainalive in the area of capital sentencing through prohibition of death penalties that flout a societal consensusas to particular offenses or offenders. (See Ford v. Wainwright (1986) A77 U.S. 399; Enmundv. Florida (1982) 458 U.S. 782; Coker v. Georgia (1977) 433 U.S. 584; Atkins v. Virginia (2002) 536 U.S. 304; see also Roper v. Simmons (2005) 543 U.S. 551 [execution ofjuveniles]; Penry v. Lynaugh (1989) 492 US. 302 [execution of mentally retarded persons].) But juries -- like trial courts and counsel-- are not immunefrom error, and they maystray from the larger community consensus expressed in statewide sentencing practices. The entire purpose of disparate sentence review is to enforce these values of uniformity and proportionality by weeding out aberrant sentencing choices,regardless of who made them. Jurorsare not the only sentencers. A verdict of death alwaysis subject to independentreview by trial court empowered to reduce the sentence, and the reduction of a jury’s verdict bya trial judge is required in particular circumstances. (See § 190.4, subd. (e); People v. Rodriguez (1986) 42 Cal.3d 730, 792-794.) Thus, the absence of disparate sentence review in capital cases cannotbe justified on the groundthat a reduction ofa capital verdict would renderthe jury’s sentencing functionless than inviolate, since it is not entirely inviolate underthe 401 current scheme. The secondreason offered by the A//en Court for rejecting the defendant’s equal protection claim wasthat the sentencing range availableto trial court is broader under the DSL than for persons convicted of first degree murder with one or more special circumstances: “The range of possible punishments narrows to death or life without parole.” (People v. Allen, supra, 42 Cal. 3d at 1287 [emphasis added].) The idea that the disparity between life and death is a “narrow” one, however, defies constitutional doctrine: “In capital proceedings generally, this court has demandedthat fact-finding proceduresaspire to a heightened standard of reliability [citation]. This especial concern is a natural consequenceof the knowledgethat execution is the most irremediable and unfathomable ofpenalties; that death is different.” (Ford v. Wainwright, supra, 477 U.S. at p. 411). “Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” (Woodson v. North Carolina (1976) 428 U.S. 280, 305 [lead opn. of Stewart, Powell, and Stevens,JJ.].) The qualitative difference between a prison sentence and a death sentence thus militatesfor-- rather than against -- requiring application of review proceduresto potentially disparate capital sentencing. Finally, this Court in Allen relied on the additional “nonquantifiable” aspects of capital sentencing when compared to noncapital sentencing as supporting the different treatment of persons sentenced to death. (See People v. Allen, supra, 42 Cal.3d at p. 1287.) The distinction, however, is one with very 402 little difference. A trial judge may base a sentence choice under the DSL on factors that includeprecisely those that are considered aggravating and mitigating circumstances in a capital case. (Compare § 190.3, subds.(a) through (j) with Cal. Rules of Court, rule 4.421 [circumstances in aggravation] and rule 4.423 (circumstancesin mitigation].) It is reasonable to assume that precisely because “nonquantifiable factors” permeate all sentencing choices, thus creating the risk of arbitrariness, the legislature created the non-capital, disparate review mechanism under section 1170, subdivision (d) to minimize thisrisk. The equalprotection clause of the Fourteenth Amendmentto the United States Constitution guarantees every person that he or she will not be denied fundamental rights and bansarbitrary and disparate treatmentofcitizens when fundamental interests are at stake. (See Bush v. Gore (2000) 531 U.S. 98, 104- 105.) In addition to protecting the exercise of federal constitutionalrights, the equal protection clause prevents violationsofrights guaranteed to the people by state governments. (See Charfauros v. Board ofElections (9th Cir. 2001) 249 F.3d 941, 951.) As this Court ruled in Allen, the fact that a death sentence reflects community standards cannotjustify the arbitrary and unequal treatment of convicted felons, like appellant, who are condemnedto death. All criminal sentencesauthorized by the Legislature, whether imposed by judgesorjuries, represent community standards. Jury sentencingin capital cases does not warrant withholding the sametype of disparate sentence review that is provided to all 403 other convicted felons in this state -- the type of review routinely provided in virtually every death penalty state, except California. The lack of intercase proportionality review violates appellant’s fundamental constitutional rights to due process and equal protection guaranteed by the Fourteenth Amendmentto the United States Constitution and implicates Eighth Amendmentreliability principles as well. Reversal of appellant’s death sentence is required. 404 XII THE JURY INSTRUCTIONSON THE MITIGATING AND AGGRAVATING FACTORSIN SECTION190.3, AND THE JURORS’ APPLICATION OF THESE SENTENCING FACTORS, RENDERED APPELLANT’S DEATH SENTENCE CAPRICIOUS AND ARBITRARYIN VIOLATION OF THEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Factual and Procedural Background Thetrial court instructed the jury on the sentencing factors in section 190.3 in the language of CALJIC No.8.85, the standard instruction regarding the statutory factors to be considered by the jury in determining whether to impose a sentence of death or life without the possibility of parole. (9 CT 2057-2058; 54 RT 8145-8146.) In addition to CALJIC No. 8.85, the court instructed the jury with Special Instruction No. 7 as follows: The factors in the above list which you determine to be aggravating circumstances are the only ones which the law permits you to consider. You are not allowed to consider any other facts or circumstances as the basis that the death penalty would be appropriate in this case. (9 CT 2065; 54 RT 853.) The jury wasalso instructed in the language of CALJIC No.8.88 (1989 Revision) , the standard instruction on aggravating and mitigating factors, in relevant part as follows: It is now your duty to determine which of the two penalties, death or confinement in the state 405 prison for life without the possibility of parole, shall be imposed on the defendant. After having heard all of the evidence, and after having heard and considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed. An aggravating factor is any fact, condition or event attending the commission of a crime which increasesits guilt or enormity, or adds to its injurious consequences which is above and beyond the elements of he crime itself. A mitigating circumstance is any fact, condition or event which as such, does not constitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstances in determining the appropriateness of the death penalty. The weighing of aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginary scale, or the arbitrary assignment of weights to any of them. You are free to assign whatever moral or sympathetic value you deem appropriate to each and all of the various factors you are permitted to consider. In weighing the various circumstances you determine under the relevant evidence which penalty is Justified and appropriate by considering thetotality of the mitigating circumstances. To return a judgment of death, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead oflife without parole. ok Ok (9 CT 2801-2802; 54 RT 8158-8159.) Together, these instructions rendered appellant’s death sentence unconstitutional. 406 B. TheInstruction on Section 190.3, Subdivision (a) and Application of that Sentencing Factor Resulted in the Arbitrary and Capricious Imposition of the Death Penalty Section 190.3, subdivision (a) permits a jury deciding whether a defendant will live or die to consider the “circumstancesof the crime.” Accordingly, the jury in this case wasinstructed pursuant to CALJIC No.8.85 to consider and take into account“[t]he circumstancesof the crimes of which the defendant was convicted in the present proceeding andthe existence of any special circumstances found to be true.” (9 CT 2057; 54 RT 8145.) In 1994, the United States Supreme Court rejected a facial Eighth Amendment vaguenessattack on this section, concludingthat -- at least in the abstract -- it had a “commonsense core of meaning”that juries could understand and apply. (Tuilaepa v. California (1994) 512 U.S. 967, 975.) Ananalysis of how section 190.3, subdivision(a) is actually used by prosecutors in capital cases showsthat the essence of the Court’s judgmentin Tuilaepais incorrect. In fact, there is an extraordinarily disparate use of the circumstances-of-the-crime factor. Beyond question, whatever “common sense core of meaning” subdivision (a) once may have hadis long gone. As applied, the California statute leads to the precise type of arbitrary and capricious decision- making that the Eighth Amendment condemns. The governingprinciples are clear. When a state chooses to imposecapital punishment, the Eighth Amendment requires the adoption of “procedural 407 safeguards againstarbitrary and capricious imposition of the death penalty.” (Sawyer v. Whitley (1992) 505 U.S. 333, 341.) A state capital punishment scheme must comply with the Eighth Amendment’s“fundamental constitutional requirementfor sufficiently minimizing the risk of wholly arbitrary and capricious action”in imposing the death penalty. (Maynard v. Cartwright (1988) 486 U.S. 356, 362.) Asapplied in California, however, section 190.3, subdivision (a) not only fails to “minimiz[e] the risk of wholly arbitrary and capricious action”in the death process, it affirmatively institutionalizes such a risk. Prosecutors throughout California have argued that the penalty jury weigh aggravation in almost every conceivable circumstance of the crime, even those that -- from case to case -- reflect starkly opposite circumstances. For example,records in othercapital cases before the Court'*” reveal that prosecutors have arguedthat “circumstancesof the crime” is an aggravating factor to be weighed on death’sside of the scale because: 1. The defendant struck many blowsandinflicted multiple wounds;'*” 2. The defendantkilled with a single execution-style wound;'*' 3. The defendantkilled the victim for some purportedly aggravating ‘77 Evid. Code § 452, subd. (d) authorizes the Court to take judicial notice of the records of any court of this state. '°°7 See, e.g., People v. Morales, Cal. Sup. Ct. No. (hereinafter “No.”) S004552, RT 3094-3095 [defendant inflicted many blows]; People v. Zapien, No. S004762, RT 36-38 [same]; People v. Lucas, No. S004788, RT 2997-2998 [same]; Peoplev. Carrera, No. S004569, RT 160-161 [same]. 'S!7 See, e.g., People v. Freeman, No. S004787, RT 3674, 3709 [defendantkilled with single wound]; People v. Frierson, No. S004761, RT 3026-3027 [same]. 408 motive (money, revenge, witness-elimination, avoiding arrest, sexual gratification); 4. The defendantkilled the victim without any motiveat all;!” 5. The defendantkilled the victim in cold blood;'™ 6. The defendantkilled the victim during a savage frenzy;'°° 7. The defendant engaged in a cover-up to concealhis crime;!°° 8. The defendant did not engage in a cover-up and so must have been proud of it; 9. The defendant madethe victim enduretheterror of anticipating a violent death; 8 1327 See, e.g., People v. Howard, No. S004452, RT 6772 [money]; People v. Allison, No. S004649, RT 968-969 [same]; People v. Belmontes, No. 004467, RT 2466 [eliminate a witness]; People v. Coddington, No. S008840, RT 6759-6760 [sexualgratification]; People v. Ghent, No. S004309, RT 2553-2555 [same]; People v. Brown, No. 8004451, RT 3543-3544 [avoid arrest]; People v. McLain, No. $004370, RT 31 [revenge]. '53/ See, e.g., People v. Edwards, No. $004755, RT 10,544 [defendantkilled for no reason]; People v. Osband, No. S005233, RT 3650 [same]); People v. Hawkins, No. S014199, RT 6801 [same]. 547 See, e,g., People v. Visciotti, No. S004597, RT 3296-3297 [defendantkilled in cold blood]. 557 See, e.g., People v. Jennings, No. S004754, RT 6755 [defendantkilled victim in savage frenzy (trial court finding)]. 567 See, e.g., People v. Stewart, No. $020803, RT 1741-1742 [defendant attempted to influence witnesses], People v. Benson, No. 8004763, RT 1141 (defendantlied to police]; People v. Miranda, No. S004464, RT 4192 [defendant did not seek aid for victim]. 577 See, e.g., People v. Adcox, No. 004558, RT 4607 [defendantfreely informs others aboutcrime]; People v. Williams, No. S004365, RT 3030-3031 [same]; People v. Morales, No. $004552, RT 3093 [defendantfailed to engage in a cover- up]. 98) See, e.g., People v. Webb, No. S006938, RT 5302; People v. Davis, No. S014636, RT 11, 125; People v. Hamilton, No. 004363, RT 4623. 409 10. The defendant killed instantly without any warning;'”’ 11. The victim had children;'® 12. The victim had not yet had a chanceto have children;'°! 13. The victim struggledprior to death;'™ 14. The victim did not struggle;'® 15. The defendant had a priorrelationship with the victim;'® and 16. The victim was a complete stranger to the defendant.’ The above examples show that although a plausible argument can be made that the circumstances-of-the-crime aggravating factor once may have had a “commonsense core of meaning,” that position can be maintained only by ignoring how the term actually is now being used in California. In fact, as the above-referenced cases indicate, prosecutors urge Juries to find this aggravating factor and place it on death’s side of the scale based on diametrically-opposed or '! See, e.g., People v. Freeman, No. S004787, RT 3674 [defendantkilled victim instantly]; People v. Livaditis, No. S004767, RT 2959 [same]. 97 See, e.g., People v. Zapien, No. S004762, RT 37 (Jan 23, 1987) [victim had children]. ‘817 See, e.g., People v. Carpenter, No. S004654, RT 16,752 [victim had not yet had children]. '2/ See, e.g., People v. Dunkle, No. S014200, RT 3812 [victim struggled]; People v. Webb, No. S006938, RT 5302 [same]; People v. Lucas, No. S004788, RT 2998 [same]. 163) See, e.g., People v. Fauber, No. S005868, RT 5546-5547 [no evidence of a struggle]; People v. Carrera, No. S004569, RT 160 [same]. '47 See, e.g., People v. Padilla, No. S014496, RT 4604 [priorrelationship]; People v. Waidla, No. S020161, RT 3066-3067 [same]; People v. Kaurish (1990) 52 Cal.3d 648, 717 [same]. '85/ See, e.g., People v. Anderson, No. 8004385, RT 3168-3169 [noprior relationship]; People v. McPeters, No. S004712, RT 4264 [same]. 410 squarely-conflicting circumstances. This demonstrates that the term has no common or core meaningorsignificance but is so malleable that it can be applied or invoked in virtually every case. It therefore cannot withstand Eighth and Fourteenth Amendmentscrutiny. Of equal importance to the arbitrary and capricious use ofthe circumstances-of-the-crime factors to support a penalty of death is the fact thatit is applied so broadly as to subsumethe entire spectrum of circumstances invariably present in every homicide, including age of victim, methodofkilling, motive, and location of crime. For example, prosecutors have argued, and juries have been permitted to find, that factor (a) is an aggravating circumstance because: 1. The victim was a child, an adolescent, a young adult, in the prime of life, or elderly;'® 2. The victim wasstrangled, bludgeoned,shot, stabbed, or consumed by 167 fire; 1887 See, e.g., People v. Deere, No. S004722, RT 155-156 [victims were young, ages 2 and 6]; People v. Bonin, No. $004565, RT 10,075 [victims were adolescents, ages 14, 15, and 17]; People v. Kipp, No. S009169, RT 5164 [victim was a young adult, age 18]; People v. Carpenter, No. S004654, RT 16752 [victim was 20], People v. Phillips, (1985) 41 Cal.3d 29, 63 [26-year-old victim was“in the primeofhis life”]; People v. Samayoa, No. S006284, XL RT 49 [victim was an adult “in her prime”]; People v. Kimble, No. S004364, RT 3345 [61-year-old victim was“finally in a position to enjoy the fruits of his life’s efforts”]; People v. Melton, No. S004518, RT 4376 [victim was 77]; People v. Bean, No. S004387, RT 4715-4716 [victim was “elderly”]. '67/ See, e.g., People v. Clair, No. S004789, RT 2474-2475 [strangulation]; People v. Kipp, No. S004784, RT 2246 [same]; People v. Fauber, No. S005868, RT 5546 [use of an axe]; People v. Benson, No. 8004763, RT 1149 [use of a 411 3. The defendant killed for money, to eliminate a witness, for sexual gratification, to avoid arrest, for revenge, or for no motive at all;'°8 4. The victim waskilled in the middle of the night, late at night, early in the morning,or in the middle of the day;'®and 5. The victim waskilled in her own home,in a public bar, in a city park, or in a remote location.'”° The foregoing examplesillustrate how the factor (a) circumstances-of-the- crime aggravatoractually is being applied and demonstrate beyond doubtthatit is applicable and usedin every case regardless of the facts or circumstances, by every prosecutor, without any limitation whatsoever. As a consequence, from case to case, prosecutors turn entirely opposite facts -- or facts that are inevitable variations of every homicide -- into aggravating factors that are offered to every hammer]; People v. Cain, No. S006544, RT 6786-6787 [use of a club]; People v. Jackson, No. S010723, RT 8075-8076 [use of a gun]; People v. Reilly, No. S004607, RT 14,040 [stabbing]; People v. Scott, No. S010334, RT 847 [fire]. 188 See, e.g., People v. Howard, No. 8004452, RT 6772 [money]; People v. Allison, No. S004649, RT 969-970 [same]); People v. Belmontes, No. S004467, RT 2466 [eliminate a witness]; People v. Coddington, No. S008840, RT 6759- 6761 [sexual gratification]; People v. Ghent, No. S004309, RT 2553-2555 [same]; People v. Brown, No. S004451, RT 3544 [avoid arrest]; People v. McLain, No. S004370, RT 31 [revenge]; People v. Edwards, No. S004755, RT 10,544 [no motiveatall]. '877 See, e.g., People v. Fauber, No. S005868, RT 5777 [early morning]; People v. Bean, No. 004387, RT 4715 [middle of the night]; People v. Avena, No. S004422, RT 2603-2604 [late at night]; People v. Lucero, No. S012568, RT 4125- 4126 [middle of the day]. 1707 See, e.g., People v. Anderson, No. S004385, RT 3167-3168 [victim’s home]; People v. Cain, No. S006544, RT 6787 [same]; People v. Freeman, No. S004787, RT 3674, 3710-3711 [public bar]; People v. Ashmus, No. S004723, RT 7340-7341 [city park]; People v. Carpenter, No. S004654, RT 16,749-16,750 [forested area]; People v. Comtois, No. 8017116, RT 2970 [remote, isolated location]. 412 jury as unique factors weighing on death’s side of the scale. This is precisely the kind of arbitrariness and capriciousness proscribed by Eighth and Fourteenth Amendmentreliability and due processprinciples. In the presentcase, the prosecutor invoked a multiplicity of circumstances and facts that, he argued, rendered factor (a) uniquely applicable to appellant. At the commencementofhis closing argument, the prosecutor stressed that the aggravating circumstances,in his opinion,“center around two areas. What’s called the (a) paragraph and the (b) paragraph ... .” In respect to the “(a) paragraph,” which he defined as “the circumstances of the crime (54 RT 8083-8084), the prosecutortold the jury that appellant picked “people out of our community at random to kill them.” (54 RT 8082.) Healso said that appellant took “their lives just for the fun ofit, for the thrill of it.” (54 RT 8082.) The prosecutoralso stated that appellant killed people “for sport” (54 RT 8082) and engagedin “recreational murder,recreational violence, hurting people for the fun of it.” (54 RT 8082.) The prosecutor emphasized, for example, that the daytime murder of Jose Aragon was “unfair” because he was a young man who wanted to be an engineer. (54 RT 8085-8086.) In quoting the victim impact testimony of Lydia Aragon, the prosecutor remindedthe jury that Jose Aragon was a “kid,” a son, a grandson, and friend. The prosecutorstressed that Aragon was married and that his death constantly reminded his family that he was not going to have any children. (54 RT 8088.) The prosecutor mentioned that appellant was an “artist” who liked to hurt people and create dead people. (54 RT 8098.) The 413 prosecutor repeatedly urged that the death penalty was appropriate because of the pain inflicted on Jose Aragon, becausethe killing was unfair, because he “prayed” for appellant and his accomplices to leave. (54 RT 8086.) Asto the murders of Joe Mans and Timothy Jones, the prosecutortold the Jurors that they should consider in weighing the circumstancesof the crimesthat the murders were unfair, that appellant and his accomplices, “stormed”their car,” caused great fear and humiliation, and caused great pain. (54 RT 8091-8092, 8094.) The prosecutor stressed that coappellant Romero “executed” Mans. (54 RT 8096.) As to Timothy Jones, the prosecutor stressed that he was a kind young man, defenseless, accosted by gunmen in the middle of the night and in the middle of nowhere. (54 RT 8095-8096, 8107.) In so arguing factor(a) to the jury, the prosecutor invoked a potpourri of purportedly unique facts and circumstancesthat apply in virtually every homicide. Asthis case so clearly illustrates, the circumstances-of-the-crime aggravating factor can be invokedin every conceivable situation or circumstance. Every fact or circumstance involved in a crime -- precisely because they are so malleable in the hands of the prosecution -- licenses indiscriminate imposition of the death penalty upon nobasis other than “that a particular set of facts surrounding a murder, ... were enough in themselves, and without some narrowingprinciples to apply to those facts, to warrant the imposition of the death penalty.” (Maynard v. Cartwright, supra, 486 U.S. at p. 363.) That this factor may have a “common sense core of meaning”in the abstract should not obscure what experience and 414 reality both show. Factor(a) is being used-- as was used in this case -- to inject the precise type ofarbitrary and capricious sentencing the Eighth Amendment prohibits. As a result, the California schemeis unconstitutional, and appellant’s death sentence mustbe vacated. C. The Instruction on Penal Code Section 190.3, Subdivision (b) and the Jurors’ Application of that Sentencing Factor Violated Appellant’s Constitutional Rights to a Fair Penalty Trial, Due Process, Equal Protection, Trial by Jury and a Reliable Penalty Determination 1. Introduction In addition to CALJIC No. 8.85 and 8.88, as discussed in Subsection A, supra,the trial court instructed the jury in the language of CALJIC No.8.87 (1989 Revision) that as aggravating factors under section 190.3, subdivision (b), the jury could consider evidencethat appellant committed “assault, battery, attempt[ed] forcible oral copulation and possession of deadly weaponin jail which involved the express or implied use of force or violenceor the threat of force or violence.” (9 CT 2059; 54 RT 8149, 8151.) The jury wastold it could rely on these aggravating factors in the weighing process necessary to determine if appellant should be executed. The jury was told that it was not necessary forall jurors to agree. “If any juror is convinced beyond a reasonable doubt that such criminal activity occurred, that juror may considerthatactivity as a fact in aggravation. Ifa juror is not so convinced,that juror must not considerthat evidence for any purpose.” (9 CT 2059; 54 RT 8152.) Thus, although the jury wastoldin the 415 language of CALJIC No. 8.88 (1989 Revision) that all jurors 12 must agree on the penalty determination (9 CT 2082), the jury wasalso explicitly told that as to factor (b) it was not necessary forall jurors to agree. (9 CT 2059; 54 RT 8152.) Indeed, the jury was explicitly instructed that such unanimity as to factor (b) was not required. Thus, the sentencing instructions contrasted sharply with those given at the guilt phase, where the jurors were told they had to agree unanimously on appellant’s guilt and the special circumstancesallegations. This aspect of section 190.3, subdivision (b) and CALJIC No. 8.87 (1989 Revision), permitting the jury to sentence appellant to death by relying on evidence on whichit did not necessarily agree unanimously, violated both the Sixth Amendmentright to a jury trial and the Eighth Amendment’s ban on unreliable penalty phase procedures. 2. The Use of Unadjudicated Criminal Activity as Aggravation Renders Appellant’s Death Sentence Unconstitutional The instruction on factor (b) aggravation was upheld against an Eighth Amendment vaguenesschallenge in Tuilaepa v. California, supra, 512 U.S.at p. 977. However, the instruction and evidencein this case violated the Eighth Amendment, because they permitted the jury to consider unreliable evidence of appellant’s alleged prior and subsequent unadjudicated criminal conduct. The admission into evidence of unadjudicated criminal conductas aggravation violated appellant’s rights to due process under the Fourteenth Amendment,trial by an impartial jury under the Sixth Amendment, and a reliable 416 determination of penalty under the Eighth Amendment. (State v. McCormick (Ind. 1979) 397 N.E.2d 276[prohibiting use of unadjudicated crimesas aggravating circumstances under Eighth and Fourteenth Amendments]; see also State v. Bobo (Tenn. 1987) 727 S.W.2d 945, 954-955 [prohibiting use of unadjudicated crimes as aggravating circumstance basedonstate constitution with due process and impartial jury provisions comparable to United States and California Constitutions].) Thus, the trial court’s instructions in this case that expressly permitted the jury to consider such evidencein aggravation violated those same constitutional rights. In addition, because California does not allow unadjudicated offenses to be used in noncapital sentencing, the use of this evidence in a capital proceeding violated appellant’s equal protection rights under the California and United States Constitutions. (Myers v. Ylst (9th Cir. 1990) 897 F.2d 417, 421.) Further, because the state applies its law in an irrational mannerby providing moresentencing rights in non-capital cases, the use ofthis evidencein a capital sentencing proceedingalso violated appellant’s California and United States constitutional rights to due process and equalprotection of the laws. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346; U.S. Const., 6th & 14th Amendments, Cal. Const., art. 1, §§7 and 15.) /// /// //1 417 3. The Failure to Require a UnanimousJury Finding on the Unadjudicated Acts of Violence Denied Appellant His Right to a Jury Trial Guaranteed by the Sixth and Fourteenth Amendments and Requires Reversal of His Death Sentence Even assuming for purposes of argumentthat the evidenceof alleged prior and subsequent unadjudicated acts was constitutionally admissible at the penalty trial, the failure of the trial court’s instructions pursuantto section 190.3, subdivision (b) to require juror unanimity on the allegations that appellant committed prior and subsequentacts of violence renders his death sentence unconstitutional.'’’ The Sixth Amendmentguaranteesthe rightto a jury trialin all criminal cases. The United States Supreme Court has held, however, that the version of the Sixth Amendmentapplied to the states through the Fourteenth Amendmentdoes not require that the jury be unanimousin non-capital cases. (Apodaca v. Oregon (1972) 406 U.S. 404 [upholding conviction by a 10-2 vote in non-capital case]; Johnson v. Louisiana (1972) 406 U.S. 356, 362, 364 [upholding a conviction obtained by a 9-3 vote in non-capital case].) Nor doesit require the states to empanel! 12 jurors in all non-capital criminal cases. (Williams vy. Florida (1970) 399 U.S. 78 [approving the use of six-person juries in criminal cases].) The United States Supreme Court also has made clear, however, that even in non-capital cases, when the Sixth Amendment does apply,there are limits '7l/ Argument XIII, infra, discusses the constitutional burden of proof requirements, jury unanimity, and fact-finding determinations madebya capital sentencing jury in California. This argument addresses solely the use of unadjudicated acts under factor(b), including the absence ofJury unanimity as to unadjudicated acts under factor (b). 418 beyond which the states may not go. For example, in Ballew v. Georgia (1978) 435 US. 223, the Court struck down a Georgia law allowing criminal convictions with a five-person jury. Moreover, the Court also has held that the Sixth Amendmentdoesnotpermit a conviction based onthe voteoffive of six seated jurors. (Brown vy. Louisiana (1979) 447 U.S.323, Burch y. Louisiana (1978) 441 U.S. 130.) Thus, when the Sixth Amendmentapplies to a factual finding-- at least in a non-capital case -- although jurors need not be unanimousasto the finding, there must at a minimum besignificant agreement among the jurors.” Prior to June of 2002, the United States Supreme Court’s law on the Sixth Amendmentdid not apply to the aggravating factors set forth in section 190.3. Prior to that date, the Sixth Amendmentrightto jury trial did not apply to aggravating factors on which a sentencercould rely to impose a sentence of death in a state capital proceeding. (Walton v. Arizona (1988) 497 U.S. 639, 649.) In light of Walton,it is not surprising that this Court had, on many occasions, specifically rejected the argumentthat a capital defendant had a Sixth Amendment right to a unanimousjury in connection with the jury’s findingsasto aggravating '27 The United States Supreme Court often has recognized that because death is a unique punishment,there is a corresponding need for procedures in death penalty casesthat increase the reliability of the process. (See, e.g., Beck v. Alabama, supra, 447 U.S. 625; Gardnerv. Florida, supra, 430 U.S.at p. 357.) Itis arguable, therefore, that where the state seeks to impose a death sentence, the Sixth Amendmentdoes not permit even a super-majority verdict, but requires true unanimity. Because the instructionsin this case did not even require a super- majority ofjurors to agree that appellant committed the alleged prior and subsequent unadjudicated acts of violence, there is no need to reach this question here. 419 evidence. (See, e.g., People v. Taylor (2002) 26 Cal.4th 1155, 1178; People v. Hines (1997) 15 Cal.4th 997, 1077; People v. Ghent (1987) 43 Cal.3d 739, 773.) In Ghent for example, the Court held that such a requirement was unnecessary under “existing law.” (Peoplev. Ghent, supra, 43 Cal.3d at p. 773.) On June 24, 2002, however, the “existing law” changed. In Ring v. Arizona (2002) 536 U.S. 584, the United States Supreme Court overruled Walton and held that the Sixth Amendmentrightto a jury trial applied to “aggravating circumstance[s] necessary for imposition of the death penalty.” (/d. at p. 609; accord id. at p. 610 (conc. opn. of Scalia, J.) [noting that the Sixth Amendment right to a jury trial applies to “the existence of the fact that an aggravating factor exist[s]”].) In other words, absent juror unanimity in connection with the aggravating factor set forth in section 190.3, subdivision (b), this section violates the Sixth Amendmentas applied in Ring. Here, the error cannot be deemed harmlessbecause, on this record, there is no waytotell if all 12 jurors agreed that appellant committed the prior school assault with which he was never charged and about whichthere had been noprior proceedings or testimony. For the same reasons, there is no waytotell if all 12 jurors agreed that appellant committed all of the subsequent unadjudicated acts charged as aggravation which he allegedly committed while confined in the Riverside County Jail awaiting trial. (See People v. Crawford (1982) 131 Cal.App.3d 591, 599 [instructional failure which raises possibility that jury was not unanimousrequiresreversal unless the reviewing court can tell that all 12 420 jurors necessarily would have reached a unanimous agreementon the factual point in question]; People v. Dellinger (1985) 163 Cal.App.3d 284, 302 [same].)'” 4, Absent a Requirementof Jury Unanimity in Respect to the Alleged Unadjudicated Acts of Violence, the Instructions on Section 190.3, Subdivision (b) Allowed Jurors to Impose the Death Penalty on Appellant Based on Unreliable Factual Findings That Were Never Deliberated, Debated, or Discussed The United States Supreme Court has recognizedthat “death is a different kind of punishment from any other which may be imposedin this country.” (Gardnerv. Florida, supra, 430 U.S. at p. 357.) Because death is such a qualitatively different punishment, the Eighth and Fourteenth Amendments require “a greater degree of reliability when the death sentence is imposed.” (Lockett v. Ohio, supra, 438 U.S. at p. 604.) For this reason, the High Court has not hesitated to strike down penalty phase procedures that increase the risk that the fact-finder will make an unreliable determination. (Caldwell v. Mississippi (1985) 472 U.S. 320, 328-330; Green v. Georgia (1979) 442 U.S. 95; Lockett v. Ohio, supra, 438 U.S. at pp. 605-606; Gardner vy. Florida, supra, 430 U'S. at pp. 360-362.) The Supreme Court has madeclear that defendants have “a legitimate interest in the character of the procedure whichleadsto the imposition of sentence evenif [they] mayhavenoright to object to a particular result of the sentencing process.” '3/ This assumes that a harmless error analysis may apply to Ring error. In Ring, the High Court did not reach this question, but simply remandedthecase. Becausetheerror here is not harmless even under Chapman v. California, supra, 386 U.S. at p. 24 standard, there may be no need to decide whether Ring errors are structural in nature and hence prejudicial perse. 421 (Gardner v. Florida, supra, 430 U.S.at p. 358.) The California Legislature has provided that evidence of a defendant’sact which involved the use or attempted use of force or violence can be presented during the penalty phase. (§ 190.3, subd. (b).) Before the fact-finder may consider such evidence, it must find that the state has proven the act beyond a reasonable doubt. The jurors also are instructed, however, that they need not agree onthis, and that as long as any onejuror believes the act has been proven, that one juror may considerthe act in aggravation. (CALJIC No. 8.87.) This instruction was given here. (9 CT 2059; 54 RT 8151-8152.) Thus, as noted above, membersofthe jury may individually rely on this -- and any other -- aggravating factor each of the jurors deemsproperas long as the jurorsall agree on the ultimate punishment. Becausethis proceduretotally eliminates the deliberative function of the jury that guards against unreliable factual determinations,it is inconsistent with the Eighth Amendment’s requirement of enhancedreliability in capital cases. (See Johnsonv. Louisiana, supra, 406 U.S.at pp. 388-389 (dis. opn. of Douglas, J.); Ballew v. Georgia, supra, 435 U.S. 223; Brown v. Louisiana, supra, 447 U.S. 323.) In Johnson v. Louisiana, supra, 406 U.S.at pp. 362, 364, a plurality of the United States Supreme Court held that the Sixth Amendmentright to jury trial that applied to the states through the Fourteenth Amendmentdid not require jury unanimity in state criminaltrials, but permitted a conviction based on a vote of 9 to 3. In dissent, Justice Douglas pointed out that permitting jury verdicts on less than unanimousverdicts reduced deliberation between the jurors and thereby 422 substantially diminished thereliability of the jury’s decision. This occurs, he explained, because “nonunanimousjuries need not debate and deliberate as fully as must unanimousjuries. As soonasthe requisite majority is attained, further consideration is not required . .. even though the dissident jurors might, if given the chance, be able to convincethe majority.” (/d. at pp. 388-389 (dis. opn. of Douglas).) The High Court subsequently embraced Justice Douglas’s observations about the relationship between jury deliberation andreliable fact-finding. In striking down a Georgia law allowing criminal convictions with a five-person jury, the Court observed that such a jury wasless likely “to foster effective group deliberation. At somepoint this decline [in jury number]leadsto inaccurate fact- finding . . ..” (Ballew v. Georgia, supra, 435 U.S. at p. 232.) Similarly, in precluding a criminal conviction on the vote offive out of six jurors, the Supreme Court has recognized that “relinquishmentof the unanimity requirement removes any guarantee that the minority voices will actually be heard.” (Brown v. Louisiana, supra, 447 U.S. at p. 333; see also Allen v. United States, supra, 164 U.S. at p. 501 [“The very object of the jury system is to secure uniformity by a comparison of views, and by arguments amongthejurors themselves.”].) The United States Supreme Court’s observations about the effect ofjury unanimity on group deliberation and fact-finding reliability are even more applicable in this case for two reasons. First, since this is a capital case, the need for reliable fact-finding determinationsis substantially greater. Second,unlike the 423 Louisiana schemesat issue in Johnson, Ballew, and Brown, the California scheme does not require even a majority ofjurors to agree on factor (b) evidence before relying on such conduct to impose a death penalty. Consequently, “no deliberation atall is required” on this critical factual issue, which wasrelied upon by the jurors to sentence appellant to death. (Johnson v. Louisiana, supra, 406 U.S. at p. 388, (dis. opn. of Douglas,J.).) Given the constitutionally significant purpose served by jury deliberation on factual issues and the enhanced needfor reliability in capital sentencing, a procedurethat allows individual jurors to impose death on the basis of less than unanimousfactual findings that they have neither debated, deliberated nor even discussedis unreliable and, therefore, constitutionally impermissible. A new penalty trial is required. (See Johnson v. Mississippi, supra, 486 U.S.at p. 586 {harmlesserror analysis inappropriate whentrial court introduces evidencethat violates Eighth Amendment’s reliability requirements at defendant’s capital sentencing hearing].) D. Restrictive Adjectives Used in the List of Potential Mitigating Factors Impermissibly Impeded the Jurors’ Consideration of Mitigation The inclusion in the list of potential mitigating factors read to appellant’s jury of such adjectives as “extreme”(see factors (d) and (g)) in CALJIC No.8.85 as read to the jury (9 CT 2057), and “substantial” (see factor (g)) (9 CT 2057), acted as a barrier to the consideration of mitigation, in violation of the Sixth, 424 Eighth and Fourteenth Amendments. (Mills v. Maryland (1988) 486 U.S. 367; Lockett v. Ohio, supra, 438 U.S. 586; but see People v. Blair (2005) 36 Cal.4th 686, 753-754 [use of adjectives, such as “extreme” and “substantial” in section 190.3 penalty factors (d) and (g) does not impermissiblyrestrict jury’s consideration of mitigating evidence in violation of the Eighth or Fourteenth Amendments]; People v. McPeters (1992) 2 Cal.4th 1148, 1191.) E. TheFailure to Require the Jury to Base a Death Sentence on Written Findings Regarding the Aggravating Factors Violates Appellant’s Constitutional Rights to Meaningful Appellate Review and EqualProtection of the Law The instructions given in this case under CALJIC No. 8.85 and No. 8.88 did not require the jury to make written or other specific findings about the aggravating factors they found and considered in imposing a death sentence. The failure to require such express findings deprived appellant of his Fourteenth Amendment due process and Eighth Amendmentrights to meaningful appellate review as well as his Fourteenth Amendmentright to equal protection of the law. (California v. Brown (1987) 479 U.S. 538, 543; Gregg v. Georgia, supra, 428 U.S. at p. 195.) California juries havetotal, unguided discretion on howto weigh aggravating and mitigating circumstances (Tuilaepa v. California, supra, 512 US. at pp. 979-980). There can be no meaningful appellate review unless juries make written findings regarding those factors, becauseit is impossible to “reconstruct the findingsofthe state trier of fact.” (See Townsendv. Sain (1963) 373 USS. 293, 313-316.) Indeed, written findings are essential for a meaningful review ofthe 425 sentence imposed. Thus, in Mills v. Maryland, supra, 486 U.S. 367, the requirement of written findings applied in Maryland death cases enabled the Supreme Court to identify the error committed underthe prior state procedure and to gauge the beneficial effect of the newly-implemented state procedure. (/d.p. 383, fn. 15.) While this Court has held that the 1978 death penalty schemeis not unconstitutionalin failing to require express jury findings (People v. Fauber (1999) 2 Cal.4th 792, 859), it has treated such findings as so fundamental to due processas to be required at parole suitability hearings. A convicted prisoner who alleges that he was improperly denied parole must proceed by a petition for writ of habeas corpus and mustallege the state’s wrongful conduct with particularity. (/n re Sturm (1974) 11 Cal.3d 258.) Accordingly, the parole board is required to state its reasons for denying parole, because“i]t is unlikely that an inmate seeking to establish that his application for parole wasarbitrarily denied can make necessary allegations with the requisite specificity unless he has some knowledge ofthe reasons therefor.” (/d. at p. 267.) By parity of reason, the same requirement must apply to the far graver decision to put someoneto death. (See also Peoplev. Martin (1986) 42 Cal.3d 437, 449-450 [statement of reasonsessential to meaningful appellate review].) Further, in noncapital cases the sentencer is required by California law to state on the record the reasons for the sentence choice. (/bid.; § 1170, subd.(c).) Underthe Sixth, Eighth, and Fourteenth Amendmentsto the United States 426 Constitution, capital defendants are entitled to more rigorous protections than noncapital defendants. (Harmelin v. Michigan (1991) 501 U.S. 957, 994.) Since providing greater protection to noncapital than to capital defendants under similar circumstancesviolates the equal protection clause of the Fourteenth Amendment (see generally Myersv. Yist, supra, 897 F.2d at p. 421), the sentencerin a capital case is constitutionally requiredto identify for the record in some fashion the aggravating circumstances found upon whichhe basesthe decision to imposed death. The mere fact that a capital-sentencing decision is “normative” (People v. Hayes (1990) 52 Cal.3d 577, 643), and “moral” (People v. Hawthorne (1992) 4 Cal.4th 43, 79), does not mean its basis cannotbe articulated in written findings. In fact, the importance ofwritten findings in capital sentencing is recognized throughoutthis country. Of the 34 post-Furmanstate capital sentencing systems, 25 require some form ofwritten findings specifying the aggravating factors the jury relied on in reaching a death judgment. Nineteen ofthosestates require written findings regardingall penalty aggravating factors found true, while the remaining seven require a written finding as to at least one aggravating factor relied on to impose death.!”* California’s failure to require such findings renders '747 See Ala. Code, §§ 13A-5-46(f) and 47(d) (1982); Ariz. Rev. Stat. Ann., § 13- 703.01(E) (2002); Ark. Code Ann., § 5-4-603(a) (Michie 1993); Colo. Rev.Stat., § 18-1.3-1201(2)(b)(II) and § 18-1.3-1201(2)(c) (2002); Conn. Gen. Stat. Ann., § 53a-46a(e) (West 1985); State v. White (Del. 1978) 395 A.2d 1082, 1090; Fla. Stat. Ann., § 921.141(3) (West 1985); Ga. Code Ann., § 17-10-30(c) (Harrison 1990); Idaho Code, § 19-2515(8)(a)-(b) (2003); Ky. Rev. Stat. Ann., § 532.025(3) (Michie 1992); La. Code Crim. Proc. Ann., art. 905.7 (West 1993); Md. Ann. 427 its death penalty procedures unconstitutional in violation of the Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution. F. Even if the Absence of the Previously Addressed Procedural Safeguards Does Not Render California’s Death Penalty Scheme Constitutionally Inadequate to Ensure Reliable Capital Sentencing, Denying Them to Capital Defendants Such as Appellant Nevertheless Violates Equal Protection Requirements of the Fourteenth Amendmentto the United States Constitution As noted above (Subsections C and E, supra), the United States Supreme Court repeatedly has asserted that heightenedreliability is required in capital cases and that courts must be vigilant to ensure procedural fairness and accuracyin fact- finding. (See, e.g., Monge v. California, supra, 524 U.S. at pp. 731-732.) Despite this directive of the High Court, California’s death penalty scheme affords significantly fewer procedural protections to defendants facing death sentences than to those charged with noncapital crimes. This differential treatment violates the constitutional guarantee of equal protection of the laws under the Fourteenth Amendment. Equal protection analysis begins with identifying the interest at stake. In Code art 27 § 413(4) (1993); Miss Code Ann., § 99-19-103 (1993); Mont. Code Ann., § 46-18-305 (1993); Neb. Rev. Stat. § 29-2521(2) and § 29-2522 (2002); Nev.Rev.Stat. Ann., § 175.554(3) (Michie 1992); N.H. Rev. Stat. Ann., § 630:5 (IV) (1992); N.M. Stat. Ann., § 31-20A-3 (Michie 1990); Okla. Stat. Ann., tit. 21, § 701.11 (West 1993); 41 Pa. Cons. Stat. Ann., § 9711 (1982); S.C. Code Ann.§ 16-3-20(C) (Law. Co-op. 1992); S.D. Codified Laws Ann., § 23A-27A-5 (1988); Tenn. Code Ann., § 39-13-204(g) (1993); Tex. Crim. Proc. Code Ann., § 37.07(c) (West 1993); Va. Code Ann., § 19.2-264(D) (Michie 1990); Wyo.Stat. § 6-2- 102(e) (1988). 428 California, Chief Justice Wright wrote for a unanimous Court that “personal liberty is a fundamentalinterest, second onlytolife itself, as an interest protected under both the California and the United States Constitutions.” (People v. Olivas, supra, 17 Cal.3d at p. 251.) “Aside from its prominentplace in the Due Process Clause, the right to life is the basis ofall other rights. .. . It encompasses, in a sense, ‘the right to have rights’ (Trop v. Dulles, 356 U.S. 86, 102 (1958)... a (Commonwealth v. O'Neal (Mass. 1975.) 327 N.E.2d 662, 668.) In the case of interests identified as “fundamental,” this Court and others have “adopted anattitude ofactive andcritical analysis, subjecting the classification to strict scrutiny.” (Westbrook v. Milahy (1970) 2 Cal.3d 765, 784- 785.) A state may notcreate a classification schemeaffecting a fundamental interest without showing that a compelling interest justifies the classification and that the distinctions drawn are necessary to further that purpose. (People v. Olivas, supra; Skinner v. Oklahoma (1942) 316 U.S. 535, 541.) California cannot meet that burden here. In the context of capital punishment, the equal protection guarantees of the California and United States Constitutions must apply with greater force, the scrutiny ofthe challenged classification mustbestrict, and any purported justification of the discrepant treatment must be even more compelling, because the interest at stake is not simply liberty, butlife itself. The differences between capital defendants and noncapital felony defendants justify more, not fewer, proceduralprotections in order to make death sentences morereliable. 429 Appellant has previously demonstrated (Argument XI, supra) why the failure to provide intercase proportionality review violated his right to equal protection under the Fourteenth Amendment. Hereasserts, as thoughset outin full, that argument here with regard to the denial of other safeguards such the requirement of written jury findings, unanimous agreementon alleged unadjudicated, violent criminal acts under section 190.3, subdivision (b) and on other particular aggravating factors, and the disparate treatmentofcapital defendantsset forth in Subsections B through E, supra. The procedural protectionsoutlined in these assignmentsoferror, but denied capital defendants as appellant, are especially important in ensuring the need for reliable and accurate factfinding in death sentencing trials. (Monge v. California, supra, 524 U.S.at pp. 731-732.) Withholding them on thebasis that a death sentenceis a reflection of community standards, or on any other ground,is irrational and arbitrary and cannot withstand the Fourteenth Amendmentclosescrutiny analysis that applies when the most fundamental interest -- life -- is at stake. G. Conclusion Forthe reasonsset forth above, both separately and in the aggregate, appellant’s death sentence violates the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution, and their California counterparts, and must therefore be reversed. 430 Xl PENAL CODESECTION 190.3 AND IMPLEMENTING JURY INSTRUCTIONS (CALJIC NOS.8.84-8.88) ARE UNCONSTITUTIONAL, BECAUSE THEY FAIL TO SET OUT THE APPROPRIATE BURDEN OF PROOF OR CONTAIN OTHER CONSTITUTIONALLY COMPELLED SAFEGUARDS AND PROTECTIONS REQUIRED BY THEFIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION A. Introduction The California death penalty statute and the instructions given in this case (CALJIC Nos. 8.84-8.88) fail to assign a burden of proof with regard to the jury’s choice between the sentencesoflife without possibility of parole and death. The instructions do not delineate a burden ofproofeither with respect to the preliminary findings that a jury must makebefore it may impose a death sentence or the ultimate sentencing decision. Neitherthe statute nor the instructions require jury unanimity as to the existence of aggravating factors utilized by the jury as the basis for imposing a sentence of death. As shown below,these and othercritical omissionsin the California capital sentencing scheme embodiedin section 190.3 and CALJIC Nos. 8.84-8.88 violated appellant’s rights to trial by jury, fairtrial, unanimousverdict, reliable penalty determination, due process, and equal protection of the laws guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. /// 431 B. The Statute and Instructions Unconstitutionally Fail to Assign to the State the Burden of Proving Beyond a Reasonable Doubtthe Existence of an Aggravating Factor, that the Aggravating Factors Outweigh the Mitigating Factors, and that Death is the Appropriate Penalty In California, before sentencing a person to death, the jury must be persuadedthat “the aggravating circumstances outweigh the mitigating circumstances”(§ 190.3) and that “death is the appropriate penalty underall the circumstances.” (People v. Brown (1985) 40 Cal.3d 512, 541, rev’d on other grounds, California v. Brown (1987) 479 U.S. 538; see also People v. Cudjo (1993) 6 Cal.4th 585, 634. Under the California scheme, however, neither the aggravating circumstancesnorthe ultimate determination of whether to impose the death penalty need be provedto the jury’s satisfaction pursuant to any delineated burden of proof.'”” Here, the jury wasspecifically instructed in the language of CALJIC No. 8.84 and No. 8.88 that it must determine whether the death penalty or “confinement in the state prison for life without possibility of parole” shall be imposed. (9 CT 2033, 2081.) No burden of proof was specified or required by the trial court to guide the jury in determining penalty. The failure to assign or impose a burden of proofas a prerequisite for a jury’s sentence of death renders both the California death penalty scheme and implementing instructions unconstitutional, '>/ There are two exceptionsto this lack of a burden ofproof. The special circumstances (§ 190.2) and the aggravating factor of unadjudicated violent criminal activity (§ 190.3, subd. (b)) must be proved beyond a reasonable doubt. Appellant further discusses the defects in § 190.3, subd.(b), infra, as well as in Argument XII, supra. 432 and,in this case, renders appellant’s death sentence unconstitutional and unreliable in violation ofthe Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. This Court has consistently held that neither the United States nor California Constitution requires the jury to agree unanimouslyas to aggravating factors, or to find beyond a reasonable doubt that aggravating factors exist, or that they outweigh mitigating factors. (People v. Prieto (2003) 30 Cal.4th 226, 262- 263; People v. Snow (2003) 30 Cal.4th 43, 126, fn. 32; People v. Anderson (2001) 25 Cal.4th 543, 589-590, fn. 14 [‘death is no more thanthe prescribed statutory maximumfor the offense .... Hence, facts which bear upon, but do not necessarily determine, which ofthese two alternative penalties is appropriate do not come within the holding ofApprendi”].) Indeed as elsewherestated by the Court in People v. Turner(2004) 34 Cal.4th 406, 439, “[t]he jury need not be instructed on the burdenof proof during the penalty phase because the sentencing function is ‘not susceptible to a burden-of-proof quantification’.” Appellantoffers nevertheless that the Court’s reasoning and rulings are contrary to United States Supreme Court jurisprudence and the notion that no burden of proof is necessary or constitutionally compelled is contrary to United States Supreme Court decisions in Apprendi v. New Jersey (2000) 530 U.S. 466; Ring v. Arizona,supra, 536 U.S. 584: and mostrecently in Blakely v. Washington (2004) 542 U.S. 296. Appellant acknowledges that this Court has ruled otherwise in People v. Cornwell (2005) 37 Cal.4th 50, 104; People v. Blair (2005) 36 Cal.4th 686, 754 [concluding without 433 analysis that the United States Supreme Court’s recentdecisions interpreting the Sixth Amendment’s guaranteeofa jury trial do not compel a different result].) The High Court in Apprendi considered a New Jersey state law that authorized a maximum sentence of ten years based on jury finding ofguilt for second degree unlawful possession of a firearm. A related hate crime statute, however, allowed imposition of a longer sentenceif the judge found, by a preponderanceofthe evidence, that the defendant committed the crime with the purpose ofintimidating an individual or group of individuals on the basis of race, color, gender, or other enumerated factors. In short, the New Jersey statute considered in Apprendi required a jury verdict on the elements of the underlying crime, but treated the racial motivation issue as a sentencing factor for determination by the judge. (Apprendi v. New Jersey, supra, 530 U.S.at pp. 471-472.) The United States Supreme Court found that this sentencing scheme violated due process of law, reasoning that labeling a particular matter simply a “sentence enhancement”did not provide a “principled basis”for distinguishing betweenproofoffacts necessary for conviction and punishment within the normal sentencing range, on one hand,and those facts necessary to prove the additional allegation increasing the punishment beyond the maximum that the jury conviction itself would allow, on the other. (/d. at pp. 471-472.) The High Court thus held that a state may not imposea sentencegreater than that authorized by the Jury’s simple verdict of guilt unless the facts supporting an increased sentence 434 (other than a prior conviction) are also submitted to the jury and proved beyond a reasonable doubt. (/d. at p. 478.) In Ring v. Arizona, supra, the Court applied Apprendi’s principles in the context of capital sentencing requirements, stressing most importantly “no reason to differentiate capital crimes from all others in this regard.” (Ring v. Arizona, supra, 536 U.S. at p. 607.) The Court considered Arizona’s capital sentencing scheme, which authorized a judgesitting without a jury to sentence a defendantto death if there was at least one aggravating circumstance and no mitigating circumstancessufficiently substantial to call for leniency. (/d. at 593.) Although the Court had previously upheld the Arizona scheme in Walton v. Arizona, supra, 497 U.S. at p. 639, the Court newly-found that Walton wasirreconcilable with Apprendi. While Ring dealt specifically with statutory aggravating circumstances,the Court concluded that Apprendi was fully applicableto all factual findings necessary to put a defendantto death, regardless of whether those findings are labeled sentencingfactors or elementsofthe offense. (Ring v. Arizona, supra, , 536 U.S. at p. 609.) The Court observed: “The rightto trial by jury guaranteed by the Sixth Amendment would besenselessly diminishedif it encompassed the factfinding necessary to increase a defendant’s sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both.” (/d.) In his concurring opinion, Justice Scalia distinctively and succinctly distilled the Court’s holding: “All facts essential to the imposition of 435 the level of punishmentthat the defendant receives -- whether the statute calls them elements of the offense, sentencing factors, or Mary Jane -- must be made by the jury beyond a reasonable doubt.” (Ring v. Arizona, supra, 536 U.S. at p. 610 (Scalia J., concurring).) In Blakely, the High Court considered the effect ofApprendi and Ring ina case wherethe sentencing judge was allowed to impose an “exceptional” sentence outside the normal range uponthefinding of “substantial and compelling reasons.” (Blakely v. Washington, supra, 124 S. Ct. at p. 2535.) The State of Washingtonset forthillustrative factors that included both aggravating and mitigating circumstances; one of the former was whether the defendant’s conduct manifested “deliberate cruelty” to the victim. (/d.) The Supreme Court ruled that this procedure wasinvalid becauseit did not comply with the right to a jury trial. (dd, at p. 2543.) In reaching this holding, the Supreme Court stated that the governing rule since Apprendiis that other than a prior conviction, any fact that increases the penalty of the crime beyondthe statutory maximum must be submitted to the jury and found beyond a reasonable doubt; “the relevant ‘statutory maximum’is not the maximum sentence a judge may imposeafter finding additionalfacts, but the maximum he may impose without any additional findings.” (Blakely v. Washington, supra, 124 S. Ct. at p. 2537 (emphasis in original).) Twenty-six states require that factors relied on to impose death in a penalty phase must be proven beyonda reasonable doubt by the prosecution, and three 436 additional states have related provisions.'”° Only California and four otherstates (Florida, Missouri, Montana, and New Hampshire) fail to address the matter explicitly by statute. California law as interpreted by this Court does not require that a reasonable doubt standard be used during any part of the penalty phase of a defendant’s trial, except as to proofofprior criminality relied upon as an aggravating circumstance -- and evenin that context the required finding neednot be unanimous. (People v. Fairbanks (1977) 16 Cal.4th 1223, 1255; see also '"6+ See Ala. Code, § 13A-5-45(e) (1975); Ark. Code Ann., § 5-4-603 (Michie 1987); Colo. Rev. Stat. Ann., § 16-11-104-1.3-1201(1)(d) (West 2002); Del. Code Ann.tit. 11, § 4209(c)(3)a.1. (2002); Ga. Code Ann., § 17-10-30(c) (Harrison 1990); Idaho Code, § 19-2515(3)(b) (2003); Il. Ann.Stat. ch. 38, para. 9-1(f) (Smith-Hurd 1992); Ind. Code Ann., §§ 35-50-2-9(a), (e) (West 1992); Ky. Rev. Stat. Ann., § 532.025(3) (Michie 1992); La. Code Crim. Proc. Ann.art. 905.3 (West 1984); Md. Ann. Codeart. 27, §§ 413(d), (£), (g) (1957); Miss. Code Ann., § 99-19-103 (1993); Neb. Rev.Stat., § 29-2520(4)(f) (2002) ; Nev. Rev.Stat. Ann., § 175.554(3) (Michie 1992); N.J.S.A. 2C:11-3c(2)(a); N.M.Stat. Ann., § 31-20A-3 (Michie 1990); Ohio Rev. Code, § 2929.04 (Page’s 1993); Okla. Stat. Ann. tit. 21, § 701.11 (West 1993); 42 Pa. Cons.Stat. Ann., § 9711(c)(1)(iii) (1982); S.C. Code Ann., §§ 16-3-20(A), (C) (Law. Co-op (1992); S.D. Codified Laws Ann., § 23A-27A-5 (1988); Tenn. Code Ann.§, 39-13-204(f) (1991); Tex. Crim. Proc. Code Ann., § 37.071(c) (West 1993); State v. Pierre, supra, 572 P.2d at p. 1348; Va. Code Ann., § 19.2-264.4(C) (Michie 1990); Wyo.Stat., §§ 6-2- 102(d)(i)(A), (e)(i) (1992). Washington hasa related requirementthat before making a death judgment,the jury must make a finding beyond a reasonable doubt that no mitigating circumstancesexist sufficient to warrant leniency. Wash. Rev. Code Ann. § 10.95.060(4) (West 1990). Arizona and Connecticut require that the prosecution prove the existence of penalty phase aggravating factors, but specify no burden. Ariz. Rev. Stat. Ann. § 13-703 (1989); Conn. Gen.Stat. Ann. § 53a-46a(c) (West 1985). On remand in the Ring case, the Arizona Supreme Court found that both the existence of one or more aggravating circumstances and the fact that aggravation substantially outweighs mitigation were factual findings that must be madeby a jury beyond a reasonable doubt. (See State v. Ring (Az. 2003) 65 P.3d 915.) 437 People v. Hawthorne, supra, 4 Cal.4th at p. 79 [concluding that penalty phase determinationsare “moral,” not factual, and therefore not “susceptible to a burden-of-proof quantification”].) California statutory law and jury instructions, however, do require fact finding before the decision to impose death or a lesser sentenceis finally made. As a prerequisite to the imposition of the death penalty, section 190.3 requires the jury ortrier of fact to find that at least one aggravating factor exists and that such aggravating factor (or factors) substantially outweigh any andall mitigating '"7 As set forth in CALJIC No.8.88, California’s “principal sentencingfactors. instruction” (People v. Farnam, supra, 28 Cal.4th at p. 177), which wasread to appellant’s jury, “an aggravating factor is anyfact, condition or event attending the commission of a crime which increasesits guilt or enormity, or addsto its injurious consequences which is above and beyondthe elements of the crime itself.” (9 CT 2081 [italics added].) Thus, before the process of weighing aggravating factors against mitigating factors can begin, the presence of one or more aggravating factors must be found by the jury. And before the decision whether or not to impose death can be made, the jury mustfind that aggravating factors substantially outweigh mitigating factors.'’® These factual determinationsare essential prerequisites to death- '7/ This Court has acknowledgedthatfact findingis part of a sentencing jury’s responsibility, even if not the greatest part; its role “is not merely to find facts, but also --and most important-- to render an individualized, normative determination about the penalty appropriate for the particular defendant... .” (People v. Brown, supra, 46 Cal.3d at p. 448.) 438 eligibility, but do not mean that death is the inevitable verdict; the jury can still reject death as the appropriate punishment notwithstanding these factual findings. 79 In People v. Anderson, supra, 25 Cal.4th at p. 589, this Court held that since the maximumpenalty for one convictedoffirst degree murder with a special circumstanceis death (see § 190.2(a)), Apprendi does not apply. After Ring, the Court repeated the same analysis. (See, e.g., People v. Prieto, supra, 30 Cal.4th at p. 263 [Because any finding of aggravating factors during the penalty phase does not ‘increase the penalty for a crime beyondthe prescribed statutory maximum’ [citation], Ring imposes no new constitutional requirements on California’s penalty phase proceedings”]; see also People v. Snow, supra, 30 Cal.4th 43.) In the face of the United States Supreme Court’s recent decisions,this Court’s burden of proof analysis and holdings in such cases as Anderson,Prieto, '78/ In Johnsonv. State (Nev. 2002) 59 P.3d 450, the Supreme Court of Nevada found, undera statute similar to California’s, the requirement that aggravating factors outweigh mitigating factors was a factual determination, and not merely discretionary weighing; the Nevada court therefore concluded “even though Ring expressly abstained from ruling on any “Sixth Amendmentclaim with respect to mitigating circumstances,” [fn. omitted] we conclude that Ring requires a jury to makethis finding as well: ‘Ifa State makes an increase in a defendant’s authorized punishment contingent on thefinding ofa fact, that fact -- no matter how theState labelsit -- must be found by a jury beyond a reasonable doubt.””(/d. at p. 460.) 1797 This Court has held that despite the “shall impose” language of § 190.3, even ifjurors determineorfind that aggravating factors outweigh mitigating factors, a sentenceoflife in prison withoutpossibility of parole maystill be imposed. (People v. Allen, supra, 42 Cal.3d at pp. 1276-1277 (1986); People v. Brown (1985) 40 Cal.3d 512, 541.) 439 and Snow are simply no longer tenable. Read together, the Apprendi-Ring-Blakely line of cases render the weighing of aggravating circumstances against mitigating circumstances“the functional equivalent of an element of [capital murder].” (See Apprendi v. New Jersey, supra, 530 U.S. at p. 494.) As stated in Ring, “Ifa State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact -- no matter how the State labels it -- must be found by a jury beyond a reasonable doubt.” (Ring v. Arizona, supra, 536 U.S. at p. 586.) As Justice Breyer points out in explaining the holding in Blakely, the Court madeit clear that “‘a jury mustfind, not only the facts that make up the crime of which the offender is charged, but also (all punishment-increasing) facts about the way in whichthe offender carried out that crime.” (Blakely v. Washington, supra, 124 S.Ct. at p. 2551 (Breyer, J., dissenting).) Thus, as stated in Apprendi, “the relevant inquiry is one not of form, but of effect -- does the required finding expose the defendant to a greater punishment than authorized by the jury’s guilt verdict?” (Apprendi v. New Jersey, supra, 530 U.S. at p. 494.) The answerin the California capital sentencing schemeis “yes.” In this state, in order to elevate the punishment from life imprisonmentto the death penalty, specific findings must be madethat: (1) aggravation exists; (2) aggravation outweighs mitigation; and (3) death is the appropriate punishment underall the circumstances. Underthe California sentencing scheme,neither the jury nor the court may impose the death penalty based solely upon a verdict of first degree murder with 440 special circumstances. While it is true that a finding of a special circumstance, in addition to a conviction offirst degree murder, carries a maximum sentence of death (§ 190.2), the statute “authorizes a maximum punishmentofdeath only ina formal sense.” (Ring v. Arizona, supra, 536 U.S. at p. 604 (quoting Apprendiv. New Jersey, supra, 530 U.S.at p. 541 (O’Connor,J., dissenting)).) In order to imposethe increased punishmentof death, the jury must make additional findings at the penalty phase-- thatis, a finding of at least one aggravating factor plus findings that the aggravating factor or factors outweigh any mitigating factors and that death is appropriate. These additional factual findings increase the 999 punishment beyond “‘that authorized by the jury’s guilty verdict’” (Ring v. Arizona, supra 536 U.S. at p. 604 (quoting Apprendi v. New Jersey, supra, 530 U.S. at p. 494)), and are “essential to the imposition ofthe level of punishment that the defendantreceives.”(Ring v. Arizona, supra, 536 U.S. at p. 610 (Scalia, J., concurring).) Theythustrigger Blakely-Ring-Apprendi and the requirement that the jury be instructed to find the factors and determinetheir weight beyond a reasonable doubt. This Court has recognizedthat fact finding is one of the functionsof the sentencer. Indeed, California statutory law,jury instructions, and the Court’s previous decisions leave no doubt that facts must be found before the death penalty may be considered. The Court held that Ring does not apply, however, because the facts foundat the penalty phaseare “facts which bear upon,but do not necessarily determine, which ofthese two alternative penalties 1s appropriate.” 441 (People v. Snow, supra, 30 Cal.4th at p. 126, fn. 32 (citing People v. Anderson, supra, 25 Cal.4th at pp. 589-590, fn. 14).) The Court has repeatedly rejected Ring’s applicability by comparing the capital sentencing process in California to ‘a sentencing court’s traditionally discretionary decision to impose oneprison sentence rather than another.” (People v. Prieto, supra 30 Cal.4th at p. 275; People v. Snow, supra 30 Cal.4th at p. 126,fn. 32.) The distinction between facts that “bear on” the penalty determination and facts that “necessarily determine”the penalty is a distinction withouta difference. There are no facts in Arizona or California that are “necessarily determinative” of a sentence -- in both states, the sentenceris free to impose a sentenceofless than death regardless of the aggravating circumstances. In both states, any one of a numberof possible aggravating factors may be sufficient to impose death -- no single specific factor must be found in Arizona or California. And,in bothstates, the absence of an aggravating circumstance precludesentirely the imposition of a death sentence. Blakely makescrystal clear that, to the dismay of the dissent, the “traditional discretion” of a sentencing judge to imposea harsher term based on facts not found by the jury or admitted by the defendant does not comport with the United States Constitution. In Prieto, the Court summarized California’s penalty phase procedure as follows: “Thus, in the penalty phase, the jury merely weighsthe factors enumerated in section 190.3 and determines ‘whether a defendanteligible for the death penalty should in fact receive that sentence.’ (Tuilaepa v. California, supra, 442 512 U.S. at p. 972). No single factor therefore determines which penalty -- death or life without the possibility of parole -- is appropriate.” (People v. Prieto, supra 30 Cal.4th at p. 263 (emphasis added).) This summary omits the fact that death is simply notan option unless anduntil at least one aggravating circumstanceis found to have occurredor bepresent-- otherwise, there is nothing to put on the scale in support of a death sentence. (See People v. Duncan (1991) 53 Cal.3d 955, 977-978.) A California jury mustfirst decide whether any aggravating circumstances, as defined by section 190.3 and the standard penalty phase instructions, exist in the case before it. Only after this initial factual determination has been made can the jury move on to “merely” weigh those factors against the proffered mitigation. The Supreme Court of Arizona, for example, has found that this weighing process is the functional equivalent of an element of capital murder andis therefore subject to the protections of the Sixth Amendment. (See State v. Ring, supra, 65 P.3d at p. 943 [Neither a judge, under the supersededstatutes, nor the jury, under the new statutes, can impose the death penalty unless that entity concludesthat the mitigating factors are not sufficiently substantial to call for leniency”); accord State v. Whitfield (Mo. 2003) 107 S.W.3d 253; Woldt v. People (Colo. 2003) 64 P.3d 256; Johnson v. State (Nev. 2002) 59 P.3d 450.'*°) 180/ See also Stevenson, The Ultimate Authority on the Ultimate Punishment: The Requisite Role ofthe Jury in Capital Sentencing (2003) 54 Ala L. Rev. 1091, 1126-1127 (noting that all features that the Supreme Court regarded in Ring as significant apply notonly to the finding that an aggravating circumstanceis present but also to whether mitigating circumstancesare sufficiently substantial to 443 It is true that a sentencer’s finding that the aggravating factors substantially outweigh the mitigating factors involves a mix of factual and normative elements, but this reality does not thereby make the jury’s finding any less subject to the Sixth and Fourteenth Amendmentprotections applied in Apprendi, Ring, and Blakely. \n Blakely itself, the State of Washington argued that Apprendi and Ring should not apply becausethe statutorily enumerated grounds for an upward sentencing departure wereonlyillustrative and not exhaustive, and henceleft the sentencing judgefree to identify and find an aggravating factor on his own -- a finding which, appellant submits, must inevitably involve both normative (“what would make this crime worse’) and factual (“what happened”’) elements. The High Court rejected the State’s contention, finding Ring and Apprendi fully applicable even where the sentenceris authorized to makethis sort of mixed normative-factual finding, as long as the finding is a prerequisite to an elevated sentence. (Blakely v. Washington, supra, 124 S.Ct. at p. 2538.) Thus, under Apprendi, Ring, and Blakely, whether the finding is a Washingtonstate sentencer’s determination of a non-enumerated aggravating factor or a California sentencer’s determination that the aggravating factors substantially outweigh the mitigating factors, to be constitutionally sufficient, the finding must be made by a unanimousjury and must be made beyond a reasonable doubt. In People v. Griffin (2004) 33 Cal.4th 536,in its first post-Blakely call for leniency since both findings are essential predicates for a sentence of death). 444 discussion of the jury’s role in the penalty phase, the High Court cited Cooper Industries, Inc. vy. Leatherman Tool Group, Inc. (2001) 532 U.S. 424, 432, 437,for the principle that an “award of punitive damages does not constitute a finding of ‘fact[ ]’: “imposition of punitive damages”is not “essentially a factual determination,” but instead an “expression of ... moral condemnation.” (People v. Griffin, supra, 33 Cal.4th at p. 595.) In Leatherman, however, before the jury could reachits ultimate determination of the amountof punitive damages, it had to answerin the affirmative the following interrogatory: “[E]vidence that by engaging in false advertising or passing off, Cooper acted with malice, or showed a reckless and outrageousindifference to a highly unreasonablerisk of harm and has acted with a conscious indifference to Leatherman’s rights?” (Cooper Industries, Inv. v. Leatherman, supra, 532 U.S.at p. 429.) This finding, which was a prerequisite to the award of punitive damages,is very like the aggravating factors at issue in Blakely. Leatherman was concerned with whether the Seventh Amendment’s ban on re-examination ofjury verdicts restricted appellate review of the amountof a punitive damages awardto a plain-error standard, or whether such awards could be reviewed de novo. Although the Court found that the ultimate amount was a moral decision that should be reviewed de novo,it madeclearthat all findings that were prerequisite to the dollar amountdetermination were fact issues for the jury. (Id. at pp. 437, 440.) Leatherman thus supports appellant’s contention that the findings of one or more aggravating factors, and that aggravating factors 445 substantially outweigh mitigating factors, are facts that are prerequisites to the determination of whether to impose death in California, and are protected by the Sixth Amendmentto the United States Constitution. The appropriate questions regarding the Sixth Amendment’s application to California’s penalty phase, according to Apprendi, Ring, and Blakely are: 1. What is the maximum sentence that could be imposed withouta finding of one or more aggravating circumstances as defined in CALJIC 8.88? Answer: The maximum sentence would belife imprisonment withoutpossibility of parole. 2. What is the maximum sentencethat could be imposed during the penalty phase based on findings that one or more aggravating circumstances are present? Answer: The maximum sentence without any additional findings, namely that aggravating circumstancessubstantially outweigh mitigating circumstances, would be life imprisonment without possibility of parole. Finally, this Court has relied on the undeniable fact that “death is different” as a basis for extending rather than withholding procedural protections. (Peoplev. Prieto, supra, 30 Cal. 4th at p. 263.) In Ring, Arizona also soughtto justify the lack of a unanimousjury finding of aggravating circumstances beyond a reasonable doubt by arguing that “death is different.” This effort to turn the High Court’s recognition of the irrevocable nature of the death penalty to its advantage was explicitly rebuffed by the Supreme Court itself: Apart from the Eighth Amendment provenance of aggravating factors, Arizona presents “no specific 446 reason for excepting capital defendants from the constitutional protections ... extend[ed] to defendants generally, and none is readily apparent.” [Citation]. The notion “that the Eighth Amendment’s restriction on a state legislature’s ability to define capital crimes should be compensated for by permitting States more leeway under the Fifth and Sixth Amendments in proving an aggravating fact necessary to a capital sentence ... is without precedent in our constitutional jurisprudence.” (Ring v. Arizona, supra, 536 U.S. at p. 606 (quoting with approval Apprendi v. New Jersey, supra, 530 U.S. at p. 539 (O’Connor,J., dissenting)).) Nogreater interest is ever at stake than in the penalty phase of a capital case. (Mongev. California, supra, 524 U.S. at p. 732 [“the death penalty is uniquein its severity andits finality”].) As the High Court stated in Ring: Capital defendants, no less than noncapital defendants, ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment .... The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the fact-finding necessary to increase a defendant’s sentence by two years, but not the fact-finding necessary to put him to death. (Ring v. Arizona, supra, 536 U.S.at p. 589.) Thefinal step of California’s capital sentencing procedure, the decision whether to impose death orlife, is a moral and a normative one. The Court greatly errs, however,in using this fact to eliminate procedural protections that would render the decision a rational and reliable one andto allow the findings that are 447 prerequisite to the determination to be uncertain, undefined, and subject to dispute not only asto their significance, but as to their accuracy. The Court’s refusal to accept the applicability of Ring to any part of California’s penalty phase violates the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution. C. The State and Federal Constitutions Require an Instruction that the Jury May Imposea Sentence of Death Onlyif Persuaded Beyond a Reasonable Doubt that the Aggravating Factors Outweigh the Mitigating Factors and that Death is the Appropriate Penalty 1. Factual Determinations The outcomeofa judicial proceeding necessarily depends on an appraisal of the facts. “[T]he procedures by which the facts of the case are determined assumean importancefully as great as the validity of the substantive rule of law to be applied. And the more importantthe rights at stake the more important must be the procedural safeguards surrounding thoserights.” (Speiser v. Randall (1958) 357 U.S. 513, 520-521.) The primary procedural safeguard implanted in the criminal justice system relative to fact assessmentis the allocation and degree of the burden of proof. The burden of proof represents the obligation of a party to establish a particular degree of belief as to the contention sought to be proved. In criminal cases the burdenis rooted in the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution. (/n re Winship, supra, 397 U.S. at p. 364.) In capital 448 cases,“the sentencing process, as well asthetrial itself, must satisfy the requirements of the Due Process Clause.” (Gardner v. Florida, supra, 430 U.S. at p. 358; see also Presnell v. Georgia (1978) 439 U.S. 14.) Aside from the question of the applicability of the Sixth Amendmentto California’s penalty phase proceedings, the burden ofprooffor factual determinations during the penalty phase ofa capitaltrial, whenlife is at stake, must be beyond a reasonable doubt. This is required by both the dueprocess clauses of the Fifth and Fourteenth Amendments as well as the Eighth Amendmentto the United States Constitution. 2. Imposition of Life or Death The requirements of due processrelative to the burden of persuasion generally depend uponthesignificance of whatis at stake and the social goal of reducingthe likelihood of erroneous results. (Jn re Winship, supra, 397 U.S. at pp. 363-364; see also Addingtonv. Texas (1979) 441 U.S. 418, 423.) The allocation of a burden of persuasion symbolizes to society in general and thejury in particular the consequences of whatis to be decided. In this sense,it reflects a belief that the more serious the consequencesofthe decision being made,the greater the necessity that the decision-maker reach “a subjective state of certitude” that the decision is appropriate. (Jn re Winship, supra, 397 U.S.at p. 364.) Selection of a constitutionally appropriate burden of persuasion is accomplished by weighing “three distinct factors... the private interests affected by the proceeding;the risk of error created by the State’s chosen procedure; andthe 449 countervailing governmentalinterest supporting use of the challenged procedure.” (Santosky v. Kramer (1982) 455 U.S. 743, 755; see also Matthewsv. Eldridge (1976) 424 U.S. 319, 334-335.) On examining the “private interests affected by the proceeding,”it is impossible to conceive of an interest more significant than human life. If personal liberty is “an interest of transcending value” (Speiser v. Randall, supra, 375 U.S. at p. 525), how much moretranscendent is humanlife itself! Far less valued interests are protected by the requirement of proof beyond a reasonable doubt before they may be extinguished. (See In re Winship, supra, 397 U.S. p. 364 [adjudication ofjuvenile delinquency]; People v. Feagley (1975) 14 Cal.3d 338 [commitmentas mentally disordered sex offender]; People v. Burnick (1975) 14 Cal.3d 306 [same]; People v. Thomas (1977) 19 Cal.3d 630 [commitment as narcotic addict]; Conservatorship ofRoulet (1979) 23 Cal.3d 219 [appointmentof conservator].) The decision to take a person’s life must be made undernoless demanding a standard. Due process mandates that our social commitmentto the sanctity of life and the dignity of the individual be incorporated into the decision-making process by imposing uponthestate the burden to prove beyond a reasonable doubt that death is appropriate. Asto the “risk of error created by the State’s chosen procedure,” (Santosky v. Kramer, supra, 455 U.S. at p. 755), the United States Supreme Court reasoned: [I]n any given proceeding, the minimum standard of proof tolerated by the due process requirement 450 reflects not only the weight of the private and public interests affected, but also a societal judgment about howthe risk of error should be distributed between the litigants. ... When the State brings a criminal action to deny a defendant liberty or life, ... “the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standardsof proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.” [Citation]. The stringency of the “beyond a reasonable doubt” standard bespeaks the ‘weight and gravity’ of the private interest affected [citation], society’s interest in avoiding erroneous convictions, and a judgment that those interests together require that “society impos{e] almostthe entire risk of error uponitself.” (Santosky v. Kentucky, supra, 455 U.S. at p. 755 (quoting Addington v. Texas, supra, 441 U.S.at pp. 423, 424, 427).) Moreover,there is substantial room for error in the procedures for deciding betweenlife and death. The penalty proceedings are muchlikethe child neglect proceedings dealt with in Santosky. They involve “imprecise substantive standards that leave determinations unusually opento the subjective values ofthe [jury].” (Santosky v. Kentucky, supra, 455 U.S. at p. 763.) Nevertheless, imposition of a burden ofproof beyond a reasonable doubtcan be effective in reducing this risk of error, since that standard has long provenits worth as “a prime instrumentfor reducingthe risk of convictions resting on factual error.” (/n re Winship, supra, 397 U.S.at p. 363.) Thefinal Santosky benchmark,“the countervailing governmentalinterest supporting use ofthe challenged procedure,”also calls for imposition of a 451 reasonable doubt standard. Adoption of that standard would not deprivethe state of the power to imposecapital punishment; it would merely serve to maximize “reliability in the determination that death is the appropriate punishmentin a specific case.” (Woodsonv. North Carolina, supra, 428 U.S.at p. 305.) The need forreliability is especially compelling in capital cases. (Beckv. Alabama, supra, 447 U.S.at pp. 637-638.) Nogreaterinterest is everat stake. (See Monge v. California, supra, 524 U.S. at p. 732.) In Monge, the Supreme Court expressly applied the Santosky rationale for the beyond a reasonable doubt burden ofproof requirementto capital sentencing proceedings: “/I]n a capital sentencing proceeding,asin a criminaltrial, ‘the interests of the defendant[are] of such magnitude that... they have been protected by standards ofproof designed to excludeasnearly as possible the likelihood of an erroneous judgment.’” (Mongev. California, supra, 524 U.S.at p. 732 (quoting Bullington v. Missouri (1981) 451 U.S. 430, 441 (quoting Addington v. Texas, supra, 441 U.S.at pp. 423-424)) [emphasis added].) The sentencer of a person facing the death penalty is required by the due process and Eighth Amendmentconstitutional guaranteesto be convinced beyond a reasonable doubtnot only that the factualbasesforits decision are true, but that death is the appropriate sentence. This Court has long heldthat the penalty determination in a capital case in California is a moral and normative decision, as opposedto a purely factual one. (See e.g., People v. Griffin, supra, 33 Cal.4th at p. 595.) Otherstates, however, have ruled that this sort of moral and normative decision is not inconsistent with a 452 standard based on proof beyond a reasonable doubt. This conclusion follows because a reasonable doubt standard focuses on the degree of certainty needed to reach the determination, which is something not only applicable but particularly appropriate to a moral and normative penalty decision. As the Supreme Court of Connecticut recently explained on rejecting an argumentthat the jury determination in the weighing process is a moral judgmentinconsistent with a reasonable doubt standard: Wedisagree with the dissent of Sullivan, C.J., suggesting that, because the jury’s determinationis a moral judgment, it is somehow inconsistent to assign a burden of persuasion to that determination. The dissent’s contention relies on its understanding of the reasonable doubt standard as a quantitative evaluation of the evidence. We have already explained in this opinion that the traditional meaning of the reasonable doubt standard focuses, not on a quantification of the evidence, but on the degree of certainty of the fact finder or, in this case, the sentencer. Therefore, the nature of the jury’s determination as a moral judgment does not render the application of the reasonable doubt standard to that determination inconsistent or confusing. On the contrary, it makes sense, and, indeed, is quite common, when making a moral determination, to assign a degree of certainty to that judgment. Put another way, the notion of a particular level of certainty is not inconsistent with the process of arriving at a moral judgment; our conclusion simply assigns the law’s most demanding level of certainty to the jury’s most demanding and irrevocable moral judgment. (State v. Rizzo (Conn. 2003) 833 A.2d 363, 408, fn. 37.) 453 In sum,the need forreliability is especially compelling in capital cases. (Beck v. Alabama, supra, 447 U.S.at pp. 625, 637-638; Monge v. California, supra, 524 U.S. at p. 732.) Under the Eighth and Fourteenth Amendmentsto the United States Constitution, a sentence of death may not be imposed unless the sentencer is convinced beyond a reasonable doubtnotonly that the factual bases for its decision aretrue, but that death is the appropriate sentence. D. TheFifth, Sixth, Eighth, and Fourteenth Amendments Require that the State Bear Some Burden of Persuasion at the Penalty Phase In addition to failing to impose a reasonable doubt standard on the prosecution, the trial court in its penalty phaseinstructions failed to assign any burden of persuasion regarding the ultimate penalty phase determinationsthejury had to make. Although this Court has recognized that “penalty phase evidence may raise disputed factual issues,” (People v. Superior Court (Mitchell) (1993) 5 Cal.4th 1229, 1236), it also has held that a burden ofpersuasionat the penalty phase is inappropriate given the normative nature of the determinations to be made. (See People v. Hayes, supra, 52 Cal.3d at p. 643.) Appellant urges the Court to reconsiderthat ruling becauseit is constitutionally unsound underthe Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution. First, allocation of a burden ofproofis constitutionally necessary to avoid the arbitrary and inconsistent application ofthe ultimate penalty of death. “Capital 454 punishment must be imposedfairly, and with reasonable consistency,or notat all.” (Eddings v. Oklahoma (1982) 455 U.S. 104, 112.) Whena single, consistent standard of proofis notarticulated, there is a reasonable likelihood that different juries will impose different standards of proof in deciding whether to imposea sentence of death. Who bears the burden of persuasion as to the sentencing determination also will vary from case to case. Such arbitrariness underminesthe requirementthat the sentencing scheme provide a meaningfulbasis for distinguishing the few cases in which the death penalty is imposed from the many in which it is not. Even if it were not constitutionally necessary to impose on the prosecution such a heightened burden of persuasion as reasonable doubt, some burden of proof mustbe articulated, if only to ensure that juries faced with similar evidence will return similar verdicts,that the death penalty is evenhandedly applied fromcase to case, and that capital defendants are treated equally from case to case. It is unacceptable under the Eighth and Fourteenth Amendmentsthat,in cases where the aggravating and mitigating evidenceis balanced, one defendant should live and another die simply because onejury assigns the burden of proof and persuasion to the state while another assigns it to the accused, or because one juror applied a lower standard and foundin favor of the state and another applied a higher standard and foundin favor of the defendant. (See Proffitt v Florida, supra, 428 U.S. at p. 260 [punishment should not be “wanton”or “freakish”]; Mills v. Maryland, supra, 486 U.S. at p. 374 [impermissible for punishmentto be 455 reached by “height ofarbitrariness”’].) Second, while the current schemefails to set forth a burden of prooffor the prosecution, the prosecution obviously has some burdento show that the aggravatingfactors are greater than the mitigating factors. This necessarily follows because a death sentence may not be imposed simply by virtue ofthe fact that the jury has found the defendant guilty of murder and has foundat least one special circumstance true. The jury must impose a sentenceoflife without possibility of parole if the mitigating factors outweigh the aggravating circumstances (see §190.3), and may impose sucha sentence evenif no mitigating evidence waspresented. (See People v. Duncan, supra, 53 Cal.3d at p. 979.) In addition, the statutory language suggests the existence of somesort of finding that must be “proved” by the prosecution and reviewedbythetrial court. Section 190.4, subdivision (e) requires the trial judge to “review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstancesreferred to in Section 190.3,” and to “make a determination as to whetherthe jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstancesare contrary to law or the evidence presented,””"®! A fact could notbe established -- i.e., a fact finder could not make a finding -- without imposing somesort of burden on theparties presenting the evidence '8!/ As discussed below, the United States Supreme Court consistently has held that a capital sentencing proceedingis similar to a trial in its format and in the existence of the protections afforded a defendant. 456 upon which the finding is based. Thefailure to inform the jury of how to make factual findingsis constitutionally unacceptable. Third, in noncapital cases, California does impose on the prosecution the burden to persuadethe sentencerthat the defendant should receive the most severe sentence possible. (See Cal. Rules of Court, rule 4.420(b) [existence of aggravating circumstancesnecessary for imposition of upper term must be proved by preponderanceofevidence]; Evidence Code section 520 [“The party claiming that a personis guilty of crime or wrongdoing has the burdenof proofonthat issue”].) Thereis no statute to the contrary. In any capital case, any aggravating factor will relate to wrongdoing; thosethat are not themselves wrongdoing, (such as, for example, age whenit is countedas a factor in aggravation), are still deemed to aggravate other wrongdoing by a defendant. Evidence Code section 520 is thus a state-created right that is constitutionally protected under the Fourteenth Amendment. (Hicks v- Oklahoma, supra, 447 U.S.at p. 346.) Thefailure to articulate a proper burdenofproofis constitutional error underthe Fifth, Sixth, Eighth, and Fourteenth Amendments. In addition, as explained in the preceding argument (see Argument XII, supra), the provision of greater protection to noncapital than to capital defendants violates the Fifth and Fourteenth Amendmentrights to due process and equalprotection, and the Eighth Amendmentright to be free from cruel and unusual punishment. (See e.g. Mills v. Maryland, supra, 486 U.S.at p. 374; Myers v. Ylst, supra, 897 F.2d at p. 421.) It is inevitable that one or morejurors on a given jury will find themselves 457 torn between sparing and taking a defendant’s life, or between finding andnot findinga particular aggravator. A tie-breakingrule is needed to ensure that such jurors -- and the juries on whichtheysit -- respond in the same way,so the death penalty is applied evenhandedly. “Capital punishment [must] be imposedfairly, and with reasonable consistency, or notat all.” (Eddings v. Oklahoma, supra, 455 U.S. at p. 112.) It is unacceptable -- indeed “wanton”and“freakish” (Proffitt v. Florida, supra, 428 U.S. at p. 260) -- the “height of arbitrariness”(Mills v. Maryland, supra, 486 U.S. at p. 374) -- that one defendant should live and another die simply because one juroror jury can break tie in favor of a defendant and another can do so in favor of the state on the same facts, with no uniformly applicable standards to guideeither. Similarly, in the alternative, were it permissible not to have any burden of proofatall, the trial court erred prejudicially by failing to articulate that to the jury. The burden ofproofin any caseis one of the most fundamental concepts in our system ofjustice, and any errorinarticulating it is automatically reversible error. (Sullivan v. Louisiana, supra, 508 U.S. at p. 275.) The reasonis obvious. Withoutaninstruction on the burden of proof, jurors maynotuse the correct standard, and each may instead apply the standard he orshe believes appropriate in any given case. The same1s true if there is no burden of proof and the jury is not so told. Jurors who believe the burden should be on the defendantto prove mitigation at the penalty phase would continueto believe that. Such jurors do exist. This raises 458 the constitutionally unacceptable possibility a juror would vote for the death penalty because of a misallocation of an allegedly nonexistent burden of proof. The failure to give anyinstruction at all on the subject violates the Fifth, Sixth, Eighth, and Fourteenth Amendments becausethe instructions given fail to provide the jury with the guidance required for administration of the death penalty to meet constitutional minimum standards. Theerrorin failing to instruct the jury on the proper burdenofproof, or the lack of such a burden,is reversible per se. (Sullivan y. Louisiana, supra, 508 U.S.at p. 275.) E. The Instructions Violated the Sixth, Eighth, and Fourteenth Amendmentsby Failing to Require Juror Unanimity on Aggravating Factors The jury wasnotinstructed that its findings on aggravating circumstances needed to be unanimous. Thetrial court failed to require even that a simple majority of the jurors agree on any particular aggravating factor, let alone agree that any particular combination of aggravating factors warranted a death sentence. Indeed, as to unadjudicated criminalactivity, the trial court instructed the jury that “it is not necessary for all jurors to agree.” (9 CT 2059.) Asa result, the jurors in this case were not required to deliberate at all on critical factual issues. Indeed, it is impossible to determine precisely on what factors the jury relied in imposing death. Asto the reason for imposing death, a single juror may haverelied on evidencethat only he or she believed existed in imposing appellant’s death sentence. Such a processleads to a chaotic and unconstitutional penalty verdict. 459 (See, e.g., Schad v. Arizona (1991) 501 U.S. 624, 632-633.) Appellant recognizes that this Court has previously held that when an accused’s life is at stake during the penalty phase, “there is no constitutional requirementfor the jury to reach unanimous agreementon the circumstancesin aggravation that support its verdict.” (See People v. Bacigalupo (1991) 1 Cal.4th 103, 147; see also People v. Taylor (1990) 52 Cal.3d 719, 749 [“unanimity with respect to aggravating factors is not required bystatute or as a constitutional procedural safeguard”].) Nevertheless, appellantasserts thatthe failure to require unanimity as to aggravating circumstances encouraged the jurors in appellant’s case to act in an arbitrary, capricious, and unreviewable manner,slanting the sentencing processin favor of death. The absence of a unanimity requirementis inconsistent with the Sixth Amendmentjury trial guarantee, the Eighth Amendment requirement of enhancedreliability in capital cases, and the Fourteenth Amendment requirements of due process and equalprotection. (See Ballew v. Georgia, supra, 435 U.S. at pp. 232-234; Woodson vy. North Carolina, supra, 428 U.S. at p. 305.!8*) With respect to the Sixth Amendmentargument, this Court’s reasoning and decision in Bacigalupo-- particularly its reliance on Hildwin v. Florida (1989) 490 U.S. 638, 640 -- should be reconsidered. In Hildwin, the Supreme Court '?/ The absenceofhistorical authority to support such a practice is an additional reason whythe absence ofjury unanimity violates of the Sixth, Eighth, and Fourteenth Amendments.(See, e.g., Murray’s Lessee (1855) 59 U.S. (18 How.) 272; Griffin v. United States (1991) 502 U.S. 46, 51.) 460 noted that the Sixth Amendmentprovidesnoright to jury sentencingin capital cases, and held that “the Sixth Amendmentdoesnot require that the specific findings authorizing the imposition of the sentence of death be madebythe jury.” (Id. at pp. 640-641.) This is not, however, the same as holding that unanimity is not required. Moreover, the United States Supreme Court’s holdings in previously-discussed Ring and Blakely make the reasoning in Hildwin highly questionable and constitutionally suspect, undercutting as well the constitutional underpinnings of this Court’s analysis and ruling in Bacigalupo. Applying the Ring and Blakely reasoning here, jury unanimity is required under the overlappingprinciples of the Sixth, Eighth, and Fourteenth Amendments. ‘Jury unanimity ... is an accepted, vital mechanism to ensure that real and full deliberation occurs in the jury room,and that the jury’s ultimate decision will reflect the conscience of the community.” (McKoy v. North Carolina (1990) 494 U.S. 433, 452 (Kennedy,J., concurring).) Indeed, the Supreme Court has held that the verdict of even a six-person jury in a non-petty criminal case must be unanimousto “preserve the substance ofthe jury trial right and assure the reliability of its verdict.” (Brown v. Louisiana, supra, 447 U.S.at p. 334.) Given the “acute need forreliability in capital sentencing proceedings” (Mongev. California, supra, 524 U.S. at p. 732; accord Johnson v. Mississippi, supra, 486 U.S.at p. 584; Gardner v. Florida, supra, 430 U.S. at p. 359; Woodson v. North Carolina, supra, 428 U.S. at p. 305), the Sixth and Eighth Amendments are likewise not satisfied by anything less than unanimity in the crucial findings of a 461 capital sentencing jury. In addition, the California Constitution assumes-- indeed,is fundamentally predicated on -- jury unanimity in criminaltrials. The first sentence ofarticleI, section 16 of the California Constitution provides that “[t]rial by jury is an inviolate right and shall be securedtoall, but in a civil cause three-fourths ofthe jury may render a verdict.” (See also People v. Wheeler, supra, 22 Cal.3d at p. 265 [confirming inviolability of unanimity requirementin criminaltrials].) The failure to require that the jury unanimously findthe aggravating factors true also standsin stark contrastto rules applicable in California to noncapital cases.'*? For example, in cases where a criminal defendant has been charged with special allegations that may increasetheseverity of his sentence, the jury must render a separate, unanimousverdict on the truth of such allegations. (See, e.g., § 1158, subd. (a).) Since capital defendants are entitled to morerigorous protections than those afforded noncapital defendants (see Mongev. California, supra, 524 “'/ Significantly, the federal death penalty statute also providesthat a “finding with respect to any aggravating factor must be unanimous.”(21 U.S.C. § 848(k).) In addition, at least 17 death penalty states require that the jury unanimously agree on the aggravating factors proven. See Ariz. Rev.Stat., § 13-703.01(E) (2002); Ark. Code Ann.§ 5-4-603(a) (Michie 1993); Colo. Rev. Stat. Ann. § 18-1.3- 1201(2)(b)(ID)(A) (West 2002); Del. Code Ann., tit. 11, § 4209(c)(3)b.1. (2002); Idaho Code, § 19-2515(3)(b) (2003); Ill. Ann.Stat. ch. 38, para. 9-1(g) (Smith- Hurd 1992); La. Code Crim. Proc. Ann.art. 905.6 (West 1993): Md. Ann. Code art. 27, § 413(4) (1993); Miss. Code Ann. § 99-19-103 (1993); Neb. Rev.Stat., § 29-2520(4)(f) (2002); N.H. Rev. Stat. Ann. § 630:5(IV) (1992); N.M.Stat. Ann. § 31-20A-3 (Michie 1990); Okla. Stat. Ann.tit. 21, § 701.11 (West 1993); 42 Pa. Cons. Stat. Ann. § 9711(c)(1)(iv) (1982); S.C. Code Ann. § 16-3-20(C) (Law. Co- op. 1992); Tenn. Code Ann. § 39-13-204(g) (1993); Tex. Crim. Proc. Code Ann. § 37.071 (West 1993). 462 U.S. at p. 732; Harmelin v. Michigan, supra, 501 U.S.at p. 994), and since the provision of greater protections to a noncapital defendant thanto a capital defendant would violate the equal protection clause of the Fourteenth Amendment (see, e.g., Myers v. YI st, supra, 897 F.2d at p. 421),it follows that unanimity with regard to aggravating circumstancesis constitutionally required. To apply the requirement of unanimity to an enhancementfinding that may carry only a maximum punishmentofoneyear in prison, but not to a finding that could have “‘a substantial impact on the jury’s determination whether the defendant should live or die” (People v. Medina, supra, 11 Cal.4th at pp. 763-764), would by its inequity violate the fundamental constitutional requirement of equal protection, andbyits irrationality violate both the due process and cruel and unusual punishmentclauses of the California and United States Constitutions, as well as the Sixth Amendment’s guarantee of trial by jury. In Richardsonv. United States (1999) 526 U.S. 813, 815-816, the United States Supreme Court interpreted 2] U.S.C. section 848(a), and held that the jury must unanimously agree on whichthree drug violations constituted the “continuing series of violations’” necessary for a continuing criminal enterprise [CCE] conviction. The high court’s reasons for this holding are instructive: The statute’s word “violations” covers many different kinds of behavior of varying degrees of seriousness. ... At the same time, the Governmentin a CCE case may well seek to prove that a defendant, charged as a drug kingpin, has been involved in numerous underlying violations. The first of these 463 considerations increases the likelihood that treating violations simply as alternative means, by permitting a jury to avoid discussion of the specific factual details of each violation, will cover up wide disagreement among the jurors about just what the defendant did, and did not, do. The second consideration significantly aggravates the risk (present at least to a small degree whenever multiple means are at issue) that jurors, unless required to focus upon specific factual detail, will fail to do so, simply concluding from testimony, say, of bad reputation, that where there is smoke there must be fire. (Id. at p. 819.) These reasons are doubly applicable when theissue is life or death. Where a statute permits a wide range of possible aggravators, as in California, and the prosecutor offers up multiple theoriesor instances of alleged aggravation, as here, unless the jury is required to agree unanimouslyas to the existence of each aggravator to be weighed on death’s side ofthe scale, there is a grave risk (a) that the ultimate verdict will cover up wide disagreement among the jurors aboutjust what the defendant did and did not do and (b) thatthe jurors, not being forcedto do so, will fail to focus upon specific factual detail and simply conclude from a wide array of proffered aggravators that where there is smoke there mustbefire, and on that basis conclude that death is the appropriate sentence. Therisk of such an inherently unreliable decision-making process is unacceptablein a capital context. The ultimate decision of whetheror not to impose death is indeed a “moral” 464 and “normative” decision. (People v. Hawthorne, supra, 4 Cal.4th at p. 79; People v. Hayes, supra, 52 Cal.3d at p. 643.) However, Ring and Blakely makeclear that the findings of one or more aggravating circumstances andthat the aggravating circumstances outweigh mitigating circumstances are prerequisite to considering whether death is the appropriate sentence in a California capital case. These are precisely the type of factual determinations for which appellantis entitled to unanimousjury findings beyond a reasonable doubt. F. The Penalty Jury Should Have Been Instructed on the Presumption of Life In noncapital cases, where only guilt is at issue, the presumption of innocenceis a basic componentofa fair trial, a core constitutional and adjudicative value that is essential to protect the accused. (See Estelle v. Williams (1976) 425 U.S. 501, 503.) In the penalty phase of a capital case, the presumption of life is the correlate of the presumption of innocence. Paradoxically, however, although the stakes are much higherat the penalty phase, thereis no statutory requirementthat the jury be instructed as to the presumption of life. (See Note, The PresumptionofLife: A Starting Pointfor Due Process Analysis of Capital Sentencing, 94 Yale L.J. 351 (1984); cf. Delo v. Lashley (1983) 507 U.S. 272.) Appellant submits thatthe trial court’s failure to instruct the jury that the law favorslife and presumeslife imprisonment without parole to be the appropriate sentence violated appellant’s right to due process of law (U.S. Const., 14th Amendment; Cal. Const. art. I, §§ 7 & 15), his right to be free from cruel and 465 unusual punishmentand to have his sentence determinedin a reliable manner (U.S. Const.. 8th and 14th Amendments; Cal. Const. art. I, § 17), and his right to the equal protection of the laws. (U.S. Const., 14th Amendment; Cal. Const., art. I, § 7.) In People v. Arias, 13 Cal.4th 92 (1996), this Court held that an instruction on the presumptionoflife is not necessary in California capital cases,in part because the United States Supreme Court hasheld that “the state may otherwise structure the penalty determinationasit seesfit,” so long as state law otherwise properly limits death eligibility. (/d. at 190; see also People v. Dunkle (2005) 36 Cal.4th 861, 940.) However, as the other subsectionsofthis argument, as well as Arguments XI and XII, supra, demonstrate, California’s death penalty lawis remarkably deficientin the protections needed to ensure the consistent and reliable imposition of capital punishment. Therefore, a presumptionoflife instruction is constitutionally compelled or required. G. Conclusion Asset forth above,the trial court violated appellant’s federal constitutional rights by failing to set out the appropriate burden ofproof and the unanimity requirement regarding the jury’s determinationsat the penalty phasein violation of the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution and their California constitutional counterparts. Therefore, appellant’s death sentence mustbe reversed. 466 XIV THE USE OF CALJIC NO.8.88 (1989 REVISION), DEFINING THE SCOPE OF THE JURY’S SENTENCING DISCRETION AND THE NATURE OFITS DELIBERATIVE PROCESS, VIOLATED APPELLANT’S FUNDAMENTALRIGHTS TO A FAIR TRIAL, DUE PROCESS, EQUAL PROTECTION, AND TO A RELIABLE DETERMINATION OF PENALTY GUARANTEEDBYTHEFIFTH,SIXTH, EIGHT, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION As discussed in Arguments XII and XIH, supra, the trial court instructed the jury in the language of CALJIC No.8.88 (1989 Revision). (See 9 CT 2081-2082.) The use of CALJIC No. 8.88 wasconstitutionally flawed. The instruction did not adequately convey several critical deliberative principles and was misleading and vague in crucial respects. Whether considered singly or together, the flaws violated appellant’s fundamental rights to due process, fairtrial by jury (U.S. Const., 5th, 6th & 14th Amends.), and to a reliable penalty determination guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and require reversal of the sentence imposed. (See, e.g., Mills v. Maryland, supra, 486 U.S. at pp. 383-384.) A. The Use CALJIC No. 8.88 (1989 Revision) Caused the Jury’s Penalty Choice to Turn on an Impermissibly Vague and AmbiguousStandardthat Failed to Provide Adequate Guidanceand Direction Under CALJIC No.8.88 (1989 Revision), the decision to impose a death sentence on appellant hinged on whetherthe jurors were “persuadedthat the 467 aggravating circumstancesare so substantial in comparison with the mitigating circumstancesthat it warrants death instead of life without parole.” (9 CT 2081- 2082.) The words “so substantial,” however, provided the jurors with no guidance as to “what they haveto find in order to impose the death penalty... .” (Maynard v. Cartwright, supra, 486 U.S.at pp. 361-362.) The use of this phrase violates the Eighth and Fourteenth Amendments becauseit creates a standard that is vague, directionless, and impossible to quantify. The phrase is so varied in meaning and so broad in usagethat it cannot be understood in the context of deciding between life and death and invites the sentencer to impose death through the exercise of “the kind of open-ended discretion which washeld invalid in Furman v. Georgiaf, supra]. ...” Ud. at p. 362.) It is noteworthy that the Supreme Court of Georgia has found that the word “substantial” causes vagueness problems whenusedto describe the typeofprior criminal history jurors may consider as an aggravating circumstancein a capital case. Indeed, the Georgia Supreme Court in Arnold v. State (Ga. 1976) 224 S.E.2d 386, held that a statutory aggravating circumstance which asked the sentencer to consider whether the accused had “‘a substantial history of serious assaultive criminal convictions”did “not provide the sufficiently ‘clear and objective standards’ necessary to control the jury’s discretion in imposing the death penalty.” (/d. at p. 391; see also Zant v. Stephens (1983) 462 U.S. 862, 867, fn. 5.) As to the word “substantial,” the Arnold court stressed: 468 Black’s Law Dictionary defines “substantial” as “of real worth and importance,” “valuable.” Whether the defendant’s prior history of convictions meets this legislative criterion is highly subjective. While we might be more willing to find such language sufficient in another context, the fact that we are here concerned with the imposition of the death penalty compels a different result. (Arnold vy. State, supra, 224 S.E.2d at p. 392 [footnote omitted].)'™* Appellant acknowledgesthat this Court has opined, in discussing the constitutionality of using the phrase “‘so substantial” in a penalty phase concluding instruction,that “the differences between [Arnold] and this case are obvious.” (People v. Breaux (1991) | Cal.4th 281, 316, fn. 14; see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 123, 124.) Nevertheless, Breaux’s summary disposition ofArnold does not specify what those “differences” are, or how they impact the validity of Arnola’s analysis. Of course, Breaux, Arnold, andthis case, as all cases, are factually different, their differences are not constitutionally significant, and do not undercut the Georgia Supreme Court’s reasoning. All three cases involve claimsthat the language of an important penalty phase jury instructionis “too vague and nonspecific to be applied evenly by a jury.” (Arnold v. State, supra, 224 S.E.2d at p. 392.) The instruction in Arnold concerned an aggravating circumstance that used the term “substantial history of '847 The United States Supreme Court has specifically recognizedthe portion of the Arnold decision invalidating the “substantial history” factor on vagueness grounds. (Gregg v. Georgia, supra, 428 U.S.at p. 202.) 469 serious assaultive criminal convictions”(ibid., italics added), while the instruction here, as the one in Breaux, uses that term to explain how jurors should measure and weigh the “aggravating evidence”in deciding on the correct penalty. Accordingly, while the three cases are different, they have at least one common characteristic -- they all involve penalty-phase instructions that fail to “provide the sufficiently ‘clear and objective standards’ necessary to control the jury’s discretion in imposing the death penalty.” (/d. at p. 391.) In fact, the use ofthe “substantial” language in CALJIC No.8.88 (1989 Revision) arguably gives rise to more severe problems than those the Georgia Supreme Court identified in the use of that term in Arnold. Hence, contrary to this Court’s explanation in People v. Smith (2005) 35 Cal.4th 334, the “substantial” language used in CALJIC No. 8.88, or words of similar breadth, do not serve to avoid “reducing the penalty decision to a mere mechanicalcalculation.”(/d.at p. 370.) Indeed, there is nothing about the language of CALJIC No. 8.88 that “implies any inherentrestraint on the arbitrary and capriciousinfliction of the death sentence.” (Godfrey v. Georgia (1980) 446 U.S. 420, 428.) The words“so substantial” are far too amorphousto guide a jury in deciding whether to impose a death sentence. (See Stringer v. Black (1992) 503 U.S. 222.) Because the instruction rendered the penalty determination unreliable (U.S. Const., 8th and 14th Amendments), the judgmentof death must be reversed. /// 470 B. CALJIC No. 8.88 (1989 Revision) Failed to Inform the Jurors that the Central Determination is Whether the Death Penalty is the Appropriate Punishment, Not Simply an Authorized Penalty The ultimate question in the penalty phase of any capital case is whether death is the appropriate penalty. (Woodson v. North Carolina, supra, 428 U.S. at p. 305; People v. Edelbacher (1989) 47 Cal.3d 983, 1037.) Indeed, this Court consistently has held that the ultimate standard in California death penalty cases is “which penalty is appropriate in the particular case.” (People v. Brown, supra, 40 Cal.3d at p. 541 [jurors are not required to vote for the death penalty unless, on weighing the factors, they decide it is the appropriate penalty under all the circumstances]; accord, People v. Champion (1995) 9 Cal.4th 879, 948; Peoplev. Milner (1988) 45 Cal.3d 227, 256-257; see also Murtishaw v. Woodford (9th Cir. 2001) 255 F.3d 926, 962.) Nevertheless, CALJIC No. 8.88 did not makeclear this standard of appropriateness. Bytelling jurors that they could return a judgment of death if the aggravating evidence “warrants death instead oflife withoutparole,” the instruction failed to inform the jurors that the central inquiry was not whether death was “warranted,” but whether it was appropriate. Those two determinations are not the same. rational juror could find in a particular case that death was warranted, but not appropriate, because the meaning of “warranted”is considerably broader than that of “appropriate.” Merriam- Webster's Collegiate Dictionary (10th ed. 2001) defines the verb “warrant” to mean “to give warrantor sanction to” something,or “to serve as or give adequate 471 ground for” doing something. (/d. at p. 1328.) By contrast, “appropriate”is defined as “especially suitable or compatible.” (/d. at p. 57.) Thus, a verdict that death is “‘warrant[ed]” might mean simply that the jurors found, on weighing the relevant factors, that such a sentence was permitted. Thatis a far different than the finding the jury is actually required to make: that death is an “especially suitable,” fit, and proper punishment, 1.e., that it is appropriate. Because the terms “warranted”and “appropriate” have such different meanings,it is clear why the United States Supreme Court’s Eighth Amendment jurisprudence has demandedthat a death sentence mustbe based on the conclusion that death is the appropriate punishment, not merely that it is warranted. To satisfy “[t]he requirementof individualized sentencing in capital cases” (Blystone v. Pennsylvania (1990) 494 U.S. 299, 307), the punishment mustfit the offender and the offense; i.e., it must be appropriate. To say that death must be warrantedis essentially to return to the standards of the earlier phase of the California capital-sentencing scheme in which death eligibility is established. Jurors decide whether death is “warranted”by finding the existence of a special circumstance that authorizes the death penalty in a particular case. (See People v. Bacigalupo (1993) 6 Cal.4th 457, 462, 464.) Thus, just because death may be warranted or authorized does not meanit is appropriate. Although this Court has previously ruled otherwise (see People v. Breaux, supra, | Cal.4th at p. 316 [rejecting claim that the term “warrants”is too overbroad and permissive]; People v. Griffin (2004) 33 Cal.4th 536, 593[ rejecting 472 Eighth and Fourteenth Amendmentvaguenessattacks based on asserted operation of the word “warrants”]), use of the term “‘warrant” at the final, weighing stage of the penalty determination risks confusing the jury by blurring the distinction between the preliminary determinationthat death is “warranted,”i.e., that the defendantis eligible for execution, and the ultimate determination thatit is appropriate to execute him orher. The instructional error involved in using the term “warrants” in CALJIC No. 8.88 (1989 Revision) here was not cured bythe trial court’s reference to a “justified and appropriate” penalty. (9 CT 2081 [‘In weighing the various circumstances, you determine underthe relevant evidence whichpenalty is justified and appropriate by considering thetotality of the aggravating circumstances with the totality of the mitigating circumstances”’].) That sentence did nottell the jurors they could only return a death verdict if they found it appropriate. Moreover, the sentence containing the “justified and appropriate” language wasprefatory in effect and impact; the operative language, which expressly delineated the scope ofthe jury’s penalty determination, cameat the very endof the instruction, and told the jurors they could sentence appellant to death if they foundit “warrant[ed].” Indeed, by referring to the “totality” of the circumstances, the instruction also conflicted with other instructions which sought to inform the jury that evenin the absence ofmitigating circumstances the death penalty would not necessarily be appropriate. (9 CT 2082.) Thecrucial sentencing instruction violated the Eighth and Fourteenth 473 Amendmentsby allowingthe jury to impose a death judgmentwithoutfirst determining that death wasthe appropriate penalty as required bystate law. The death judgmentis thus constitutionally unreliable (U.S. Const., 8th & 14th Amends.), denies due process (U.S. Const., Sth & 14th Amends.; Hicks v. Oklahoma, supra, 447 U.S. at p. 346), and must be reversed. C. CALJIC No. 8.88 (1989 Revision) Failed to Inform the Jurors that if They Determined that Mitigation Outweighed Aggravation, They Were Required to Return a Sentenceof Life Withoutthe Possibility of Parole Section 190.3 directs that after considering aggravating and mitigating factors, the jury “shall impose” a sentence of confinementin state prison for a term of life without the possibility of parole if “the mitigating circumstances outweigh the aggravating circumstances.” (§ 190.3.)'** The United States Supreme Court hasheld that this mandatory languageis consistent with the individualized consideration of the defendant’s circumstances required underthe Eighth Amendment. (See Boydev. California (1990) 494 U.S. 370, 377.) This mandatory statutory language, however, is not includedin the text of CALJIC No. 8.88 (1989 Revision)as read to the jury. CALJIC No. 8.88 (1989 Revision) only addressesdirectly the imposition of the death penalty and informs the jury that the death penalty may be imposed if aggravating circumstancesare '8°/ Thestatute also states that if aggravating circumstances outweigh mitigating circumstances,the jury “shall impose” a sentence of death. This Court has held, however, that this formulationofthe instruction improperly misinformedthe jury regarding its role, and disallowed it. (See People v. Brown, supra, 40 Cal.3d at p. 544, fn. 17.) 474 “so substantial” in comparison to mitigating circumstancesthat the death penalty is warranted. While the phrase “so substantial” plainly implies some degree of significance, it does not properly convey the “greater than” test mandated by section 190.3. The instruction by its terms would permit the imposition of a death penalty whenever aggravating circumstances were merely “of substance” or “considerable,” even if they were outweighed by mitigating circumstances. By failing to conformto the specific mandate of section 190.3, the instruction given to appellant’s jury violated the Fourteenth Amendmentto the United States Constitution. (See Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) In addition, the instruction improperly reduced the prosecution’s burden of proof belowthat required by section 190.3. An instructionalerrorthat misdescribes the burdenof proof, and thus “‘vitiates a// the jury’s findings,” can never be harmless. (Su/livan v. Louisiana, supra, 508 U.S. at p. 281 [italics in original].) This Court has found the formulation in CALJIC No. 8.88 permissible because “[t]he instruction clearly stated that the death penalty could be imposed only if the jury found that the aggravating circumstances outweighed[the] mitigating.” (People v. Duncan, supra, 53 Cal.3d at p. 978.) The Court reasoned that since the instruction stated that a death verdict requires that aggravation outweigh mitigation, it was unnecessary to instruct the jury of the converse. The Duncanopinioncites no authority for this proposition, and appellant respectfully offers that the Court’s ruling conflicts with numerousother opinions that have 475 disapproved instructions emphasizing the prosecution theory of a case while minimizing or ignoring that of the defense. (See, e.g., People v. Moore (1954) 43 Cal.2d 517, 526-529; People v. Costello (1943) 21 Cal.2d 760; People v. Kelley (1980) 113 Cal.App.3d 1005, 1013-1014; People v. Mata (1955)133 Cal.App.2d 18, 21; see also People v. Rice (1976) 59 Cal.App.3d 998, 1004 [instructions required on “every aspect” of case, and should avoid emphasizing either party’s theory]; Reagan v. United States (1895) 157 U.S. 301, 310.)!®° The Court’s decision in People v. Moore, supra, 43 Cal.2d 517 is instructive on this point. There, the Court stated the following abouta set of one- sided instructions on self-defense: It is true that the ... instructions ... do not incorrectly state the law ... , but they stated the rule negatively and from the viewpoint solely of the prosecution. To the legal mind they would imply (their corollary], but that principle should not have been left to implication. The difference between a 'S°/ There are due process underpinningsto these holdings. In Wardius v. Oregon (1973) 412 U.S. 470, 473, fn. 6, the United States Supreme Court warnedthat “state trial rules which provide nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to securea fair trial” violate the defendant’s due process rights under the Fourteenth Amendment. (See also Washington v. Texas (1967) 388 U.S. 14, 22; Gideon v. Wainwright (1963) 372 U.S. 335, 344; zazaga v. Superior Court (1991) 54 Cal.3d 356, 372-377;cf. Goldstein, The State and the Accused: Balance ofAdvantage in Criminal Procedure (1960) 69 Yale L.J. 1149, 1180-1192.) Noting that the due process clause “does speak to the balance of forces between the accused andhis accuser,” Wardius held that in the absence of a strong showingofstate interests to the contrary, “there “must be a two-waystreet” as between the prosecution and the defense. (Wardius v. Oregon (1967) 412 U.S. 470, 474.) Though Wardius involved reciprocal discovery rights, the same principle should apply to jury instructions. 476 negative and a positive statement of a rule of law favorable to one or the other of the parties is a real one, as every practicing lawyer knows. ... There should be absolute impartiality as between the People and the defendant in the matter of instructions, including the phraseology employed in the statement of familiar principles. (id. at pp. 526-527 [internal quotation marks omitted].) In other words, contrary to the apparent assumption in Duncan,the law does not rely on jurors to infer one rule from the statement of its opposite. Noris a pro-prosecution instruction saved by the fact that it does not itself misstate the law. Even assumingit was a correct statement of law, the instruction at issue here stated only the conditions under which a death verdict could be returned and contained no statement of the conditions under which a verdict oflife was required. Thus, Moore is squarely on point. It is well-settled that courts in criminal trials must instruct the Jury on any defense theory supported by substantial evidence. (See People v. Glenn (1991) 229 Cal.App.3d 1461, 1465; United States v. Lesina (9th Cir. 1987) 833 F.2d 156, 158.) The denial of this fundamental principle in appellant’s case deprived him of due process. (See Evitts v. Lucey (1985) 469 U.S. 387, 401; Hicks v. Oklahoma, supra, 447 U.S.at p. 346.) Moreover, CALJIC No.8.88 is not saved bythe fact that it is a sentencing instruction as opposed to one guiding the determination of guilt or innocence,since any reliance on such a distinction would violate the equal protection clause of the Fourteenth Amendment. Individuals convicted ofcapital 477 crimesare the only class of defendants sentenced byjuries in this state, and they are as entitled as noncapital defendants-- if not more so -- to the protections the law affordsin relation to prosecution-slanted instructions. Indeed, appellant can conceive of no governmentinterest, much less a compelling one, served by denying capital defendants such protection. (See U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7 & 15; Plyler v. Doe (1982) 457 U.S. 202, 216-217.) Moreover,the slighting of a defensetheory in instructions to the jury has beenheld to deny not only due process,but also the right to a jury trial becauseit effectively directs a verdict as to certain issues in the defendant’s case. (See Zemina v. Solem (D.S.D. 1977) 438 F.Supp. 455, 469-470, aff'd and adopted, Zemina v. Solem (8th Cir. 1978) 573 F.2d 1027, 1028; cf. Cool v. United States (1972) 409 U.S. 100 [disapproving instruction placing unauthorized burden on defense].) Thus, the defective instruction violated appellant’s Sixth Amendment rights as well. For these further reasons, reversal of his death sentenceis required. D. Conclusion Asset forth above, thetrial court’s main sentencing instruction, CALJIC No. 8.88 (1989 Revision), was impermissibly vague in crucial respects; denied appellant fundamentalrights to a fair penalty trial by jury; failed to comply with the requirements of the due process and equal protection; and failed to assure a reliable determination ofpenalty in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendmentsto the United States Constitution. Therefore, appellant’s 478 sentence of death mustbereversed. 479 XV APPELLANT’S DEATH SENTENCE VIOLATES INTERNATIONAL LAW, WHICH IS BINDING ON THIS COURT, AS WELL AS THE EIGHTH AMENDMENTTO THE UNITED STATES CONSTITUTION A. Introduction In 2001, the Supreme Court of Canadaplacedthe use ofthe death penalty in the United States for ordinary crimesinto an international context: Amnesty International reports that in 1948, the year in which the Universal Declaration of Human Rights was adopted, only eight countries were abolitionist. In January 1998, the Secretary-General of the United Nations, in a report submitted to the Commission on Human Rights (U.N. Doc. E/CN.4/1998/82), noted that 90 countries retained the death penalty, while 61 weretotally abolitionist, 14 (including Canadaat the time) were classified as abolitionist for ordinary crimes and 27 were considered to be abolitionist de facto (no executions for the past 10 years) for a total of 102 abolitionist countries. At the present time, it appears that the death penalty is now abolished (apart from exceptional offences such as treason) in 108 countries. These general statistics mask the important point that abolitionist states include all of the major democracies except some of the United States, India and Japan. ... According to statistics filed by Amnesty International on this appeal, 85 percent of the world's executions in 1999 were accounted for by only five countries: the United States, China, the Congo, Saudi Arabia and Iran. (Minister of Justice v. Burns (2001) 1 S.C.R. 283 [2001 SCC 7}, J 91.) The California death penalty schemeviolates the provisions of international 480 treaties and the fundamental precepts of international humanrights. Because internationaltreaties ratified by the United States are binding onstate courts, the imposition of the death penalty is unlawful. To the extent that international legal normsare incorporated into the Eighth Amendmentdetermination of evolving standards of decency, appellantraises this claim under the Eighth Amendmentas well. (See Atkins v. Virginia (2002) 536 U.S. 304, 316, fn. 21; Stanfordv. Kentucky (1989) 492 U.S. 361, 389-390 (dis. opn. of Brennan,J.).) B. The Death Penalty in California Violates International Law Article VII of the International Covenant on Civil and Political Rights (“ICCPR”) prohibits “cruel, inhuman or degrading treatment or punishment.” Article VI, section 1 of the ICCPR prohibits the arbitrary deprivation oflife, providing that “[e]very human beinghasthe inherentright to life. This right shall be protected by law. No oneshall be arbitrarily deprived oflife.” The ICCPR wasratified by the United States in 1992, and appliesto the states under the supremacyclause of the United States Constitution. (U.S. Const., art. VI, § 1, cl. 2.) Consequently, this Court is bound by the ICCPR.'®’ The '87/ The United States Senate attempted to place reservations on the language of the ICCPR,including a declaration that the covenant wasnotself-executing. (See 138 Cong. Rec. $4784, § IN(1).) These qualifications do not preclude appellant’s reliance on the treaty because, interalia, (1) the treaty is self-executing under the factors set forth in Frolova v. U.S.S.R. (7th Cir. 1985) 761 F.2d 370, 373; (2) the declaration impermissibly conflicts with the object and purposeofthetreaty, whichis to protect the individual’s rights enumerated therein (see Greenfield & Abbot, The Scope ofthe U.S. Senate Control Over the Conclusion and Operation of Treaties (1991) 68 Chi.-Kent L. Rev. 571, 608); and (3) the legislative history indicates that the Senate only intended to prohibit private and independentcauses 481 United States Court of Appeals for the Eleventh Circuit has held that when the United States Senate ratified the ICCPR “‘the treaty became, coexistent with the United States Constitution and federal statutes, the supreme law ofthe land” and mustbe applied as written. (United States y. Duarte-Acero (11th Cir. 2000) 208 F.3d 1282, 1284; but see Beazley v. Johnson(5th Cir. 2001) 242 F.3d 248, 267- 268.) Appellant’s death sentence violates the ICCPR. Because of the improprieties of the capital sentencing process challenged in this appeal, the imposition of the death penalty on appellant constitutes “cruel, inhumanor degrading treatment or punishment”in violation of Article VII of the ICCPR. Appellant recognizes that this Court previously has rejected international law claimsdirected at the death penalty in California. (See, for example, People v. Panah (2005) 35 Cal.4th 395, 500-501; People v. Smith (2005) 35 Cal.4th 334, 375; People v. Vieira (2005) 35 Cal.4th 264, 305 [addressing only whether various errors made at trial and various aspectsofthe trial violated international law, not whether capital punishmentitself violates international law]; People v. Brown (2004) 33 Cal.4th 382, 403-404; People v. Ghent, supra, 43 Cal.3d at pp. 778-779; People v. Hillhouse (2002) 27 Cal.4th 469, 511.) However, despite the Court’s finding that the United States signed the ICCPR with an express reservation of the right to impose capital punishment (People v. Brown, supra), that condition does of action (see 138 Cong. Rec. $4784) and did not intend to prevent defensive use of the treaty (see Quigley, Human Rights Defenses in U.S. Courts (1998) 20 Hum. Rts. Q. 555, 581-582). 482 not relieve the United States orits political subdivisions, including California, of its obligation to comply with the general ICCPRprohibition againstcruel, inhuman or degrading punishmentandthestill-binding proscription against the arbitrary deprivation of life which is involved in this case. Moreover, whetheror not the United States reserved the right to impose capital punishmenton signing the ICCPR,there is a growing recognition that international human rights norms in general, and the ICCPRin particular, should be applied to the United States. (See United States v. Duarte-Acero, supra, (11th Cir. 2000) 208 F.3d 1282, 1284; McKenzie v. Daye (9th Cir. 1995) 57 F.3d 1461, 1487 (dis. opn. of Norris, J.).) Thus, appellant requests that the Court reconsider and, in the context of this case, substantively find appellant’s death sentence violates international law. (See Smith v. Murray (1986) 477 U.S. 527 [holding that even issues settled under state law mustbereasserted to preserve the issue for federal habeas corpus review].) C. Evolving International Norms Compel the Conclusion that Appellant’s Death Sentence Also Constitutes Cruel and Unusual Punishmentin Violation of the Eighth Amendment As noted above,the abolition of the death penalty,or its limitation to exceptional crimes such as treason -- as opposedto its use as a regular punishment for ordinary crimes-- is particularly uniformin the nations of Western Europe. (See, e.g., Stanford v. Kentucky (1989) 492 U.S. 361, 389 (dis. opn. of Brennan, J.); Thompson v. Oklahoma (1988) 487 U.S. 815, 830 (plur. opn. of Stevens, J.)). 483 Indeed, a// nations of Western Europe-- plus Canada, Australia, and New Zealand -- have abolished the death penalty. (Amnesty International, “The Death Penalty: List of Abolitionist and Retentionist Countries” (as of August 2002) at .'% This consistent view is especially important in considering the constitutionality of the death penalty under the Eighth Amendmentbecause the framers of the United States Constitution lookedto the nations of Western Europe for the “law of nations” as models on whichthe lawsof civilized nations were founded and for the meaning of terms in the Constitution. ‘““When the United States became an independentnation, they became,to use the language of Chancellor Kent, ‘subject to that system of rules which reason,morality, and custom had established among the civilized nations of Europe astheir public law.’” (Miller v. United States (1870) 78 U.S. 268, 315 (dis. opn.ofField,J.), quoting | Kent’s Commentaries 1; Hilton v. Guyot (1895) 159 U.S. 113, 163, 227; Sabariego v. Maverick (1888) 124 U.S. 261, 291-292.) Thus, for example, Congress’ powerto prosecute waris, as a matter of constitutionallaw, limited by the law of nations; what civilized Europe forbade, such as using poison weapons or selling prisoners of warinto slavery, was constitutionally forbidden here. (Miller v. United States, supra, 78 U.S. at pp. 315-316,fn. 57 (dissenting opn. of '88/ Manyothercountries including almostall Eastern European, Central American, and South American nations also have abolished the death penalty either completely or for ordinary crimes. (See Amnesty International’s “List of Abolitionist and Retentionist Countries,” supra, at or .) 484 Field, J.).) “Cruel and unusual punishment”as defined in the Constitutionis not limited to whatever violated the standards of decency that existed within the civilized nations of Europe in the 18th Century. The Eighth Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” (Trop v. Dulles, supra, 356 U.S. at p. 100.) And if the standards of decency as perceived by the civilized nations of Europe to which the framers looked as models have evolved, the Eighth Amendmentrequires that society evolves with them. The Eighth Amendmentprohibits the use of forms of punishmentnot recognized by several of our states and the civilized nations of Europe, or used by only a handful of countries throughout the world -- includingtotalitarian regimes whose own“standards of decency” are supposedly antithetical to our own. (See Atkins v. Virginia, supra, 536 U.S. at p. 316, fn. 21 [basing determination that executing mentally retarded persons violated Eighth Amendmentin part on disapprovalin “the world community”]; Thompson vy. Oklahoma, supra, 487 U.S. at p. 830, fn. 31 [““We have previously recognized the relevance of the views of the international community in determining whether a punishmentis cruel and unusual’’].) Assuming for purposes of argumentthat capital punishmentitself is not contrary to international norms of human decency,its use as regular punishment for substantial numbers of crimes -- as opposed to extraordinary punishmentfor 485 extraordinary crimes-- is contrary to those norms. Nations in the Western world no longer accept the death penalty, and the Eighth Amendmentdoesnotpermit jurisdictionsin this nation to lag so far behind. (See Hilton v. Guyot, supra, 159 U.S. 113; see also Jecker, Torre & Co. v. Montgomery (1855) 59 U.S. 110, 112 {municipaljurisdictions of every country are subject to law ofnationsprinciple that citizens of warring nations are enemies].) Thus, California’s use ofdeath as a regular punishment, as in this case, violates the Eighth and Fourteenth Amendments, and appellant’s death sentence shouldbeset aside. 486 XVI THE CUMULATIVE EFFECT OF ERRORS UNDERMINED THE FUNDAMENTALFAIRNESS OF TRIAL AND THE RELIABILITY OF THE DEATH JUDGMENTIN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTSTO THE UNITED STATES CONSTITUTION Even if no single error in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may be so harmfulthat reversalis required. (See Cooperv. Fitzharris (9th Cir. 1978) 586 F.2d 1325, 1333 (en banc) (‘prejudice mayresult from the cumulative impact of multiple deficiencies”’]; Donnelly v. DeChristoforo, supra, 416 U.S. at pp. 642-643 [cumulative errors may so infect “the trial with unfairness as to makethe resulting conviction a denial of due process”); Greerv. Miller (1987) 483 U.S. 756, 764.)'®’ Reversal is required unless it can be said that the combined effect of all of the errors, constitutional and otherwise, was harmless beyond a reasonable doubt. (Chapman y. California, supra, 386 U.S. at p. 24; People v. Williams (1971) 22 Cal.App.3d 34, 58-59 {applying the Chapman standard to the totality of the errors whenerrors of federal constitutional magnitude combined with othererrors].) In appellant’s trial, the guilt phase errors included the use of an improper and prejudicial jury questionnaire (ArgumentI); prosecutorial misconduct during jury selection and argumentto the jury (ArgumentII); trial court error in denying '8°7 Indeed, where there are a numberoferrorsattrial, an issue-by-issue, error review is far less meaningful than analysis of the overall effect of all the errors in the context of the evidence introducedattrial against the defendant. (United States v. Wallace (9th Cir. 1988) 848 F.2d 1464, 1476.) 487 severance of the highly inflammatory counts 1] and 12 (ArgumentIII); insufficiency of the evidence as to count 15 (ArgumentIV); insufficiency of the evidence as to counts 5 through 7 (Argument V);trial court errorin failing to instruct the jury not to aggregate evidenceofincidents to corroborate crucial accomplice testimony (Argument VI); andinstructionalerror as to the burden of proof (Argument VII). The cumulative effect of these guilt-phaseerrorsinfected appellant’s trial so as to render the proceedings fundamentally unfair and a denial of due process (U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7 & 15; Donnelly v. DeChristoforo, supra, 416 U.S.at p. 643), and appellant’s conviction, therefore, must be reversed. (See Killian v. Poole (9th Cir. 2002) 282 F.3d 1204, 1211 [“evenif no single error were prejudicial, where there are several substantial errors, ‘their cumulative effect may nevertheless be so prejudicial as to require reversal’”}; Harris v. Wood (9th Cir. 1995) 64 F.3d 1432, 1438-1439 [holding cumulative effect of the deficiencies in trial counsel’s representation requires habeas relief'as to the conviction}; United States v. Wallace, supra, 848 F.2d at p. 1475-1476 [reversing heroin convictions for cumulative error]; People v. Hill, supra, \7 Cal.4th at pp. 844-845 [reversing guilt and penalty phasesof capital case for cumulative prosecutorial misconduct]; People v. Holt (1984) 37 Cal.3d 436, 459 [reversing capital murder conviction for cumulative error].) In addition, the death judgmentitself must be evaluatedin light of the cumulative error occurring at both the guilt and penalty phases ofappellant’strial. (See People v. Hayes, supra, 52 Cal.3d at p. 644 [court considersprejudice of guilt 488 phaseinstructionalerrorin assessing that in penalty phase]; People v. Brown, supra, 46 Cal.3dat p. 466 [error occurring at the guilt phase requires reversal of the penalty determinationif there is a reasonable possibility that the jury would have rendered a different verdict absent the error]; Jn re Marquez (1992) 1 Cal.4th 584, 605, 609 [an error may be harmlessat the guilt phase but prejudicial at the penalty phase]; see also Taylor v. Kentucky (1978) 436 U.S. 478, 487-488 [reviewing court is obliged to consider cumulative effect of multiple errors on sentencing outcome].) In this context, this Court has expressly recognized that evidence that may otherwise not affect the guilt determination can have a prejudicial impact on the penaltytrial: Conceivably, an error that we would hold nonprejudicial on the guilt trial, if a similar error were committed on the penalty trial, could be prejudicial. Where, as here, the evidence of guilt 1s overwhelming, even serious error cannot be said to be such as would, in reasonable probability, have altered the balance between conviction and acquittal, but in determining the issue of penalty, the jury, in deciding between life imprisonment and death, may be swayed one way or another by any piece of evidence. If any substantial piece or part of that evidence was inadmissible, or if any misconduct or other error occurred, particularly where, as here, the inadmissible evidence and other errors directly related to the character of appellant, the appellate court by no reasoning process can ascertain whether there is a ‘reasonable probability’ that a different result would have been reached in absenceoferror. (People v. Hamilton (1963) 60 Cal.2d 105, 136-137.) At the penalty phase trial of appellant’s case, the errors committedinclude, 489 interalia, the seating of unconstitutionally-biased jurors to determine penalty in this case (Argument VIII); the erroneous admission into evidence of, and prosecutorial misconductin arguing, prejudicial and inflammatory victim impact evidence (ArgumentIX); the trial court’s error in failing to instruct the jury on the appropriate use of victim-impact evidence (Argument X); the failure of the California death penalty schemeto provide intercase proportionality review (Argument XJ); the trial court’s erroneousinstructions on the mitigating and aggravating factors in section 190.3 and the unconstitutional application of these sentencing factors at appellant’s penalty trial (Argument XII); the unconstitutionality of section 190.3 and implementing jury instructions owing to the failure to set out the appropriate burden of proof, as well as other constitutional infirmities (Argument XIII); the use of CALJIC No.8.88 (1989 Revision) defining the scope ofthe jury’s sentencing discretion andthe natureofits deliberative process additionally contain otherconstitutional defects (Argument XIV); and the fact that appellant’s death sentenceviolates international law (Argument XV). Reversal of the death judgment is mandated here becauseit cannot be shownthatthese penalty errors, individually, collectively, or in combination with theerrors that occurred atthe guilt phase, had no effect on the penalty verdict. (See Hitchcock v. Dugger (1987) 481 U.S. 393, 399; Skipperv. South Carolina (1986) 476 U.S.1, 8; Caldwell v. Mississippi, supra, 472 U.S.at p. 341.) Accordingly, the combined impactof the variouserrors in this case requires 490 reversal of appellant’s convictions and death sentence. The cumulative effect of these errors so infected appellant’s trial with unfairness as to makethe resulting conviction fundamentally and inherently unfair and a denial of due process law, and the judgmentof death constitutionally unreliable. (U.S. Const., 5th, 6th, 8th & 14th Amendments; Cal. Const. art. J, §§ 7 & 15.) 49] XVII APPELLANTSELF JOINS IN ALL ISSUES AND ASSIGNMENTS OF ERROR RAISED BY COAPPELLANT ROMERO WHICH MAY ACCRUETO HIS BENEFIT Appellant Selfjoins in all guilt and penalty issues not raised by himself, but raised by coappellant Romero which mayaccrue to his benefit. (California Rules of Court, rule 13; People v. Stone (1981) 117 Cal.App.3d 15, 19, fn. 5; People v. Smith (1970) 4 Cal.App.3d 41, 44.) 492 CONCLUSION By reason of the foregoing, appellant Christopher Self respectfully requests that the judgment of conviction on all counts, the special circumstances, and the sentence ofdeath in this case be reversed. DATED: September 18, 2006. Respectfully submitted, SoundZS WILLIAM D. FARBER Attorney at Law Attorney for Appellant Christopher Self CERTIFICATE OF COUNSEL (CAL. RULES OF COURT, RULE 36(b)(2)) I, William D.Farber, certify that the number of wordsin this openingbrief, excluding the tables, totals 119,210 words. In counting words, I have relied on the word count of the computer program used to prepare this documentas authorized by Cal. Rules of Court, rule 36(b)(2). I declare under penalty of perjury that the foregoing is true and correct. Dated: September 18, 2006 WILLIAM D. FARBER 493 PROOF OF SERVICE RE: PEOPLE v. ROMEROand SELF Supreme Court No. S055856 I, WILLIAM D. FARBER,declare underpenalty ofperjury that I am counsel of record for defendant and appellant ChristopherSelf in this case, and further that my business address is William D. Farber, Attorney at Law, P.O. Box 2026, San Rafael, CA 94912-2026. On September 19, 2006, I served the attached: APPELLANT’S OPENING BRIEFbydepositing each copy ina sealed envelope with postage thereon fully prepaid,in the United States Postal Service, at San Rafael, California, addressed respectively as follows: OFFICE OF THE ATTORNEY CALIFORNIA APPELLATE GENERAL PROJECT State of California 101 Second Street 110 West A Street, Suite 600 Suite 600 San Diego, CA 92101 San Francisco, CA 94105 GERALDINES. RUSSELL MICHAEL GOLDSTEIN Attorney at Law Attorney at Law P.O. Box 2160 P.O. Box 84 La Mesa, CA 91943-2160 Alameda, CA 94501 JOHN R. GRELE MICHAEL MAGNUSON Attorney at Law Attorney at Law 703 Market Street # 660 13215 Penn Street, # 205 San Francisco, CA 94103 Whittier, CA 90602 CHRISTOPHER SELF CLERK, SUPERIOR COURT P.O. Box K-21401 Riverside County San Quentin, CA 94974 Appeals Division 4100 Main Street Riverside, CA 92501 I declare under penalty of perjury that the foregoingis true and correct. Naa alee DATED:September 19, 2006. 494
