PEOPLE v. ROMERO (ORLANDO) & SELF (CHRISTOPHER)Appellant, Orlando Gene Romero, Reply BriefCal.May 17, 2011 SUPREME CourT FILED sossess SUPREME COURT COPY ora am THE SUPREME COURTOF THE STATE OF CALIFGRNIAo; (Catan irich Sierk Deputy PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Riverside Superior Court No. CR 46579 Orlando Romero, Jr., & Christopher Self, Defendants and Appellants. SAOB43, fn. 52, citing 3SCT 45: 12978. **3SCT 45: 12978. RT 39: 5922-5923. See SAOB 43 *°Appellant stated in his opening brief that Chavez waspresent, citing a portion of his in-custody statementthat in fact said only that he was not sure whether Self or Chavez wasin a particular seat in the car. On rereading the (continued...) 19 18-19.) Williams/Rankins Attempted Murders In another puzzling example ofrespondent’s difficulty summarizing the record, even in unimportant details, respondent exaggerates Munoz’s testimonythat appellant “was mad” about Rankins’ substitution ofcocaine for speed into a statement that appellant was “furious.””’ Moresignificantly, this is a place where the Self brief inaccurately singles out appellant. It correctly summarizes Munoz’s version, which was that the drug substitution was discovered only later and that, when it was, appellant became angry and said they would get a refund from Rankinsor, failing that, kill him.** The brief omits, however, that Self was “pumped up” in his expression of supportfor this idea, and that Munoztestified that his own reaction may have been the same.”” Any implication that appellant was *6(_. continued) record, the conclusion that appellant was saying Chavez wasdefinitely there seems unjustified, particularly in light of appellant’s difficulty remembering details of the incident. (Cf. AOB 21 with 3SCT 2: 314.) *7Compare RB 20 with RT 39: 5939. A similar exaggeration appears in the Self brief. Citing Rankins’s testimony,it states that appellant got very upset when notified of the drug substitution, when the actual testimony was that appellant was unhappy and said he would see him later. (Compare SAOB 67 with RT 34: 5260.) Respondent purports to quote appellant about how the three should handle the Rankinssituation, citing testimony of witness Munoz, but Munoz was only paraphrasing. Moreover, respondent’s “quotation” from Munoz even misquotes Munozsignificantly, although the substance is similar. Compare RB 20 with RT 39: 5939. *8SAOB71, citing RT 39: 5939-5941. RT 39: 5940. 20 primarily the one desiring a confrontation is inaccurate. Respondent’s account implies that appellant fired several shots at Rankins, but this is untrue. Respondent correctly points out that Rankins thought he heard three or four shots fired as he ran away.*” He assumedthat they were being fired at him.*' Respondent omits Munoz’s testimonythat, although appellant had the “single-shot” trained on Rankins, he was not aware of appellant shooting.” Rather, in what may have been an attemptto inflate appellant’s role, Munoz’s testimonywasthat appellantlater stated he hadtried unsuccessfully to fire the weapon.”* For his part, Rankins’s capacity to perceive may have been affected by his terror ** and his cocaine intoxication.*° In keeping with its attempts to play down Munoz’s role, respondent claims that Self or Munoz exclaimed, “Die, Bitch” to Williams as she was being attacked. (RB 21.) Williams, the only witness whotestified that anyone said those wordsto her,testified that it was Munoz. (RT 34: 5232-5233.) The prosecutor later obtained her agreement that a year after the incident she “might have”said it was the man with the knife (Self) and then, when pressed further, that she recalled saying that. (RT 34: 5239-5240.) But when asked RB 21, citing RT 34: 5262-5263; 39: 5946. RT 34: 5262-5264. RT 39: 5944. Moreover, as respondent explains elsewhere, if appellant had fired once, he could not have fired another shot without manually prying the action back with somekindof tool, to remove the spent casing andinsert another round. (See RB 7.) SRT 40: 6980-6981. *4See RT 34: 5263. ORT 34: 5260, 5272, 5276. 21 if that refreshed her recollection, she reiterated, “I think it was the one with the gun [Munoz], I really think it was—.” (RT 34: 5240.) Again relying exclusively on Munoz, respondent writes that after this incident and a conversation a few days later, “Munoz then refrained from going out with appellants for a period of about three weeks. In the meantime, appellants continued committing crimes.” (RB 23, citing RT 39: 5951-5954; 3SCT 45: 12931-12932.) Respondent’s first citation does support the statement about three weeks’ non-involvement (with Munoz’s testimony),”° but nothing in the record supports the “continued committing crimes” claim as to appellant, and it is a bit overstated as to Self. Appellant was convicted of involvementin a single incident during that period—the vandalism/burglary of Magnolia CenterInteriors 19 days(i.e., practically three weeks) after the Williams/Rankins incident. There was, by the way, no evidence—not even a Munoz denial—excluding Munoz as a Magnolia Interiors perpetrator.*’ Four days later, Self, Chavez, and an unidentified third person—whom the jury recognized could have been Munozor appellant—kidnaped and robbed Alfred Steenblock. In any event, two days after that, Munoz was with appellant and **Respondent’s secondcitation is to a portion of Munoz’s statement whereheisstill falsely denying any criminal activity with appellant andSelf, other than helping them use stolen ATM cards. (3SCT 45: 12931-12932.) 7At one point during his interrogation, Munoz did state that the next time he wentout with the others after the Lake Mathewsshootings was during the Knoefler (beekeeper) robbery. (3SCT 45: 12978.) This was false, however, as it omitted not only Magnolia Interiors, but also the Ken Mills/Vicky Ewing shooting and the Williams/Rankinsincident, in both of which Munozlater admitted involvement. (See the chronologyat RB, page i.) 22 Self in the Robbery of the beekeeper Albert Knoefler.** The evidence did not show that appellant “continued committing crimes” any more than Munozdid. Magnolia Interiors Vandalism/Burglary Herethereis little disagreement on the facts presented to the jury, as none of the defendants, Munoz included, was asked about the crime during interrogation or made a statement about it. However, in a claim that respondentrelies on later in arguing oneofthe allegationsoferror, respondent incorrectly states that shoe prints resembling those of the British Knightprints tied to Self from the Lake Mathewsscene were foundin the fire-extinguisher powderleft at the vandalized interiors shop. Respondentcites 15 pages of testimony in support of this and other statements about the crime. (RB 24.) Mostis irrelevant to the footprint claim.’? However, at one point, there is testimony about footprints having been left in dust at the vandalism scene, without further description. (RT 34: 5370-5371.) In that testimony a lay witness, the store proprietor, agrees with the prosecutor that a photograph—which respondent now cites—showedfootprints. They are not, however, recognizable even as footprints in the photo; thus the exhibit certainly discloses no identifying information.“ (The witness himself had viewed the photographed area directly.) Despite considerable footprint- comparison testimony regarding other events, there was no testimony *’See the chronology at RB,pagei. See RT 34: 5354-5355 (an officer’s description of the vandalized crime scene), 5362-5369 (proprietor’s narrative of how heleft the shop the previous evening, moredetailed description ofthe damage), 5372-5375 (more on the damage and missing items). *°See SCT Photographs — Exhibits 1: 45-46 (Ex. 29, discussed at RT 34: 5370-5371). 23 identifying Magnolia Interiors footprints as similar to any others mentioned at trial, and the prosecutor’s argument” referred to none. The assertion about possible Self prints at the vandalism scene is wrong. Robberyof Jerry Mills and His Son Appellant described his actions in approachingthe twovictimsafter the firearms were taken from their pickup truck and having them move some distance away, where he asked for Mills’s money,let him keep his credit cards, and avoided carrying out—orletting the others carry out—Chavez’s wish that the adult be shot. (AOB 33-34.) Respondent characterizes the evidence as being that it was Self who approached Mills. (RB 30.) There is, in fact, a conflict in the evidenceonthis point that neither appellant’s statementof facts nor respondent’s acknowledges. Further, as respondentnotes, appellant was wrong in stating that Mills made noidentifications. (See RB 31-32,fn. 22.) Mills did identify Self as a participant and seemedto think that he was the one whoapproached him.” Respondent states that Mills’s rifle with a telescopic sight was “See RT 45: 6706. “See RT 35: 5385 (the passenger in the robbers’ car had a shotgun pointed at him from the passenger window whenthey pulled up), 5388 (the one with the shotgun approached him atthe telephone pole for his money, now with Mills’s .45 in his belt), 5403-5404 (the passenger with the shotgun was Self; Mills had a good view of him because he was six feet away whenthe robbers pulled up). Respondent writes that the police found Mill’s pickup a mile away, abandoned and with the keys in it. (RB 30.) The testimony was that Mills, who saw whichdirection the perpetrators droveoff in, found the vehicle. (RT 35: 5389-5390. Respondentalso cites 5391-5400 and appellant’s statement in support of this and other purported facts, but they do not deal with the finding of the pickup.) 24 recovered from the attic of a donut shop where appellant’s girlfriend Sonia Alvarez had previously been employed.** There was no link drawn between Alvarez and the shop in any ofthe testimony cited by respondent, or elsewhere in the record. The best the prosecutor could offer was the fact that her house and the shop were each near particulartraffic artery but were three to four miles away from each other.** Knoefler Robbery The Self opening brief incorrectly states that appellant spoke with the beekeeper, left, and returned with a shotgun which he pointed directly at Knoefler.’* Appellant, who did not leave but simply walked around the bee yard,”° “then,” according to the cited testimony, “came up to me andsaid he needed the keys to my pickup. I looked up andit appeared like he was holding a— call it [a] sawed-off shotgun.””’ The followupto this testimony clarified that appellant did not point the weaponat him.** “RB 31 and fn. 21, citing RT 37: 5704-5714, 42: 6399-6401. “RT 42: 6400-6401; see also 45: 6950. ““SAOB79,citing RT 34: 5340-5345. “RT 34: 5341, "Ibid. “*The direct examination proceeded as follows: Q. Now,you indicate that when the guysaid, “I need your keys,” he showed you a weapon? A. Yes. Q. What— wheredid he point that weapon? A. Well, he also said he wasn’t going to hurt me. And (continued...) 25 Aragon Robbery and Shooting The introduction to this reply brief characterizes the prosecution’s evidence regarding the killing of Jose Aragon as follows: “Self, with Munoz ”at his side and appellant retreating—killed Jose Aragon.” This statementis important not only because it is part of the refutation of the “escalating- violence” claim which respondent applies to appellant. The point is also critical in the context of any harmless-erroranalysis, for such an analysis must includethe fact thatjurors would have recognized appellant’s lesser role in one of the two incidents involving capital crimes. Appellant therefore documents the characterization of himself as in retreat from the killing here. Only appellant described his mental state, but Munoz, too, had him moving away from the immediate scene and returning with the group’s car soon after Aragon was confronted. Specifically, Munoz and appellant agreed that appellant wasinterested in watching Aragon dotricks on his motorcycle, that appellant became very involved in conversation with Aragon abouthis competitive riding, and that Self wanted to shoot Aragon when the three “8(...continued) I don’t remember that he pointed it directly at me, kind of holding it, you know. (Indicating) Showed outofhis jacket, the endofit. (RT 34: 5343.) Later, the trial court settled the record to the effect that Knoefler indicated that appellant had the weapon at his side, pointed at an angle, i.e., neither out at the witness nor straight downat the ground. (6SCT 131 4 28.) This wasin testimony wherethe prosecutor had somedifficulty eliciting that Knoefler—whowent back to workafter the encounter—wasin fear when he gaveup his property. Knoefler just preferred to note that one doesn’t argue with a person with a gun. (RT 34: 5342, 5344-5345.) 26 discussed robbing him, but appellant said they could just take his stuff.” Munoz’s testimony andappellant’s statementalso both stated that Aragon was first felled with one of several shots from the somewhat distant™ location wherethey had parkedtheir vehicle, while appellant was near him.*! This was evidence of appellant’s lack of knowledge that Self was going to shoot. Both Munoz and appellant were, in fact, surprised by the shots.” Munoz, however, ran down to demand Aragon’s keys and wallet, and, based on Aragon’s response, he and Self then searched the cab of Aragon’s pickup truck. Appellant, in contrast, helped Aragon from the groundto a seat on the tailgate.** ** Appellant then took Aragon’s two toolboxes—which he wanted for work onhis girlfriend’s car—from the bed ofthe truck back to the Colt. Meanwhile Munoz and Self demanded that Aragon give them the code for his ATM card, after which Munoz—still near Self and Aragon—watched “RT 39: 5978-5983 (Munoz);see also 3SCT 300, 301, 302 (appellant). See RT 39: 5979, *'RT 41: 6258-6260 (Munoz acknowledgesearlier testimony to that effect); 3SCT 2: 302-303 (appellant: he was talking to Aragon and was shocked to see him fall); see also RT 39: 5983-5986 (more Munozdetail on initial shots). RT 39: 5984 (Munoz); 3SCT 2: 302-303 (appellant). RT 39: 5986-5990 (Munoz); see also 3SCT 2: 304 (appellant). “In its StatementofFacts, respondent argumentatively writes, “Romero taunted him by asking, ‘How doesit feel to get shot? Does it burn?’” (RB 34.) Nothing in the testimony states or implies that the questionsattributed to appellant were asked in a taunting way; appellant may have just wanted to know. Munoz’s portrayal of appellant’s manner mentionsonly that appellant positioned himself so he could look up into the seated Aragon’s downturned face when he spoke to him. (RT 39: 5988.) 27 Self empty his pistol into Aragon before starting to leave himself, at which point Self used the shotgun.” Respondent’s statementoffacts does not explain all this but has nothing inconsistent with it.°° (See RB 34-35.) In fact, respondent concludesthis part RT 39: 5994-5995 (Munoz:appellant took the toolboxes), 5991-5993 (Munoz: appellant had gone backto the Colt and driven it closer by the time Munoz, who had just finished getting the ATM code from Aragon, watched Self fire more shots into Aragon in rapid succession), 6262 (appellant did not get out of the Colt again); 3SCT 2: 303-305, 321 (appellant: he headed for the car with the tools and wanted nothing to do with anything else that happened). Respondent does, however, challenge an unimportantdetail,i.e., that Aragon wasin only little pain when appellant helped him off the ground. Respondentnotes, with apparent outrage, that appellant’s brief cites his “self- serving statement”to that effect and treats it as obviously false, given that a .22 bullet had passed through abdominal muscle and twointernal organs. (RB 34, fn. 24.) Even without greater familiarity with traumatic injury, which would illuminate the possible truth of the statement, one need go no farther than Paulita Williams’s testimony. Herfirst shotgun woundto thesidefelt like she had been punched hard, and when Self wasslashing her arms she thought he wasjust trying to grab her. (RT 34: 5230-5231; see also 5235.) Similarly, John Feltenberger’s description ofhis experience immediately after being shot included nothing about pain. (RT 32: 4954-4955.) It also is the case that the undersigned attorney for appellant received a gunshot wound in a robbery attempt during the period whenthis brief was being drafted. Though fully conscious,he felt no pain until hours later. (This extra-record information is no less competent than respondent’s indignant speculations about what Aragon must have experienced.) Asfor the “self-serving” nature of appellant’s statementto police, it alone established his guilt of all the crimes about which he was asked, was introduced by the prosecution at trial, and was noless self-serving than the otherpillar of the prosecution case: Munoz’s testimony,whichtrackedthelast version of his in-custody statements. 28 of the narrative, “Munoz and Self then rejoined Romero at Alvarez’s Colt” (RB 35), a statement which recognizes that appellant hadleft. Munoz’s Interrogation Both appellant and respondent have described Munoz’s interrogation in their Statements of Facts.°’ As with other portions of the facts, appellant will not here simply repeat what is in his own and is omitted from respondent’s, other than to note that the more complete portrayal presents a markedly different picture of the prosecution’s star witness than respondent’s description. But there are somedistortions in respondent’s brief that need to be addressed. Respondent acknowledges—in a major understatement—Munoz’s “initial[]” denials. (RB 47.) As explained in the opening brief and not disputed by respondent, the denials lasted well into the third hour of the interrogation.” Respondent then asserts that after the denials “Munoz began hinting to investigators that he knew much morethan he wastelling them and would be willing to tell ‘the truth’ and ‘get it off [his] chest... (45 3rd SCT 12929-12940, 12946.)”*? Munoz did not volunteer any such thing. For the first 11 pages of respondent’s span cite, Munoz is actually spinning detailed yarns, claiming that Self and Romero weretelling him about committing two or three robberies a week andkilling everyone they encountered, and that he °7AOB 52-56, RB 47-48. *’See AOB 54, footnote 44, and cited portions of the record. °>°RB 47. 29 kept his distance from them.” On the eleventh page, he offers to testify against the others and asks whatis going to happen to him.’ Finally, on the next page, Munozbeginsthe statements emphasized by appellant” and ignored by respondent, where he offers to try to get the other two to incriminate themselves. There he also makesthefirst of two offers to say anything the investigators want him to say—only the second of which, by the way,elicited a response saying they only wantedthe truth.’ Munoz atthis point does say he knows more,butitis all in the contextoftrying to negotiate leniency™ and is followed bya lot of time spent continuing the denial of involvement other than using ATM cards and hearing admissions.” Heis finally interrupted by the interrogators’ forcefully confronting him with the holes in his story. Indeed, the additional interrogation-transcript page cited by respondent”in support of the characterization of Munoz as self-motivated to get the truth off his chest is the beginning of this confrontation. For most of the next 17 pages Munoztries to stick to his story but is clearly getting unnerved as one of the °°3SCT 45: 12929-12939. SI13SCT 45: 12939. °AOB 53. 83SCT 45: 12940; see also 12958. “43SCT 45: 12940. °53SCT 45: 12941-12963. These 23 pages cover a lot of ground; the transcript is in a small font, with closely-spaced lines. °°3SCT 45: 12946. 30 detectives pushes him hard.°’ Respondent correctly points out that the taped statements contained no explicit promises and that Munoz wasat one pointtold to tell the truth. (RB 48.) Besides generally omitting a large amount of material from Munoz’s interaction with authorities that casts grave doubt on his credibility,” respondent’s portrayal of what little its brief does discuss is misleading. Preliminarily, the offer to tell more that respondent emphasizes was “I know a little bit more” not, as respondentasserts, that he “knew much more.”It came after an investigator assured him, “We’ll—we’ll take care of you.””° Respondentclaims, after stating there were no promises, “nordid policetell or suggest to Munoz what to say.” (RB 48.) Respondent simply ignores a prosecutor’s statement to Munoz that the latter could “save his tail” if he started talking about what happened and his accountdid not involve his being a shooter, along with other commentsalongthoselines.’' These statementsare detailed in the opening brief,”’ in an account that respondentdoesnotclaim is *73SCT 45: 12946-12963. *’See AOB 52-56. Cf. 3SCT 45: 12940 with RB 47. ™3SCT 45: 12940. "3SCT 45: 12967-12968. ™AOB 54-55. In addition to the statements quoted or summarized there, one of the interrogators assured Munoz, “We don’t believe that you did any shooting, ... [but] you were there,” and,again, “We’re not saying you shot anybody. We’re saying you were there.” (Ex. 371, an audiotape transcribed, partially inaccurately, at 3SCT 45: 12962; 3SCT 12963.) This is an obvious and well-known technique for suggesting an apparent way out—to suspects unaware of the scope of accessorial liability—when interrogating 31 misleading in any way. In sum, it is not the case either that the informant decided to be forthcoming of his own accord,or that interrogators did not suggest what he hadto say,or that they consistently emphasized that they wantedonly the truth. Rather, he avoided admitting any involvement as long as he could, then claimed all he did was use stolen ATM cards. This was a young man with the moral compassofa violent criminal, one who knew enough about the system to try to initiate negotiations about an informant’s plea bargain from the beginning of his interrogation.”> Andthis is the person whom theauthorities told what would be needed to obtain leniency. He then gave an accountthat metthose criteria while continuing to minimize his culpability. It is the testimony of this witness that respondentrelies on for whatit presents as the conclusively-established version of every disputed fact about the offenses. Penalty Phase Assault on Suspected Informant Respondent’s characterization of the Walter Jutras incident notes that two inmates confronted Jutras but implies that appellant took the lead role, by stating that appellant hit Jutras and demanded to know why hewasreturned to the cell block. The testimony did not distinguish between the roles that the two men played—other than appellant placing his knee on the back of the man’s neck when waking him up. Both hit him; both demanded assurances that he was not an informant. (RT 50: 7403.) ™c__.continued) codefendants. ™See AOB 52-53 andcited portions of the record. 32 Mitigation Again, this is not the place to provide once more what respondent omits, in a summary that provides enoughfacts to look complete butis not.” But somepoints require correction. Respondent mischaracterizes the recordin stating that Maria Selfcould recall only one instance where her children’s father was abusive with them. (RB 66.) She provided two examples, including not only throwing Anthony against a wall,” but also trying to suffocate the entire family by locking the windowsand doors, putting pizzas in the oven until the house filled with smoke, and throwing Maria to the floor whenshetried to remove them and 6open windows.’® Moreover, nothing in her testimony indicated that these incidents were isolated or were the only ones she could recall.”’ There is no doubt that matters improved after Maria became involved with Phillip Self, when appellant was already about eight, but respondent greatly exaggerates how much. Respondentwrites that Mariatestified that her second husband “was ‘the best thing that ever happened’ to them... ,” meaning her sons. (RB 67.) The actual testimony, under cross-examination, wasas follows: Q. Mr. Self was the best thing that ever happened to you, wasn’t he? A. Yes. ™See AOB 61-75. Respondent characterizes this conduct as “push[ing him] into a wall,” but the testimony was “[H]e pushed him and threw him against a wall... .” (Cf. RB 66 with RT 52: 7707.) "RT 52: 7707-08. ™See RT 52: 7707. 33 (RT 52: 7754, emphasis added.) This wasin a series of questions where the prosecutor asked separately about the experiences of Maria, whom he addressed as “you,” and her children, whom hereferred to as “the boys” or “them.” (RT 52: 7754-7755.) Respondentclaims that Phillip “provided a loving, non-abusive home for the boys... .” (RB 67.) Nothing in the 16 pages of testimony cited by respondent in support of this statement either states that the home became loving or supports an inference that it was, although Maria and appellant’s older brother Anthony did testify that Phillip treated the boys well. When Sheila Torres, a cousin of appellant who was Maria’s age and wascloseto the family, was asked on cross-examination if she would characterize Phillip Self as a good man, she replied, “It depends what you mean by good.” (RT 53: 7910.) He was unhelpful as a parent to the boys.’”* The prosecutor’s *’The testimony wasas follows: Q. Mr.Self did the best he could to raise those boysas his own, didn’t he? A. I don’t think he wasveryhelpful, no. (RT 53: 7910-7911; see also 7921 [Anthony: Phillip Self did nottry to give the boys advice].) Respondent characterizes Torres as disagreeing “with the other witnesses regarding Phillip’s positive influence on the boys....” (RB 69.) This statement exaggerates the testimony ofthe others. Only three ofthe eight family memberswere asked about Phillip, and, while they said complimentary things, none supplied the conclusion that respondentinfers,i.e., that his assets were enough to make him an effective positive influence overall. (See RT 52: 7754 [Maria: accepts prosecutor’s characterization of Phillip as very good to the boys andtreating them like his own], 7800 [Carmen Burrola: she found him to be a very good man, very patient with the boys], 53: 7921 [Anthony: Phillip was very good to the boys, helped support the family, and showed Anthonyand appellant how to work oncars].) The “other witnesses” to whom (continued...) 34 attempts to establish that Phillip would take the boys to do fun thingselicited Anthony’s answer that “on occasion” he would take them fishing. (RT 53: 7920.) As to respondent’s claim that the abuse ended when Phillip Self entered the picture, when the prosecutor asked Maria if the environment was nonabusive, the most she would say was “It’s been very different.” (RT 52: 7756.) Maria still beat the boys, including with household objects, after her remarriage, according to both her and Anthony, and there was notestimony to the contrary.”” Child protective services intervened with one of her children 78(...continued) respondent seemsto refer included Mona Quezada, Peggy Lopez, Corinna Leon, Catherine Mejia, and Richard Torres, but the prosecutor chose not to present characterizations of Phillip from any of them. (See RT 53: 7826, 7832-7835, 7846, 7852-7853, 7870.) ™The prosecutor tried unsuccessfully to establish the point that respondent claims was proven, in his cross-examination of Maria: Q. Okay. And when you were married to Mr. Self, you weren’t beating on them anymore, were you? A. Oh, yes, I was. I was more abusiveat that time. Q. Isee. .... (RT 52: 7767.) There is no testimony to the contrary in the record, including in the portions cited by respondent at RB 67. Moreover, Anthonytestified, under examination by Self’s attorney, Q. Was there ever a time in which Maria wasacting in any violent way towards you during the time that you were living with Phillip and Maria and Christopher wasalso living in the household? A. Yes, there was quite a few times. Q. And what kind ofincidents were those? A. Well, if we would upset her, she'd lash out at us with whatever she had in her hand. We’d gotten used to that. We would avoid her at any cost. (continued...) 35 fathered by Phillip. (RT 52: 7756.) Phillip, according to Anthony, wastoo hot-tempered to be involved in disciplining the boys. That wasleft to Maria, a fact which speaks volumes, given her ownlack of restraint. (RT 53: 7921.) Phillip’s arrival, which came well after appellant’s most crucial early childhood years in any event, did not turn the home into a “loving, non- abusive”™one. // H ™...continued) (53: 7919.) He wentonto testify that she threw a knife at him one time; the handle hit him. Self’s attorney asked what objects she used against Self during the post-remarriage period, and he answered, “Fly swatter, broom, anything she had in her hand.” (/bid.) Respondentlater acknowledges, contradicting its statement about lack of abuse, Anthony’s testimony that, as respondent puts it, “Maria wasstill prone to violent outbursts.” (RB 70.) *°RB 67. 36 ARGUMENT I RESPONDENTFAILS TO DISPUTE THAT ANY SUBSTANTIAL ERROR COULD HAVE CONTRIBUTED TO THE PENALTY JUDGMENT AND THAT, IF AGGRAVATION AND MITIGATION ARE TO BE COMPARED ON APPEAL, THE FACTS MUST BE VIEWEDIN THE LIGHT MOST FAVORABLE TO APPELLANT, YET ARGUES HARMLESSNESSASIF NEITHER IS TRUE Appellant has argued, citing authority from this Court and the United States Supreme Court, as well as background material from scholarly sources, that errors with a potential impact on a penalty decision compel reversal of a death sentence unless they were trivial rather than substantial; proved a specific fact otherwise indisputably established; or were cured in a manner that can, without speculation, be known to have been effective. Conversely, any analysis that involves weighing the aggravating and mitigating evidence, or comparing the pro-death impact of a substantial error to other evidencealso before the jury, is improper.' Appellant has also set forth the reasons why,ifthis Court were to assess the penalty-phase evidence in appellant’s trial, it would have to consider the entire record, not only the evidence viewed in a light most favorable to "See analysis and cases cited at AOB 82-104, including Chapmanv. California (1967) 386 U.S. 18, 24; People v. Hamilton (1963) 60 Cal.2d 105, 136-137, overruled on another point in People v. Daniels (1991) 52 Cal.3d 815, 864; People v. Morse (1964) 60 Cal.2d 631, 637 [substantial error must normally be held prejudicial]; People v. Roldan (2005) 35 Cal. 4th 646, 734, 739 [exception where other action nullified error]; Traynor, The Riddle of Harmless Error (1970) p. 73 [exception where error proved fact otherwise established].) 37 respondent,’ and conclude that a unanimousdeath verdict wasnot inevitable.’ Thus, even underan analysis that involved weighing the impact ofa significant errorin thelight of the entire evidentiary picture, respondent would be unable to demonstrate harmlessness. These are live questions; this Court has sometimes reweighed the evidence and concluded that a death verdict was inevitable in any case,’ and sometimes at least implicitly recognized the difficulties and impropriety in doing so and found that a substantial error could have affected a penalty decision without even considering the aggravated nature ofthe case.” Quibbling with how appellant has organized his argument, respondent states in a footnote that there is nothing to respond to at the point in his briefing where appellant has argued how harmlessness questions should be approached and where he has analyzed the factual picture facing the sentencing jury. (RB 72, fn. 35.) Rather, respondentsays,it will “set forth the applicable standard ofreview and relevant evidence within the context ofeach claim raised by appellants.” (Jbid.) But respondent fails to do so. And yet respondent proceeds—in replying to every single substantive claim of error—to try to meet its burden of showing harmlessnessin exactly\ the ways 7AOB 113, fn. 69, quoted on p. 107, fn. 151, below,citing, inter alia, Neder v. United States (1999) 527 U.S. 1, 19; Holmes v. South Carolina (2006) 547 U.S. 319, 329-330 People v. Garcia (2005) 36 Cal. 4th 777, 805-806 & fn. 10, 807, fn. 11; Traynor, The Riddle of HarmlessError, supra, p. 28. *AOB 105-128. “See., e.g., People v. Welch (1999) 20 Cal.4th 701, 761-762. See, e.g., People v. Sturm (2006) 37 Cal.4th 1218, 1243-1244; ef.id. at pp. 1245, 1247-1248, dis. opn. of Baxter, J. 38 that appellant has shown to be improper. Specifically, respondent offers simple appellate reweighing ofthe aggravating and mitigating evidence,rather than the far more sensitive analysis involved in looking to whether an error “possibly influenced the jury adversely,”® i.e., “might have contributed to”’ the result or “might have affected [the] capital sentencing jury.”* Moreover, in doing so, respondenttakes the facts to be the narrative presented by the co- defendant/informer, whose account of every disputed circumstance of the crimes was uncorroborated, who did not have to be believed for the guilty verdicts to have been rendered, who was disbelieved by the jury when corroboration did not include appellant’s confession or a victim’s testimony. Respondent’s first attempt to meet its burden of showing of penalty- phase harmlessness takes place in a single paragraph. (RB 83.) There respondentfails to cite any authority or make an explicit statement of whatit thinks the standard is or how it should be applied, muchless acknowledge and respond to appellant’s argument. In that paragraph respondent also simply ignores appellant’s discussion of the overall evidentiary picture facing the sentencer. The majority of appellant’s ArgumentI directly explains how federal law, applied to the California capital sentencing scheme, precludes second- guessing what a jury influenced by a different factual or instructional picture would have done. Appellant also explains whythe standard for state-law error should continue to align with a federal standard thus understood. Respondent °People v. Neal (2003) 31 Cal.4th 63, 86, quoting Chapman vy. California (1967) 386 U.S. 18, 24. "Chapman vy. California, supra, 386 U.S. at p. 24. ’Satterwhite v. Texas (1998) 486 U.S. 249, 258. 39 simply has no answerto what appellant has demonstrated to be the appropriate analytical framework.’ // / *For a summaryofthe original argument, see the prejudice section of ArgumentIJ, starting at page 101, below. 40 Ir’ APPELLANT WAS PROSECUTED USING SO MUCH AND SUCH POWERFUL VICTIM-IMPACT TESTIMONY THAT IT FLOODED THE COURTROOM WITH EMOTIONALITY, MISLED THE JURY AS TO APPELLANT’S CULPABILITY RELATIVE TO THAT OF OTHERS WHO HAVEKILLED, AND ORIENTED THE JURY TOWARDSSEEING THE QUESTION AS WHETHER THE VICTIMS OR THE PERPETRATOR WERE MOREDESERVING OF SYMPATHY, THEREBY PREVENTING A FAIR PENALTY TRIAL AND A RELIABLE PENALTY DETERMINATION A. Respondent Bypasses Appellant’s Primary Contention, Relying on a Welter of Precedents Which Do Not Addressit The quality and quantity of victim-impact evidence used to secure a death verdict in appellant’s trial went far beyond what even commonnotions of fairness permit, much less the constraints imposed by the Eighth and Fourteenth Amendments. Respondent’s briefing of this claim, viewed in isolation from appellant’s, achieves an appearance ofreal persuasiveness. But it does so by bypassingthe thrust of appellant’s argument. Respondent emphasizesthe lack of bright-line rules in the victim-impact area. Appellant agrees that this Court has established no such rules. In fact, a theme of his argumentis that the victim-impact innovation has proceeded much too far without the Court’s having provided guidelines or understandable limitations, bright-line or otherwise, for the trial courts or counsel.” Respondent overlooks the "See AOB 130. Respondentaddressesthis claim underits heading XII, beginning on page 204ofits brief. *That position was soon mirrored by Justice Stevens’s “statement respecting the denial of the petitions for certioriari in Kelly v. California and Zamudio v. California: (continued...) 4] consequenceof the choice notto provide bright-line rules: that careful case- by-case analysis is therefore required, under the Eighth Amendment requirement of a fair and reliable penalty trial, along with related Eighth- Amendment guarantees and the fundamental-fairness protection of the Fourteenth Amendment.’ In that analysis, the probative value of the evidence — offered in a particular case must be balanced against the risk of prejudice to a fair and reliable penalty determination. (People v. Edwards (1991) 54 Cal.3d 787, 836 [“[i]n each case, [the trial court] must strike a careful balance between the probative and the prejudicial”]; accord, People v. Panah (2005) 35 Cal.4th 395, 495.) That being the case, respondent’s marshaling of precedents in which testimony on a particular topic was properly admitted is oflittle value. Even if this could be done for every subject covered by every witnessin appellant’s trial, it does not show that the testimony as whole,in this *(...continued) Atthe very least, the petitions now before us invite the Court to apply the standard announced in Payne,and to provide the lower courts with long-overdue guidance on the scope of admissible victim impact evidence. Having decided to tolerate the introduction of evidence that puts a heavy thumbon the prosecutor’s side ofthe scale in death cases, the Court has a duty to consider what reasonable limits should be placed onits use. Kelly v. California (2008) 555 U.S. ,__5: 129 S.Ct. 564, 567; 172 L.Ed.2d 445 (separate statement of Stevens,J.). Justice Breyer expressed similar views in his dissent from the denial of certiorari, and Justice Souter also voted to grant the Kelly petition. (/bid.) Justice Stevens was addressing the situation with federal law, but the need is the same in California. *This Court has stated that the only federal limitations are those imposed by the fundamental-fairness requirement of the Fourteenth Amendment. (E.g., People v. Hamilton (2009) 45 Cal.4th 863, 927.) This is a misconception, for reasons explained at AOB 168, fn. 90, in an analysis which respondenthas not contested. 42 trial, was not excessive. And few opinionsof this Court give specifics about the quantity and quality of the victim-impact evidence allowed; most rely on a very brief overview of its general content, which may be why respondent doesnot attemptto point to a precedent wherethe overall gestalt ofthe victim- impact presentation was comparableto that presented here.’ Appellant has cited cases from sister jurisdictions imposing limits that were far exceeded here. He has shownthat the seminal California and federal cases ending the per se bans on victim-impact evidenceare distinguishable on their facts from this one by several orders of magnitude. He has also demonstrated that languagelater appearing in this Court’s opinionssuggesting that there may be virtually no real limits is without foundation in the jurisprudence of this Court or the high court and is contrary to the Eighth Amendment. There have been a few cases upheld by this Court in which it appears that evidence comparable overall to that contested here may have been introduced.’ Innone, however, wasthe appellant’s complaint supported by the analysis presented here. Aside from the general principle of admissibility, such casesare not controlling. (People v. Ault (2004) 33 Cal.4th 1250, 1268, “See, e.g., the quotation from People v. Huggins (2006) 38 Cal.4th 175 at p. 48, fn. 19, below. Tellingly, respondent opposesthis Court’s taking judicial notice ofwhat its records show aboutthe actual nature and quantity of the evidence involved in the seminal case specifically upholding the use of testimony about the impact of a crime on a victim’s survivors. (Cf. RB 210, fn. 69, with AOB 177-178 and appellant’s motion for judicial notice, filed with or shortly after the filing of this brief, concerning the record in People v. Taylor (2001) 26 Cal.4th 1155.) See, e.g., People v. Brady (2010) 50 Cal.4th 547, 573-581. 43 fn. 10 [“It is axiomatic that cases are not authority for propositions not considered”|.) Appellant’s fundamental position is this. Victim impact evidenceis deemed relevant for one reason. Given a mitigation case that might include a “parade of witnesses” humanizing the defendant,it has been held that the law should not impose limits that “turn[] the victim into a faceless stranger.”° Rather, as respondent emphasizes, the prosecution has a legitimate interest in rebutting the mitigating evidence... [by] reminding the sentencerthat just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a uniqueloss to society and in particular to his family.’ The bulk ofthe testimony here had no probative value for this purpose beyond what a minimal, restrained presentation illuminating the humanity of the victims and simply stating that their loss hurt and traumatized those close to them would have provided. Butit affirmatively misled the jury by presenting as aggravating circumstances facts which were not. The large volume of testimony, presented in heart-rending detail, of the various manifestations of bereavement trauma experienced by a large numberof survivors actually had a negative probative value, in that it misled the jurors about whetherthe crimes were aggravated instances of death-eligible murder. Those manifestations were but instances of general phenomena commonto all homicides—not even just murders, muchless the worst of the worst. In addition, the use of detailed °Payne v. Tennessee (1991) 501 U.S. 808, 526, 525. "RB 208, quoting People v. Prince (2007) 40 Cal4th 1179, 1286, which in turn quotes Payne v. Tennessee, supra, 501 U.S. at p. 825. This Court has explained thatthis is “the rationale behind allowing victim impact evidence.” (People v. Hamilton (2009) 45 Cal.4th 863, 927.) 44 bereavement-trauma evidence brought in considerations that do not have enoughof a nexusto determining an appropriate penalty for the state to make it a factor in any other context where punishmentis meted out in California courts: nowhereelse are the ripple effects of a crime on other than direct victims taken into account. Finally, still on the probative-value side of the scale, much of the evidence presented wasof limited reliability. Asto prejudice, both the court below and the prosecutor described the testimony as extremely painful to listen to. Even a reading of it in transcription evokes strong emotion. Respondent’s position that there was no significant inflammatory impact to weigh in the balanceputs aside the entire body of this state’s jurisprudence on when testimonyrisks inflaming the jury, in favor of an unacknowledged victim-impact exceptionalism. Finally, expanding the “glimpses”ofthe lives ofthe victims andthe basic fact that they left seriously harmed survivors, into the onslaughtof tragic detail presented here, also confused the issues. For it wrongly encouraged the jurors to choose which “side” in the penalty trial was worthy of their sympathy andto believe that only the harshest sentence could respond to such grievous harm. Respondent engagesnoneofthis analysis. Respondent’s tactic is to cite cases upholding the use of victim-impact evidence generally and cases permitting the use of this or that highly specific type of testimony which parallels some individual item of evidence used against appellant. As explained above, however,appellant has not tried to argue that—if victim- impact evidence is admissible at all—any particular type of testimony used here is per se inadmissible.* Rather, it is excessive its detail, depth, and ‘With the exception of the clear inadmissibility of witnesses’ “characterizations and opinions about the crime, the defendant, and the (continued...) 45 breadth which madeit problematic overall. Respondentalso erroneouslystates that some of the approaches which appellant has suggested this Court might use to guide lower courts are the primary basis for his claim that there was error, and respondentthen notes precedentsthat hold that each suchrestriction is not per se required by the Eighth Amendment. But appellant (perhaps unlike his codefendant) has not claimed that any specific method of obviating “the potential to inflame the passionsofthe jury,” that this Court has recognized in even small fragments ofvictim-impact evidence,’ is constitutionally required. Rather, he has insisted that his claim depends on no particular bright-line rule.'° It is true that the constitutional error that infected appellant’s trial would not have happened underrules and procedures adopted byotherstates, and appellant has suggested that some version ofthem be adoptedhere.’ But, under a case-by-case constitutional analysis that relies on no suchrules,it is *(...continued) appropriate sentence.” (People v. Smith (2003) 30 Cal.4th 581, 622, quoting Payne v. Tennessee (1991) 501 U.S. 808, 830,fn. 2.) *People v. Gurule (2002) 28 Cal.4th 557, 624; see also id. at p. 654. See AOB 256-257, 263 fn. 149, 270-273; see also AOB 131-136 (overview of claim). "Appellant has proposed specific procedural and substantiverules,but not as the linchpin of his claim. He is offering them for three purposes: to assist the Court in the event that it wishes to provide a more specific framework for “trial court[s] ... [to] strike a careful balance between the probative and the prejudicial,” as the Court has repeatedly emphasized that they must“[i]n each case” in which victim-impact testimonyis offered (e.g., People v. Edwards, supra, 54 Cal.3d at p. 836.); to show how out ofsync with our sister jurisdictions California’s current de facto no-holds-barred use of victim-impact testimony is—since most of the rules come from those jurisdictions; and, as a secondary matter, to both present to this Court and preserve for anylater litigation alternative bases for reversal. 46 clear that the victim-impact case here impermissibly risked derailing appellant’s jury, indeed, that it could not have failed to do so. Respondent’s brief so misses the point that appellant can concede almost every premise of its argument concerning the victim-impact issue. Yes, this Court and the United States Supreme Court have held that victim-impact evidence,despite its hazards,is not per se irrelevant or inadmissible.'”"* Yes, this Court has “rejected bright-line limitations on victim-impact testimony.” Yes, the Court “has approved of multiple witnesses testifying to victim 9915impact. Yes, evidence of a victim’s character is, under this Court’s "RB 207,citing, e.g. Payne v. Tennessee, supra, 501 U.S. 808; People v. Edwards, supra, 54 Cal.3d 787, 835; RB 208, citing, e.g., People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1056-1057. '’Appellant arguesalternatively that the seminal federal andstate cases allowing the admission of some victim-impact testimony should no longer be followed or should be limited to their facts. The full implications of 20 years’ of experience with such testimony, appellant believes, lead to this conclusion. (AOB 256-270.) But this contention, too, is clearly presented in a context indicating that the need for reversal, on the facts of this case, is not dependent on the Court’s agreeing that such testimony should be excluded altogether. (See AOB 256,263, fn. 149.) “RB 208, citing, e.g., People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1057, which lists some limitations which have been rejected (e.g., family membersonly, or circumstances knownor foreseeable to the defendantat the time of the crime). RB 209,citing, e.g., People v. Huggins, supra, 38 Cal.4th 175. Respondent, however, goes on to cite People v. Box (2000) 23 Cal.4th 1153, 1200-1201, in support of the proposition that, “[a]s long as victim impact evidenceis not unduly prejudicial pursuant to Evidence Code Section 352, the trial court should have discretion to admit any numberofwitnesses.” Box says no such thing. It does not deal with victim-impactevidenceatall, much less suggest that the Evidence Codeis the only source of constraints on (continued...) 47 interpretation of factor (a), admissible.'*'’ Yes, this has included, in one or another case, evidenceofall kinds of specific traits and activities, illustrative anecdotes, and photographs.’* Moreover, in a general sense and within narrow limits yet to be enunciated by this Court, it is also true that family members and friends may give the jury a sense of “the various waystheir lives were adversely affected by a victim’s death.””’ It is true that the evidence need not come from blood 'S(...continued) its scope. ‘PRB 210, citing, e.g., People v. Huggins, supra, 38 Cal.4th at pp. 238-239. '”Appellant does contendthat the later impact of a crime on those who are not the direct victims is not a circumstance of that crime, but this contention, too, is presented in the alternative to the argument that, even if statutorily admissible, what was presented here went beyond whata fair and reliable proceeding would permit. (AOB 265-270.) SRB 211, citing, e.g., People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1057. PRB 215, citing, e.g., People v. Huggins, supra, 38 Cal.4th at pp. 236-238. As noted previously, however, noneofthe cases cited by respondent sought to justify—or even indicates that the Court was confronted with—testimony of the detail, depth, or emotional impact of that admitted here. For example, in Huggins, the entire description of the testimony was The jury heard testimony about the impact of Lees’s death on her family and the community. She was described as compassionate, loyal, and extroverted. Learning of her death and dealing with the aftermath was extremely traumatic for her survivors. Life in her absence had becomedifficult for her family, coworkers and friends in a numberof respects. The community mourned her death by placing a bronzestatue of her at the Pleasanton public library. (continued...) 48 0relatives of a victim,”® and that there is no bar on competent testimony concerning the impact of the crime on other family members.”! And, yes, “{t]his Court has permitted descriptions of what the victim’s family saw when they viewed the victim at the mortuary,visits to gravesites, changesin holiday celebrations, resulting drug abuse or mental disease, and other physical or mental manifestations of psychological impact from the victims’ murders.”” On the one hand, respondent’s survey showsthis Court’s refusal to impose any real standardsorlimitations, in an area wherethe threatto a fair and reliable penalty determination is the greatest. Such cases are manifestations of what trial courts and prosecutors can only perceive as an “anything-goes” attitude—except for some cautionary language concerning videotapes with evocative sound tracks. This is an attitude can only lead to "C...continued) (38 Cal.4th at p. 222.) Similar descriptions appearin the other cases cited by respondent. (See, e.g., People v. Pollock (2004) 32 Cal.4th 1153, 1166.) Ifthe evidencein appellant’s trial had approachedthis level of abstraction, it would have been far less objectionable. °°RB 215, citing, e.g., People v. Williams (2006) 40 Cal.4th 287, 306, fn. 4. “IRB 215, citing, e.g., People v. Panah, supra, 35 Cal.4th 395. The portion to which respondentis apparently referring is on page 495. RB 215-216, citing, e.g., People v. Jurado (2006) 38 Cal.4th 72. The portions of the opinion to which respondentis apparently referring are on pp. 91-92, 131-134. Respondent’s list of cases, many cited with parentheticals describing a particular manifestation of bereavement trauma, is further support for appellant’s claim that such reactionsare not unusual(1.e., not aggravating) and, if they are to be mentionedat all, should be covered in a brief and abstract manner that meets the limited purpose for which this variety of purported “circumstance of the crime” is considered relevant. 49 trials where jurors are not only overwhelmed with emotion in a manner recognized as unacceptable in any other context, but also hopelessly confused about what actually makes a crime aggravated and, as shown below, even aboutthe nature of the question before them. Beyondthis, however, none ofthe propositions respondent puts forward defeats, or even addresses, the primary claim which is now before this Court, in an in-depth argument which the Court has not encountered before. The heart of it is a demonstration that the vast majority of the victim-impact evidence admitted in this case had no non-cumulative probative value on the one subject on which it was relevantat all, that it confused the jurors into thinking that what it more obviously seemed to prove waspertinent to their decision-making, and that—bytraditional standards of prejudice—it had enormousprejudicial impact. The result—in technical terms—wasa multi- faceted violation of the state and federal constitutions. The result in common- sense, practical terms was that meansthat were fair neither to appellant nor to a society that seeks to be cautious about executing people were used to obtain a highly suspect death verdict. In the manyareas where respondenthas not addressed a pointatall, this reply summarizes the argument, both to reorient the Court to appellant’s actual contentions and to identify the matters which respondent appears unable to contest. Ata few points, respondent addressessubsidiary prongs ofappellant’s argument, while avoiding its overall logic, and this reply will deal with those below aswell. # # # Respondentalso urges this Court to avoid reaching the merits of this important question. Respondent acknowledgesthat appellant objected in the trial court to the testimony. However, respondentasserts that the objection 50 wasinadequate to preserve the claim, without citation of authority on whatis an adequate objection to proffered testimony and withoutstating the principles applicable to deciding that question.”?> Respondent makesthis claim at the outset of its argument. However, since a properanalysis ofthe procedural-bar contention depends in part on the substantive claim, the reply on the merits comesfirst. B. Respondent Does Not Address or Dispute the Bases of Appellant’s Claim That the Bulk of the Testimony Had Little Probative Value and Affirmatively Misled the Jury by Falsifying Aggravating Circumstances Appellant asks this Courtto find errorin the scope ofthe victim-impact case admitted against him based on familiar principles of due process and the Eighth Amendment. These are principles stressed by the United States Supreme Court and this Court when, under minimal facts nowhere near comparableto those of appellant’s trial, the door wasfirst openedto receiving such evidence at all. Moreover, appellant’s claim is supported by critical background information that has not previously been a part of the victim- impact controversy. “The Eighth Amendment to the federal Constitution permits the introduction of victim impact evidence, or evidence of the specific harm caused by the defendant, when admitted in order for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness.” (People v. Harris (2005) 37 Cal.4th 310, 351, emphasis added.) So to have had probative value in favor of the proposition that appellant should be put to death, testimony must have tended to show that the homicides in which he was involved were—within the class of death-eligible murders—aggravated, or “RB 205-206. 51 that his conduct wasaggravated, or that there were other aggravating factors about his own character. (See Arave v. Creech (1993) 507 U.S. 463, 474.) Of these possibilities, the only way that victim-impact evidence could be relevant as direct aggravation is to show that the crimes themselves were aggravated murders dueto the “circumstance”that survivors were so deeply affected. But to be an aggravated crime means to be atypically awful, as opposed the “normal” awfulness attending any capital murder. It is black-letter law that to be aggravated means worse or more serious,“ and respondentdoes notdispute it. Evidence of specific harm which does not in some way tend to show heightened culpability is simply not relevant. (People v. Harris, supra, 37 Cal.4th at p. 352.) Moreover, “[i]f the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstanceis constitutionally infirm.” (Arave v. Creech, supra, 507 U.S. at p. 474, citations omitted.) 1. The Claimed Probative Value of Victim-impact TestimonyIs its Use to Prevent the Crime from Being an Unreal Abstraction in the Minds of Jurors, So They Are Clear about its Gravity There is a single rationale for admitting victim-impact evidence.It only supports the kind of basic victim-impact case presentation in the seminal federal and California cases on the issue and permitted in certain otherstates, “For the meaning of aggravation, see People v. Brown (2003) 31 Cal.4th 518, 565 & fn. 20; People v. Rodriguez (1986) 42 Cal.3d 730, 788; People v. Davenport (1985) 41 Cal.3d 247, 289; CALJIC No. 8.88; Black’s Law Dictionary (7th ed. 1999) page 65 (definition of aggravate) and Webster’s 3d New Internat. Dict. (1976) page 41 (same); Black’s Law Dictionary, p. 236 (definition of aggravating circumstance, under “circumstance”). These authorities are discussed at AOB 189-190. See also authorities cited in the discussion, at AOB 216-218, of why only those circumstances of the offense tending to bear on culpability are relevant. 52 not the in-depth portrayals of the victims and ofthe effects of their killings on survivors presented here. [T]he rationale behind allowing victim impact evidenceis that ““Tt]he State has a legitimate interest in counteracting the mitigating evidence which the defendantis entitled to putin, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique lossto society andin particular to his family.’” (People v. Hamilton, supra, 45 Cal.4th 863, 927, quoting Payne v. Tennessee, supra, 501 U.S. at p. 825.) Payne, on which this Court relies entirely for the proposition that victim-impact evidence can berelevant,”* elaborated onthis, it’s sole direct rationale for rejecting Booth v. Maryland’s’® holdingthat all evidence of the character of the victim and of the effect of the crime on survivors was entirely irrelevant to culpability. Because the Eighth Amendmentvirtually eliminates limits on a capital defendant’s presentation of relevant mitigating evidence—“it unfairly weight[s] the scales” to bar the state “from either offering ‘a quick glimpse of the life’ which a defendant ‘chose to extinguish’ .. . or demonstrating the [resulting] loss to the victim’s family and to society ....” (501 U.S. 808, 822; see also id. at p. 826; id. at p. 833 (conc. opn.of Scalia, J.).) Since the mitigation case can humanize the defendant, the victim should not be left as a “faceless stranger.” (/d. at p. 825.) The point is to prevent the offense itself from being treated as an abstraction, its gravity somehow forgotten in the context of the mitigation case. Doing so *°People v. Edwards (1991) 54 Cal.3d 787, 833, 835; see also People v. Boyette (2003) 29 Cal.4th 381, 444. ©Booth v. Maryland (1987) 482 U.S. 496, 503. 53 would permit an inaccurate minimization of the defendant’s culpability.”’ Respondentagrees that this is Payne ’s and this Court’s rationale and givesit considerable emphasis. (RB 208, 214.) Appellant’s contention, which respondent declines to address, is that, to the limited extent that this is a valid concern,”* a minimalpresentationofreal humanbeingsbriefly describingtheir loss would have fully met this need in appellant’s trial, as such presentations do in otherjurisdictions. Appellant has supported this conclusion in somedepth,in a discussion which respondent ignoresentirely. First, numerousopinions of this Court and others emphasize that it is quite obvious that murder is a heinous crime with extremely serious consequences for those left to deal with the loss.”” The ?7Asabackground matter, Payne also attempted to demonstratethat the harm caused by a defendantis a traditional concern in sentencing.In fact, the sources it cited showed only that the results of a defendant’s actions are sometimes used to distinguish between classes of offenses, and their associated sentencing ranges. (501 U.S. at pp. 819-820.) Thus, for example, whether a homicidal assault succeeds in producing death determines whether it is a murderor an attempt. (See AOB 258-259 for a discussion of the few authorities marshaled in Payne). In any event, the proposition waspresentedas part of the background against which the reasoning of Booth v. Maryland, supra, 482 U.S. 496 was being rejected, not as an independent reason why victim-impact evidence bears a rational relationship to the appropriate sentence. (Compare 501 U‘S. at pp. 819-821 with id. at pp. 822, 825-827.) As noted above, this Court hasflatly stated that the idea of balancing the scales is “the rationale behind allowing victim impact evidence.” (People v. Hamilton, supra, 45 Cal.4th 863, 927.) *®But see AOB 220-224,discussing authorities showing how dynamics of a capital trial before a death-qualified jury makeit unlikely that jurors will lose sight of the seriousness of a murder. See AOB 220-221, discussing Payne v. Tennessee, supra, 501 U.S. (continued...) 54 contextis different, i.e., the point is usually used to reject a defense claim that the consequencesare too unforeseeableto relate to the defendant’s culpability, or that such evidence is not prejudicial because it repeats what is known. Clearly, however, the reasoning cuts both ways. If defendants can be held accountable for the secondary consequences of their conduct because the contours of what those consequences would be is obvious, than there is no pressing need to prove the obvious to the jury in great depth and detail. Moreover, this is particularly true of death-qualified jurors. Many such jurors—in general and in appellant’s trial—come to court believing that everyone who intentionally kills deserves death, and they thus enter the process with sympathies entirely oriented towards victims, not defendants.*° Second, according to those who havestudied the issue, the dynamics of a capital trial cause the defendant who enters a penalty trial to actually have a heavy uphill burden in arguing for life. The crime gets a more human,less abstract face during the guilt phase, when evidencerelating to the victim often comes in, and often through the testimony of family members.*' That *°C...continued) 808, 838 (conc. opn. of Souter, J.); Godfrey v. Georgia (1980) 446 U.S. 420, 428-429; People v. Marks (2003) 31 Cal.4th 197, 236; People v. Robinson, supra, 37 Cal. 4th 592, 652, fn. 33; see also People v. Brown, supra, 31 Cal.4th 518,573; People v. Holloway (2004) 33 Cal.4th 96, 110, 143-144; People v. Douglas (1990) 50 Cal.3d 468, 536-537. *°See AOB 220. *'This is pointed out in Payne v. Tennessee, supra, 501 U.S. 808, 823; People v. Hardy (1992) 2 Cal.4th 86, 200; and State v. Williams (N.J. 1998) 550 A.2d 1172, 1203. 55 definitely happened here, in many waysdiscussed in the opening brief.** The penalty phase began with the jury having heard all about horrible crimes done, without justification or even explanation, by defendants who simply appeared to be inhuman monsters. This Court and other authorities have explained in depth why this is typically so and the difficulty facing the defense at this point.’ Thus appellant’s opportunity to havefinally put something ofa human face on himself created norisk of his crimes somehow beingscaled backinto law-schoolhypotheticals or a reviewing tribunal’s statement offacts. Had this not been the case, the prosecution’s opportunity to remind the jurors in argument of what appellant had done and “the predictable and obvious 9934 consequencesto the victims’ families and friends””” would havesufficed. In this setting, it would have taken verylittle testimony to exhaust the rationale for victim-impact evidence’s relevance. Informing the jury that the victim had someidentity or left some survivors merely states what any person would reasonably expect and can hardly be viewedas injecting an arbitrary factor into a sentencing hearing. But the more detailed the evidence relating to the character of the victim or the harm to the survivors, the less relevantis such evidenceto the circumstances of the crime or the character and propensities of the defendant. (State v. Bernard, supra, 608 So. 2d 966, 971, fn. omitted; see also Adkins v. Brett (1920) 184 Cal. 252, 258-259 [whena party has a legitimate purposefor introducing evidence whichis also capable ofmisuse, court should take special See AOB 222. *?People v. Deere (1985) 41 Cal.3d 353, 366-367, disapproved on other grounds in People v. Bloom (1989) 48 Cal.3d 1194, 1228, fn. 9, and other authorities discussed at AOB 221-224. “People v. Sanders (1995) 11 Cal.4th 475, 550, allowing such argument, even without evidence on such matters having been admitted. 56 care to exclude cumulative testimony].) As appellant has shown in the opening brief and reiterates below,this is the view of courts in manysister states, but it has not prevented prosecutors from obtaining death verdicts while providing victim-impact evidence of much less quantity and depth than that used here.*° In sum, the balance-the-scales rationale identifies a need that is somewhere betweenfictitious and minimal, and it could have been met with minimal testimony,not the onslaught on the emotionsto which appellant’s jury wassubjected. Respondent does not dispute this point. The tacit concession is enormous, because both the statutory and constitutional tests that apply to the instant claim depend on weighing the added probative value of the challenged testimony against its prejudicial and confusing impact. 2. The Detailed Bereavement-Trauma Evidence Used Here Misled the Jurors About Whether the Crimes Were Aggravated a. Failure of the Survivors’ Reactions to Show an Aggravated Death-Eligible Murder The testimonypresented at appellant’s trial was not only notparticularly probative, but grossly misleading on the question of whether appellant’s crimes were aggravated. It provided the jurors—again underthe guise of aggravation— with excruciating portrayals of the various forms of agony suffered by many ofthe people affected by the murders. But the mental-health literature in the specialized field of traumatic grief makesit absolutely clear that these impacts were typical.*° I.e., even if it were to be conceded—andthis **See p. 74 and fn. 64, below. *°An appellate court may rely on published studies that provide facts—sometimescalled “legislative facts’—about the background against (continued...) 57 is not a concession which appellant makes—that unknowingly causing worse- than-usual harm to those who loved a murder victim could make the perpetrator’s conduct aggravated, the testimony present here did not show worse-than-usual harm. Not only were the sequelae described by the prosecution witnesses typical of every death-eligible murder, but they were typical of every non- capital first-degree murder, every second-degree murder, every homicide (criminal or excusable), every suicide. The content of the pervasive, disturbing thoughts that is among the effects may vary—“Why would God allow this to happen?”or “Why didn’t those bureaucrats markthe intersection better?” versus “How could one humanbeing do that to another?” But the range of normal impacts is basically the same.*’ *°(...continued) which basic legal questions are decided (as opposed to facts about the particular case). See, e.g., Kennedy v. Louisiana (2008) U.S. ,_ sg 121 L.Ed.2d 525, 540, 128 S.Ct. 2641, 2651; Roper v. Simmons (2005) 543 U.S. 551, 569-570, 573; Brown v. Board ofEducation (1954) 347 U.S. 483, 494, fn. 11; Hovey v. Superior Court (1980) 28 Cal.3d 1, 25-62, 68; Serrano v. Priest (1971) 5 Cal.3d 584, 591-595, 600-601 & accompanying fns.; Guevara v. Superior Court (1998) 62 Cal.App.4th 864, 870, fn. 2; Woolhandler, Rethinking the Judicial Reception ofLegislative Facts,41 Vand. L.Rev. 111 (1988). *7Amick-McMullen, et al., Family Survivors of Homicide Victims: Theoretical Perspectives and an Exploratory Study (1989) 2 J. of Traumatic Stress, #1; Cable, GriefCounselingfor Survivors ofTraumatic Loss, in Doka, ed., Living With Grief After Sudden Loss:Suicide/Homicide/Accident/Heart Attack/Stroke (1996) (“Living With Grief”); Carroll et al., Complicated Grief in the Military, in Doka, ed., Living With Grief; Cummock, Journey of a Young Widow, in Doka, ed., Living With Grief; Doka, Sudden Loss: The Experiences of Bereavement, in Doka, ed., Living With Grief; Figley, Traumatic Death: Treatment Implications, in Doka, ed., Living With Grief; (continued...) 58 Thereis a significant probability that a survivor of a loved one who was victim to any of these sudden,violent deathsis suffering post-traumatic stress disorder.*® Accordingto an oft-cited expert, “When death occurs from sudden, unexpected circumstancessuch as accidents, suicide or murder, bereavement reactions are more severe, exaggerated and complicated. The mourner’s capacity to use adaptive coping mechanisms is overwhelmed.”*’ It has been found that there are few differences in the degree of trauma suffered by survivors of homicide victims and people killed by drunk drivers.*° With a decedent whois not elderly and appears healthy, even “suddenloss of a loved one from heart attack or stroke can be as unexpected and devastating to the family and friends ofthe deceased as suicide, homicide and accident.” As with 37,continued) Hersh, After Heart Attack and Stroke, in Doka, ed., Living With Grief; Leviton, Horrendous Death and Health: Toward Action (1991); Lord, America’s Number OneKiller: Vehicular Crashes, in Doka, ed., Living With Grief; Rando, Complications in Mourning Traumatic Death, in Doka, ed., Living With Grief; Rando, Parental Bereavement, in Rando, ed., Parental Loss of a Child (1986); Rando, The Unique Issues and Impactofthe Death ofa Child, in Rando, ed., Parental Loss of a Child (1986); Rando, Treatment of Complicated Mourning (1993); Redmond, Sudden Violent Death, in Doka, ed., Living With Grief; Redmond, Surviving When Someone You Love Was Murdered: A Professional’s Guide to Group Grief Therapy for Families and Friends of Murder Victims (1989); Sanders, Accidental Death ofa Child, in Rando,ed., Parental Loss of a Child (1986). **Figley, Traumatic Death: Treatment Implications, in Living With Grief, supra, p. 94-95; Rando, Complications in Mourning Traumatic Death, in Living With Grief, supra, p. 139; see also Lord, America’s Number One Killer: Vehicular Crashes, in Living With Grief, supra, pp. 25-26. Redmond, Sudden Violent Death, in Living With Grief, supra, p. 53, emphasis added. “Lord, Vehicular Crashes, supra, p. 25. 59 survivors of other traumatic deaths, the loved ones “suffer a uniquely wrenching loss that starts with shock and may endin familial and personal dysfunction.” Where, as with several of the witnesses here, the decedent is the survivor’s child (young or grown), the parents’ problems “are extreme,” regardless of the cause of sudden death.” Finally, any death involving physical violence to, and mutilation of, the decedent, is significantly more difficult to process. This includes accidents.” All ofthis informationis in appellant’s opening brief. (AOB 191-194.) It comesfrom a surveyofthe literature on the subject and is uncontroversial within the field. Respondent doesnot dispute it. Appellant has also analyzed the victim-impact testimony in his case and shownthat every single specific phenomenondescribed by one or another witness—including the persistence years later of effects like obsessive thinking about the death; rage; irrational fears; health, relationship, substance-abuse problems; and unimaginable levels of grief and anguish—is describedin the literature as within the normal range of reactions to traumatic deaths. This meansall traumatic deaths, not just homicides, and not just the “worst of the worst” homicides. (AOB 194-203.) Again, respondent does not claim otherwise. It is not, however, general knowledgethat the extreme reactions of the prosecution’s witnesses and ofthe other people whose experiencesthey related "Hersh, After Heart Attack and Stroke, in Living With Grief, supra,p. 17; see also Rando, Complicated Mourning, supra, 504, 505-506. “Rando, Complicated Mourning, supra, 9; see generally Rando,ed., Parental Loss of a Child (1986). ‘Rando, Complicated Mourning, supra, pp. 504-505, 511, 512. 60 were what is to be expected, so the jurors were affirmatively misled into believing that the harm caused here was in fact worse than the norm and therefore aggravating. “Clinicians and criminal justice professionals are often staggered by the depth of emotional suffering experienced by survivors.” Indeed,the literature cited by appellant is clearly written to sensitize mental health professionals and others regularly dealing with survivors of traumatic deaths to what such people actually go through.** Muchofit emphasizes the therapeutic need to teach survivorsthat their extreme experiencesare normal.”° Like untrained mental health professionals and untreated survivors, and the trial court here, appellant’s jurors were unequipped to expect the survivors’ reactions, much less reject them as aggravation. b. Constitutional Implications Appellant presents information about the typicality of the survivors’ reactions, and the lack of cultural awareness of the intensity of bereavement trauma, to show the limited probative value of the testimony,in the context of constitutional claims depending on the weighing of probative value versus prejudicial effect. However, he also maintains (AOB 204-209) that misleading appellant’s jury about what constituted aggravation givesrise to several free-standing claims. First, evidence ofimpacts of appellant’s crimes, “*Amick-McMullen, et al., Family Survivors of Homicide Victims: Theoretical Perspectives and an Exploratory Study (1989) 2 J. of Traumatic Stress, #1, 21, 22. “See e.g., Rando, Complicated Mourning, supra, 4-5, 12-16 (discussing mental health practitioners’ limited understanding). “°E.g., Cable, GriefCounselingfor Survivors ofTraumatic Loss, supra, at pp. 119, 123, 125; Redmond, Surviving When Someone You Love Was Murdered: A Professional’s Guide to Group Grief Therapy for Families and Friends of Murder Victims (1989) pp. 68, 70. 61 impacts which wereindistinguishable from those caused bypractically all other death-eligible and even non-death-eligible defendants, failed to “rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not.” (Spaziano v. Florida (1984) 468 U.S. 447, 460; see also id. at p. 460, fn. 7; U.S. Const., 8th Amend.) More generally, providing the sentencer with misleading or seriously inaccurate information violated the Due Process Clause of the Fourteenth Amendment,” as well as the Eighth Amendment.” Additionally, ifa statutory sentence-selection factor is vague enough to permit the jury to rely on an illusory circumstance in choosing death, the criterionitself falls short of Eight and Fourteenth Amendment requirements.” Thus,ifthis Court construes Penal Code section 190.3, factor(a), to encourage the jury to treat compelling, but not aggravating, circumstancesas aggravation, the statute itself is unconstitutional. The ban on a circumstance so vaguethat it permits the jury to include illusory aggravation was violated in another way as well. The weighing of aggravation and mitigation wasto assess appellant’s “culpability—what[his] “United States v. Weston (9th Cir. 1971) 448 F.2d 626, 634; see also United States v. Tucker (1972) 404 U.S. 443, 447; Townsend v. Burke (1948) 334 U.S. 736, 741; People v. Arbuckle (1978) 22 Cal.3d 749, 754-755; People v. Chi Ko Wong (1976) 18 Cal.3d 698, 719, overruled on anotherpoint in People v. Green (1980) 27 Cal.3d 1. “’Grege v. Georgia (1976) 428 U.S. 153, 190 (plurality opn.); see also Johnson v. Mississippi (1988) 486 U.S. 578, 590. “Stringer v. Black (1992) 503 U.S. 222, 235-236; see also People v. Bacigalupo, supra, 6 Cal.4th 457, 473-474, 477. 62 »>° But there was no basis forintentions, expectations, and actions were. believing that appellant intended or expected to cause such appalling harm to the victims’ survivors, since in fact the harms predictable by experts are unknownto the lay public, so from this angle, too, factor (a) was applied to permit illusory aggravation. Finally, the testimony diverted the jury from the individualized sentencing required by the Eighth Amendment”!to non-uniqueaspects of the crimes. c. Respondent’s Silence Respondent does not dispute that the witnesses’ detailed testimony about bereavement trauma presented illlusory aggravation. Certainly respondenthastacitly concededthe factual premise of appellant’s logic: that the testimony appeared to show unique, aggravating aspects of the crimes of which appellant was convicted, but in reality it did not. Yet what is thus conceded in respondent’s briefing is not mentioned. Respondent simply presents what seemslike a generic response to concerns about victim-impact evidence. Respondentoffers this Court neither authority nor logic to help it confront the problem of extensive bereavement-trauma testimony, testimony whichfails to show that the crime was more aggravated in its impact than a drunken driver’s vehicular manslaughter, but gives the appearance of showing aggravation in the extreme. To recapitulate the argumentto this point, even apart from the way the testimony misled appellant’s jury, the undisputed clinical literature about *°Enmund v. Florida (1982) 458 U.S. 782, 800 *"'Enmund v. Florida, supra, 458 U.S. 782, 801; see also Tison v. Arizona (1987) 481 U.S. 137, 156; Jurek v. Texas (1976) 428 U.S. 262, 271. 63 bereavement trauma showsthat a major portion of the evidence admitted against appellant simply lacked significant probative value on the issue of death-worthiness. Under the following headings, appellant shows that two other points regarding lack of probative value are also uncontested: the rejection in every other context where penalties are assessed of the use of extensive “specific-harm” evidence, and the unreliability of much of the evidentiary picture presented to appellant’s jury. 3. Comparable Evidence Is Rejected in All Other Contexts Imposition of the death penalty requires heightened rationality and reliability.” Yet in appellant’s trial, the use of detailed bereavement-trauma evidence depends onlogic rejected in every other context where punishment is meted out in California courts. Appellant demonstrated in the opening brief that in-depth testimony about the specific harm caused brought in “facts not even deemedrelevantat all in areas of law that are distinguishable only in that they have beenless of a populist political football: sentencing in non-capital crimes, the assessmentofpunitive damages, and imposition ofcivil penalties.” (AOB 230.) The only exceptionslie in the traditional sense of legislatively classifying crimes according to whether there was injury or death, etc., or immediate circumstances of the offense which help show the defendant’s actual behavior and intentions. (AOB 209-211 and casescited.) Respondentdoesnot disagree. Nor, however, does respondentprovide a reason for supporting this death-penalty exceptionalism. What has been rejected in all other contexts, therefore, can only be accepted hereif it is within the rationale articulated in Payne: that there is some probative valuein limited Johnson y. Mississippi (1988) 486 U.S. 578, 584; Monge v. California (1998) 524 U.S. 721, 732. 64 testimony to remind any jurors who need reminding that the life of a real person was violently and tragically ended, and that other real people were deeply affected. The rest, which clearly exceeds what the Payne court sought to justify or contemplated, is at best cumulative, meaning that it is unneeded by the prosecution for its legitimate purpose, adding nothing to the probative- value side of the probative-value/prejudicial-effect scale. 4. The Probative Value of Both TypesofVictim-Impact Evidence Was Further Limited by its Unreliability Unreliability of evidence detracts from its probative value. (People v. Murtishaw (1981) 29 Cal. 3d 733, 773-774.) Citing both authorities and examples from histrial, appellant has documentedthe “inevitable tendency of drawn-out and detailed victim-impact testimony to provide idealized or sanitized portraits ofthe victims; somewhatstylized, black-and-white images of the unbroken bleakness of the survivors’ lives; and various forms of incompetent and other objectionable testimony.” (AOB 211-216; quotation from p. 216.) Respondent does not dispute appellant’s factual premise,i.e., that the reliability of the un-cross-examined testimony in these areas is inherently weak in significant respects. Respondent acknowledgesthis point,or at least the part that pertains to the idealization of the victims. It urges the Court not to consider some ofthe information that proves it.’ (RB 210, fn. 69.) Respondent’s only actual rejoinder, however,is that appellant supposedly “had the opportunity to cross- examine the victim impact witnessesattrial on these matters[,]... chose not to do so[,] and may not now complain.” (RB 213.) Three sentenceslater, In the cited portion of its brief, respondent answers appellant’s anticipated motion for judicial notice of certain items. Since the matter will be litigated in that motion, appellant is not replying here. 65 however, respondent accurately quotes this Court as prohibiting such cross- examination. (/d., quoting People v. Boyette (2003) 29 Cal.4th 381, 445.) Evenifcross-examination were theoretically available, itis well known that, in the real world, its benefits could not be obtained without paying a prohibitive price injuror goodwill.” Andit is no answerto say that defendants must often make hard tactical choices. If neither option available to a defendant (cross-examining or refraining from doing so) can produce a fair and reliable result, the outcomeis a procedure that necessarily infringes on fairness andreliability. The fact that appellant chose which wayhis penalty trial would be made unfair and unreliable should not meanthat he cannot now complain.” Appellant anticipated respondent’s argument aboutthe availability of cross-examination and dealt with it as here, although in more depth;”° respondent has no answer. “See AOB 211-212, citing Johnson, Speeding in Reverse: An Anecdotal View of why Victim Impact Testimony Should not be Driving Capital Prosecutions (2003) 88 Cornell L.Rev. 555, 565; Payne v. Tennesee, supra, 501 U.S. 808, 823 [“for tactical reasons it might not be prudentfor the defense to rebut victim impact evidence”]; State v. Humphries (S.C. 1996) 479 §.E.2d 52, 55-56 [defense, though it possessed evidence of victim’s temperanduse of alcohol, did not cross-examine or present rebuttal]; Fahey, Payne v. Tennessee: an Eye for an Eye and Then Some (1992) 25 Conn. L.Rev. 205, 255. See also Logan, When Balance and Fairness Collide: An Argumentfor Execution Impact Evidence in Capital Trials (2000) 33 U. Mich. J.L. Reform 1, 28, quoted at AOB 213. >This Court has sometimesrejected arguments abouta situation being one in which a defendantcould not reasonably be expected to take action, but it apparently has never addressed the argument madeabove. (See, e.g., People v. Pollock (2004) 32 Cal.4th 1153, 1181.) °°AOB 211-212, 213, 214, 215 & fn. 115. 66 The same problem rendered illusory the possibility of interrupting the witnesses’ heartful outpourings with objectionsto the large amounts ofhearsay testimony, as well as incompetent psychological opinion testimony*’ and various violations, discussed below, of the ban on evidence of the victims’ viewsof the crimes and perpetrators. So none of the four defense attorneys present did so. (See People v. Cunningham (2001) 25 Cal.4th 926, 1034 [recognizing importance of avoiding alienating jury]; People v. Johnson (1993) 6 Cal.4th 1, 51 [same].) Moreover, in the instant case, none of the questions that elicited opinions about the crime and the perpetrators were objectionable as calling for such opinions. They were framed as questions about the witnesses’ experiences. (RT 49: 7289, 7301, 7322, 7371.) So objections would have been in the form of truly obnoxious-seeming motions to strike the aggrieved family members’ answers. Moreover, a directive to disregard the offending remarks would be ineffective. For all ofthese reasons, open-ended victim impact evidence, i.e., that admitted without trial-court preview before admission, “is inherently uncontrollable.” (Mosteller, Victim Impact Evidence: Hard to Find the Real Rules (2003) 88 Cornell L.Rev. 543, 554.) Respondent does not address the issue of incompetent evidenceatall, althoughitis part ofappellant’s claim (AOB 214-216). Thus, on the sub-issue of the unreliability of the evidence further limiting its probative value, respondent’s only rejoinderis the claim that the portion of unreliability created RT 49: 7284—-7285,7290-7291, 7293-7294, 7298-7299, 7300-7301 (Roybal-Aragon statements that could not come from personal knowledge); 7316 (speculative answer from Hopkins); 7295-7298 (Roybal-Aragon’s psychological analyses of the nature and origins of her children’s problems—attributing them entirely to the death), all cited at AOB 214. 67 by one-sided portraits of the victims and of the survivors’ experience could have been corrected by cross-examination, a claim whichis legally erroneous and ignoresthe practical realities of a penalty trial. 5. Conclusion Regarding Probative Value “fT]he individualized assessment of the appropriateness of the death penalty is a moral inquiry into the culpability of the defendant... .” (California v. Brown (1987) 479 U.S. 538, 545 (conc. opn. of O’Connor,J.).) Payne v. Tennessee held that victim-impact evidenceis not per se irrelevant to that inquiry for the purposes of passing muster under the Eighth Amendment. Therationale for its admission is to “remind[] the sentencer,” which,it is feared, might get lost in the mitigation case, “that . . . the victim is an individual whosedeath represents a uniquelossto society andin particular to his family.” (Payne v. Tennessee, supra, 801 U.S. at p. 825.) In the usual case, including appellant’s,this is not a disputed fact which requires extensive victim-impactevidenceforits proof. Moreover, to the extent that the evidence admitted here seemed to show that appellant’s offenses were aggravated instances of special-circumstance murder, it was probative of a falsehood. Its peculiar capacity to produce idealized characterizationsofthe victims and black-and-white portrayals ofthe survivors’ experiences, combined with its general lack of susceptibility to cross-examination (along with this Court’s holding that there is no right to cross-examination about the victim’s character), rendered much ofit of dubiousreliability. It proved facts not even deemed relevant in every other area of law where an appropriate penalty must be assessed. _In yet another point ignored by respondent, appellant pointed out that, “if actions speak louder than words, this Court has proclaimed resoundingly that it sees little probative value in such evidence. ... When the Court marshals the evidence 68 supporting [a death] verdict, it tends not to include victim-impact testimony that was in the record.””* As to all of these points regarding probative value, respondent controverts only the statement that unreliable testimony could not have been cross-examined. Given, as shown in the next sections, the tremendous degree to which the excessive victim-impact evidence necessarily introduced emotionality rather than reasoninto appellant’s penalty trial and its tendency to confuse the jury regarding the question beforeit, its low—and even negative—probative value allowed it to undermine the “acute need for reliability in capital sentencing proceedings” (Monge v. California, supra, 524 U.S. 721, 732), while also violating the other constitutional criteria for capital sentencing on which appellantrelies. C. The Prejudicial Effect of the Testimony Was Extreme For both the Evidence Codesection 352 analysis and considering the due process/Eighth-Amendmentclaim,the prejudicial! or inflammatory impact ofthe testimony must be evaluated. Appellant contendsthat the victim-impact evidence was emotionally overwhelming. Its inflammatory impact was entirely outside the realm of whatthis and other courts allow in any context other than the victim-impactinnovation, and it outweighedits quite limited probative value. Before taking up respondent’s argumentonthis point, it is necessary to °*SAOB 299, citing People v. Guerra (2006) 37 Cal. 4th 1067, 1083, 1164; People v. Cornwell, supra, 37 Cal. 4th 50, 64, 104-105; People v. Wilson (2005) 36 Cal. 4th 309, 355-356, 361; People v. Lenart (2004) 32 Cal. 4th 1107, 1117, 1133-1134; People v. Ochoa (2001) 26 Cal. 4th 398, 420-421, 460; but see People v. Roldan (2005) 35 Cal. 4th 646, 725. 69 consider some language which has crept into this Court’s opinions since the filing of appellant’s opening brief. “Unless it invites a purely irrational response from thejury, the devastating effect of a capital crime on loved ones and the community is relevant and admissible as a circumstanceof the crime undersection 190.3, factor (a).” (People v. Lewis and Oliver, supra, 39 Cal.4th at pp. 1056-1057; accord, People v. Brady, supra, 50 Cal.4th 547,574.) The only support for this formulation as a state-law test was a citation to Peoplev. Edwards, supra, 54 Cal.3d 787, 835-836. But Edwards cautionedtrial courts what to avoid; it did not purport to set a standard for what is and is not admissible. Quoting People v. Haskett, supra, 30 Cal.3d at page 864, and citing cautionary language from Payne as well, the Edwards court wrote, Nevertheless, the jury must face its obligation soberly and rationally, and should not be given the impression that emotion may reign over reason. [Citation.] In each case, therefore, the trial court must strike a careful balance between the probative and the prejudicial. {Citations.] On the one hand,it should allow evidence and argument on emotional though relevant subjects that could provide legitimate reasons to sway the jury to show mercy or to imposethe ultimate sanction. On the other hand, irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its proper role or invites an irrational, purely subjective response should be curtailed. (54 Cal.3d at p. 836, brackets in original.) The Haskett/Edwards language was not an attempt to formulate a test for what is admissible. The Court has never attempted to justify quoting—or, rather, misquoting—a phrase from it and saying thatall testimony that does notinvite “a purely irrational response”is per se admissible under state law. Doingsois to suggest that as long as there is a potential for some degree of rationality to still linger in the jurors’ decision-making—a test that will always be met no matter how grave the onslaught on their emotions—highly inflammatory evidence can comein. 70 Again, this is not how the law of evidence worksin any other area—rather, an actual inquiry into the risk of biasing the result is undertaken, and with far more caution.” Ifthe death-penalty context evokesa different treatment, there should be more caution, not less. In any event, respondent characterizes the quantity of testimony admitted in this case as “reasonable” (RB 209), asserts that its quality was that of “standard victim impact testimony” (RB 212), and implies the strange proposition that it has been established as a matter of law that testimony about the impact of a murder on survivors can never beparticularly inflammatory. As to this last, respondent, in asserting that the evidence here was not inflammatory, writes, It is well-established that testimony by family members about the various waystheir lives were adversely affected by a victim’s death is proper. [Citations.}| That families are aggrieved is an “obvious truism” and an “obvious and predictable” consequence ofmurder. (People v. Sanders (1995) 11 Cal.4th 475, 550.) While victim-impact evidence is obviously emotional, it is not surprising or shocking. (/d.) (RB 215.) Certainly there are cases in which the testimony admitted was found not to be unduly inflammatory. But neither Sanders nor any other authority holds that this will be true everywhere and always. “Evidence about the victim and survivors, and any jury argument predicated onit, can of course be so inflammatoryas to risk a verdict impermissibly based on passion,not deliberation.” (Payne v. Tennessee, supra, 801 U.S. at p. 836 (conc. opn. of Souter, J.); see also id. at p. 831 (conc. opn. of O’Connor, J.) [referring to “t]he possibility that this evidence may in some cases be unduly inflammatory”].) Indeed, there was no victim-impacttestimonyatall in the See AOB 232-233 and cited cases. 71 case that respondent quotes; the issue was about prosecutorial argument concerning the likely impact on the victims’ families and friends. (People v. Sanders, supra, 11 Cal.4th 475, 550.) Theother statementattributed to Sanders, a generalization that victim- impact evidence, though emotional, is not surprising or shocking,” does not appear in the opinionat all. Nor has respondent cited authority holding that testimony must be surprising or shocking to be inflammatory or risk a substantial prejudicial impact. Rather, even Evidence Codesection 352—not to mention the narrower constraints of the Eighth Amendment—must be considered when evidenceis “likely to engender sympathy for the victim ... [or] to arouse the emotions of the jurors... .” (People v. Edelbacher (1989) 47 Cal.3d 983, 1016.) As explained in the introduction to this argument, respondent also emphasizesthat muchofthe testimony covered topics brought up by witnesses in other cases, where this Court found the testimony to be admissible. (RB 211, 215-218.) This is beside the point, since appellant does not argue that particular subjects are per se out of bounds. Respondent’s argument contains no statement of the law concerning evidence that can have both probative value and a prejudicial impact on penalty deliberations. Respondent’s digression into examples of subjects covered in othertrials does not tend to show that the volume, scope, and quality of the testimony admitted here did not have a powerful emotional impact. 1. The Testimony Was Overwhelming a. The Qualitative Nature of the Evidence Normally an appellant soft-pedals facts that make him or her look bad, RB 215, citing 11 Cal.4th at p. 550. 72 and the respondent emphasizes them. Here a strange reversal belies respondent’s claim that the victim-impact testimony wasso slight in quantity (RB 209) and had so little emotional or inflammatory power(e.g., RB 212) that it could not have affected the penalty verdict at all. For respondent outlines the evidence in two pages of its argument (RB 216-218), while appellant details it in 28 (AOB 138-166). Appellant’s summaryis whatis required to “get” the heart-rending testimony and develop somefeel for how it must have affected the jury; respondent would have the Court rely on an overview thatis dry, technical, and abstracted from what the jury really heard. Respondent emphasizes that the transcribed testimony occupies less than 100 pages. (RB 220.) This fact makes not unreasonable appellant’s request (AOB 138) that the Court readit, and try to read it as a juror would hearit, just as the Court examines photographs challenged as inadmissible, photographic lineups claimed to be suggestive, and disputed video- and audiotapes. It is extremely doubtful that the Court can read that testimony, even in a “cold record,” without becoming choked up with feeling, angry at both appellants, or deeply disturbed at how horribly so many people were affected by these crimes in a way that qualitatively differs from the usual impact of reading an abstract summaryofthe facts of these cases. One cannot read those pages and accept respondent’s implicit position that the evidence arouses no biasing emotional responserising evento the level ofthat produced by evidence routinely banned as inflammatory, like the fact of a civil defendant’s being insured, which is excluded even whenrelevant to some 73 other issue,’ or evidence of a crime victim’s drug use.” b. The Quantity of the Evidence Asto the quantity of the testimony, any characterization of its volume raises the question, “Compared to what?” In Payne v. Tennesee there was one question aboutthe effect ofthe crime on a survivor whowitnessedit, and a 52- word, six-sentence answer.” Jd. at pp. 814-815. In the case in whichthis Court first admitted victim-impact evidence, the evidence was three photographsofvictims taken while they werealive. (People v. Edwards (1991) 54 Cal.3d 787, 832.) There were 96 pages of testimony here. (RT 49: 7276-7372.) In contrast, a prosecutorial victim-impact argument that was reproduced in two pages of the United States Reports was considered “extensive” by both the United States Supreme Court and the Supreme Court of South Carolina. (South Carolina v. Gathers, supra, 490 U.S. 805 , 808-810, 810 [quotation]; State v. Gathers (S.C. 1988) 369 S.E.2d 140, 144.) In Texas, victim-impact testimony that covered less than two pages of the case reports was characterized as a witness’s testifying “at length.” (Haley v. State (Tex. App. 2003) 113 S.W.3d 801, 816-817, aff'd (Tex.Crim.App. 2005) 173 S.W.3d 510.) As appellant has already observed, prosecutors in many published cases °' Helfend v. Southern Calif. Rapid Transit Dist. (1970) 2 C.3d 1, 16-17 & fn. 23; 1 Witkin, Cal. Evid. (4th ed. 2000) Circum Evid, § 133, p. 482. People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Kelly (1992) 1 Cal.4th 495,523 See AOB 231-233 for other examples of evidence normally considered inflammatory. This would occupya fifth to a quarter of a page in the testimony of one of the victim-impact witnesseshere, so the quantity here was about 400 to 500 times as great. Appellant’s earlier estimate of 200 times (AOB 135) was in error. 74 have chosen,or been required, to present testimony that was far shorter than what was admitted here, and yet they succeededin obtaining death verdicts.” The Indiana Supreme Court found 29 pages of testimony by three witnesses, which was admitted erroneously, to be such a majorpresentation that it found it prejudicial without even needing to consider the remaining evidence before the jury. (Lambert v. State (Ind. 1996) 675 N.E.2d 1060, 1065.) This Court described 37 pages of testimony that was of a quality like that provided here as “extensive[].” (People v. Robinson (2005) 37 Cal. 4th 592, 644.) Yet to respondent, who declines to acknowledge Robinson, or any of these previously-cited”authorities, a characterizationthatthe 96 pagesoftestimony here was voluminous“is simply not true.” (RB 209.) Perhapscasesreachthis Court in which there was even more testimony. But a half marathonisstill a long race even if some people run marathons. The testimonyin this case was extensive in absolute termsandby the standards of the cited precedents. 2. Respondent’s Standards Ignore ThoseofSister States Respondent’s page-numberanalysis and conclusory characterizations cavalierly brush aside concerns aboutthe quantity and quality ofthe testimony °*AOB 226 andfn. 119, citing United States v. Stitt (4th Cir. 2001) 250 F.3d 878, 898 (3 victims, 19 transcript pages); People v. Cornwell (2005) 37 Cal. 4th 50, 64 (one witness, “brief testimony”); Smith v. Gibson (D.Okla. 2002) 2002 U.S. Dist. LEXIS 27527, *216 (9 pages). State v. Irish (La. 2002) 807 So. 2d 208, 215 (5 pages); State v. Miller (La. 2000) 776 So. 2d 396, 412 (4 witnesses, 15 pages); Crawford v. State (Miss. 1998) 716 So. 2d 1028, 1054 (conc. opn. of Banks, J.) (6 pages); State v. Jacobs (N.M. 2000) 10 P.3d 127, 152 (dis. opn. of Serna, J.) (2 witnesses, 17 pages); State v. Green (Ohio 2000) 738 N.E.2d 1208, 1235 (conc. opn. of Cook, J.) (15 pages); Dodd v. State (Okla.Crim.App. 2004) 100 P.3d 1017, 1046, fn. 8 (2 victims, 26 pages; no witnesstestified for more than 5 pages). °°AOB 176,fn. 96. 75 admitted here. And respondent ignores the constraints adopted by the many other jurisdictions—most of which are not particularly known for sympathy towards capital defendants—which take a far more cautious view than California currently does. Texastrial courts are instructed by the higheststate court with criminal jurisdiction to “guard against the potential prejudice of ‘sheer volume,’ barely relevant evidence, and overly emotional evidence. A 166) into the victim’s life and backgroundis not an invitation to an‘glimpse instant replay.” (Salazar vy. State (Tex.Crim.App. 2002) 90 S.W.3d 330, 336.) The New Mexico Supreme Court, citing Payne for the proposition that inflammatory evidencestill must be excluded, requires victim-impact evidence to be “brief and narrowly presented.” (State v. Clark (N.M. 1999) 990 P.2d 793, 808, citing Payne, supra, 501 U.S. at p. 825 andid. at p. 831 (conc. opn. of O’Connor, J.).) Louisiana’s high court allows evidence “[i]nforming the jury that the victim had someidentity or left some survivors,” while cautioning against “introduction of detailed descriptions of the good qualities of the victim or particularized narrations of the emotional, psychological and economic sufferings of the victim’s survivors... .” (State v. Bernard (La. 1992) 608 So. 2d 966, 971, 972.) Witnesses maytestify generally “that they missed [the victim] very much, and that they were deeply affected,” without being questioned “about particular aspects of their grief” or giving “detailed responses to general questions.” (State v. Taylor (La. 1996) 669 So.2d 364, 372.) The testimony exceeded whatother states would permit as well. Florida limits evidenceto “the victim’s uniquenessas an individual human being and °°The referenceis to the Payne opinion, which heldthat the Constitution permits a state to offer “‘a quick glimpse ofthe life’ which a defendant ‘chose to extinguish’... .” (501 U.S. 808, 822, citations omitted.) 76 the resultant loss to the community[],” excluding bereavement-trauma testimony altogether. (Windom v. State (Fla. 1995) 656 So.2d 432, 438.) Tennessee, while permitting some testimony aboutthe survivors’ loss, requires trial courts reviewing proposed victim-impact evidence in limine to be particularly cautious in allowing “evidence regarding the emotional impactof the murder on the victim’s family.” (State v. Nesbit (Tenn. 1998) 978 S.W.2d 872, 891; see also State v. McKinney (Tenn. 2002) 74 S.W.3d 291, 309; Turner y. State (Ga. 1997) 486 S.E.2d 839, p. 842 [Georgia court approves statements that did not “provide[] a ‘detailed narration of . .. emotional and economic sufferings of the victim’s family’”].) In New Jersey, too, “[t]he testimony can provide a general factual profile of the victim, including information about the victim’s family, employment, education,and interests.” (State v. Muhammad(N.J. 1996) 678 A.2d 164, 180.) While it “can describe generally the impact of the victim’s death on his or her immediate family,” it “should be factual, not emotional, and should be free of inflammatory commentsor references.” (/bid., emphasis added; accord, United States v. Glover (D.Kan. 1999) 43 F.Supp.2d at pp. 1235-1236.) Finally, at least two jurisdictions seek to contain victim-impact testimonybylimiting it to one witnessper victim. (State v. Muhammad, supra, 678 A.2d at p. 180; 725 Ill. CSA. 120/3(a)(3), 120/4(a)(4).) All of this information wasin appellant’s openingbrief.°’ Respondent fails to comment on the jurisprudenceof other jurisdictions requiring brevity and generality in comments about the victim and about the difficulties the survivors faced (where the latter testimony is admissibleat all), the standards of which were clearly violated here. Respondent’s only rejoinderis that this °TAt pages 134, 135 and fn. 83, 180-185, 226 and fn. 119. 77 Court and others have approved ofmore than one witness per homicide victim. (RB 209-210.) But the point is not that the particular constraint must be adopted; the point is that some constraints, and some guidanceto thetrial courts and counsel, are required, because their absence leaves the door open to the extremely evocative testimony provided to appellant’s jury. In the samevein, respondent asserts that there were “a reasonable six witnesses”for the three homicides. (RB 209.) Apart from the fact that most testified at great length and all went into excessive, evocative detail, respondent overlooks the fact that many described what they believed to be the effects of the crime on other people,to the point that the losses and trauma of 17 people were put before the jury. (See RT 49: 7276-7371, summarized at AOB 138-166.) In sum, respondent hasnot successfully challenged either the fact that the testimony was indeed voluminous in comparison to even a case in which this Court found testimony occupying 40% as manytranscript pages to be “extensive[],”” nor the fact that its emotional impact was extremely intense and well beyond anything tolerated in any other judicial context. 3. Respondent’s Attempt to Substitute Precedent for Analysis Misses the Mark Respondent’s seemingly-impressive catalog of this Court’s precedents upholding admission of testimony on subjects similar to those covered by the witnesses against appellant could obscure what respondent avoids, 1.e., most of whatis truly relevant to whetherthe fofality of the victim-impact evidence admitted in this case had a significant inflammatory or prejudicial potential. Respondent fails to acknowledge, much less grapple with, the following °§People v. Robinson, supra, 37 Cal. 4th 592, 644. 78 principles: The Eighth Amendment and the Due Process Clause of the Fourteenth Amendmentclearly require a case-by-case review of whetherthe evidence admitted in a particular case could lead to an emotional, rather than rational, jury response and a non- individualized sentence (see AOB 167-170); this Court’s cases originally permitting the use ofvictim-impact testimony emphasizedthe needfortrial courts, “/i]n each case,” to carefully balance “the probative and the prejudicial” and exclude testimony “that diverts the jury from its properrole or invites an irrational, purely subjective response,” principles which the Court has never explicitly questioned; The United States Supreme Court ultimately held victim-impact testimony to not be per se inadmissible only because four members of the majority expected lower courts to exercise careful, case-by-case control of how far the testimony and argument would goin each case;”° Language in some ofthis Court’s cases seeming to suggest that only in an extreme case could victim-impact evidence raise °°People v. Haskett (1982) 30 Cal.3d 841, 864, emphasis added; People v. Edwards, supra, 54 Cal.3d 787; accord, People v. Panah (2005) 35 Cal.4th 395,495. See AOB 170, 172-175. Payne v. Tennessee, supra, 501 U.S. 808, 831 (conc. opn. of O’Connor, J., joined by White and Kennedy, JJ.), 836-837 (conc. opn. of Souter, J., joined by Kennedy,J.), cited at AOB 180. These opinionsrepresent the views of four members of the six-person majority, explaining why they were willing to end the former prophylactic ban on the use of victim-impact evidence altogether. 79 constitutional concerns developed incrementally and without analysis” and, taken literally, violates federal constitutional principles.” Respondent addresses none of these points. Besides ignoring the need for a case-by-case analysis and seeking to obscure the actual power of the testimony present here, respondent further leaves unacknowledged,and unrebutted,the following elements ofappellant’s analysis of the prejudicial impact of the testimony used against him: this Court has acknowledged that a stipulation that a murder victim’s mother knew he was unarmed, from hugging him goodbye whenshelast saw him, was “highly inflammatory,”” that a brief description of his religious views “obviously carried the potential to inflame the passions of the jury”,and that anothervictim’s always carrying a prayer bookhada significant potential for prejudice;” appellant’s trial judge described the day that victims’ survivors testified as “a very painful and agonizing [day] for everyone 99.76 who wasin the courtroom”; other judicial accounts ofthe impactofsuch testimonyareofthe "See AOB 171-180. See AOB 176-187. ®People v. Gurule (2002) 28 Cal.4th 557, 622. “Td. at p. 624. Id. at p. 654; see AOB 231-232. 7©9/9/2002 RT 318, cited at AOB 234. His more extensive comments on why it was a day he would always rememberare quoted at AOB 132. 80 same tenor;”” . the prosecutor acknowledged to appellant’s jurors that that day was“one ofthe hardest days of yourlife” and that “the pain, the heartache, the fear” that his witnesses had described “is so overwhelmingthat it’s hard evento listen to it”;”* ° the context—a subjective sentencing decision, not an objective fact-finding process—not only made it more difficult to put aside emotion, but left jurors without much reason for doing so;”? ° empirical studies support the conclusion that victim-impact evidence has a strong influence on jurors’ votes despite its low probative value;*” . as noted above, other jurisdictions, including even Texas, see the federal constitution and fundamentalfairnessas requiring far more caution in regulating victim-impact evidence than what respondent advocates;*! ° in some jurisdictions the controls were adoptedat the initiative "See quotations at AOB 235 and 236, including one from another Riverside California judge, who defended the admission of testimony that required him to stop listening in order to maintain his composure. RT 54: 8087, 8003, respectively, quoted at AOB 237. ™See AOB 237-238 and casescited; see also People v. Leonard (2007) 40 Cal.4th 1370, 1418 [“emotion need not, indeed, cannot, be entirely excluded from the jury’s moral assessment”]. *°See AOB 238-240. *'See AOB 180-186. 81 of prosecutors;” and ° as noted above, whetheror not the evidence used here waswhat in California is now a “standard victim impact” case,** its obvious emotional impact was qualitatively greater than many types of evidence routinely bannedin various civil and criminal contexts because oftheir potential to inflame anddivert ajury.’ Respondent never addresses the powerful emotional pull of victim- impact testimony, something normally not questioned even by advocates for its use.*” Respondent cannot explain why the high court was divided over whethervictim-impact evidence was admissibleat all or take into accountthat, whenit reverseditself, it acknowledged that there were risks of prejudice that required control.*° It never acknowledgesthe jurisprudenceofthis Court that originally banned even mild precursorsto victim-impact testimony,”’ or, again, whensuchtestimony was permitted, used strong language about caution and See AOB 185, discussing Turnerv. State, supra, 486 S.E.2d 839, 842, fn. 5; State v. Muhammad, supra, 678 A.2d 164, 179-180. RB 212. “See AOB 231-233. See, e.g., People v. Panah (2005) 35 Cal.4th 395, 495, quoting People v. Edwards, supra, 54 Cal.3d at p. 836; see also the portions of People v. Gurule, supra, quoted aboveat p. 80. 8°Payne v. Tennesee (1991) 501 U.S. 808, overruling in part Booth v. Maryland, supra, 482 U.S. 496; see discussion of these cases and concurring opinions in Payne at AOB 291, fn. 181. *7People v. Love (1960) 53 Cal.2d 843, 857 (evidence of victim’s suffering “served primarily to inflame the passions of the jurors”). 82 control.®8 Thesensitivity to the need of society to not have people put to death because of emotional manipulation by zealous prosecutors, a sensitivity which led, for example, Nevada’s high court to ban even a sentence in argument reminding the jurors that the family of the victim would spend no more holidays with her®’ is entirely foreign to the consciousness which respondent wants this Court to continue to bring to the issue. In a state whereit is proper to exclude relevant evidence that a witness is a prostitute because of its possible inflammatory impact on the jury’s evaluation of her credibility,” respondentinsists that the evidence here was “not . . . inflammatory”atall. (RB 217.) Be that as it may, any honest appraisal of the testimony must acknowledge that its prejudicial impact was intense. The criminal-justice system does not normally subject jurors to such heart-rending testimonyatall, and civil trials do only when necessary to show the extent of a compensable loss. When there may be a clear need to do so, the question of balancing the interests involved should not be approached in the dismissive fashion advocated by respondent. Rather, it should be done with the caution demanded *’People v. Haskett (1982) 30 Cal.3d 841, 864; People v. Edwards, supra, 54 Cal.3d 787, 835-836; see also People v. Bacigalupo (1991) 1 Cal.4th 103, 152-154 (conc. opn. of Mosk, J.) (need for clear instructions to minimize the harm caused by victim-impact evidence); People v. Hovey (1988) 44 Cal.3d 543, 586 (conc. opn. of Mosk,J.) (references to “devastating impact” of testimony andlikelihood of inflaming and diverting jury) *°Hollaway v. State (Nev. 2000) 6 P.3d 987, 993, 994. Here the prosecutor asked five out of his six witnesses what holidays were like now, then reread several of the responses in his summation. (RT 49: 7298, 7315, 7341, 7352, 7370; 54: 8009, 8011, 8088.) ”°People v. Phillips (2000) 22 Cal.4th 226, 234. 83 by this Court whenit held that even prosecutorial argument pointing out the likely impact on victims needsattentive regulation by trial courts “strik[ing] a careful balance between the probative and the prejudicial” and excluding “irrelevant information . . . that diverts the jury from its properrole or invites an irrational, purely subjective response ....” (People v. Haskett (1982) 30 Cal.3d 841, 864.) Since this is to be done “[i]n each case”(ibid.), appellantis entitled to a fresh look at what was presented here. No review of the testimony, undertaken with an understanding of what prejudicial effect normally is understood to meanin the context of a jury trial, can conclude that there was not an effect of such gravity that it would take a great deal of probative value to justify its admission. D. The Testimony Confused the Issues 1. The Testimony Wrongly Encouraged the Jurors to Choose Which “Side” Was Worthier of Sympathy and to Believe That Only the Harshest Sentence Could Respond to Such Grievous Harm With victims’ survivors supporting—at length—the prosecution’s case for death, the jurors’ ignoranceofthe rule prohibiting the defense from calling other family members or close friends to express their desire for a life ‘verdict,’ and a mitigation case dependent on witnesses from appellant’s family, another fatal dynamic was addedto the penalty deliberations. The jury wasleft with the false impression that the it was to weigh sympathy for the victims’ family against sympathy for appellant and his family. As appellant argued in the openingbrief, this was not the weighing that the law calls for, and it was a contest appellant had to lose. The question should have been what wasthe appropriate way to punish appellant, given what he did, who he was, *!People v. Smith, supra, 30 Cal. 4th 581, 622-623. 84 and how hegot to be who he was. (See Zant v. Stephens (1983) 462 U.S. 862, 879; People v. Musselwhite (1998) 17 Cal.4th 1216, 1267-1268.) It is not only appellant’s view that victim-impact testimony, especially if extensive, creates confusion about this task; scholarly research and judicial authorities discussed in the openingbrief illuminate the phenomenon.” Closely related to the contest-of-sympathies issue was the creation of an impression that the suffering of the victim-impact witnesses and the 11 other people whose experiences they described itself demanded the most severe sentence available. This flew in the face of the jury’s task being “to tailor the defendant’s punishment ‘to his personal responsibility and moral guilt.”””? As a New Mexico Justice has pointedout, the jury is implicitly but clearly being asked to do something about the family’s pain, i.e. to return a death verdict.” In an Ohio vehicular homicide case, a sentencingjudge erred, after hearing a numberofvictim-impact witnesses, by choosing a sentencethat ”AOB 241-244, citing State v. Smith (Ohio App. 2005) 2005 Ohio 3836; State v. Carter (Utah 1994) 888 P.2d 629, 652; State v. Allen (N.M. 1999) 994 P.2d 728, 772 (conc. & dis. opn. of Franchini, J.); State v. Muhammad, supra, 678 A.2d 164, 196 (dis. opn. of Handler, J.); Haney, Death by Design: Capital Punishment as a Social Psychological System (2005) p. 156 [citing Nusbaum, Upheavals of Thought: The Intelligence of Emotions (2001), p. 447, and Bandes, Empathy, Narrative, and Victim Impact Statements (1997) 63 U.Chi. L.Rev. 361]; Sundby, The Capital Jury and Empathy: The Problem of Worthy and Unworthy Victims (2003) 88 Cornell L.Rev. 343, 372-373; Dubber, Regulating the Tender Heart When the Axeis Ready to Strike (1993) 41 Buff. L.Rev. 85, 86-87, 127. *>People v. Beeler (1995) 9 Cal.4th 953, 991, quoting Enmund y. Florida (1982) 458 U.S. 782, 801; see also Tison v. Arizona (1987) 481 U.S. 137, 156. “State v. Allen (N.M. 1999) 994 P.2d 728, 772 (conc. & dis. opn. of Franchini, J.), cited at AOB 244. 85 would not “demeanthe seriousnessofthe offense.” The appellate court noted that the trial judge lost sight of the fact that the loss of life it was referring to would be true of any vehicular homicide, and it attributed the error to the volume of the victim-impact testimony which the lower court had heard.” Surely a lay jury is even more susceptible to the error of thinking that the sentence had to be the harshest available in order to adequately recognize the survivors’loss. The closest respondent has to an answerto anyofthis is a statement that “it was proper for the prosecutor . . . to argue that death is the only appropriate meansfor redressing the loss” of a unique victim, citing Peoplev. Montiel (1993) 5 Cal.4th 877, 935, and People v. Clark (1993) 5 Cal.4th 950. While appellant has noted that the jury-confusing dynamic created by the victim-impact presentation was reinforced by prosecutorial argument, he has made no claim of prosecutorial misconduct.” In any event, it is true that Montiel assumedthe propriety of argument about redressing the victim’s loss. But that question was notat issue and received no analysis in the opinion.” State v. Smith (Ohio App. 2005) 2005 Ohio 3836, discussed at AOB 244. *’See AOB 248. *’The entire discussion: “Defendantasserts the prosecutor improperly argued that the victim’s family favored the death penalty. However, a reasonable jury would interpret the prosecutor’s plea for death ‘for’ the victim’s ‘children and family’ as merely a claim that the supreme penalty was the only appropriate means of redressing the injury. ” Jd. at p. 935. No authority was provided in support ofthe assumptionthat it was properto argue that punishment should be assessed according to what is necessary to redress the injury. 86 In citing Clark, respondentgivesnovalid point page.”* The case doesdiscuss prosecutorial argument about the victim. (5 Cal.4th at pp. 1033-1034.) The only sentence conceivably relevant to respondent’s contention is this: “It is permissible for the prosecutor to urge that the jurors rememberthe victim and the life that she might have led.” (5 Cal.4th at p. 1034.) This is not an endorsement of argument either that the jury should assess a penalty commensurate with the survivors’ losses, or that the penalty question is a matter of which side most deserves the jury’s sympathy—much less a procedure that piles on so much victim-impact evidence that the juryis left with the impression that these questionsare largely what the penaltytrial is about. Neither this nor the Montiel comment demonstrates that extensive victim-impact testimony does not havethe effect of confusing a jury—atleast one unguided bya limiting instruction’”’—aboutits tasks. 2. Irremediable Booth/Payne Violations Strengthened the Survivors’ Role as Advocates for Death The Eighth Amendment forbids “the admission of a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence ....” (People v. Smith (2003) 30 Cal.4th 581, 622, quoting Payne v. Tennessee, supra, 501 U.S. at p. 830, fn. 2; see also Booth v. Maryland, supra, 482 U.S. 496, 508-509.) Violations of this restriction are almost inevitable when witnesses are permitted to answer open-ended questions about their experience, rather than reading prepared statements. It is only natural, when asked for one’s reaction to a loved one’s murder, to include one’s thoughts about the senselessnessor brutality of the crime,as the **Respondentcites “5 Cal.4th at p. 950”(RB 212), but page 950is the first page of the opinion. *°See appellant’s ArgumentIII. 87 testimony in this case illustrated.’ Here there were a number of such Booth/Payne violations. In any event, while not emphasizing a free-standing Booth/Payne claim, since the violations were only a part of what made the victim-impact case a disaster for fair adjudication of the penalty, appellant argued that when family membersrepeatedly gave their opinionsofthe crimes and those responsible, the testimony heightened the tendency to portray the jury’s task to be determining whether sympathy for the victims and their survivors outweighs sympathy and other considerations favoring the defendant, and the consequent urge to vindicate the survivors. (AOB 244-248.) Respondentignoresthis point but does address whether there were Booth/Payneviolations. The most extensive offending comments, containing direct appeals to the jury; powerful, argumentative characterizations of what the defendants did; and an eloquent, entirely prosecutorial portrayal ofwhat her stepson must have experienced, came from Lydia Roybal-Aragon. (RT 49: 7289, 7301, quoted at AOB 245-246.) There is no way to deny that her statements were forceful opinions about the crime and the perpetrators, and respondent does not deny it directly.'°’ However, respondent purports to summarize the complained-of testimony, while omitting most of it and paraphrasing other '°See AOB 245-246andcited portions of the record. 'l'There is no doubt that this and other testimony fell into the banned categories. Booth: “She can’t believe that anybody would do that to someone.” (482 U.S. at p. 508.) Witnesses here: “[N]o one should do that to someone else” (RT 49: 7289), “I can’t see .. . how they could take his life” (RT 49: 7371). Booth: The perpetrators “didn’t have to kill, because there was no one to stop them from looting.” (482 U.S. at p. 508.) Here: It was “senseless, . . . sadistic meanness.” (RT 7289.) Most of the rest of the testimony (quoted at AOB 245-246) was actually more inflammatory. 88 parts of Roybal-Aragon’s presentation. (RB 217-218.) This attempted deception only highlights the truth of appellant’s contention. In the offending testimony, Roybal-Aragon answered questions about whetherthe impact on her was worsethan if it had been an accident, and the effect on her of thinking about what her stepson had gone through. A prepared, appropriately-vetted statement could have answered those questions without violating Payne and Booth: The fact that it was intentional madeit harder to accept because it seemed like it shouldn’t have happened. And what I wastold about the defendants’ specific behavior is very hard for me to deal with. I often imagine the last moments of his life, and doing so is heart-breaking. Instead she gave what added upto overa full page of specific characterizations ofthe crimes and the perpetrators, by way of sharing the ruminations that were part of her reactions.'©” Respondent relies on People v. Pollock, supra, 32 Cal.4th 1153, without, however, responding to appellant’s analysis of it. (RB 219; cf. AOB 247.) Pollock accepted the admission of such characterizations—althoughit appears that they were not nearly as colorful and extensive as here—on the basis that they laid a foundation for explaining how the crimeshad affected the witnesses. (/d. at p. 1182.) The Pollock holding, if extended as respondent believes it should be, would clearly violate Booth and Payne. Those cases require exclusion of family members’ characterizations of the crime and the criminals because the formal presentation of this information by the State can serve no other purpose than to inflame the jury and divertit from deciding the case on the relevant evidence concerning the crime See AOB 245-246, quoting RT 49: 7289, 7301. 89 and the defendant. ... The admission of these emotionally charged opinions as to what conclusions the jury should draw from the evidence clearly is inconsistent with the reasoned decisionmaking we require in capital cases. (Booth v. Maryland, supra, 482 U.S at pp. 508-509.) Nothing in that reasoning permits the conclusion that the ban can be evaded by repackaging characterizations of the crime and defendantsas part of the thoughts that the witnesses have to deal with in their internal experience. Pollock’s explanation for a contrary conclusion wasthat the statements at issue elaborated on how the crimes affected the witnesses, a category of evidence whichthis Court believed Payne held to be generally admissible. (32 Cal.4th at p. 1182.) But the disapproved characterizations of the crimes and criminals in Booth were integrated into the victim-impact statement in the same manner. They werepart of a free-flowing narrative, and they definitely helped illuminate the family members’ pain and anger. (Booth v. Maryland, supra, 482 U.S at pp. 508, 511-512, 513.) Similarly, in a more recent federal case, a Navajo witness testified, “It’s been really hard . . . to know that someone within our own kind, our own people would be so disrespectful for our own culture and our ownbelief, our owntraditional values, how we teach our young people.” (United States v. Mitchell (9th Cir. 2007) 502 F.2d 931, 990.) This, too, was testimony about the witness’s experience, but it also “was an inadmissible opinion about [the defendant]’s crime[,] and the error was obvious... .” (lbid.) If Pollock’s holding has the breadth which respondentattributesto it, there would be no need for Payne ’s distinction’ between testimony about the impact ofcrimesonthe victims’ survivors and those person’s characterizations '5501 U.S. at p. 830, fn. 2. 90 of the crimes and perpetrators. In every case, how the witnesses view the crimesand the defendants will affect how they are impacted emotionally. Moreover,the high court’s distinction between evidence of the impact of the crimes on loved ones, and the loved ones’ views of the crimes and the perpetrators, represents an implicit but obvious probative-value/prejudicial- effect analysis. At appellant’s trial, a powerful case regarding the harm done to the witnesses could have been made without adding “emotionally charged opinionsas to what conclusions[aboutthe perpetrators and the nature oftheir conduct] the jury should draw from the evidence.” (Booth v. Maryland, supra, 482 U.Sat pp. 508-509.) A brief, abstract reference to the circumstances of the crimes, such as the version suggested for Roybal-Aragon on page 89, above—circumstances well known to the jurors—explains a witness’s emotional reactionsjust as convincingly as a personal characterization ofthose circumstances does. The probative value is obtained without adding the far moreprejudicial details about the witnesses’ opinions about the defendants and their crimes. Appellant argued in his openingbriefthat Pollock’s apparent summary conclusion to the contrary is mistaken, at least if extended beyond its facts. Respondent has no answer,despite its total reliance on Pollock. Evenifthe still-vital constraints ofBooth v. Maryland could be avoided under People v. Pollock, respondent overlooks the extent to which the testimony complained of here does not even fall under Pollock. Some of Roybal-Aragon’s characterizationsofthe crimes and perpetrators were,in fact, part of an explanation of what was hard for her. (RT 49: 7289.) But a lengthy portrayal of what she thought were Aragon’s final moments—which in many 91 states would not even have been permitted in prosecutorial argument'’*—was not. (RT 49: 7301.) Similarly, Stephanie Aragon had already described her struggle understanding her brother’s death; ~ her adding that what the defendants did wasto “comeupto him andjust take him awaylike they owned him” (RT 49: 7324) wascertainly not permitted by Pollock. And only a broad construction of Pollock, one which wouldturnit into a gaping evisceration of Booth, would justify admission of James Jones’s testimony.’” But determining whetherany ofthe challenged statements managed not to violate Booth,as potentially reinterpreted in Pollock, is following a tributary of appellant’s claim while ignoring the river, which respondentnavigates away 14See AOB 246,citing People v. Spreitzer (Ill. 1988) 525 N.E.2d 30, 45 (it was “highly improper. . . to invite the jurors to enter into some sort of empathetic identification with the victims”); Von Dohlen y. State (S.C. 2004) 602 S.E.2d 738, 745 (listing numerousjurisdictions that ban such argument as inviting jurors to decide case from a biased perspective). Angela Mans and Catherine Mansalso characterized the crimes by providing opinions about their loved one’s final moments. One thought she saw fear on the face of Timothy’s body; the other pictured him struggling for breath at the end. These portrayals happened to be couched in terms that would fall under Pollock. (RT 49: 7349, 7350; 7344.) '5Asked if the murder affected him differently than a fatal illness or accident would have, he replied in the affirmative, adding—probably mistakenly, according to the psychological literature—that he could have understood the latter more easily. Then he went on, unnecessarily sharing compelling details about his thought process that were also a powerful characterization of the crime: But I can’t see that anyone would want to take a kind and generouskid like he was, and probably who would have hugged him and kissed him and told him that he loved him, how they could take his life. (RT 49: 7371.) 92 from. First, Pollock is not good law ifit is understood to permit violating the rule in Booth whichthe United States Supreme Courtleft intact in Payne, and all of the challenged statements violated that rule.'°° Even ifthey did not, they potentiated the greater problem of a process that set up the victims’ family membersas advocatesfor the prosecution’s case for death, juxtaposed against the defendants’ family members as advocates for mercy, and thus made inescapable the conclusion that the jury’s job was, as the prosecutor argued, to judge the winnerin “a battle for your sympathy and compassion.”’”” (RT 48: 7271.) In sum, the testimony wasnotonly as inflammatory as testimony gets and extremely weak on probative value; it also confused and misled the jury as to the question before it. This is another reason why its admission, to the extent and in the form that it came in, was therefore error. (U.S. Const., 8th and 14th Amends.; Evid. Code § 352.) 3. The Prosecution’s Focus on Appellant’s Least Serious Crime But the One With the Most Appealing Victim and Witnesses Exemplified and Heightened the Problem of Juror Confusion Confusion of the issues on which the jury was to focus was both confirmed and heightened by the prosecution’s disproportionate focus on the homicide in which appellant had the least involvement, but which permitted the most appealing victim-impact presentation. The prosecution case, as presented through Jose Munoz, showed appellant to be far more involved in the Mans-Jones shootings than the Aragon '°°Their incorrectability via motionsto strike is discussed at pp. 66—67, above. '*’The prosecutor’s argumentreinforced this conceptionin severalother ways as well. (See AOB 248.) Respondent does not disagree. 93 killing. (See AOB 249-251.) Yet more than half of the victim-impact case was devoted to Aragon, who was a much more appealing victim, and whose family could present themselves morearticulately. (See AOB 251-252.) This was not a mere byproduct of the joint trial: when the prosecutor read extensively from the victim-impact testimony in argument—toappellant’sjury alone—twice as much came from the Aragon witnesses as from those from either the Jones or Mans families. (RT 54: 8008-8018.) This reflected a seriousthreat to the “special need for reliability in the determination that death is the appropriate punishment”'”* that was one of the reasons why the high court initially banned victim-impact testimony: those whokilled victims seen as more worthy could be more likely to be executed. The Payne opinion countered that the Court believed that this phenomenon wasunlikely,at least within the limited scope ofvictim-impact evidence contemplated by that court and presented in that case.” Here, however, as a prosecutor took advantage of the absence of guidance from this Court on how to cabin victim-impact evidence, the presentation fell into the pitfall which Booth anticipated. And, once again, the bias shifted the jury’s attention from the question of the appropriate sentence, given appellant’s culpability, to the supposedly appropriate sentence, given the sympathy due to a victim’s family. Respondent, unable to respond, has no answerto this point. E. The Scope of the Victim-Impact Case Violated Appellant’s Eighth-Amendment and Due-Process Rights In this section appellant assembles the pieces of his argument that a '°8People v. Horton (1995) 11 Cal.4th 1068, 1135, quoting Johnsonv. Mississippi (1988) 486 U.S. 578, 584, internal quotation marks omitted. ‘Compare Booth v. Maryland, supra, 482 U.S. at p. 506 & fn. 8, with Payne v. Tennesee, supra, 501 U.S. 808, 823. 94 gravely excessive victim-impactpresentation violated Eighth- and Fourteenth- Amendmentlimitations. Respondent’s compilation of precedents upholding, piecemeal, particular types oftestimony bypassesthe logic of appellant’s claim and leaves untouched his conclusion, even though many of the types of testimony cited by respondent appeared in this case. Respondent’s authorities do not purport to approve a case whereall the proof appearing in respondent’s compilation was aggregated in one case, nor do they confront the claim summarized in the following paragraphs First, the bulk of the victim-impact testimonyhadlittle probative value and actively misled the jury, because it failed to provide evidence that the harm causedby appellant’s crimesdiffered from that incident to a wide range of intentional and accidental homicides, while creating the powerful illusion that the offenses actually were aggravated(i.e., worse than other death-eligible murders) because of the survivors’ horrible experiences in the months and years that followed;'!° the state recognizes in non-death cases that harm caused indirectly to those who werenotthe targets ofmisconduct bears no rational relationship to punishment;'"' the evidence tended to idealize the victims and inaccurately portraying an unbroken bleakness in the survivors’ lives, in a manner subject to no reality testing, while the absence of adversarial controls permitted incompetent lay psychological opinion evidence and hearsay testimony about others’ "See pp. 57 et seq., above, and AOB 188et seq. '" See pp. 64 et seq., above, and AOB 209etseq. 95 experiences;'’? and ° the vast majority of the evidence was superfluous, adding nothing legitimate to the small amount that would have exhausted its only claimed probative value: the purported need to remind the jurors who mayhavefinally heard the defendant humanized that murder is a serious crime that harms real people.’ Second, by traditional standards of prejudice—those applied to every other type ofevidence—the capacity ofthe testimony to evoke strong emotions wasextreme,i.e., of a different order of magnitude than that of evidencethat normally causes courts serious concern. The painful experience of reading 4 even a summary of the testimony''* confirms the prosecutor’s label of “overwhelming”!” and the judge’s extensive comments about its profound effects.'’® Such testimony was admitted in a realm—the “subjective” penalty- selection choice (People v. Box (2000) 23 Cal.4th 1153, 1201)—where feelings predominate over fact-finding. Therefore there is no real way to set aside the emotions, nor an obvious reason to do so. If this were not enough, the victim-impact case strongly, and wrongly, suggested that a major determinant of penalty was which “side” was more deserving of the jurors’ sympathies. It strengthened that effect with Booth violations and the shift of '?See pp. 65 et seq., above, and AOB 211 et seq. '3See pp. 52 et seq., above, and AOB 216 etseq. '"4See AOB 138 et seq. "RT 54: 8003. "69/9/2002 RT 318, quoted at AOB 132, 234; see also 11/12/2002 RT 519, quoted at AOB 234 96 focus to the crime where appellant was least culpable but where the most powerful presentation could be made. And, in doing so, it validated longstanding concernsthat victim worth will be a yardstick by which juries determine penalty. While some ofthese considerations could apply to other cases, the point is that, in this case, it is an understatement to say that the victim-impact presentation was excessive. In lay terms, securing a death verdict by both misleading the sentencer and overwhelming its judgment with emotion, using testimony, the bulk of which proved nothing legitimate that had not been proven already, was simply wrong. In terms of constitutional doctrine, there was scarcely a pertinent constraint that was not violated. The sentencer’s reliance on information that was unreliable in its idealized portraits of the victims and one-sided descriptions of the lives of the survivors, unreliable for its inclusion of speculative psychological opinions and hearsay testimony about people not present, and—most especially—misleading in its appearance of showing an aggravated homicide, all meant that the sentencer lacked the accurate information required by both due processin any sentencing proceeding''’ and the Eighth Amendmentin a capital one.''® By “creat[ing] the risk that the jury will treat the defendant as more deserving of the death penalty than he might otherwise be by relying upon the existence ofan illusory circumstance,” the misleading and unreliable testimony further violated the Eighth Amendment ""Townsend v. Burke, supra, 334 U.S. 736, 741; People v. Chi Ko Wong, supra, 18 Cal.3d 698, 719. "’Greggv. Georgia, supra, 428 U.S. 153, 190 (plurality opn.); Johnson v. Mississippi, supra, 486 U.S. 578, 590; People v. Bacigalupo, supra, 6 Cal.4th 457, 477. 97 by creating “bias in favor of the death penalty.” Thus, factor (a), interpreted to allow consideration of such testimony—rather than appropriately guiding the jury as to what sentence to impose—became impermissibly vague.'”” Evenapart from the poor-quality information, the excessive testimony violated the Eighth Amendment’s requirementof reliable capital decision- making’” by overwhelmingthe jury with prejudicially emotional material, the vast majority of which had no probative value on the central issue of appellant’s culpability, beyond what a much more controlled presentation would have provided. The infusion ofsuch emotionality also violated the due- process requirement of a fundamentally fair proceeding.’*’ All of these dynamicspermitted arbitrary and capricious imposition of the death penalty, further rendering the proceedingsat odds with the Eighth Amendment.’” The > was thusrationality in sentencing that the Eighth Amendment requires’ absent, a fact throwninto relief by the state’s disinterest in using the ripple effects of any other kind of misconduct in assessing appropriate penalties.'”* The Eighth Amendment’s further requirement of an individualized "Stringer v. Black, supra, 503 U.S. 222, 235-236; People v. Bacigalupo, supra, 6 Cal.4th 457, 473-474. '2°Mongev. California, supra, 524 U.S. 721, 732; People v. Horton, supra, 11 Cal.4th 1068, 1134. '2!Payne v. Tennessee, supra, 501 U.S. 808, 825; People v. Edwards, supra, 54 Cal. 3d 787, 835. '22Pulley v. Harris, supra, (1984) 465 U.S. 37, 53; People v. Williams, supra, 44 Cal.3d 883, 950. '?Beck v. Alabama,supra, 447 U.S. 625, 637-638; People v. DeSantis (1992) 2 Cal.4th 1198,1231. '4See pp. 64 et seq., above, and AOB 209et seq. 98 sentencing determination based “upon the circumstances surrounding both the offense and the offender”!”° wasviolated, again becauseofthe misleading use and inaccurate nature ofthe evidence placed before the sentencer—especially the mannerin whichthat evidence masqueraded as beingindividualizedto the particulars of how bad appellant’s crimes were, while it was but the instantiation of generic phenomena commonto sudden,violent deaths. The imperative ofan accurately individualized sentencing choice wasalso violated by the way the rational inputs to the jury’s process were overborne by emotionality. Respondent’s survey of cases wherethis or that type of testimony was upheld againstthis or that attack answers none of this. Respondent overlooks the bulk of appellant’s actual argument because respondent has no answerto that argument. There was, in fact, fundamental error in the proceedingsthat led to appellant’s receiving a death sentence. F. The Error Was Prejudicial If a single juror could have been influenced bytrial error in performing the subjective calculus that produced his or her penalty vote, the judgment must be reversed.'”* Appellant’s opening brief showsthe error in the method which respondent assumes is used to analyze whether that could have happened; emphasizes the trial judge’s and prosecutor’s remarks on the '25People v. Musselwhite, supra, 17 Cal.4th 1216, 1267-1268; see also Zant vy. Stephens, supra, 462 U.S. 862, 879. "Chapman vy. California, supra, 386 U.S. 18, 23 (error not harmless if it “possibly influenced the jury adversely”); In re Lucas (2004) 33 Cal.4th 682, 734 (question, under Strickland standard,is whether“there is a reasonable probability that at least one juror would have struck a different balance”), quoting Wiggins v. Smith (2003) 539 U.S. 510, 537; People v. Box, supra, 23 Cal.4th 1153, 1201 (penalty decision is “subjective”). 99 incredible emotional powerofthe evidence erroneously admitted and notes the prosecutor’s heavy reliance on that evidence in argument; and points out the jurors’ possible interpretations— undisclosed by their verdicts—of a complex body of evidence concerning appellant’s role in the crimes for which he was being sentenced,as well as the possible interpretations of evidence regarding alleged factor (b) aggravation. Yet respondentfails to respondto anyofthis. Instead, respondent writes but four paragraphs on its own view of the harmlessnessissue and asserts, in conclusory terms,that “[e]ven if the victim impact evidence had been excluded, the outcome would have remained the same.”!” (RB 221.) Respondentsidesteps the question ofhow far an appellate court can go in deciding that significant evidence intended to sway a jury’s subjective decision-making could not possibly have doneso, implicitly inviting this Court to substitute its own view of the evidence, from acold record,for that of a jury unaffected by error. Respondent’s approach is threefold. First, it offers its own judgmentthat the evidence at issue was so insignificant in comparison to (respondent’s view of) other aggravating evidence—which(in its view again) wasnot balancedby significant mitigating testimony—thatit could have had no effect on a juror’s decision-making. Respondent makesthis bald assertion despite the facts that the victim-impact evidence left no dry eyes in the 128courtroom, according to the trial judge,“ that it caused him to remark "7Respondentfirst addresses penalty-phase prejudice in portionsofits brief dealing with two other errors, but the treatment is the same. The only differenceis that itexpands respondent’s characterization ofthe circumstances of the crimes somewhat, based on respondent’s one-sided summary of the evidence. (RB 83, 148-150.) 89/9/2002 RT 318. 100 spontaneously—six years later—that it was presented during a day that he “will always have with me,”!”’ and that page after page of it was reread by the prosecutorin his penalty summation. Second, respondent incorporates a view of the circumstances of the crimes and appellant’s role in them that unjustifiably relies on the prosecution’s version of highly disputed facts and thereby ignores the contrary evidence regarding the circumstances of the crimes. Respondent handles the other-crimes evidence introduced in aggravation in the same manner. Third, respondent asks this Court to indulge the fiction that a general instruction about avoiding bias or prejudice would be taken by the jurors as clear guidance about the limited degree to which the evidence should affect them emotionally, how those emotions should affect their assigning significance to the evidence, and the degree to which the evidence actually showed anything about appellant’s supposedly enhanced culpability. None ofthis meets respondent’s burden or answers whatappellant said in Arguments | and II.G in the opening brief about why that burden cannotbe met. 1. Respondent Wrongly Urges this Court to Reweigh the Penalty-Phase Evidence, Rather than Decide Whether Impermissible Victim-Impact Evidence Could Have Contributed to a Juror’s Vote Neither the Sixth-Amendment jury-trial guarantee, nor the Eighth Amendment’s requirementsofreliability in the securing and review of death sentences, nor basic federal due process law regarding harmlessness analysis '°9/9/2002 RT 318. 101 of federal constitutional error, nor this Court’s Brown’ test for penalty-phase harmlessness permit a reviewing court to undertake an analysis like that presented by respondent. Respondent’s view, as with othererrors,is that the aggravating circumstances so outweighed the mitigating circumstances that scaling back the victim-impact case to appropriate proportions could not have produceda different outcome. If there was, however, error of substance bearing on the penalty determination,it is not possible to know,to the requisite level of certainty, that no juror was affected, as this Court long held even under the Watson standard.'*! To briefly recapitulate the reasonsthis is true, without, however, doing them justice,’ the Chapman/Brownstandard asks whether the error resulted in the admission of evidence “which possibly influenced the jury adversely ....”!** This means, according to the United States Supreme Court, that it “might have contributed to” the result'** or “might have affected [the] capital sentencing jury.”’* In contrast to guilt-phase factfinding, the penalty decision operates under dynamics which makeit impossible to negate these '3°People v. Brown (1988) 46 Cal.3d 432, 448. 'S'See AOB 90, 101 & fn. 63, discussing People v. Hines (1964) 61 Cal.2d 164, 169; People v. Hamilton (1963) 60 Cal.2d 105, 136-137; People v. Terry (1962) 57 Cal.2d 538, 569; People v. Love (1961) 56 Cal.2d 720, 733; People v. Linden (1959) 52 Cal.2d 1, 27. See AOB 82-98 (federal constitutional law), 98-105 (state law). '3People v. Neal (2003) 31 Cal.4th 63, 86, quoting Chapman v. California (1967) 386 U.S. 18, 24; People v. Ashmus (1991) 54 Cal.3d 932, 965 (in death cases, state-law test is equivalent to Chapman). '4Chapman vy. California, supra, 386 U.S.at p. 24. '*Satterwhite v. Texas (1988) 486 U.S. 249, 258. 102 possibilities unless the error was truly insubstantial, like a victim-impact witness’s single “do the right thing” comment in the one case on which respondentrelies forits claim that any error here was notsignficant enoughto have affected the verdict.'** The other exceptionsare ifthe error helped prove a historical fact, one that was otherwise established beyond dispute,'*’ or, possibly, if the error somehow could be knownto have been entirely negated by curative action.'** Otherwise, the following factors make it impossible to hold substantial error of this nature incapable of having “affected a capital sentencing jury”:'”” ° appellant’s right to have his fate decided by a jury not influenced by error, not an appellate court hypothesizing such a . 140 Jury; ° the inability of a reviewer of the record to observe witnesses’ See People v. Lewis and Oliver, supra, 39 Cal.4th 970, 1058, quoted at RB 220 and 221, and discussed below at page 105. '7Traynor, The Riddle of Harmless Error (1970) p. 73; see, e.g., People v. Cotter (1965) 63 Cal.2d 386, 392-398. | '8While no such exceptionis in the classic statements of the problem, appellant concedesits likely propriety. See AOB 82; see also, e.g., People v. Roldan (2005) 35 Cal. 4th 646, 734 (untimely aggravation notice harmless where defendantstill had time to prepare); id. at p. 739 (no prejudice from erroneous sustaining of objection to general question on mitigation where specific questions on same subject matter were subsequently answered). '°Satterwhite v. Texas, supra, 486 U.S. at p. 258. Sullivan y. Louisiana (1993) 508 U.S. 275, 279; see also Satterwhite v. Texas (1988) 486 U.S. 249, 263 (conc. opn. of Marshall, J.) 103 demeanor’and the limited capacity ofsuch a person to develop a “‘feel’ for the emotional environment of the courtroom”;'” ° the inherent unknowability of what goes into the subjective weighing with whichjurors are charged,'”’ their being permitted to rely on mercy or sympathy’ and being required to exercise their own normative judgmentasto the significance of each fact they find;'*° ° as a consequence of the previous factors, the surprise life verdicts that juries sometimes agree on in highly aggravated cases, which demonstrate the dangers of guessing what a jury would have done;’*° '' People v. Stewart (2004) 33 Cal.4th 425, 451. 'People v. Keene(Ill. 1995) 660 N.E.2d 901, 913; see also Caldwell v. Mississippi, supra, 472 U.S. 320, 330, 340, fn. 7; Hurtado v. Statewide HomeLoan Co. (1985) 167 Cal.App.3d 1019, 1024-1025. 'SDeck v. Missouri (2005) 544 U.S. 622, _, [61 L. Ed. 2d 953, 965; 125 S. Ct. 2007, 2014] [factors are “are often unquantifiable and elusive”]; Satterwhite v. Texas, supra, 486 U.S. 249, 258; People v. Robertson (1982) 33 Cal.3d 21,54; People v. Hamilton (1963) 60 Cal.2d 105, 136-137; People v. Hines (1964) 61 Cal.2d 164, 169, disapproved on another ground in People v. Murtishaw (1981) 29 Cal.3d 733, 774, fn. 40. 'People vy. Caro (1988) 46 Cal.3d 1035, 1067; People v. Easley (1983) 34 Cal.3d 858, 875-880. '4>People v. Rodriguez, supra, 42 Cal.3d 730, 779. '46McCleskey v. Kemp (1987) 481 U.S. 279, 311; McCord, Is Death “Different” for Purposes of Harmless Error Analysis? Should it Be?: An Assessmentof United States and Louisiana Supreme Court Case Law (1999) 59 La. L.Rev. 1105, 1142-1144 (McCord); see also California LWOPcases cited at pages 91-92, fn. 55, of Appellant’s Opening Brief. 104 ° the principle that reversal is required if even a single juror might have decided differently, if not influenced by error;'*’ ° and the deep concern for reliability required in both the making"and the review!” of a state’s decision to put one ofits citizens to death. It is for these reasons that, with a substantial error, this Court cannot simply reweigh the aggravating and mitigating evidence to decide that the jury was uninfluenced by evidence that the prosecutor relied on heavily and thetrial judge described as unforgettable. (See Sullivan v. Louisiana, supra, 508 U.S. 275, 279 [“The inquiry . . . is not whether, in a trial that occurred withoutthe error, a guilty verdict would surely have been rendered, but whetherthe... verdict actually renderedin this trial was surely unattributable to the error’].) Respondentis mute in the face of these premises and the conclusion whichflows from them. Respondent’s assertions, which addressthis Court as if it were one of the jurors, are thus beside the point. It is an epistemological impossibility for this Court to know that no juror was pushed overthe line by the victim-impact evidence, no matter how confidently respondentasserts its view of the aggravation-mitigation balance or a rote claim that a general injunction against bias cured theerror. Respondent quotes People v. Lewis and Oliver, supra, 39 Cal.4th 970, 1058, as if that opinion’s characterizations of the evidence in that case could "Wiggins v. Smith, supra, 539 U.S. 510, 537; In re Lucas, supra, 33 Cal.4th 682, 734. 'SCaldwell v. Mississippi, supra, 472 U.S. 320, 329, fn.2. '’California v. Ramos, supra, 463 U.S. 992, 998-999; Zant v. Stephens, supra, 462 U.S. 862, 885. 105 appropriately apply to this one. (RB 220, 221.) Respondent neglects to mention the context. In stating that challenged victim-impact evidence “paled in comparison to other . . . aggravation” and “could not have tipped the balance,” this Court was referring to one possible error: a victim-impact witness’s asking the jury to “do the right thing.” (/bid.) The Court’s analysis was less a reweighing of the evidence than a holding that the error was insubstantial. The case is not authority in support of respondent’s position here, either in terms of method ofanalysis or the outcome of any reweighing. 2. The Facts Must Be Viewed in the Light Most Favorable to Appellant Respondent engagesin further rhetorical sleight of hand by using the wrong facts, turning to inappropriate advantage the convention of presenting facts on appeal in the light most favorable to the party that prevailed attrial. Asappellant explained in the opening brief, using such a version ofthe facts would be appropriate in analyzing a sufficiency-of-the-evidence claim, but not in a harmlessnessanalysis. The verdicts do not reveal which versions of disputed facts every juror believed. The question is “whether the record contains evidence that could rationally lead to a contrary finding” to that underlying the verdict. (Nederv. United States, supra, 527 U.S. 1, 19.) That question cannot be answered by presuming the facts to favor the challenged verdict, because rational jurors indulge no such presumption. They lookatall the evidence and believe what they believe.'°’ And because the question is whether respondent can showthat See page 8, footnote 1, above, on the need for the reviewing courtto consider the entire record. See also CEB,Calif. Civil Appeals and Writs, Ch. 8, §§ 8:302-303: (continued...) 106 error could not have contributed to a juror’s final choice, the reviewing court must considerthe possibilities in light of the view most favorable to appellant that rational jurors might actually have held. This is the only way to determine if they could haverationally reached a different result, absent error.’*! Again C_.continued) [A]ppellate courts cannot reweigh the evidence in determining whether a judgment or order was supported by ‘substantial evidence’... . But they can (and often do) reweigh the evidence in determining the prejudicial effect of a given error. [Citation]. ... This is the only circumstance in which appellants can properly reargue the weight of the evidence .... The text is dealing with the civil context, where there are not the limitations on the type of reweighing that can find aggravation to have so outweighed mitigation that error could not have contributed to ajuror’s verdict. The point on considering the entire record and the extent to which it supports the appellant’s casestill applies. Similarly, Witkin writes, [R]eviewing courts[’] ... severe self-imposed limitation on the appellate power to review the facts alone [as a basis for reversal] is balanced by an unrestricted power and duty to review them whenerror is shown. (9 Witkin, Cal. Procedure (Sth ed. 2008) Appeal, § 449, p. 504.) See also Herbert v. Lankershim (1937) 9 Cal.2d 409, 476 (even the civil harmless-error rule does not permit affirmance “unless it can be said that the justice of the cause preponderated so heavily on the side of the prevailing party that none of such errors .. could have contributed to or resulted in a miscarriage of justice,” an inquiry which required considering the entire evidentiary picture). Appellant included the following citations and explanation when contrasting the handling of facts in a sufficiency analysis and a harmlesness analysis in his openingbrief: ... (Traynor, The Riddle of Harmless Error (1970) p. 28. ... See also Holmes v. South Carolina (2006) 547 U.S. 319, [330] ...3 Laird v. Horn (3d Cir. 2005) 414 F.3d 419, 429; People v. Garcia (2005) 36 Cal. 4th 777, 805-806 & fn. 10, 807, fn. 11 (continued...) 107 unable to deny this, respondent writes as if appellant never argued it. The closest respondent comesto addressing the question is when,at the end ofits brief, respondent simply calls for “[r]eview of the record without the speculation or interpretation offered by appellants ....” (RB 271.) But it is respondent whois indulging in “speculation” when it assumes the Munoz version of the circumstances of the crimes to have been believed in every significant detail by the jurors and assumes the prosecution view of every disputable point presented during the penalty phase to have been accepted by them. Andit is respondent who engagesin wholly unjustified “interpretation” whenit asserts that the jurors’ opaque death verdict represented a judgment that the case in aggravation was overwhelming, the case in mitigation unconvincing, to the point where taking away the excesses of the victim- impact testimony or someother unjustified prosecutorial advantage could not have affected the outcome. This point would be particularly importantif the Court were to engage ''( continued) [noting, in prejudice analysis, reasons why jury might have had difficulty with prosecution’s case and rejecting dissent’s failure to consider weaknesses in prosecution case and conflicts in evidence]; People v. Haley (2004) 34 Cal. 4th 283, 312 [in harmlessness analysis, canvassing evidence in support of appellant’s factual theory]; Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 673-674; Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1156.) Here, appellant’s admissions of robbery-murder and the physical corroboration of those admissions were all the jurors needed to arrive at their guilt verdicts and related findings. Since they did not need to credit Jose Munozto arrive at any decision they made, the degree, if any, to which they did so is unknown. (AOB 113, fn. 69.) 108 in the reweighing of the evidence which respondent erroneously assumesis appropriate, contrary to the Court’s approachin cases like People v. Sturm (2006) 37 Cal.4th 1218.'” For even a reweighing of the evidence showsthat rational jurors could have voted for life without parole absent the emotional onslaught of the victim-impact case, at least if the court reviews the entire record instead of only the evidence favoring respondent.'™ Appellant was the product of a home in which he wasneglected, and physically and emotionally abused, by a deeply dysfunctional mother. In early childhood he witnessedinter-parental violence and later was abandonedbyhis father. This is as far, by the way, as respondent’s incomplete summaryofthe mitigation evidence goes. Some of the mother’s many boyfriends also abused 154 ¢s appellant. [E]vidence of [a] childhood of deprivation and abuse,” even in ‘Discussed at AOB 104.See the prejudice analysis, 37 Cal.4th at pp. 1243-1244, implicitly rejecting a dissent’s position (37 Cal.4th at pp. 1245, 1247-1248,dis. opn. of Baxter, J.) that the aggravated nature of the crimes should be taken into account in determining the likelihood of prejudice. 'The condensed summarythat follows is supported by record citations at AOB 105-128, where much morespecific facts are also provided. '*See AOB 61-72. Respondent asserts that “appellants’ case in mitigation presented a moving accountof their early childhood” but claims that “the evidence also showed they had the benefit of a caring extended family evenin the worstoftimes, a devoted stepfather and stable homelife by the time .. . [appellant was] eight... .” (RB 221.) This was debatable, and it therefore does not now help respondent exclude every reasonable doubtthat error could have contributed to the prosecution obtaining any vote needed for a unanimousverdict. Moreover, it is well knownthat the early childhood years (i.e., well before age eight) are the most critical. Furthermore, the mother was still beating appellant, including with household objects, well after she got together with Phillip Self. (RT 53: 7917, 7922.) There was no showing that the “caring extended family” intervened (continued...) 109 the face of substantial aggravation,'”’ can “produce sympathy and compassion in membersofthe jury and lead one or more to a more merciful decision.” (Jn re Lucas, supra, 33 Cal.4th 682, 735.) Despite his upbringing, appellant still managed to be both loving and loved. Self-medication through substance abuse seemsto have been involved in his criminal behavior.'”° Shortly before the crimes, appellant had been willing to enter a drug rehabilitation program, which, however, had a long waiting list, and he had tried to changehis life’s direction by movingto the San Francisco Bay Area and finding work there. He had noprior record and wasstill a youth of 21 when he committed his crimes. He had a young son, towards whom hewasloving before his arrest and with whom hecontinued to maintain a relationship. He neither hurt norparticularly frightened any of the robbery victims whom heconfronted alone, and he may have protected some of the others.'°’ Respondent nowhereclaimsthat this information, which was 4ccontinued) anywhere near enough to avoid the considerable psychic damagelikely to be caused by even a single bloody beating to the head with the buckle end ofa belt (RT 52: 7716-7717, 7783), much less ongoing verbal and physical abuse from the parent and some of her many boyfriends, seeing terrible violence betweenthe parents while they werestill together, being told over and over that he was unwanted, and growingupseriously neglected in an impoverished home. (See AOB 61-67, 70-72. Respondent has not disputed the facts set forth there.) «(The aggravating evidence in the present case cannot be called spare, given the brutality of the charged offenses, the vulnerability of the victims, and the existence of a prior violent assault... .” Un re Lucas, supra, 33 Cal.4th 682, 735.) '6See portions of the record cited at AOB 9. '"7See AOB 114-115 for specific evidence and recordcitations. 110 in the openingbrief, is incorrect. Respondent just omits it from its summary of facts pertinent to the harmlessnessissue. Here and elsewhere respondentrelies on a particularly aggravated view of appellant’s role in the offenses. (See RB 220-221; see also RB 80-83, 148-150.) Jose Munoz portrayed appellant as instigator of some of the violence and supplied other assertions about appellant’s conduct that were aggravating. But, since at least some jurors must have recognized that his testimonywasthat of a severely biased witness, this Court is required to do so as well. It was riddled with internal indicia of unreliability, and it was the last of a series ofMunoz’s narratives that moved from firm denials of any criminal activity, to only using ATM cardsafter appellant and Self had stolen them,to admitting enough involvementto offer the police what they neededto hearto charge the others.'** Nothing that he said concerning appellant’s role in the crimes that varied from appellant’s own account was independently corroborated. Munoz made his claims about appellant’s aggravated conduct only in crimes wherethere were no witnesses to contradict him. Where there were, appellant wasportrayed as a surprisingly unthreatening robber, and there was someevidencethat hetried to protect somevictims from his comrades,'”’ '8Supporting details and record citations are at AOB 115-123. Another fact was pointed out in the Statement of Facts but not reiterated later: Munoz claimed that he confronted Aragon unarmedandthatSelf did all the shooting, but the forensic evidence showed that Aragon wasshotat close range from a different angle, and using another weapon—in addition to the shots that purportedly were fired by Self. (See AOB 39 andcited portions of record.) '?See AOB 114-115. Among the incidents presented there is appellant’s interaction with the beekeeper Knoefler, who, amongotherthings, testified that appellant stopped him from giving him more than $40 or $50 when he asked for money, even though Knoefler had more. (RT (continued...) 111 who apparently were involved with each other before appellant ever met Munoz and Chavez.’ In acquitting appellant ofthe Alfred Steenblock kidnap and robbery charges, the jury unanimously was unwilling to rely on Munoz’s °(...continued) 34: 5342-5343.) Respondent acknowledgesthis testimony but seeks to cast doubton it, emphasizing—as appellant acknowledged previously (AOB32,fn. 27)—that Munozsaid appellant demandedall of Knoefler’s money when the latter offered $25. (RB 28, fn. 20.) Respondent also claims, “Romero told police he took ‘whatever cash [Knoefler] had.’” (/bid.) This mischaracterizes the record. The actual statement was, “I just gave him his water and everything he needed, just told him, just, we need your truck. Um, and whatever cash he had. I don’t remember how muchcash,it wasn’t that much.” (3SCT 2: 310.) Knoefler’s account was considerably more detailed than the quick overview appellant gave when he was asked about the crime. His passing over the details of what happened after he made his demand to Knoefler does not impeach Knoefler’s account. Respondentalso writes that appellant confessed that “[h]Je originally intended to shoot Knoefler.” (RB 29.) Respondent exaggerates the evidence of appellant’s mental state. The statement which respondent paraphrasesis “.. was supposed to shoot him... .” (3SCT 2: 310.) Again, appellant’s brief accountdid not specify his own mentalstate, but it was clear from what soon transpired that he had no concerns about not handling the situation the way he was “supposed to.” If the others said he should shoot Knoefler, appellant’s intentions could have ranged from intendingto doso,to playingit by ear, to following his usual modus operandi when working alone: reassuring the robbery victim and not harming him. (Cf. 3SCT 2: 309 [appellant: Chavez told him to kill Jerry Mills after the robbery of Mills’ firearms was complete, but appellant just took him some distance away and told him to stay there].) '©°See AOB 112. This lent somecredibility to appellant’s statementthat his prior criminality had involved only burglarizing unoccupied businesses, before the Lake Mathewsincident, when the others took him out without telling him what they would be doing. (3SCT 2: 325-326; cf. RT 40: 6073 {[Munoz: appellant’s proposal the first night that he wentout to steal with the others wasto steal from a business].) 112 testimony identifying appellant as a perpetrator.’”' Indeed, while the prosecutor promoted the informant’s version of the various offenses, he also madeit clear—correctly—that aiding and abetting principles, applied to appellant’s corroborated confession, settled his guilt in any event. (E.g., RT 45: 6909-6913, 6942.) Nothing in the jury’s verdicts, therefore, permits respondent to now meet its beyond-a-reasonable-doubt burden on harmlessness by assuming the truth of Munoz’s self-serving accounts of whodid or said what, because there is no basis for claiming that the jury did so and clear evidencethatit did not. Respondent has disputed neither this conclusion, nor the facts underlying it and reiterated above. Respondentis left with appellant’s jail misconduct. As appellant has already explained, in an analysis that respondent does not reply to, that evidence could be expectedto be seen as seriously aggravating by somejurors, but it did not have to be seen that way by anyor all. There was testimony regarding the value of posturing as a “tough”in the jail environment and the evidencethat appellant actually arranged for his being found in possession of a shankin front of other prisoners,'” the commonality ofboth mistreatment of child molesters and of possession of shanks, and the lack of a significant response by the jail to several of the incidents. Appellant ceased the misconduct duringthe final year of his pretrial incarceration. While he clearly could possess a shank wheneverhe wanted, he neverusedor threatened to use one. (See AOB 124-127.) Under these circumstances,here, as in People vy. '6!There was no evidence that Munoz wasinvolvedin that offense, so the jury was not boundby the accomplice-corroboration rule. See AOB 58. 113 Gonzalez (2006)38 Cal.4th 932, where the other-crimes evidenceconsisted of “possession of an assault weapon,two assaults on inmates, and possession of a shank in jail,” “[t]he aggravating evidence of defendant’s other crimes..., although serious, was not overwhelming. (/d. at p. 962.) Finally, all the jurors, knowing that appellant might be convicted of three murders, had promised that they were opento either sentence. (See AOB 128, fn. 82, citing questionnaires.) They deliberated for two days on penalty. (CT 8: 1956-1957; 9: 2025.) Under both the capital framework in general, whereanysubstantial error can affect penalty, and underthe facts of this case in particular, even the bare proposition that a substantial error could not have contributed to a death verdict is unreasonable. To hold that proposition true '©} would be insupportable.beyond a reasonable doubt From a slightly different angle, Chief Justice Rehnquist, speaking for the high court, explained that an appellate court applies Chapmanby deciding “whether the record contains evidence that could rationally lead to a contrary finding” to that which would support the verdict. (Neder v. United States, supra, 527 U.S. 1, 19.) This is how it avoids “becom[ing] in effect a second jury ....” (lbid., quoting Traynor, The Riddle of Harmless Error, supra, p. 21.) Again, there is no honest way to claim that this record lacks evidence that would permit a rational juror to have voted for life without parole, particularly given his or her broadlatitude for doing so. The only real issue, if respondentthinks it can show harmlessnessis the substantiality of the error, not the aggravation/mitigation balance. Appellant addresses that question next. '° Chapmanv. California, supra, 386 U.S. at p. 24; People v. Ashmus, supra, 54 Cal.3d 932, 965. 114 3. The Victim-Impact Evidence WasSignificant, Relied on Heavily by the Prosecution, and Correctly Described by the Trial Judge as “Painful and Agonizing”'™ to Hear Respondent understandably downplaysthe victim-impact presentation. Respondent begins with the claim that, while the victim-impact testimony covered less than 100 pages, “the prosecution’s remaining case in aggravation (recounting appellants’ other violent conduct) consumed approximately 300 pages.” (RB 220.) The argumentis wrong onseverallevels. First, respondent fails to explain how a quarter of the prosecution’s presentation—hardly an insignificant portion in quantitative terms—could have been an inconsequential part of its case and could not have affected the jury. That proposition certainly fails the reasonable-doubttest. Second, the testimony was actually half of the prosecution’s aggravation case. Respondent inflates the other-aggravation page count, primarily by aggregating the testimony presented against both defendants, although appellant’s jury heard only that applicable to him. Respondent’s broad span cites also include many pages where there were proceedings other than testimony. At most one might argue that there were 135 pages of other- crimes testimony against appellant.'°’ Eventhis is inflated, since it includes cross-examination, which did not help the prosecution show aggravation, and which should not enter into a comparison with the victim-impactpresentation, where cross-examination did not come into play. Excluding cross- ‘49/9/2002 RT 318. '>Within the portion of respondent’s span cite applicable to appellant (see RB 220, citing RT 50: 7374-7494 and RT 51: 7495-7683), there was actual testimony at RT 50: 7375-7398, 7400-7412, 7416-7459, 7461-7475, and 51: 7484-7523. 115 '66 the other-aggravation evidence consumed103 pages. In otherexamination, words, the victim-impact portion of the prosecution’s case in aggravation was about half, in strictly quantitative terms, not a quarter. Third, respondent gives no authority in support of its assumption that a page-count comparisonis particularly helpful. It is not, because respondent is comparing apples to oranges. A mother’s tearful descriptions ofher loss and her ownand her family’s years of post-trauma dysfunction are qualitatively different in their impact than a deputy’s testimony about finding a sharpened toothbrush in appellant’s cell. The page-count comparisonis all that respondent has to say about the substantiality of the error itself.'°’ Respondent has no answerto appellant’s questions (AOB 283) about ° why jurors would believe that their duty was to focus on 168 169 appellant’s personal culpability’’” and appropriate penalty whena significant part of the penalty-phase testimony was not about his conduct, nor how he became a person whocould kill, northe dark or redeeming aspects of his character, but about the See RT 50: 7386-7389, 7397-7398, 7405-7407, 7412, 7423-7426, 7438-7443, 7454-7456, and 51: 7490-7491, 7511-7516, 7523. '®74ppellant has characterized the victim-impact case as consuming the first day of the penalty phase. Respondentcalculates that the testimony took less than four hours. Both are right. The trial court adjourned the proceedings after the last victim-impact witness, apparently somewhat early, because the prosecution had no other witnesses present. (RT 49: 7372.) The fact remains that the victim-impact case occupied the first day of the penaltytrial, and that the jurors wereleft to sit with overpowering feelings about it overnight. '8People v. Harris (2005) 37 Cal. 4th 310, 351. '°People v. Moon (2005) 37 Cal. 4th 1, 40. 116 exceedingly painful aftermath of what he and his comrades had done; ° how jurors could put aside the invitation to consider which “side” was more deserving of their sympathy; ° how they could not validate the survivors’ terrible losses by imposing the most serious penalty; ° how they could focus rationally on the appropriate questions, when they must have been, like the judge, immersed in the enormouspain that bathed the courtroom; ° and why they would rely only on the evidence that showed to what extent these killings were aggravated murders, to what extent there was other aggravation, and to what extent there were mitigating circumstances, when they were misled into believing that the testimony of the aggrieved was providing further information aboutthe relative enormity of appellant’s crimes. There is strong evidence in the record of the significance of the testimony atissue. Respondent’s trial counsel—the prosecutor—relied heavily on the victim-impactcase that respondent now claims wasirrelevantto penalty deliberations. He devoted almost half of that portion of his penalty-phase opening statement which dealt with the evidence (as opposed to explaining the law)to the victim-impact case.'”° He described the forthcoming penalty phase as “a battle for your sympathy and compassion” and urgedthe jurors not to permit appellant “to steal the sympathy and the compassionthatis rightfully” See RT 48: 7259-7271. 117 that “of the victims’ families and friends.”!”! He opened his penalty summation with an eloquent referenceto the bereavement trauma'”” and made explicit the implicit message of the bereavement-trauma evidence—thatit could be considered as aggravation.’” Finally, he read page after page of victim-impact testimony,to the point wherea third ofhis summation was such readings.'”* Appellant pointed this out, in greater detail, in the opening brief and cited the United States Supreme Court’s unwillingness to find harmlessness whenaprosecutorhasrelied significantly in argument on evidence erroneously admitted.’”> Once again, respondent has evidently concluded that its best answeris to ignore the powerof the evidence and the prosecution’s use ofit and hope that this Court will be equally cavalier aboutits effect. Respondent’s suggestion that any error was too insubstantial to have affected the outcomeis incorrect. "RT 48: 7271. '2«These crimes are so huge, so monstrous, the harm, the pain, the heartache, the fear that this man has caused is so overwhelmingthat it’s hard even to listen to it, let alone live through it or die from it.” (RT 54: 8003.) "PRT 54: 8006. "RT 54: 8008-8011, 8013-8015, 8017-8018 (readingsoftestimony); 8003-8030 (entire summation). ">AOB 283-285, citing Clemons v. Mississippi (1990) 494 US. 738, 753-754; Johnson v. Mississippi (1988) 486 U.S. 578, 586, 590 & fn. 8; Skipper v. South Carolina (1986) 476 U.S. 1, 8; People v. Roder (1983) 33 Cal. 3d 491, 505. 118 4. No Instruction Removed Every Reasonable Doubt as to Whether the Victim-Impact Case Affected a Juror’s Decision The final prong of respondent’s argument that any error was harmless beyond a reasonable doubtis to note two general instructions given the jury. (RB 221.) The first admonishedthat the jury should not be swayed by bias or prejudice against appellant. Respondent does not explain how this general instruction could possibly undothe effects of (a) confusing the jury as to what was even the issue, (b) suggesting that what was not aggravation at all was aggravation of the most powerful sort, and (c) flooding the decision-makers with emotion. The instruction did not purportto identify the evidence at issue here, nameits legitimate uses, or warn about its possible misuse.’ Moreover, respondent’s position relies on the untenable assumption that unguided jurors could identify what reactions to the victim-impact evidence would amountto bias. All jurors are told not to be swayed bybias or prejudice.'”’ If such an instruction could be known, beyonda reasonable doubt, to render testimony like that given here unable to influence a juror improperly, there would be "®Cf. United States v. Stitt (4th Cir. 2001) 250 F.3d 878, 899 (error in admitting victim-impact testimony harmlessin part because ofinstruction not to weigh effect of crime on victim’s family); Bivins v. State (Ind. 1994) 642 N.E.2d 928, 957 (12 lines of improper victim-impact testimony harmlessin part becauseof instruction not to consider as aggravation anything other than charged aggravator); State v. Taylor (La. 1996) 669 So.2d 364, 372 (minor Booth violations harmless in part because of instruction emphasizing that jurors, not the victim-impact witnesses, were to decide the penalty, uninfluenced by sympathy, passion, or public opinion). "See CALJIC No. 1.00, CALCRIM No. 200(criminaltrials in general; guilt phase of capitaltrials); CALJIC No. 8.84.1, CALCRIM No.761 (penalty phase); BAJI No. 1.00 (civil trials). 119 neverbe a need to exclude evidence with a potential to mislead or bias a jury. This is manifestly not the case. Respondentalso cites an instruction telling the jurors that they were free to assign whatever moral or sympathetic value they deemed appropriate to each factor which they were permitted to consider. (RB 221.) Respondent does not explain how this would have mitigated the effect of error in admitting the testimony. In fact, it is more likely that it further unhinged the victim- impact evidence from the Eighth Amendmentrestrictions on its permissible use, by telling the jurors that they could give their reactions to the horror of victims’ loved ones’ experiencesfree rein in determining appellant’s sentence. 5. Respondent Cannot Demonstrate Harmlessness Preliminarily, there is a trap into which both appellant and the Court can fall. It is in appellant’s interests to show the reasons why the error was prejudicial. Framing the question as whether the error was “prejudicial,” however, can implicitly suggest that there need be no reversalunless prejudice is demonstrated. Yet, the true test is, of course, whether respondent can demonstrate that the error was harmless. (Chapman yv. California, supra, 386 U.S. 18.) The difference is critical, for if it cannot be known beyond a reasonable doubt how a juror may have been affected, respondent loses. Guessworkand speculation about probabilities cannot save the penalty verdict. Allowing victim-impact testimony of the scope used here was error because of the high probability that it improperly biased the penalty determination. This alone almost makesit presumptively prejudicial. (See Jn re Brown (1998) 17 Cal.4th 873, 903 [no harmless error analysis for Brady violations because materiality standard (likelihood of affecting outcome) subsumesprejudice determination].) In any event, as federal constitutional error, and—understate law,as error affecting penalty—thereis effectively the 120 same presumption. I.e., a death judgment followinga trial that included such error cannot be carried out unless respondent demonstrates that it can be known, beyond any reasonable doubt, that the error neither “influenced” nor “contributed to” any juror’s vote for death. (Chapmanv. California, supra, 386 US. 18, 23.) As demonstrated in the preceding pages, respondent has attempted to meetthis burden by: assuming that its view of highly equivocal evidence'”® concerning circumstances of the crime and other purported aggravating circumstances was adoptedby everyjuror, an assumption that would be unjustifiable even without a verdict on the Steenblock offenses that showedthat the jury did not consider Jose Munoz reliable witness; assumingthat every juror also shared respondent’s view of the weight of the mitigating evidence, much of which respondent excludes from its summary altogether,” treating appellant and Self as identical for penalty-determination purposesand aggregating the criminal conduct ofboth in characterizing the circumstancesin aggravation; ignoring the constitutional and epistemological obstacles to areviewing "8See pp. 111-114, above. Respondentomits, e.g., appellant’s lack of a prior record; his loving behavior towards family and friends; his attempts to go into drug treatment and to remove himself from an unhealthy environment, earn a legitimate living, and be there for his child; and his shifting to solo robberies, where no injury resulted, after Self and/or Munoz shot Jose Aragon. 121 29180 99181court’s ability to have “near certitude”’”” that no juror’s “subjective judgment regarding the appropriate penalty was influenced by an error unless it was insubstantial, was clearly cured, and or involved merely cumulative proof of other evidence that incontrovertibly proved a specific historical fact, none of which wasthe case here; ° minimizing the victim-impact testimony, rather than recognizing that it was a linchpin of the prosecution’s case for death; and ° asking this Courtto treat a general admonition against showingbias as a magic wandthat could makethe impact of the testimony disappear. Clearly respondenthas mustered its best arguments for harmlessness, but none of these stancesis justified or appropriate. If there waserror here, and there was, there is no way that it can be known not to have contributed to the verdict. A conclusion to the contrary could only substitute the judgmentofthis Court for that of a jury untainted by substantial error. Reversal is required. G. No Procedural Bar Requires This Court to Acquiesce in Appellant’s Execution Based on a Verdict Tainted by Serious Error Finally, respondentasserts that appellant’s in limine objection to the . admission ofthe victim-impact testimony wastoo general to permit this Court to review his claim oferror, in an argumentdevoid of authority regarding what constitutes a sufficient objection. (RB 205—206.) Respondent’s position—that there is no remedyforthe failure in appellant’s trial of the usual assurances that a death verdict is one in which society can have confidence—is unpalatable, to say the least, and it is not accurate. '°Victor v. Nebraska (1994) 511 U.S. 1, 15; see also People v. Brigham (1979) 25 Cal.3d 283, 291. '5! People v. Box, supra, 23 Cal.4th 1153, 1201. 122 According to settled law on what suffices to preserve the right of appellate review, the defense motion wassufficient to give the trial court an opportunity to rule intelligently, and thus the motion preserved the issue. Even if this were not the case, this Court has the power, whichit should exercise, to invoke a numberofpreservation exceptions and decide the merits of this Due Process/Eighth-Amendmentclaim becauseofits gravity, the fact thatit raises a pure question of law, and the need demonstrated here for this Court to provide guidance to counselandthetrial courts. 1. An Objection Which Alerts the Court to the Anticipated Evidence and the Basis for Exclusion Preserves a Claim of Error for Appellate Review Respondent would,in this death case, have the Court require more of counsel to preserve an error for review than current standards demand. The basis for the requirement of an objectionattrial is “that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal whenit could easily have been correctedat thetrial.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 400, p. 459.) There is an establishedtest, which respondent ignores, for whether an objection wassufficient to avoid eco such unfairness. “‘[T]he objection must be made in such a wayasto alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility.” [Citation.]” (People v. Hayes (1999) 21 Cal.4th 1211, 1261, first alteration in original.) The objection need not be madein front of the jury, when the evidence is about to be, or has been, elicited. A motion in limineis sufficient if (a) a specific legal ground for exclusion—the one later raised on appeal—is advanced, (b) the motionis directed to an identifiable body of evidence, and (c) it is made at a time whenthe judge can determine the evidentiary question 123 in its appropriate context.’ (People v. Rowland (1992) 4 Cal.4th 238, 264, fn. 3.) 2. Appellant Objected at Trial that the Testimony Was Excessive a. The In Limine Motion Presented the Issue . The in limine motionfiled in the trial court repeatedly emphasized the limited facts of the seminal federal and California cases that had recently established the admissibility of victim-impact evidence, contrasted the scope of the prosecution’s proposed testimony with those facts,'* quoted and reiterated language in both opinions emphasizingthat there were constitutional and statutory limits to what could be allowed,'™* andstated specifically, “The statute and case law indicate that the admission of victim impact statements is permitted with limitations but by no means is their use mandated.” (CT 8: 1858, emphasis added.) Indeed, the penultimate sentence of the argument was “Suchevidencethat is outside the limits of the holding of the California Supreme Court in Edwards . . . should be excluded during the penalty phase.” (CT 8: 1860,italics added.) Trial counsel’s motion,it is true, was not a model of focus andclarity, but neither was the existing jurisprudence on the limits of victim-impact evidence. Parts ofthe motion seemeddirected towardspreserving a claim that '®This last requirement simply meansthat there must not be a need for the case to unfold further because, for example, probative value and prejudicial effect can be evaluated only in the context of the particular state of the evidenceatthe timeit is actually offered. (People v. Morris (1991) 53 Cal.3d 152, 190.) '83 At most, it may have been in thetrial court’s discretion to also admit further evidence identifying the perpetrators of the robbery, as a circumstanceslightly tending to corroborate the considerable direct evidence of appellant’s guilty knowledge, although it would have been cumulative. (See AOB 307.) In contrast, evidence of Feltenberger’s status as a police sergeant, the particulars of the robbery and shooting, Feltenberger’s struggle to survive and recover, and descriptions and pictures of the bloody scene (see AOB 42-46and cited portions of the record) had absolutely no tendency to prove that the pouch wasstolen, that appellant knew that fact, or that he possessed the item. The evidence was inadmissible because it was irrelevant. (Evid. Code §§ 350, 210.) Respondent disagrees. It argues that appellant’s confession and Munoz’s testimony about appellant’s taking possession of the property each required corroboration. (RB 147.) Respondent overlooks the facts that each RT 39: 6021. -IRT 37: 5587-5588; see also RT 37: 5644; 32: 4961. 3SCT 2: 324 (transcript of appellant’s taped statement, which was admitted as Ex. 5; the tape was played for the jury at RT 38: 5864-5865). As respondent correctly states, “Romero confessed to acquiring Feltenberger’s stolen ammunition pouch, and admitted he knew Self and Munoz robbed and shot Feltenberger.” (RB 41.) 3All of the evidence just noted was described at some point in the openingbrief, but in arguing the instant claim, appellant did not specifically mention the Munoz brothers’ testimony or the recovery of the pouch. 154 item of evidence corroborated the other,”* and that Feltenberger’s testimony that the pouch wasstolen from him andother testimonythat it was recovered with appellant’s belongings provided additional corroboration. So did Ruben Munoz’s statement that he saw appellant with the pouch. Respondent also states that appellant’s admission, which was of knowledge that the pouch wasstolen, did not prove one of the elements,i.e., that the item was in fact stolen. This may be true, although the point is arguable. But respondent concludes with a non sequitur: “The only way to prove the pouchwasstolen wasthroughFeltenberger’s testimony (either alone or as corroborating Munoz’s testimony), in which he identified the pouch and described the robbery.” (RB 147, emphasis added.) Here and elsewhere respondent seemsto oppose a supposed contention that noneofFeltenberger’s testimony was admissible.”° Of course Feltenberger could havetestified, to corroborate Munoz’s testimony that the pouch had been stolen and appellant’s statement that he knew it was stolen. Appellant’s has contended that Feltenberger should only havetestified “that his ammunition pouch wastaken from him by Self and another robber”(AOB 307), Le., to the facts pertinent to the elements of a receiving charge. Respondent’s addition that Feltenberger should have also identified the pouch is correct. However, respondent provides no explanation for its conclusion that it was necessary for Feltenbergerto fully describe the robbery in order to prove that the pouch was “There is no rule that an admission and an accomplice’s statement, though each requires corroboration, cannot corroborate each other. Respondent doesnot claim otherwise. *°E.g., “If Feltenberger had not been allowedto testify ...” (RB 148); “the high probative value of the Feltenberger testimony” (RB 149); “any error in admitting the Feltenberger testimony”(ibid.). 155 in fact stolen. In a receiving case, the theft victim need only testify that property belonging to him or her was taken; the trial need not be cluttered up with details of whatever crime gave the property its stolen character.”° In arguing harmlessness of any error in admitting the Feltenberger attempted-murder evidence, respondent ends up acknowledgingthe lack of probative value of the contested testimony. Respondent notes appellant’s statementthat any error in admitting the testimony could not have affected the jury’s determination of guilt on the receiving count. (RB 149, citing AOB 309.) Respondentagrees, observing that admission of the testimony,if error, could not have been prejudicial because the charge “was supported by overwhelming evidence establishing Romero’s guilt... .”’’ (RB 149.) Respondentthus contradicts its characterization, in the same paragraph, of“the high probative value of the Feltenberger testimony ....” (RB 149.) Ifthe contested evidence—that expandingthe picture from the elements ofreceiving *6See AOB 310 & fn. 193, citing CT 4: 826 (Jerry Mills and his son), 830 (Ken Mills and Vicky Ewy), and cf. CT 4: 824 (robbery of William Meredith) with 3SCT 2: 316 & RT 39: 5888 (appellant & Munoz describe attempted robbery of William Meredith’s companion). *°See AOB 310 & fn. 194, citing RT 36: 5537; 39: 5890-5891, 5997-6001. 165 open the prosecution case, (b) in a manner tending to tar appellant with the Self/Munoz brush, (c) for a purported purpose—adding eight months to appellant’s sentence—that was transparently pretextual and showed the prosecutor’s own belief in its potential for affecting the penalty decision, which wasthe only contested verdict that the jury would be required to render, created a considerable prejudicial effect. The prosecutor’s motive, and thus his judgment about its value for his ultimate goal of a death penalty, was thrown into even clearer relief when he said he would offer the evidence even if appellant pleaded guilty to the receiving count.*’ Since, if there was somehow any probative value at all on that count, it was minimal, any reasonable exercise of discretion—and one informed by the federal Due Process Clause and Eighth Amendment—wouldhave required exclusion ofthe testimony. Respondentdirectly disputes none ofthese points. Nor does respondent specifically acknowledge them. In claimingthat there waslittle potential for undue prejudice, respondent only cites a cautionary instruction and its own assessment of an evidentiary picture in which nothing could have further inflamed the jury. These contentions are dealt with in the next section ofthis brief. // // "RT 30: 4708. 166 2. Respondent Bypasses Appellant’s Contentions, Unjustifiably Assumes That the Informant’s Version ofAppellant’s Conduct Was Credited on Every Point, and Asks This Court to Make Its Own Assessment of the Appropriate Penalty Instead of Asking What Could Have Impacted the Sentencer a. The Cautionary Instruction Thetrial court’s instruction that the evidence wasbeing offered against appellant only on the issues of the property’s having been stolen and appellant’s knowledgeofthat fact, as opposed to showingthat he was involved in the robbery and attempted murder, merely stated the obvious. The jurors knewthat appellant was not charged with those crimes, and there would be no evidence that he committed them. But it did not—and could not have with any success—tell them to listen only when Feltenberger said he was robbedofhis ammunition pouch,and to ignore, and avoid being impacted by,the testimony about the shooting, his agony, the photos of the trail of blood to the stoop where he begged for help, and the pool of blood he left there. If limiting instructions could work in such situations, there would be no need for Evidence Codesection 352. All of this was raised in the opening brief (AOB 311-312), and respondent has no answer (see RB 148). b. Strength of Other Unfavorable Evidence Respondent’s other contention regarding potential prejudice is presented in part as part of probative-value-vs.-prejudice point, in part as a claim of harmlessness of any error. Respondent again fallaciously assumes that the jury fully credited Munoz’s account of how every offense took place. Respondent makes this assumption despite the impropriety of doing so as part 167 of either a harmlessness analysis*® or a before-the-fact trial-court decision on the potential for harm.*” And respondentrelies on that assumption in the face ofthe self-serving nature of Munoz’s testimony, his repeated lying during his interrogation, and the contrary evidence which—if believed—showed appellant to be the least violent member of the group. Taking Munoz’s portrayals as facts, respondent then asserts, regarding the risk of prejudicing the jury’s guilt deliberations, that “the circumstances of the Feltenberger robbery-shooting pale in comparison to the evidence of Romero’s vicious criminal conduct, and thusthere waslittle to no potential for undue prejudice.” (RB 149.) Ifappellant claimed that ajury might have been so inflamed against him that it could not view the evidence of guilt rationally, and if the factual predicate about appellant’s supposed viciousness were valid, the conclusion might follow. But appellant’s guilt was not contested, undoubtedly because of his confession and the felony-murder doctrine.*° The issue—whichtrial *8In claim II, above, appellant replies in full to respondent’s characterizations of the facts before the jury and respondent’s attempt to transport a manner of viewing facts appropriate only for a sufficiency-of- evidence challengeinto the prejudice/harmlessness context. (See pp. 106-109, above [need to consider entire record, including facts most favorable to appellant, when considering prejudice], and 109-114 [summary of facts omitted by respondent)].) Appellant incorporates those replies here, as respondent employs the same erroneousanalysis. *°See Holmes v. South Carolina, supra, 547 U.S. 319, 330 (impropriety of treating contested prosecution evidence of guilt as true for purposes of determining admissibility of other evidence); cf. People v. Pizzaro (2003) 100 Cal.App.4th 530, 626-627 (foundational fact for admissibility of prosecution evidence may not be based on assumption that defendant wasthe perpetrator). “The one exception wasthe charges on which appellant wasacquitted, those relating to Steenblock, on which there was no evidence, other than (continued...) 168 counsel madeclearin its argumentto the trial court (RT 30: 4701)—-was and is the unacceptable risk of impact on penalty. As to this, respondent simply asserts, based on its own assessment of the strength of the aggravating and mitigating factors, that it is “inconceivable” that adding this robbery-shooting unacceptably risked tipping the scales or, once admitted, could have doneso. (RB 150.) Respondent does not dispute, but does ignore, the jury’s justified skepticism about Munoz’s testimony,"’ which makesit unlikelythat all jurors believed that appellant was the actual shooter of Mansortheinstigator of the crimeshe wassaid to have instigated; the evidence of very serious abuse and neglect that were unmitigated by Philip Self’s presence duringthe crucial years of early childhood, only partially mitigated by his presence later,” and not prevented by some contact with an extended family; appellant’s attempts to reform himself in the year before the crimes; and his capacity to love and care about the people in his life, including a young son, for whom he wanted to be the father that he never had.** Respondent’s implicit position that noneofthis could have mattered ignores the fact that the jury took twofull days to agree on penalty. It is not “inconceivable” that the prosecutor got the emotional “°(...continued) Munoz’s testimony, identifying appellant as a perpetrator. “'This was expressed in the Steenblock verdicts, and there is no reason to doubt that the skepticism extended to Munoz’s accounts of the circumstancesof the crimes. “’Respondent misstates the evidence whenit claimsthat, from age eight on, appellant “was guided by a devoted stepfather... .” (RB 149.) See pages 33 et seq., above, replying to respondent’s treatment of Phillip Self’s role in respondent’s Statement of Facts. “See AOB 107-111 for more details, with citations to the record. 169 impact that he wanted from associating appellant’s character with Feltenberger’s compelling narrative, nor that doing so “created a substantial danger of undueprejudice”in helping the prosecutor obtain his death verdict. (Evid. Code § 352.) And whatis “undue” must be considered in the context of the lack of probative value of the evidence on the receiving charge in the first place. As to the harmlessness of any error, respondent continues to simply ignore appellant’s demonstration“ that it is not enough to point out strong justification for a death verdict and ask an appellate tribunal to uphold a sentence that the jury did not impose, i.e., one based on deliberations not affected by the error. Rather, as described previously, because of multiple characteristics ofthe sentencing decision and appellate review, any substantial error that could bear on penalty can affect the penalty-phase outcome and therefore requires reversal, unless it was cumulative on a conclusively- established fact or was clearly nullified by curative action.** Absent these conditions, or the error being only technical and not substantial, there is a “realistic .. . possibility” that it affected the outcome, i.e., a possibility that does not require hypothesizing juror “arbitrariness, whimsy, caprice, ‘nullification,’ and the like” to envision. (People v. Brown (1988) 46 Cal.3d 432, 448 [explaining “reasonable possibility” test].) That being the case, in such circumstances it cannot be known that a verdict was “surely ““AOB 82-105. “This is explained in the Claim-II harmlessnessanalysis in this brief, pp. 101 et seq., above. Moreover, ifthe Court is analyzing the appellate claims in the order presented in respondent’s brief, the statement under Argument heading I, pp. 37 et seq., above, which also concerns the penalty-decision harmlessness question, should be readfirst, and then the Claim-II analysis just referred to. 170 unattributable to the error’””° and respondent’s burden ofshowing harmlessness cannot be met. Ifone could know whichofthe versionsofthe facts jury would or(in the case of the harmlessness analysis) did believe—something revealed by none ofits verdicts; and ifone could knowthat one ofthe people closestto the case, the prosecutor, was wrong in thinking he could set it up for a death verdict by using this evidence as he did; and ifthe human mind, in making normative and subjective penalty decisions, approximated the activity of weighing earthly items in real scales, then the discussion could take place on the level where respondenttacitly seeks to situate it. Respondent would have this Court hold that subjecting the jury, at the opening ofthe trial, to the gratuitous horror of the Feltenberger attempted-murder evidence and the implication that appellant was in some moral sense part of a unit with his brother even when he was not there, “had no effect on the sentencing decision” and that there wasno “realistic . . . possibility”** that it could or did have such an effect—simply because there was a great deal of material in support of a death verdict (some of which also came in because ofprejudicial error). The question is whether that material would have inevitably led every juror to vote as he or she ultimately did, or whether the added impactof the Feltenberger evidence helped pave the wayforat least one of those jurors. To hold that any reasonable doubt that a juror’s decision was influenced by the Sullivan v. Louisiana (1993) 508 U.S. 275, 279. “Caldwell v. Mississippi (1985) 472 U.S. 320, 341. “’People v. Brown, supra, 46 Cal.3d 432, 448. 171 error can be eliminated,’® this Court would have to assert the unknowable. Andbasing a harmlessnessfinding on belief in something unknowable would be inconsistent with placing the burden of showing harmlessness upon respondent.” Because ofthe admission ofevidence that waslegally irrelevantto guilt or penalty but seriously inflammatory in orienting jurors towards a death sentence—asthe prosecutor knew it would be when hehit on the device of charging a section 496 violation in a capital case—the penalty judgment must be reversed. // // “Chapman v. California (1967) 386 U.S. 18, 23, 24 (question is whethererror “possibly influenced the jury adversely”). °°Chapmanv. California, supra, 386 U.S. 18; People v. Guerra (2006) 37 Cal. 4th 1067, 1144-1145 (test for state-law error affecting penalty is equivalent to Chapmantest). 172 v! THE TRIAL COURT SHOULD HAVE GRANTED SEVERANCE OF THE MAGNOLIA INTERIORS AND RECEIVING COUNTS The relatively minor charges ofburglary and vandalism ofthe Magnolia Interiors shop andofreceiving property stolen from John Feltenberger should have been severed.’ The trial court had no discretion to refuse severance because joinder wasstatutorily unauthorized in both cases.’ Even if there had been such discretion it would have been an abuse of discretion to refuse discretionary severance of counts that contributed nothingto the prosecution’s search forjustice other than providing inflammatory fuel for the fire of a death verdict. If the charges had been severed, evidence pertaining to neither would have been admissible in the penalty trial, but joinder permitted the prosecutor use the Magnolia Interiors evidence to make a key point in his argument for death. As to the Feltenberger evidence, as the previous argument shows,it was inflammatory to begin with, and it was used to color the entire proceedings, includingto blur in the jury’s mind the distinctions between the "See AOB 314. Respondent addressesthis issue in Part I ofits brief, beginning on page 72. *Appellantplaced this issue after ArgumentIV inits brief, regarding the scope of the evidence admitted on the receiving charge, because the need for severance can be understood only in light of the evidence whichthetrial court considered relevant to that charge. Even if the Court generally considers the claims chronologically, appellant respectfully submits that analyzing appellant’s Argument IV (and respondent’s Argument IV)first would be more useful, because the part of the instant argument concerningthe receiving count builds upon and cross-references points made in ArgumentIV,andit relies on the evidence detailed in that claim. *Respondentincorrectly summarizes appellant’s contentionasrelating only to an abuse of discretion. (RB 72.) 173 defendants and their conduct. Appellant’s state law and state and federal rights to due process,a fairtrial, and a fair and reliable penalty determination require reversal of the death judgment. Respondent’s arguments to the contrary lack support in the law, and they ignore the factual presentationat trial. A. There Was No LegalBasis for Trying the Magnolia Interiors Burglary and Vandalism with the Other Offenses While, as respondentpoints out, there are some judicial economies to trying different offenses charged against the same defendant together, the prosecution may do so only under two circumstances. (§ 954.) One is no longer in issue, as respondent has virtually abandoned the position it took at trial, that the Magnolia Interiors offenses were of the sameclass as the others (see CT 4: 828), so the parties agree that joinder wastherefore authorized only if all the charged offenses were connected together in their commission.’ (§ 954.) Crimes are connected together in their commission if committed at the sametime or against the samevictims; otherwise, this requirementis met only if the crimes are linked together by a common element of substantial importance. (People v. Mendoza (2000) 24 Cal.4th 130, 160.) In arguing that the offenses against the Magnolia Interiors property were connected together in their commission with robberies and robbery- murders that took place at other times, in other places, against other victims, “Respondentdoes suggest in a footnote that “it could be argued”that the crimes were of the same class, because burglary, like robbery, can be “a property-related crime entailing danger to humanlife.” (RB 76, fn. 36.) The considerationscited by respondentexplicitly pertain to burglaries of occupied structures, which this was not. The charged burglary and vandalism were not ofthe same class as the robberies, murders, and attempted murders. (See AOB 316-317.) 174 respondent disagrees—notonly with appellant, but with the prosecutor—that the crimes prosecuted as vandalism and burglary for vandalism were about vandalism atall: they were,it is argued now,primarily theft offenses. Further, respondent, like the trial court, relies on a “commonthread”of feloniously obtaining property, as if this Court has held that a context-free invocation of this phrase could substitute for the statutory requirement that crimes be actually connected together in their commission. Respondentfails to address appellant’s demonstration that this is not how this Court has employed the expression or that it could do so without a changein the statute. Finally, treating this issue, too, as if it were part of a law-school hypothetical than part of a capital trial, respondent abstracts it from the context of the actualtrial, declining to acknowledge, muchless respondto, the point that the prosecution had nothing to gain by taking the time to put on evidenceofthese offenses, in terms of containing and punishing appellant, unless its real agenda were to infect the penalty decision with evidence that could not have been admitted openly for that purpose alone. 1. This Court Has Never Reinterpreted “Connected Together in Their Commission” to Include Every Crime Motivated by a Felonious Intent to Obtain Property, Regardless of Circumstances The statute permits joinder of offenses which are “connected together in their commission.” (§ 954.) This Court has interpreted that expression expansively to apply if the crimes are “linked by a common element of substantial importance.” (People v. Mendoza, supra, 24 Cal.4th 130, 160.) Whatthe trial court did and what respondentdoesis act as if there is also a rule that any crimes can be joined—regardless ofdifferencesin circumstances, means of commission, victims, time frames—if it can be said that all include an intent to steal. Under this view, section 954, despite its apparent 175 restrictions, would permit oneto betried in a single proceeding on charges of embezzling in Riverside in 1990 and committing a robbery-murder in San Francisco in 2010. Moreover, logical consistency would require further new sub-categories, such as where “the element to cause harm others runslike a 2single thread through the various offenses,” which would permit joining vandalism with assaults. Both propositions are unsupported in the law and, when examined, plainly absurd. Respondent points to no explanation by this Court for such a strange interpretation of what the Legislature intended when it circumscribed the situations in which the prosecution could join offenses. Rather, it simply quotes, with no discussion of the context, the “commonthread” languagethat occurs in various cases and asserts that the Court has held that the existence of such a thread alonejustifies joinder. (E.g., RB 74.) Respondent then suggests that appellant only “attempt[s] to distinguish the instant case from this long line of precedent....” (RB 75.) Not so. More to the point, appellant has analyzed that line of precedent and shownthatit does notset out the supposed principle on which respondent relies. The cases discussed include People v. Lucky (1988) 45 Cal.3d 259, 276, whichthetrial court relied on, and the cases quoted by Lucky, People v. Chessman (1959) 52 Cal.2d 467, 492, where the phrase wasfirst used, and People v. Conrad (1973) 31 Cal.App.3d 308, 315. Appellant will not reiterate that discussion—which respondent makes no attempt to dispute. It showsthat, in each of the cases, first, the bottom line was whetherthe offenses were truly connected together in their commission and, second, that the intent to steal was only one of a numberfactorscited to support the conclusionthat they were so connected. (See AOB 319-321.) Put differently, “the sentence on which the court below relied was used bythis Court as part of detailed analyses of the actual crimes in the cases from which 176 it came, not as a talismanic phrase which—ifit could be stretched to apply to a set of facts—would substitute for the statutory test.” (AOB 321.) Respondent simply has no answer to the claim that the trial court—whichbeganits analysis by correctly describing the Magnolia Interiors charges as “unrelated to the other incidents”°—applied the wrong legal standard.® Respondentrepeatsthetrial court’s error and does not even attempt to argue that the offenses were connected in their commission or that—using this Court’s actual test for what that means—that they were linked by a commonelementof substantial importance. Respondent appearsto hopethat this Court will join it in pretending that appellant’s claim is only that the supposedrule (“commonthread”of theft) does not apply to the facts, rather than that there is no such rule. 2. The Tenor of the Magnolia Interiors Offenses Was Not Theft Even if a commonthreadof intent to obtain property feloniously were, in itself, sufficient to make crimes connected together in their commission, such a principle would not apply here. There is no evidence that the vandalizing of Magnolia Interiors was motivated by the same intent that was behind the other incidents, all of which included robberies and were clearly about obtaining money, cars, and ATM cards. Respondent now asserts that the Magnolia interiors offenses were RT 29: 4691. °Respondentalso overlooksthat the trial court’s overall analysis was quite confused, mixing the standardsfor discretionary severance with those of mandatory severance, and concluding with the “commonthread”language in a single sentence unconnected to and unsupported bytherest ofits analysis or by reference to facts showing a pre-existing intent to steal. (See AOB 317-318, citing RT 29: 4691-4692.) 177 basically about theft, specifically, an attempt to crack a safe. In contrast, respondent’s trial counsel charged the defendants with vandalism, but not theft or attempted theft. While theft was includedin the instructionsas a possible target felony for burglary, so was vandalism,’ and the prosecutor never mentioned theft in his summations.* The detail about the safe was not important enoughfor the prosecutor to even mention during opening statement or closing argument. In both, however, the prosecutor went into some detail about wanton destructionat the place, the scissors through the sonogram ofthe owner’s unborn son, and “Nowyoudie” andothergraffitti on the wall and on the sonogram, and more.’ And these were presented for an important rhetorical purpose: “This count... [t]eaches us what Romerois about, which is just sheer destruction, destroying things, just for the fun of it.” (RT 45: 6944.) If this were a civil action, it would be clear that respondent would be judicially estopped from arguing before this Court that the perpetrators’ intent was to steal valuable property, that, being thwarted, they took the paperweights, etc., “as consolation prizes, [and then] leaving behind threatening graffiti and extensive damage . . .,”'° when, before the factfinder/sentencer it relied only on the nature of the property damage, to persuadethat body of appellant’s maliciousness. (See MW Erectors, Inc., v. Niederhauser Ornamental and Metal Works Co., Inc. (2005) 36 Cal4th 412, 422, 424 [inconsistent positions prohibited, to avoid unfairnessto parties and "CT 7: 1648. *See RT 45: 6944-6946,46: 7039. "RT 31: 4823-4824; 45: 6944-6946; 7039-7040. '°RB 76-77. 178 manipulation of courts]; cf. People v. Williams (2008) 43 Cal.4th 584, 622, fn. 21 [suggesting, without explanation, that the doctrine is more limited in criminal cases].) Such estoppel should apply hear as well. (U.S. Const., 14th Amend., [equal protection]; Cal. Const., art. I, § 7 [same].) In any event, the theory respondent offeredat trial is the one thatfits the facts. The evidence unaddressed by respondent makesthis clear in another way, as well. People entering a business to get access to its cash bring tools that may help. The tools used to try to pry open the Magnolia Interiors safe were notbroughtin by the vandals; they belonged to the business. (RT 34: 5372-5373.) The only reasonable hypothesis is that the amateurish attempt to open the safe was an opportunistic decision made after entry. In contrast, while the origin of the spray paint used to deface the walls and merchandise was not madeclear, it seems more likely that the perpetrators brought it with them thanthat a furniture upholsterer would stock it. The perpetrators brought whatthey needed for vandalism, not safecracking. Finally, appellant has pointed outthat, [ijn a shop filled with valuable and easily removed office equipment, tools, and fabrics, the proprietor complained of $18,000 damage but the disappearance of only a paperweight, a fake hand grenade, some keys, and some collectible coins, which,at the time of the motion, were described as petty cash. (AOB 319, with citations to the record.) In reframing the offense to fit its current needs, respondent ignoresthis point and,treating this Court as if it will draw fanciful notions from selectively-drawn portions of the evidence, respondentsimplyasserts, “[I]t is clear appellants broke into Magnolia Center Interiors with the intent to take valuable property from the store,” based on the attempt to open the safe. (RB 75.) Respondent doesnot attempt to reconcile its new theory with the vandals’ failure to take readily removable, valuable 179 items from the shop,if that was their intent. Focusing now on anaction not even mentionedin counsel’s statements to the jury, as showing the defining intention in the burglary/vandalism, is respondent’s attempt to salvage a clear error by a court that misunderstood the law. This Court should not indulge in the fiction which respondentinvites it to adopt. Respondentalso states that the charged offenses “occurred amidst a prolific crime spree, wherein appellants kidnaped, carjacked, robbed, and/or shot nearly a dozen victims in a two-month period.” (RB 75.) This sentence nearly refutes itself, as the Magnolia Interiors vandalism looked nothing like the crimes in the alleged “spree.” And there is no “part of a spree” clause in section 954. Both parties have cited People v. Mendoza, supra, 24 Cal.4th 130, 160, in which this Court explained that “the close time frame within which the consolidated offenses were committed shows a continuing course of criminal conduct.” What took place there were three incidents involving robberies, plus two commercial burglaries—i.e., five incidents—in a span of less than 48 hours, so it was clearly a continuing course of conduct. (d., pp. 159-160.) Here, in contrast, the 11 incidents with which appellant was charged were spread over a two-month period, between October 8 and December 7, 1992. Ina period 30 times as long, there were only twice the numberof incidents. While for rhetorical or journalistic purposes this could be characterized as a “spree,” legally it was not in the same qualitative class as Mendoza’s continuing activity during the two days in which he committed acrime every few hours. The Magnolia Interiors breakin occurred three weeks 180 after the preceding offense andfive days before the next,'' as appellant pointed out in his openingbrief.” The fact that appellant apparently violated the Penal Code in some wayevery few days or weeks, over a two-month period does not make all such incidents—whethervandalism,or using illegal drugs, ora much more heinous crime—“connected together in their commission.” The only commonlink wasthe perpetrator, and section 954 would have norestrictions at all if this were enough. Neither the nature of the crimes, the means of their commission, the victims, nor true temporal proximity connected the commission of the burglary-vandalism to the commission of the robberies and robbery-murders, and trying them together was unauthorized by statute. This is a question of law, and the trial court had no discretion to deny severance. (People v. Cunningham (2001) 25 Cal.4th 926, 984.) Rather, it was correct when it described the Magnolia Interiors charges as “unrelated to the other incidents,” confused when it interwove mandatory and discretionary severancestandardsin the bulkofits analysis and misused some,'* and wrong on both the law and facts when,in a single conclusory sentence that began to addressthe relevantissue,it relied on a supposed commonthread ofa primary "Of which,it later turned out, appellant was acquitted. "See RT 34: 5253 (Rankins/Williams attacks: night of October 25, 1992), 5362-5364 (Magnolia Interiors: night of November 13), 5308-5309 (Steenblock kidnap/robbery: November 18); see also CT 5: 963-964, AOB 322, fn. 206. RT 29: 4691. See RT 29: 4691-4692 and AOB 317-318. 181 intention to commit theft feloniously.’” B. Had the Magnolia Interiors Offenses Been Properly Joined with the Assaultive Crimes, Refusing Discretionary Severance Would Have Been an Abuseof Discretion Appellant has argued alternatively that, even if there was statutory authorization for joinderofthe offenses, it was an abuseofdiscretion to refuse severance. (AOB 322-330.) Respondent disagrees. (RB 76-83.) 1. Respondent Partially Misconceives the Four-Part Test For When Properly-Joined Offenses Must be Severed to Protect a Defendant’s Rights to a Fair Trial and Reliable Penalty Verdict The parties largely agree on the law applicable to the trial court’s obligation to sever properly-joined charges in the interests of justice and the defendant’s right to a fair trial. (§ 954; due process clauses of U.S. Const., 14th Amend., Cal. Const., art. I, §§ 7, 15.) There are, however, critical differences. The bottom-line issue, it is agreed, is whether joinder prevents a fair trial, here, a fair penaltytrial. Respondentpartially miscites People v. Musselwhite (1998) 17 Cal.4th 1216, 1243, for the proposition that “the defendant must clearly establish a substantial danger of prejudice—prejudice so great as to deny fair trial and outweighing countervailing considerations.” (RB 76.) It is true that Musselwhite puts the burden of clearly establishing a substantial danger of prejudice on an appellant seeking to show an abuse of discretion. (/d. at p. 1244.) However, there is no weighing of the benefits of consolidation against prejudice: severance is “constitutionally required if joinder of the offenses would be so prejudicial that it would deny a defendanta fairtrial.” (id. at pp. 1243-1244.) This is unsurprising. “[T]Jhe pursuit of judicial PRT 29: 4692. 182 economy and efficiency may never be used to deny a defendanthis right to a fair trial.”'° (Williams v. Superior Court (1984) 36 Cal.3d 441, 451-452.) The determination of prejudice dependson the facts of each case, but four factors are evaluated as part of that analysis. None is a prerequisite for a finding of either prejudice or lack of prejudice. However, the first (cross- admissibility of the evidence) is particularly weighty because, if the same evidence would comein at separate trials, the usual sources of prejudice from consolidation disappear. (Frank v. Superior Court (1989) 48 Cal.3d 632,639; People v. Jenkins (2000) 22 Cal.4th 900, 948.) The factors to be considered are these: (1) the cross- admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some orall of the charges; and (4) whether one of the chargesis a capital offense, or the joinder of the charges converts the matter into a capital case. (People v. Mendoza, supra, 24 Cal.4th 130, 161.) This is not just the basis for Recently in People v. Soper (2009) 45 Cal.4th 759, this Court did emphasize the likely economies of joinder in many cases and speak of weighing them against the likelihood of prejudice. (Ud. at pp. 780-783.) However, in context, the Court was emphasizing an analytical framework that—ifcharges were properlyjoined— places a burdenofclearly establishing a substantial danger of prejudice on the defendant because of those economic benefits. (Ibid.; see also pp. 772-775.) It did not hold that if an unfairtrial waslikely, sufficient economies could outweigh that cost of a consolidated trial. In fact, the Soper opinion foundlittle likelihood of prejudice on the facts of that case. (/d. at pp. 780-781, 784.) It is also noteworthy that most of the systemic economiesof joinder noted by the Court to be generally true were exemplified by that case, where two similar murders were joined. Here, because the costs of brief, simple, separate trials on either the receiving count or the burglary/vandalism counts would be negligible, so were the benefits of consolidation. 183 appellate review. These are “the factors through which the trial court’s exercise ofdiscretion is channeled.” (People v. Musselwhite, supra, 17 Cal.4th 1216, 1244.) Respondent replicates an error made by thetrial court, critically misstating the second factor as “the prejudicial effect of joining a highly inflammatory charge with a non-inflammatory charge” (RB 77), rather than whether the evidence pertaining to at least some of the charges is unusually inflammatory (People v. Mendoza, supra, 24 Cal.4th at p. 161). The risk of prejudice does not disappearif the evidencepertaining to all of the charges is inflammatory, rather than just some, as respondent would have it. As explained in the opening brief, cumulating inflammatory evidence from separate charges, evidence that otherwise would not all be before one jury, creates a risk of prejudice, period. This is especially true, where, as here, the questionis penalty-deliberations prejudice, where the jurors’ felt sense ofwho the defendant is becomescritical, and piling on inflammatory evidenceaffects the subjective weighing process. It is therefore wrong to claim that there has to be a differential inflammatory impact betweenthe bodiesofevidence on the different charges, and there is no support in this Court’s precedents for such aclaim. The trial court and respondent both conflated the weak-case/strong- case factor, which does have to do with differencesin the strength of the proof on each charge, with the inflammatoriness factor, in which differences are irrelevant. Appellant explained this in analyzing the trial court’s error;’’ respondent ignores the point. "See AOB 327-328, quoting People v. Mendoza, supra, 24 Cal.4th at p. 161; People v. Marshall (1997) 15 Cal.4th 1, 27-28; Frank v. Superior Court (1989) 48 Cal.3d 632, 639; and People v. Lucky, supra, 45 Cal. 3d 259, 277. 184 Respondent’s supposed authority for its formulation is Williams v. Superior Court (1984) 36 Cal.3d 441, 452.'* Williams adopted the now- classic four-part test from Coleman v. Superior Court (1981) 116 Cal-App.3d 129, 135. Coleman’s facts did involve cases where the evidence on some counts was more inflammatory than that proving the others, but Williams did not hold that this was pertinent to the analytical model it was adopting. On the contrary, as Williams applied the inflammatory-nature factorto the facts before it, the same inflammatory evidence—possible gang membership—waspresent in the evidence on both charges. In the particular circumstance ofthat case, such evidence “might very well lead a jury to cumulate the evidence”of guilt presented on the two charges, separate murders, in determiningguilt of either. (Williams v. Superior Court, supra, 36 Cal.3d at p. 453.) Here the problem is, similarly, that any unnecessary inflammatory evidence would be cumulated with the other circumstances favoring death. The other difference between the parties regarding the law is that respondent does not acknowledge (or deny) that more protective standards apply in a capital case because of“the Eighth Amendment’s heightened ‘need for reliability in the determination that death is the appropriate punishment....’ [Citation.]” (Caldwell v. Mississippi (1985) 472 U.S. 320, 323.)'° Respondent acknowledgesthat whetheror not the case is a capital one is one ofthe factors involvedin the weighing processarticulated by this Court, but without stating what that means. 2. The Trial Court Abusedits Discretion by Considering Cross-Admissibility Irrelevant, and a Proper Analysis "SRB 77. "See authorities discussed at AOB 323, fn. 207, on the direct application of this principle to severanceissues. 185 Would Have Shownthe Absenceofthis Factor Respondentoverlooksthe stronger weight that the cross-admissibility factor can have” andthetrial court’s stated belief that the factor—normally the main reason for joinder and the clearest way to negate prejudice—was irrelevant to its analysis.*' The question of whether there was error is answeredatthis point. “Thetrial court does not have discretion to depart from legal standards.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 712, fn. 4, quoting People v. Neely (1999) 70 Cal.App.4th 767, 775-776.) “[W]hen a trial court’s decision rests on an error of law, that decision is an abuse of discretion.” (People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 746.) Ignoring this problem, respondent proposes the abuse-of-discretion standard that would applyif the trial court had not deviated from the law.” Respondent then supplies its own argument for cross-admissibility. Respondent’s argument can only go to prejudice, not whether there waserror, and this Court must evaluate that argument independently, with no deference to a non-existent trial-court ruling on the issue.”’ Finally, in makingits contention, respondent assumes that a feather’s weight of circumstantial relevance of uncharged conduct at Magnolia Interiors would make it admissible in a separate trial on the major crimes, ignoring the need for some “substantial probative value” to overcometherisk ofprejudice always inherent People v. Jenkins (2000) 22 Cal.4th 900, 948, discussed at AOB 324. *IRT 29: 4688-4690, discussed at AOB 325. RB 76. *1e., ifrespondent’s reasonsto refuse severance wereto lead this Court to the conclusion—inits own independent analysis—that the charges should have remained joinedfortrial, then the trial court’s error would have been harmless, no different result being possible even ifthe trial court had not erred. 186 in bringing in other-crimes evidence. (People v. Thompson (1980) 27 Cal.3d 303, 318; see also People v. Steele (2002) 27 Cal.4th 1230, 1245.) Respondent notes, with some exaggeration, that “keys and other items””* stolen from Magnolia Interiors were found during the samesearch of appellant’s grandmother’s house that turned up items stolen from robbery victims. (RB 78.) The only cross-admissible evidence here would be the few lines of testimony in which an officer indicated that he conducted the search andthat it turned up evidence that Self lived on the premises. (RT 37: 5655, 5661-5662.) This is because itemsrelating to both sets of crimes were found there, so when the officer testified in either trial about items pertaining to the charges then at issue, he would need to say that he conducted the search. Arguably the domicile evidence regarding Self would also be admissible as (extremely weak) circumstantial support for appellant’s involvementin the crime at issue. However, the evidence of the Magnolia Interiors items being found at Self’s residence would not help, in a separate trial on the robbery/assaultive-type offenses, to prove that appellant—or even his brother—committed those offenses. Nor would the evidence ofthe Steenblock golf clubs or the Greer ATM card, the items taken via armed robberies and foundat the same location, have helpedtie either defendant to the Magnolia Interiors incident. The cross-admissibility regarding the search involves a negligible quantity of evidence. Still relying on evidence pertaining to Self, not appellant, respondent asserts that shoe prints similarto those the “British Knight” prints found at the Mans-Jones and Feltenberger scenes were at Magnolia Interiors, “thus further establishing Self’s actual participation” in the vandalism offenses. (RB 79.) “The only other item was a paperweight. (RT 37: 5655-5664.) 187 This is both entirely undocumented”’ and a non sequitur; evidence of Self’s presence at completely unrelated crime scenes would not be admissible to show that he was involvedin either crime, muchless that appellant was. That a perpetrator wore shoes like his was circumstantial evidence of Self’s presence at the scene in question; evidence that he might have been present somewhere else had no “tendency in reason” (Evid. Code § 210 [defining “relevant”]) to establish his presenceat the first crime scene. Similarly, respondent states that the style in which a nickname was written on a British Knights shoe box found in Self’s car, and in which his own namewaswritten in a briefcase found in the Colt, was similar to the Magnolia Interiors graffiti. (RB 79.) Assuming that this was true—though this assertion, too, depends on wishful thinking rather than the record’°—the evidence would have been admissible in a separate Magnolia Interiorstrial as tending to show Self’s involvement. But it would have added—and did *’Respondent again cites the portionsofthe record it cites when making this claim in its Statement of Facts. See the discussion of the matter at page 23, above. °Respondentcites portions of the record referring to the graffiti, but there was no testimony comparing or even describing the samples. (RB 79, citing RT 32: 5039-5041; 34: 5365-5373; 37: 5687-5688.) Theprosecutordid urge jurors to do their own handwriting analysis (RT 45: 6705-6706), but what conclusion they might have cometois not revealed by any of the exhibits now cited by respondent. Two show MagnoliaInteriors graffiti, but not that described by the prosecutor. (Ex. 14, SCT — Exhibits 1: 45-46; Ex. 194, SCT — Exhibits 2: 319-320.) Another showsnograffiti. (Ex. 65, SCT — Exhibits 1: 102-103.) Another provides a badly obscured glimpse ofa little bit of graffiti inside some object, none of which resembles in any way anything in Exs. 14 or 194 or anything described by the prosecutor. (Ex. 64, SCT— Exhibits 1: 100-101.) No graffiti in any exhibit is particularly distinctive to one who without experience recognizing subtle sub-varieties in typical teen “tagging” graffiti. 188 add—nothing to the prosecution case on any other offense.”’ The shoe box alone wastechnically relevant in the assaultive-crimestrial because of the British Knights prints at the Lake Matthews scene, but it was cumulativeto, and less probative than, an officer’s testimony that Self was wearing British Knight shoes whenarrested.”* In any event,if this tiny piece of evidence were needed at both trials, it would have taken minutes to establish Self’s possession of the shoe box in a secondtrial, as it did in thefirst. Finally, respondentstates that whatit inaccurately calls the threatening nature”’ of the graffiti at Magnolia Interiors, where Munoz was(supposedly) not present,*’ tended to undercut appellants’ attempts to portray Munoz asthe violent ringleader by showing “appellants’ shared intent to steal property and harm people.” (RB 79.) The prosecution never suggested this as a basis for *’The briefcase at issue was nevertied to any other offense. (Compare RT 37: 5687-5688 [Ex. 328 had the writing] with RT 34: 34: 5324 [Ex. 77 was Steenblock’s briefcase].) SRT 38: 5729. ’There were no threats to anyone. The testimony wasthat “Now you die,” “Just when you thought,” “Nowis then,” and “666” were on walls and furniture. (RT 34: 5366-5370.) Respondent claimsflatly that, in addition, “You’re going to die” was written on a sonogram. (RB 24.) This apparently was not the case. The proprietor testified that he did not “exactly remember” what was written; it was “something like, ‘You’re going to die,’ or something like that.” (RT 34: 5367.) The prosecutor, who presumably knew whatwaswritten, followed up with, “Something about death?,” and the witness answered affirmatively. (RT 34: 5367.) No exhibit showing the writing was introduced. In any event, the writing was disturbing but did not, as respondent suggests, show an intention to harm people. *°There was no evidence either way on whether Munoz wasinvolved, or of how manyperpetrators were present. 189 cross-admissibility.* Nor did the trial court, which, as noted previously, considered cross-admissibility irrelevant. (RT 29: 4688, 4690.) It is a far- fetched basis for arguing that uncharged Magnolia Interiors evidence could have been admitted at a separate trial on the robberies and murders, given Munoz’s violent behavior. All three young men were involved in some way in three murder-robberies and the Mills-Ewy and Williams-Rankin shootings; MunozandSelfcontinued engaging in robberies together; Munoz shotgunned Paulita Williams and, according to Sgt. Feltenberger, Munoz demanded that Self shoot him. None of the three, and certainly not Munoz, cameoff as not having a violent dark side. The fact that Self may have displayed his in some graffiti at a vandalism site, where Munoz mightnot have been present, had no significance in any attempt to decide who wasa ringleaderin the robberies and homicides and who wasinvolved without exercising leadership. Moreover,the issue of who was moreactive or passive in the shootings had nothing to do with appellant’s guilt; it only went to penalty. So the vandalism evidence would not have been admitted at a separate guilt phase, and it is inconceivable that it would have been admitted at a penalty trial for this purpose,in the face of section 190.3’s exclusivelist ofaggravating factors, not to mention the consumption of time it would take to provide no real information on appellant’s degree of culpability for the murders. (People v. Boyd (1985) 38 Cal.3d 762, 775; Evid. code § 352.) In sum, cross-admissibility is the main way to show judicial economy and negate prejudice,” and it can therefore have greater weight than the other 31See CT 6: 1207-1215 (points and authorities); RT 29: 4683-4686. *» People v. Jenkins (2000) 22 Cal.4th 900, 948; Williams v. Superior Court (1984) 36 Cal.3d 441, 448; People v. Scott (1944) 24 Cal.2d 774, (continued...) 190 factors.**> The trial court’s failure to consider this factor leaves this Court without a findingor legally-based exercise of discretion to uphold. Rather, the trial court erred as a matter of law. (Haraguchi v. Superior Court, supra, 43 Cal.4th 706, 712; People v. Superior Court (Humberto S.), supra, 43 Cal.4th 737, 746.) In the independent analysis which this Court is therefore left to make—in the context of deciding whether the error was prejudicial or whether a correct application of the law would have produced the same result—respondentpoints to facts that have some vague connection with each other but legitimately can come up with only to one small item of evidencethat truly would be admitted at separatetrials: that a search was madeofSelf’s car and that, among the items found were a briefcase and a shoe box. Neither the time-consumingnorthe prejudicial portions ofthe evidence would be repeated in a separate trial on the assaultive crimes. This factor would not have been a basis to deny severance. 3. The Trial Court Continued its Failure to Apply the Law in its Failure to Recognize the Capital-Case Factor Before turning to whatis often listed as the second of four factors to be considered (the inflammatory potential of the evidence) appellant analyzed (AOB 325-327) another one that is both straightforward and provides key context for the inflammatory-potential factor: whether or not the case is a capital one. (People v. Mendoza, supra, 24 Cal. 4th 130, 161.) As cases cited *°(...continued) 778-779; Walker v. Superior Court (1974) 37 Cal.App.3d 938, 941. *°People v. Jenkins, supra, 22 Cal.4th at p. 948. 191 by appellant previously make clear,’ Eighth Amendment considerations triggered by “the gravest possible consequences”ofthe trial require “a higher degree of scrutiny and care” by a court deciding severance in a capital case. (Williams vy. Superior Court (1984) 36 Cal.3d 441, 454; accord, People v. Keenan (1988) 46 Cal.3d 478, 500; People v. Lucky (1988) 45 Cal.3d 259, 277.) Respondent does not acknowledge or dispute this principle. Nor does respondent address the fact that the trial court overlooked the factor entirely. (RB 78-83.) The trial court’s only mention of the capital-case factor was to state that consolidation will be upheld on appeal under certain circumstances, even in capital cases.** This is a far cry from recognizingits duty to take into accountthe greater likelihood of a need for severance. The court’s error was pointed out in the opening brief (pp. 326-327), and respondent does not dispute it. Again, when trial exercises discretion without applying the proper legal principles, it has per se abused its discretion. (Haraguchi v. Superior Court, supra, 43 Cal.4th 706, 712; People v. Superior Court (Humberto S.), supra, 43 Cal.4th 737, 746.) That happened hereasto the capital-case factor as well, which is another reason why this Court must analyze the entire ruling de novo in deciding whetherthe trial court’s error can be held not to have affected the outcome. Recently, however, in a one-sentence footnote in Alcala v. Superior Court (2008) 43 Cal.4th 1205, this Court characterized the capital-case factor “See AOB 325-326. SRT 29: 4690. Appellant Self’s brief, at page 238, quotes the entirety of the trial court’s confused analysis of the Magnolia Interiors joinder. 192 as one it had “suggested” previously and stated that “a heightened analysisis no longer called for” after the 1998 enactment of section 790, subdivision (b). The Court’s reasoning was that the statute “specifically provides for joinder of capital cases such asthese.” (/d. at p. 1229, fn. 19.) The conclusion should not apply to appellant, whose crimes occurred in 1992 and who wastried in 1996.*° In any event, an examination ofthe briefs in that case showsthat the conclusion wasreached without the benefit of any briefing on the point and should be reconsidered. The “suggestion” about the capital-case factor was phrased in these terms: “since one of the charged crimes is a capital offense, carrying the gravest possible consequences, the court must analyze the severance issue with a higher degree of scrutiny and care than is normally applied in a noncapital case.” (Williams v. Superior Court (1984) 36 Cal.3d 441, 454.) Until the Alcala footnote, this principle, as one of the four factors generally applicable to analyzing prejudice, had been consistently upheld for 25years. (See,e.g., the seven cases cited in Alcala as restating the four-factor analytical framework, Alcala v. Superior Court, supra, 43 Cal.4th at pp. 1220-1221.) Section 790, the provision cited in Alcala, is a venuestatute. As this Court explained, before its passage a murdercould betried only in the county wherethe injury wasinflicted or where the victim died. The new subdivision excepted murdersproperly joinable but committed in different counties from this restriction. The purpose wasto avoid multiple complicated and expensive trials of serial killers who operated in more than one county. (/d. at p 1215.) But the new venue subdivision only permits joinder where it is otherwise °°U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7 and 15; Bouie v. City ofColumbia (1964) 378 U.S. 347; People v. Davis (1994) 7 Cal.4th 797, 811-813. 193 appropriate undersection 954,the joinder statute. (See § 790, subd. (b).) The question of whether, in a particular case, due-process fairness considerations (see Williams, supra, 16 Cal.3d at p. 452) and Eighth-Amendmentreliability requirements compel discretionary severance of charges, where joinder was statutorily authorized, is unaffected by changing the venuerules so that they would not interfere with joinder. The need to avoid risking a mistaken death judgmentstill counsels extra care in considering whetherto try joined charges together. The capital-case factoris still pertinent, and the trial court erred by excluding it. 4, The Trial Court’s Conclusion That the Evidence Was “Extremely Inflammatory” Was Correct and Should Have Been Determinative, but it Confused the Inflammatoriness Issue with the Weak-Case/Strong- Case Factor Thetrial court stated, in explaining its denial of severance, “I don’t think it can be argued that the incidentis significantly less inflammatory than the others, in that the sonogram is extremely inflammatory ....” (RT 29: 4692.) And, as set forth in more detail in the opening brief (p. 327), the court also detailed how other parts of the evidence were quite inflammatory. The court thus confused the inflammatoriness factor with one of the other potential reasons for granting severance, the joining of a weak case for guilt with a strong one,creating a likelihood of a “spillover effect” that could lead to an unreliable verdict on guilt ofthe less-supported charge. The parties agree that the weak-case/strong-case factor is inapplicable here. As explained above,”’ of the two factors whichthetrial court muddled together here, the question should have been whether failure to sever would *™Pages 184-185. 194 permit unusually inflammatory evidenceto enterajointtrial that would not be admitted if the charges weretried separately.** I.e., the factor is not about the relative inflammatory nature of the bodies of evidence admissible at each proceeding. This is particularly the case in a capital trial, where allowing consolidation to bring in otherwiseirrelevant inflammatory evidence, evidence that would be inadmissible on penalty, could affect the jury’s penalty decision. As appellant pointed out previously, because of the normative weighing of intangibles that goes into a capital penalty determination (People v. Sanders (1990) 51 Cal.3d 471, 529; see § 190.3), it is not disparities in inflammatory potential, but cumulative inflammatory and/or legitimately unfavorable testimony that helps produce a death verdict. (See, e.g., People v. Roldan (2005) 35 Cal. 4th 646, 725 {surveying facts which, added together, likely led to death verdict].) [Here, plermitting the prosecutor to add more evidence inflamingthejurors against appellant wasprecisely the problem. (AOB 328-329.) Respondent, unable to dispute either the guiding principle, its applicationhere,the trial court’s confusion ofthe weak-case/strong-case factor with the unusually-inflammatory factor, or its correct holding that the sonogram evidence alone was “extremely inflammatory,” simply ignoresall ofthese. (RB 80-81.) Instead, respondent mischaracterizes appellant’s claim as being based on the likelihood of biasing the jurors so that they would convict on the unrelated charges regardless of the evidence, rather than as *8See AOB 327-328, quoting People v. Mendoza, supra, 24 Cal.4th at p. 161; People v. Marshall, supra, 15 Cal.4th 1, 27-28; Frank v. Superior Court, supra, 48 Cal.3d 632, 639; and People v. Lucky, supra, 45 Cal. 3d 259, 277. 195 °° And, according tobeing based on the risk to a reliable penalty verdict. respondent, this is the only complaint available: “[T]he real danger to be avoided by joining inflammatory offenses with non-inflammatory offensesis that strong evidence of the inflammatory charge might be usedto bolster a weak case of a non-inflammatory crime. (People v. Mason [1991], 52 Cal.3d [909,] 935.” (RB 81.)” (RB 81.) Mason, however,did not involve a claim of penalty-phase prejudice, but guilt-phase prejudice. Apparently, in respondent’s view,it is not a problem if a court permits the prosecution to bias a penalty determination with bad-character evidence based neither on the circumstances of the crime nor some otherviolent offense, contrary to statute as interpreted by this Court*’ and the Eighth Amendment. So,in attacking the straw man of guilt-phase prejudice, respondent faults appellant for not acknowledging the jury’s acquitting him of the charges relating to Alfred Steenblock, a circumstance providing “compelling evidence that the Romero jurors were not unduly inflamed” when deciding ifthe elements ofthe offenses were proved. (RB 81.) And, still focusing on that question, as opposed to whether the vandalism evidence would add more(but illegitimate) evidence to the penalty side of the aggravation scale, respondentrepeats its refrain that everything else legitimately in front of the jury was so inflammatory as to makethe added evidenceinsignificant. In doing so, respondent inaccurately claimsthat the trial court, too, considered the Magnolia Interiors evidence “much less inflammatory” than the evidence of murders and attempted murders (RB 80), when it fact the court stated, “I don’t think it can be argued Self does make such a claim. “°The language which respondentparaphrasesis at 52 Cal.3d at p. 934. "Section 190.3; People v. Boyd (1985) 38 Cal.3d 762, 775. 196 that the incidentis significantly less inflammatory than the others, in that the sonogram is extremely inflammatory... .” (RT 29: 4692.) That is an indisputable conclusion. There is no escaping the fact that the trial court thought it was a reason for denying severance whenit fact it was a reason for granting it. Respondent’s entire discussion simply circles around this problem, rather than addressingit. In brief, the trial court seemed to understand the weak-case/strong-case factor and its inapplicability here. But it held that the often-determinative cross-admissibility factor was no longerpart of the applicable law; alluded to the capital-case factor only by noting that it alone need not be determinative, rather than acknowledgingits role in cautioning against denying severance; and put the question of inflaming the jury on the wrong side of the court’s analytical scale. Respondent argues for lack of error only by ignoringall of these aspects of the ruling, as well as appellant’s actual claim of error. Neither the inflammatory Magnolia Interiors evidence, nor the theories about appellant’s character which it permitted the prosecutor to elaborate,” belongedin a trial in which the jury was to decide whether appellantlives or dies. It was evidence (a) unusually likely to inflame a jury, introduced into (b) a capital case, (c) in a situation where only joinder, not cross-admissibility, could have been the vehicleforits admission, and wherethe judicial-economy 1.° Thus refusal to ensure the fairness of thebenefits ofjoinder were minima capital proceeding through severance wasan abuse of discretion. (People v. Mendoza, supra, 24 Cal.4th at p.161; People v. Marshall, supra, 15 Cal.4th “See AOB 329, 336-339. “This is particularly true because Self—as to whom most of the claimedinstancesof cross-admissibility applied—already had a separate jury. 197 at p. 27-28.) This is unsurprising, since the trial court thought that two of the four factors intended to guide that discretion were either without continued viability or could be ignored, and its view of how to apply a third was precisely reversed from what this Court had propoundedforits guidance. The trial court’s failure to apply the correct legal standards could theoretically be found harmless on either of two bases. The first would be if a correct analysis would haveled to the sameresult, but this is manifestly not the case. Nor can respondent not demonstrate harmlessness at the level of showing that erroneous admission of the Magnolia Interiors evidence had no potential to affect the penalty decision. This question, howeveris discussed in Part D, page 205, below,along with the effect of the court’s similar error in denying severance on the Feltenberger receiving count. C. The Receiving Charge Should Have Been Severed as Well 1, Joinder Was Unauthorized, So Severance Was Mandatory In responding to the severance claim regarding the receiving charge, respondent again ignores both appellant’s contentions and the trial court’s actual ruling. Thetrial court held that every offense except those related to Magnolia Interiors involved assaultive behavior, wasfacilitated by the use of a firearm or firearms, involved a crime at least as serious as armed robbery, took place within the same two-month period, and waslinked by a common element of intent to feloniously obtain property. (RT 29: 4690.) This, of course, was untrue of the receiving count. Including the innocuousreceiving countin this category demonstrates that eventhe trial court did what appellant argues there was an unacceptable risk of one or more jurors doing: tarring appellant with the brush ofhis comrades’ robbery/attempted-murder ofOfficer Feltenberger. The confusion was repeated post-trial, when in denying 198 appellant’s motion to modify the penalty verdict, the court mentionedhis guilt of “the attempted murder of an off-duty Ontario police officer.” (RT 55: 8223-8224.) In any event, the trial court erred in analyzing the severance issue based on a holding that appellant’s receiving the pouch was,like the other offenses, assaultive, at least as serious as armed robbery, and involved use of a firearm. This muchis indisputable. To argue that consolidation was authorizedat all, respondentrelies only on the supposed common-thread-of-feloniously-obtaining-property test to substitute for crimes actually being connected together in their commission, still without replying to appellant’s showing” that there is no such test. (RB 76.) Appellant’s taking possession of an item, stolen by Munoz and Self ina crime which he knew nothing about until after it happened, was in no way connected together in its commission with his robberies and assaultive offenses. The crime of receiving is not even a theft offense; the prohibition “is directed at those who knowingly deal with thieves and with their stolen goodsafter the theft has been committed.” (People v. Jaramillo (1976) 16 Cal. 3d 752, 758.) To hold that joinder was available under the statute would be to eviscerate the rule that offenses must be of the same class or connected together in their commission. 2. If Joinder Were Authorized, the Only Proper Exercise of Discretion Would Still Have Been to Grant Severance Appellant argued that with this offense, too, if the offenses were connected togetherin their commission,discretionary severance wouldstill be required in this capital case. Since here, too, the trial court misunderstood three of the four factors “See AOB 319-321. See also pp. 175-177, above. 199 that were to guide its analysis, it erred. Respondent’s argument should be reframed as an attempt to show harmlessness based on a de novofinding that discretionary severance would still have been inappropriate. Asto cross-admissibility, respondent makesfive points. Respondent is creative in these, but the prosecutor did not actually employ the evidence in any of these ways. In his argumentsto the jury, he did not use anything in the assaultive-crimes evidence to help prove the receiving count, or pouch- possession evidence to prove the assaultive-crimes counts. (See RT 46: 6966-6967 [receiving count], 6904-6966 and 6967— 6973 [all other counts]; 7017-7040 [same,final argument].) Ifthe evidence was not probative enough for the purposes now suggested by respondent to be employed by a prosecutor permitted to do so, clearly it did not have enough relevance to be admissible other-crimes evidence in separate trials. Here are respondent’s post-facto cross-admissibility claims. . The attempted-murder evidence was “cross-admissible with Count XX [receiving]” to prove that the pouch wasstolen and that appellant knew it. (RB 79.) The proposition that the evidence was part of a legitimate receiving case (which appellant assumes arguendo here, but see Argument IV) only shows why consolidation prejudiced his trial on the capital offenses. Respondent forgets that the Feltenberger narrative would have had no place in a separate trial of appellant on crimesagainst other persons because appellant had nothing to do with it. Admissibility in onetrial but not the other is not cross- admissibility. . Appellant’s participation in the other robberies and murders would have been admissible in a separate trial on the receiving 200 charge becauseit tended to prove appellant’s knowledgethat the pouch was stolen. (RB 79.) The prosecution introduced appellant’s admission that he knew the pouch wasstolen and Munoz’s testimony to the same effect. The idea that an offer to present days of testimony about robberies and murders, in an otherwise short-and-simpletrial on receiving property stolen by someone else, could overcome the usual restrictions on prejudicial other-crimes evidence” is indefensible. Respondent doesnot try to explain what the additional probative value ofthe evidence on the already well-proven issue of guilty knowledge would be—somethingthat is far from obvious. The confusion of the issues, prejudicial effect, and massive consumption of time involved in introducing evidence of three homicides and five armed robberies, into a separate trial on receiving stolen property, would be a gigantic tail wagging an imperceptible dog of probative value. (Evid. Code § 352.) The pouch “was recovered among the weapons Romero [along with Self and Danny Chavez] stole from Jerry Mills” and contained two .45 cartridges that could have been used in Mills’s pistol. (RB 79-80.) Respondent fails to explain how 6these facts, if true,“° would belong in either separate trial. “Evid. Code § 1101; see People v. Soper (2009) 45 Cal.4th 759, 772 (“evidence ofunchargedoffensesis generally inadmissible”), 773 (prosecution the burden of establishing that the evidence has substantial probative value that clearly outweighsits inherentprejudicial effect’”); People v. Ewoldt (1994) 7 Cal.4th 380, 404. “Respondent gives 29 pages of span cites in support of this statement. (continued...) 201 Possession of the Feltenberger pouch did not help prove appellant’s participation in, or any element or circumstanceof, the crimes against persons in which appellant participated. And its being recovered at the scene where both appellant and Self were arrested”’ did not tend to prove possession,i.e., makeit morelikely than not, that Self had given it to appellant after stealing it. Either man could haveleft it there. . Appellant’s alleged “take him out” statement regarding Feltenberger tended to show appellant’s guilty knowledgeofthe pouch’s origin, so it would be admissible in a trial on the receiving count.’® Per respondent, it would also be admissible in a homicide/robberytrial to “undercut his defense that Munoz wasthe group’s ringleaderin the rest of the crimes.” (RB 80.) “°(...continued) Asto the cartridges, the pouch actually contained two clips, or magazines, containinga total of three .45 cartridges. (RT 37: 5644.) But no evidencethat the clips fit the pistol was introduced. Either they did not, or else the prosecution—which never argued appellant’s guilt of receiving based on respondent’s point about the ammunition (see RT 45: 6966—6967)—judgedit superfluous, in light of the already incontrovertible evidence that appellant took possession of the pouch. “RT 37: 5638-5639; 32: 4961; 35: 5391-5393; 37: 5641-5648. “SAppellant disagrees that this highly inflammatory comment was admissible on the receiving count. Even if it had showed anything about knowledge about what was taken in the robbery, it would have been cumulative to much more direct evidence on that issue, including appellant’s confession. (See AOB 308.) But, assuming arguendothat it could have come in in a trial for receiving, it would have beenirrelevant to a separate trial on the other charges, for the reason stated above, and thus would not be cross- admissible. 202 As with the ugly Magnolia Interiors graffiti (see p. 189, above), the comment—which,if it was made, was not pursued further— gave the jury no help in deciding whose culpability in the real shootings wasgreater. What mattered (at the penalty phase) was whether jurors believed Munoz whenhe portrayed appellant as the aggressor at Lake Matthews, as one who calledfor the others to shoot at the Mills/Ewycar, and asthe first to propose going back to confront “Pint” over the bad drug deal. The fact that the same witnessalso said appellant made this remark in front of a television screen did notassist them in this task. ° Munoz’s account ofthe Feltenberger shooting and of appellant’s possession of the ammopouchhaving both been corroborated, the evidence “significantly bolster[ed] Munoz’s credibility and his testimony concerning the remaining charges.” (RB 80.) Feltenberger was certain that the man in the car—Munoz—several times commanded Self to shoot him. Munozdenied this.’? The fact that Feltenberger corroborated the latter’s testimony that he and Self robbed Feltenberger and that Self shot him does not convert the Feltenberger evidence from being what it was—one of the many sources of doubt about Munoz’s credibility on critical matters of culpability. Furthermore, the only corroboration of ammo pouchpossession was appellant’s admission that he carried it and of his knowledge that it came from Feltenberger. Thus this piece enhanced the credibility of appellant’s statements to “Compare RT 32: 4952, 4957, 4965-4966 with RT 39: 6017. 203 interrogators as much asit did Munoz’s. That the two agreed on something was not consequential. Moreover, as explained on page 158, above, one cannot introduce testimony on a collateral matter just to prove that a witness once told the truth about something. And how the theft of property that appellant received happenedcertainly would have beencollateral to the issues in a trial on the remaining charges. Thetrial court, it will be recalled, fell into error by considering this Court’s guidance regarding the cross-admissibility factor no longer viable and failed to consider it at all. So what is before the Court now is a de novo evaluation of respondent’s reasoning, and its cross-admissibility argument fails. Without cross-admissibility, the primary judicial-economy benefits of joinder were absent. So was the condition in which joinder causes no otherwise-avoidable prejudice, wherejuries in separate trials would be hearing the evidence related to the other crime anyway. (People v. Jenkins, supra, 22 Cal.4th 900, 948; Williams v. Superior Court, supra, 36 Cal.3d 441, 448; People v. Scott, supra, 24 Cal.2d 774, 778-779; Walker v. Superior Court, supra, 37 Cal.App.3d 938, 941.) Appellant analyzed the applicability of the other factors, and thetrial court’s confusion about them in the opening brief. Respondent does not meet this analysis at all. Rather than repeat it, appellant asks the Court to review pages 331 through 334ofthat brief, as well as the explanations about how the robbery/attempted-murderportion ofthe Feltenberger evidence created undue risk of improperly influencing the sentencer, in Argument IV (AOB 307-308, 310-313). As with the Magnolia Interiors counts, respondentattacks the straw man of guilt-phase prejudice (RB 81) and simply sidesteps appellant’s explanations of how the Feltenberger evidence was inflammatoryandlikely 204 to affect penalty (RB 82-83). And respondentagain asks the court to uphold the trial court’s exercise of discretion, when that Court explicitly failed to apply or mis-applied the majority of factors which this Court has set forth to guide that discretion. (RB 83.) Respondent’s attempt to direct the Court’s attention away from appellant’s actual argument andthetrial court’s actual decision is a tacit admission that the trial court erred. D. The Errors Cannot be Found Harmlessin Their Impact on the Jury From the standpoint of rhetorical persuasiveness, as well as possibly inconveniencing the Court by asking it to consult the opening brief or other portions of this one, appellant is tempted to summarize here whythe errors were prejudicial. But repetition is unnecessary. What appellant said in Argument IV (on the Feltenberger evidence, pp. 161—172, above) applies here as well. Further, the opening brief quoted the trial court’s characterizations of the highly inflammatory nature of the Magnolia Interiors evidence.” It demonstratedin detail the prosecutor’s use of the Magnolia Interiors evidence in argument and cited high court decisions uniformly treating such prosecutorial use as enough to answer to the question of harmlessness.”! Respondent replies to none of this. Moreover, in seeking an ivory-tower analysis of harmlessness, respondent ignores further evidence of what one of the persons closest to the case, the prosecutor, considered to be the value of both charges in creating a back-door influence on the penalty decision. Respondentis silent about the prosecutor’s charging of these minor offenses but not others—including several counts of robbery—already provedbyits °°AOB 327. °'AOB 334-341. 205 evidence, and his taking the Feltenberger attempted-murder/robbery/receiving case out of order to openthetrial. In its single paragraph directed towards meeting its burden of showing harmlessness, respondentoffers no reason whythis Court should simply ignore every elementof appellant’s reasoning, refuse to consider whethera real-life jury could have been affected as the prosecutor intended it to be affected, pretendthat it knowsthat the jury believed an extremely biased and discredited informant’s account of who said what and whopulled whattrigger in spite of verdicts that reveal nothing on this score, and find harmlessness in a capital case by repeating respondent’s refrain about there being sufficient reasons to put appellant to death without the evidence erroneously admitted. (RB 83.) 206 vi’ THE JURY WAS ERRONEOUSLY PERMITTED TO USE HIGHLY PREJUDICIAL EVIDENCE OF “ATTEMPTED ESCAPE”AS AGGRAVATION, EVEN THOUGH APPELLANT ONLY MADE PREPARATIONS TO ESCAPE WITHOUT ATTEMPTING TO DO SO Evidence purporting to showthat a capital defendant is an escape risk has a well-documented tendency to produce a death verdict, even thoughthe predictive capacity of such evidence is very low. Indeed, the escape- preparations evidence used against appellantis cited throughout respondent’s brief in supportof its argumentthat the aggravation case against appellant was overwhelming, and it was cited by the trial court in denying a motion to modify the penalty. (E.g., RB 150, 240, 261; RT 55: 8232.) Three synergistic errors placed that evidence before appellant’s jury, to be usedit as aggravation. First, neither trial counsel nor the court recognized that, under the law of attempt, the evidence of escape preparations by appellant and a cellmate contained nothing that had ripened into the crime of attempt; they had not tried to leave custody. That evidence should therefore have been inadmissible in the determination of penalty, where only misconduct that involvesactual crimes is admissible. Second, the evidence should have been excluded from the guilt phase. For many reasons, but most particularly appellant’s confession,it had virtually no non-cumulative probative value on anythingatissue at that time, for it was admitted only to show consciousnessof guilt, when all the elements showing guilt itself were already conceded. At the sametime,its serious prejudicial effect (on penalty) was unavoidable. The gross imbalance between probative 'See AOB 342. Respondent addresses this claim in its Argument XUI.A, RB 222 et seq. 207 value and prejudicial effect required its exclusion under both the Evidence Code and appellant’s due process and Eighth Amendmentrights. No one recognized the fact, however, becauseofthe first error, the failure to realize that the evidence should have been excluded from the penalty determination. Third, the bell was re-struck, rather than unrung,by the instructions to the jury. The jury was wrongly instructed that acts of mere preparation for a crime could turn it into a criminal attempt if they demonstrated an intent to commit the crime. It was also specifically told—despite the absence of sufficient evidence of attempted escape—that if it believed that there was proof of that crime, it would be an aggravating circumstance. Thus it was invited to consider the evidence sufficient. The evidence, potent on its own because ofthe fear that it creates in jurors, was reinforcedas part ofthe prosecutor’s argument whya death verdict 3°was “necessary.” The instructional errors that permitted the jury to use the evidence as aggravation cannot be shown to have been harmless beyond a reasonable doubt. There was also a reasonable, not fanciful or speculative, possibility that trial counsel’s error in failing to argue for excluding the evidence altogether (because of his belief that it would be admissible on penalty) affected the outcome. Reversal is required. Respondent accepts appellant’s statement of applicable law but disagrees on its application to the facts. Making no attempt to apply black- letter legal principles to the facts, respondent relies entirely on precedents whichit erroneously characterizes as having dealt with the preparation-versus- attempt issue in the escape context. Respondentargues that the escape plan had actually been put into action by the steps taken by appellant and his cellmate that put them in a position where they could haveactually tried to escape. Under applicable law, however, these were in fact only preparatory 208 steps by one whodid nottry to leave custody. Respondentasserts that the evidence had probative value on guilt, without explaining what non- cumulative value it had, and inconsistently adds, “there waslittle risk ofundue prejudiceat the guilt phase, considering the volume andconsiderable strength ofthe other evidence presented to the jury.” (RB 226.) Respondent claims the instructions accurately stated the law but fails to say anything about the reasonsappellant says they did not. Respondent also wrongly believesthat any error was harmless. A. The Offense of Attempted Escape Requires Beginning To Leave Custody, Not Just Making Preparations To Do So; Appellant Only Made Preparations Appellant has set forth long-standing, uncontroversial law on the significant distinction between preparatory acts and criminal attempt. (See AOB 347-349.) In brief, The preparation consists of devising or arranging the meansor measures necessary for the commission ofthe offense, while the attemptis the direct movement toward its commission after the preparations are made.In other words, to constitute an attempt the acts of the defendant must go so far that they would result in the accomplishmentofthe crime unlessfrustrated by extraneous circumstances. (People v. Memro (1985) 38 Cal.3d 658, 698, quoting People v. Werner (1940) 16 Cal.2d 216, 221-222.) “[T]Jhe act must reach far enough towards the accomplishmentof the desired result to amount to the commencementof the consummation. [Citation.]” (People v. Miller (1935) 2 Cal.2d 527, 530.) Buying and loading a gun and declaring an intention to shoot anotherare not 2 6enough to constitute attempt;” “arranging for operations, filling out hospital cards, and accepting money” for illegal surgery are not enough, without *People v. Murray (1859) 14 Cal. 159, 159-160. 209 starting to administer medicineor use an instrument;’ and eloping, gathering with an intended bride and witnesses, and sending for a magistrate (to perform an incestuous marriage) are not enough.* Respondent does not contest the vitality ofthe cases setting forth these principles and applying themtothe facts just summarized. The parties also generally agree on the facts in the instant case.° Accordingto a jail informant, sometime during a two-weekperiod preceding discovery of their work, appellant and a cellmate used a smuggled hacksaw blade to remove portionsoftwo bars in their cell door, replacing the bars with tape and covering it with a toothpaste/paint-chip mixture. According to the informant, appellant said that they were going to grab a deputy and leave the cell through the opening in the door. Using a shank to threaten the deputy and hold him hostage would enable them to get through the other locked doors and gates barring the way out from the jail. The informant, who was heavily impeached,said he saw appellant with a four-to-six-inch piece of sharpened steel and the cellmate with a makeshift spear, but a search disclosed only a piece ofornamental cast metal that had been broken in two. Neither piece was sharpened; the one large enoughto grip had a very blunt triangular prong 1’ inches long. Appellant and the cellmate were movedto a different cell but not separatedafter their activities were reported. Sometimelater, a two-and-one- half to three-inch triangular prong from the same casting, too short to hold easily but capable of being sharpened into a stabbing instrument, was found *People v. Gallardo (1953) 41 Cal.2d 57, 66. *People v. Murray, supra, 14 Cal. at p. 160. °See AOB 51-52, 346; RB 52-54, 223. 210 hidden in the new cell.° Escape—again, in a formulation which respondenttacitly accepts—is “an unlawful departure from the limits of an inmate’s custody [citations].” (People v. Gallegos (1974) 39 Cal.App.3d 512, 515.) Appellant had only preparedfor a departure, he had not started going anywhere. His acts had not gone “so far that they would result in the accomplishmentof the crime unless frustrated by extraneous circumstances.” (People v. Memro,supra, 38 Cal.3d at p. 698.) They had not “reach[ed] far enough towards the accomplishment of the desired result to amount to the commencementof the consummation” (People v. Miller, supra, 2 Cal.2d at p. 530). The “consummation” was leaving, and appellant had not “commence[d]” that. He waslike the man who bought and loaded a gun and made threats, the one who made all the arrangementsfor illegal surgery without administering medicine or otherwise starting, and the would-be groom whogathered with his niece and witnesses and sent for a magistrate. As appellant’s prosecutor put it, the plan was uncovered “before they made their move....” (RT 54: 8030.) Thus appellant wasnot “putting his .. . plan into action... .” (People v. Kipp, supra, 18 Cal.4th 349, 376.) Even respondent slips at one point and describes the ’Respondent claims, with only a general citation to 17 pages of the record,that the first piece could be used as a stabbing instrument (RB 53), and refers repeatedly to appellant’s hiding “weapons” (RB 225). A deputy did testify that the first item had been broken into a shape that it would permitits use as a deadly weapon, explaining how it could readily be grippedin thefist so that a triangular part would protrude if a person were making a punching movement. (RT 42: 6455, 6458-6459.) But the object wasofcast metal, both thick and blunt, and another deputy, describing a longer, thinner (i.e., more dagger-like) triangular piece broken off the same item, madeclear that even it would have to be sharpened to be usable as a weapon. (RT 42: 6459, 6476-6477; see Exs. 386-388.) 211 conductsimply as “planning an escape.” (RB 261.) Appellant had only placed himself in a position where he could decide whetheror not to go through with an actual attempt to escape. Respondent does not commentonthis analysis, other than to claim that it is “utterly false.” After acknowledging that “the act must go beyond mere preparation, and it must showthatthe perpetratoris putting his or her plan into action,” respondent simply fails to even address where the line between preparation for escape and beginning to escape might be drawn. Rather than apply the applicable principlesto the facts, respondentcites a numberofcases for the proposition that this Court has found far less evidence than was presented here to be sufficient to prove attempted escape. None, however, even considered the question. First is People v. Mason (1991) 52 Cal.3d 909. In Mason the only issue was whetherthe purported escape attempt was violent within the meaning of section 190.3, factor (b). (/d. at pp. 954-956.) There is no discussion of the preparations/attempt distinction, an issue which, given the facts, probably should have beenraised by the appellant but wasnot. People v. Gallego (1990) 52 Cal.3d 115, the second case cited by respondent, couldat least appearto be on point, but it is not.The evidence of escape preparations involved the defendant and an inmate in anothercell, and some of the evidence wasin possession of the other inmate. (/d. at p. 155.) The Court’s summary disposition of a claim of error characterized it as whetherthere wassufficient proofthat “the defendant’s conduct amountedto 2acrime.” This terse description could be interpreted as referring either to a contention that the conduct showndid notrise to the level of an attempt, or "RB 225, quoting People v. Kipp (1998) 18 Cal.4th 349, 376. 212 simply that the case implicating the defendantin the crime wastoo thin. The briefing in Gallego clears up the ambiguity. Respondent’s noted, “Appellant now contendsthat there is insufficient evidence that he was involved in the escape [plan] or that the attempted escape involved the threat of violence.” (RB 288 in No. S004561.) This was an accurate summary of the appellant’s only contentions about the issue. There was no claim before the Court about whether preparations had ripened into an attempt. (See AOB vol. 4, 22-27, and ARB 121-123 in the samecase.)* The Court’s discussion of whether there waserror in Gallego met only the questions raised by the briefing. Hereit is in its entirety: [U]|nchargedcriminal activity involving use or attempted use of force or violence may be used in aggravation only if, beyond a reasonable doubt, the jury concludes the defendant’s conduct amounted to a crime. [{] Although the question may be close, we are not prepared to say the escape plan evidence (ante, p. 155) was insufficient to meet this test. Nevertheless, assuming arguendo the evidence wasinsufficient to establish such a crime, we conclude its admission was nonprejudicial. (Ud. at p. 196.) Thus, even if Gallego were on point, its weak endorsement of the sufficiency of the evidence to implicate the defendant in a crime would be a thin reed on whichto rest respondent’s contention here. Because the issue wasnot before the Court, there was neither discussion nor a ruling on how to distinguish mere preparations from an attempt. Respondent’s final attempt to show that this Court has found less evidence of attempted escape than waspresented hereto be sufficientis to cite People v. Boyde (1988) 46 Cal.3d 212. Boyde is patently unhelpful. The only *Appellant intends to move for the Court to take judicial notice that these three briefs contain the information stated above, in a motion to befiled with this brief, or shortly after its filing. 213 issue was whether the crime of conspiracy to commit escape, which has different elements than attempt, had been shown. (/d. at 248, 250.) Indeed, after finding evidence sufficient to support a conspiracy, this Court observed that “the plan never ripened into an attempted escape.” (/d. at p. 248.) The same is true here. Respondent’s failure to grapple with what actually distinguishes preparations from beginning an escape and having it aborted is telling. Did appellant attempt to escape as soon as he and the cellmate hatched the plan? Did they attempt when they acquired materials that could be converted into a shank? When they sought a hacksaw blade, obtained one, or used it? Respondentsuggests no principled way of determining when preparations shifted into the purported attempt. Undertruly straightforward case law, however, this would have been a shift to a new phase of conduct which is in fact easy to recognize. An escape would have actually been happening, one which would have succeededif not frustrated by extraneous circumstances. (People v. Memro, supra, 38 Cal.3d 658, 698.) The point had not yet been reached because no movementto leave custody had begun.” An attempt would have required beginning execution ofthe plan, e.g., one of the men starting to climb throughthe cell door, or trying to lure a guard into a position where he could be overpowered.'® Respondentasserts, after noting *See cases discussed at pp. 209-210 and 211, above. ‘Respondent cites People v. Lancaster (2007) 41 Cal.4th 50, a case decided after appellant’s opening brief was filed, at a number ofpointsin its argument. Respondent fails to discuss its facts or its holding on the preparations-attempt distinction. In Lancaster the defendant had been found in possession of a handcuff key while incarcerated. It was error to admit evidence of that fact under the rubric of attempted escape, because the defendantwasnotyet “putting his .. . plan into action” and thus had made no “actual escape attempt.” (/d. at p. 94.) There was no labored analysis ofthis (continued...) 214 the evidence of obtaining a hacksaw blade, using it, and hiding itemsthat could be madeinto shanks,'! “In essence, Romero did everything but actually escape from his cell.” (RB 225.) Not true; appellant did everything but actually try to escape from hiscell. There having been no crime of attempted escape, the evidence would have been unavailable as a penalty-phase circumstance in aggravation. (§ 190.3; People v. Bacigalupo (1991) 1 Cal. 4th 103, 148.) B. The Evidence Was Inadmissible at the Guilt Phase Because, as just shown,the evidence of escape preparations had to be excluded from jurors’ penalty-phase deliberations; because—ifadmitted at the guilt phase—it would have been impossible to preventit from influencing the penalty choice;'” and because of the well-recognized and potent prejudicial effect of such evidence before a sentencing jury, to be admissible at the guilt '°(..continued) point, because the difference between preparations and an actual attemptis quite clear. Appellant’s case can be distinguished only by the quantitative extent of the preparations. Possessing raw material for a shank was not qualitatively different from possessing a handcuff key. Nor was the more dramatic action of altering the cell door so one could leave the cell qualitatively different from possessing a key that could allow removal of restraints used while one was already outside a cell. Nor was having boasted of an explicit plan. The combination of these factors made a stronger case for the non-crime of preparations, but it did not move the actionsto the later and different stage of beginning to try to escape. "Respondent refers to “concealing weapons” (RB 225), but this misstates the evidence. (See fn. 6 on p. 211 , above.) "The penalty-phase instructions directed the jury to consider all evidence admitted during either phaseofthe trial. (RT 54: 8063-8064.) Even if they had not, the jury could not have ignored the evidence. 215 phase, the evidence would have been required to have had a great deal of probative value on some guilt-related issue. Instead, it had virtually none. 1. The Evidence Had No Non-Cumulative Probative Value on Guilt The parties agree that the evidence was admitted on the theory thatit helped prove consciousnessof guilt. As this Court has recognized, there are a variety of reasons for preparing to escape other than actual guilt: a belief that conviction is likely even if one is not guilty; an inability to tolerate pretrial confinement, a possibility highlighted here by the fact that the preparations happened only after 16 months in custody, and yet two and one half years before trial; or fear of other inmates or pressure to go along with their plans. Such evidence, therefore, is relatively weak proof of guilt in any event. (See People v. Terry (1970) 2 Cal.3d 362, 395.) Furthermore, because appellant was charged with 11 offenses, consciousness of guilt of any could have motivated a desire to escape. Thus,as to anyparticular offense, each of which had to be separately proved, there was no probative value on the derivative issue of consciousness of guilt. The most that could have been proved would have been only that appellant believed he was guilty of something. (See People v. Williams (1988) 44 Cal.3d 1127, 1143, fn. 9.) Moreover, consciousnessofguilt had already been shownby appellant’s week- long flight. It was shown directly and conclusively, not through the weak circumstantial chain ofinferences involving the escape preparations,but by his confession which, of course, also showed actual guilt'’ ofthe capital and other crimes, corroborated by Munoz’s testimony, amongother things. The escape- preparation evidence simply had no value on any disputed issue at the guilt “Via the felony-murder and natural-and-probable consequences doctrines, not as an actual shooter. 216 phase of the trial. Indeed, respondent correctly notes that there could have been no prejudice to the guilt-phase deliberations, precisely because of “the volumeand considerable strength of the other evidence presented to the jury.” (RB 226.) Later, in trying to meet its burden of showing harmlessness, respondent elaborates: The prosecution presented overwhelming evidence establishing Romero’s guilt, including credible eyewitness identifications, considerable physical evidence obtained from both the crime scenes and from searches of appellants’ homes and vehicles, appellants’ damaging police interviews, and Munoz’s corroborated accomplice testimony. Given the strength of the prosecution case, and the absence of any affirmative defense evidence of innocence, the jury’s knowledge of the attempted escape would not have contributed in any significant way to the guilt verdicts. (RB 229.) Nothing respondent is saying now was unknownto the prosecutor, 1.e., respondent’s trial attorney, whose rationale for offering the evidence to help prove guilt was thus clearly pretextual. No prosecutorial need for escape- preparation evidence to complete the case for guilt counterbalanced its prejudicial effect on penalty. Respondenthaslittle to say in opposition to this analysis regarding the gross weakness of probative value, all of which—except for the quotations from respondent’s brief—is in the opening brief. Here is respondent’s entire discussion of the point: “(O]rdinarily an attemptor plan to escape from jail pendingtrial is relevant to establish consciousness of guilt.” [Citations.] ... [9] [T]he escape attempt wasprobative at the guilt phase of Romero’s consciousness that he was guilty of three capital murders and would be facing the death penalty or at a minimum life in prison. (RB 226.) The fact that an escape attempt may have somelevel of relevance 217 in some cases is uncontested. But all that respondent can say in response to case law recognizing someattenuation in the link between an escape plan and guilt of a particular crime (because of other possible motivations to prepare to escape), and a demonstration that there was zero actual non-cumulative probative in this case, is to assert that appellant is wrong. 2. The Prejudicial Impact of the Evidence Was Extreme The next issue relating to admissibility of the evidence is whetherits prejudicial effect outweighed its low probative value. Preliminarily, respondent states that because, in its view, the evidence would have been admissible at the penalty phase, appellant’s prejudice argumentfails. (RB 227.) It is true that appellant’s claim rests on the inadmissibility of the evidence on the penalty question, based on the insufficiency of the evidence that there was an attempt. But respondent’s conclusionis not true because,as shown in Part A of this argument, the lack of a criminal attempt rendered the evidence inadmissible as aggravation. This Court has long acknowledged “the overriding importance of ‘other crimes’ evidence to the jury’s life-or-death determination.” (People v. Robertson (1982) 33 Cal.3d 21, 54, citing People v. McClellan (1969) 71 Cal.2d 793, 804,fn. 2.) “[E]videnceofother crimesis inherently prejudicial.” (People vy. Steele (2002) 27 Cal.4th 1230, 1245.) When the “other crime” raises the specter of escape, the problem is magnified. The possibility triggers speculative, unfounded,’ but powerful fears that the defendant will get out, hurt or kill people again, and perhapsevenretaliate against the jurors, leaving death as the only sentence that is safe for society. Thus the Court has also '4On the low likelihood of those convicted of murder re-offending, in or out of prison, see AOB 355. 218 recognized the particularity of the problem here, i.e., “that ‘erroneous admission of escape evidence may weigh heavily in the jury’s determination ofpenalty.’” (People v. Jackson (1996) 13 Cal.4th 1164, 1232, quoting People v. Gallego, supra, 52 Cal.3d 115, 196.) Such testimony “may be highly prejudicial in undermining juror confidence in the sentence of life imprisonment without parole as an alternative to death.” (People v. Kaurish (1990) 52 Cal.3d 648, 710.) An early acknowledgment of the potency of other-crimes evidence in general was based largely on empirical research,” and appellant has provided considerably more research documenting the major impact that evidence and argumentregardingthe possibility ofescape have on penalty-decision-making.'® Respondent is manifestly unable to dispute these facts. Respondent offers the Court a single sentence asserting that escape-preparation evidence could not have been prejudicial on penalty and claiming that instructions effectively prevented prejudice in any event: “[T]he jury was properly instructed on its consideration of the escape attempt during the penalty phase, andin light ofthe evidence presented, Romero cannot demonstrate prejudice.” (RB 227.) Respondentfails to acknowledge, muchlessrefute, the well-known facts about the impact of escape evidence on sentencing jurors. Asfor the instructions, the most that they could have amountedto, even assuming arguendo that they were proper, would have been an extremely indirect and patently ineffective attempt to unring the escape alarm. Apparently the theory is that correct instructions on attempt, along with letting People v. Robertson (1982) 33 Cal.3d 21, 54, citing People v. McClellan (1969) 71 Cal.2d 793, 804, fn. 2 [jury research]. '°See AOB 356-357. 219 the jury know that section 190.3’s list of aggravating factors is exclusive, should have led the jury to the conclusion that the evidence of preparations alone had to be set aside in considering penalty.’’ Certainly respondentis not claiming that there wasa limiting instruction, clearly warning the penalty jury that escape preparations could seem important and relevant but may not be consideredat all. Moreover, the reason that there are rules flatly excluding many kinds of evidence—rules that are augmented by the ad hoc determinations required by Evidence Code section 352, due process, and the Eighth Amendment—is that, in many situations, even direct limiting instructions are asking jurors to do the impossible. This and other courts have long recognized that fact.'* In addition, here the jury wasspecifically told to consider all evidence admitted during either phase of the trial. (RT 54: 8063-8064.) The instructions did nothing to neutralize the tremendous risk of prejudice to the penalty deliberations. Given the imperceptible convincing force which the escape-preparation evidence added to the prosecution’s case "Appellant submits that for this to have happened, there would also have to have been a charge of attempted escape in the guilt phase, which the prosecutor declined to bring, or a unanimity instruction regarding factor (b) aggravation. Absent these, it was unlikely that there was the careful consideration of whether a true attempt had been proven, which the deliberative process seeks to guarantee. '8Onthe limitations ofjurors’ capacities to follow even direct limiting instructions, see Bruton v. United States (1968) 391 U.S. 123, 135-136; Dunn v. United States (5th Cir. 1962) 307 F.2d 883, 886; and People v. Aranda (1965) 63 Cal. 2d 518, 529-530. On the relationship betweentelling juries how to use evidence that is capable of misuse, and excluding it altogether whenlimiting instructions are inadequate, see Adkins v. Brett (1920) 184 Cal. 252, 258-259; People v. Sweeney (1960) 55 Cal.2d 27, 42-43; and Inyo ChemicalCo. v. City ofLos Angeles (1936) 5 Cal.2d 525, 544. 220 for guilt on any count, it should have been excluded for both statutory and constitutional reasons. Moreover, as shown in the next portion of this argument, the jury instructions actually fatally muddied the preparation/attemptdistinction, rather than clarifyingit, further gutting any potential they may have hadfor rendering the evidentiary error harmless. C. The Jury WasInstructed to Treat Preparations as an Attempt The instructions defining attempt were incorrect. Given that the jury wasalso instructed, correctly, to consider unadjudicated offenses involving the threat of violence to be aggravation,the instructional error prejudiced the penalty determination, It would have doneso even if the evidence had been properly admitted. The instructions defining attempt’? stated the preparation/attempt distinction but then negatedit by telling the jury two things. One wasthat an act demonstrating mere intent constitutes an attempt.’” But intent to commit a crimetypically exists during the preparationsstage,”’ and acts of preparation do tend to demonstrate that intent. The instruction’s wording negated the '’The instructions are quoted in full at AOB 358-359. After stating that mere preparation is not enough andthat an act involving the commencement of the criminal deed was required, the instruction continued: “However, acts of a person who intends to commit a crime will constitute an attempt where those acts clearly indicate a certain, unambiguous intent to commit that specific crime.” (CT 7: 1609, 9: 1986, italics added.) 1Exceptions, i.e, when a person makes preparations without yet intending to commit the crime, would be where the person is in some way playing with the idea without having made an internal commitmentto carrying it out, trying to see what might be possible, or posturing for others. 221 requirement of actually “commencing the consummation.” It did this by conflating the actus reus requirement with the intent requirement and reducing the required act to that which is merely sufficient to prove intent. The error was compoundedbythe statement that abandonmentcould be shownonly if the defendant had a change of heart before committing any act towards commission ofthe crime.” This, too, was a clear statementthat an attempt had taken place when anyact had been committed, even a merely preparatory one. Respondentdisagrees, although respondent does not attempt to defend either challenged instructional statement. Much of respondent’s argument relies on emphasizing the portions of the instructions which state the law correctly. But appellant never claimed that the correct principles were nowherestated in the instructions. On the contrary, in a line-by-line analysis which need notbe repeated here, he showed how they were combined with the misleading language, and in a mannerthat actually harmonized what would otherwise be contradictory directives.”> Respondent says nothing about this analysis. In fact respondentfails to discuss the complained-of languageatall. Appellant also pointed out the established principle that, when instructions are contradictory, a reviewing court is unable to find harmlessness based on a correct statement of the law becauseit is unable to know whetherthe jury went «TF a person intends to commit a crimebut, before committing any act toward the ultimate commission ofthe crime,freely and voluntarily abandons the original intent and makes no effort to accomplish it, such person has not attempted to commit the crime.” (CT 7: 1611; 9: 1988, italics added.) *3See AOB 359-361. The main point is that the sentence negating the actus reus requirementis explicitly stated as an exception, because it begins with the word however. Then the conceptis reinforced bythelast lines of the attemptinstructions, the onesthat state that an attempt is past the stage where abandonmentis a defense once any act towards its accomplishment has taken place. 222 with the right rule or the wrong rule.”* Respondentignoresthis doctrine and instead would have this Court hold that appellant’s jury was adequately instructed simply becauseit is possible to mine the instructions for a correct statementof the rule. Respondentcites People v. Dillon (1983) 34 Cal.3d 441, 453, for the broad proposition that the instructions given here accurately state the law of attempt. (RB 228.) The case does not support respondent. Preliminarily, one ofthe instructions challenged here, CALJIC No.6.02 (requiring abandonment to take place before “any act” towards ultimate commission ofthe crime,at the point where “no effort” has yet been expended) wasnot mentioned in Dillon. Second,the issue in Dillon was a proposed changein the law of attempt, not a challenge to any particular languagein the instructions. The context of the statement quoted by respondent makesclear that it was never intended as a blanket endorsementofthe instruction now beforethe court, one insulating the language against all conceivable future criticism. Rather, it was a passing reference in a discussion upholding current law on attempt: Weare not persuaded to so limit the law of attempts. The instructions given here accurately state that law [citations], while defendant’s proposal would frustrate its aim. (bid.) The Court continued with a discussion of the purpose of the law of attempt and whyit should not be changed but offered no further review of the language of the instructions. What Dillon does do is restate that “when the acts are such that any rational person would believe a crime is about to be consummated absent an intervening force, the attempt is underway”(id. at p. “Francis v. Franklin (1985) 471 U.S. 307; see also People v. Ford (1964) 60 Cal.2d 772, 796, overruled on another point in People v. Satchell (1971) 6 Cal.3d 28, cited at AOB 363. 223 455), i.e., “when the acts done showthat the perpetratoris actually putting his plan into action” (id. at p. 453.) That is a situation neither presented by the evidence here nor required by instructions that ultimately say that the only action required is one demonstrating unambiguousintent. Respondentcites other cases for the proposition that the wording ofthe challenged instructions was drawn from this Court’s opinions, naming specific phrases that come from various opinions. But the portionsofthe instructions challenged by appellant are conspicuously absent from respondent’s compilation. (RB 228.) Moreover, this Court has warned of “the danger of assuming that a correct statementof substantive law will provide a soundbasis for charging the jury. [Citations.]” (People v. Colantuono (1994) 7 Cal.4th 206, 221, fn. 13.) The reviewing court generally does not contemplate a subsequenttransmutation ofits words into jury instructions and hence doesnot choose them with that end in mind. We therefore strongly caution that... trial courts [should] carefully consider whether such derivative application is consistent with their original usage. (bid.) In sum, none of respondent’s arguments negates error: a correct statement ofthe law cannot save an instruction that contradicts that statement; this Court has not examined the questioned language and found it adequate; and there is nothing about the origin of the erroneous language that makesit a valid jury instruction. Notably, respondent makes no attempt to directly defend the disputed portions of the instructions by trying to demonstrate that they correctly state the law. Once it is acknowledged that one instruction permitted finding an attempt based on any act that showedintent to escape(rather than requiring an 224 act aimedat initiating an escape in the moment), and that another reinforced the first by stating that an attempt waspast the stage ofabandonmentonce any act at all had taken place, two consequences for this appeal follow. First, respondent’s argument for harmlessness of counsel’s failure to effectively opposethe admission ofthe evidencefails, to the extent that it asserts that the jurors could decide that there was no attempt available for use as aggravation. Even if they could have been meticulous about ignoring mere-preparations evidence, they were fatally misled as to what that would be and would have treated mere-preparations evidence as evidence ofa criminal attempt. Second, there was independent judicial error in instructing the jury in a manner that directed them to use mere-preparations evidence as aggravation, although it wasnot evidence of a crime. under factor (b).”* The instructionalerrorstrigger the Chapman/Brownstandard ofprejudice,as state-law error affecting penalty, and because they violated the Sixth, Eighth, and Fourteenth Amendments.”® (See AOB 362.) **These include not only the errors in defining attempt, but also the instruction to consider an escape attempt, if proven, as aggravation. (RT 54: 8065; see also 8063-8064 [instruction to considerall evidence from either phaseofthetrial].) Given the total lack of proof that the preparations ripened into an attempt, what should have been given was the opposite directive, one limiting the evidence of preparations to guilt-phase proof of consciousness of guilt and telling the jury to set it aside during the penalty phase. (See AOB 343, 352-353.) **Tn contrast to the instructional errors by the trial court, appellant has acknowledged an argument for applying the standard of Strickland v. Washington (1984) 466 U.S. 668to the error of admitting the testimony during the guilt phase, while contending that a higher standard should apply, given the capital-sentencing context. (AOB 363, citing Strickland v. Washington, supra, 466 U.S. at p. 704 (conc. opn. of Brennan,J.).) 225 D. Respondent Has Not Demonstrated Harmlessness 1. The Evidence Was Inherently Prejudicial and Was Emphasized in Argument Asidefrom its claim about instructions, respondenttries unsuccessfully to meet its burden of showingthat any error could not have contributed to a juror’s penalty-phase vote. The evidence was extremely problematic in its ownright, for reasons set forth previously regarding jurors’ fears, and which this Court has long acknowledged. The prosecutor’s “death-is-just-and- necessary” argumentclosed with the “necessary”prong, based on the idea that compassionfor appellant would result in more victims, given the other-crimes evidence. (RT 54: 8026-8030.) But the other-crimes evidence involved assaults that were too minorto lead to evenjail discipline and possessions of shanksthat were never used. Surely some jurors could have seen the evidence this way, as well as discounted proven liar Munoz’s self-serving accounts of appellant’s role in the capital crimes themselves. But the prosecutor had the “escape attempt” in his arsenal as well, and he used it, arguing that appellant “is not content to remain in custody”and, if not executed, he would have decadesto apply the sophistication ofthe jailbreak plan to come up with other escape schemes. (RT 54: 8030.) This was the prosecutor’s conclusion to the specific evidence in aggravation, before winding up his argument. Since “erroneous admission of escape evidence may weigh heavily in the jury’s determination of penalty’” (People v. Jackson (1996) 13 Cal.4th 1164, 1232), and the prosecutor sought to ensureits use in that regard, this Court can have no confidence, muchless believe without a doubt, that no juror was“possibly influenced”by the errors. (Chapmanv. California (1967) 386 U.S. 18, 23.) 226 2. Respondent Misconstrues Appellant’s Contention and Ignores the KnownPrejudicial Impact ofEscape-Risk Evidence Respondent begins its counter-argument by knocking down pair of straw men. Respondent addresses guilt-phase harmlessness (RB 229), but appellant is not claiming that the guilt verdicts could have been affected. Indeed, respondent’s argument only supports appellant’s position that the evidence wasuselessin the guilt phase, whereits presentation was pretextual. Second, appellant noted that the prosecutor violated this Court’s ban on arguing the possibility of future escape as a reason to impose the death penalty,”’ to demonstrate prejudice, without making a free-standing claim of misconduct as an appellate issue. Respondent, misconstruing this, observes that any such claim is forfeited for lack of contemporaneous objection. (Compare AOB 367 with RB 230,fn. 73.) Respondent fails to acknowledge the necessary starting point of any attempt to show harmlessness,i.e., that the reason that “testimony concerning the possibility of escape from prison” is inadmissible is that it “is inherently speculative, and may be highly prejudicial in underminingjuror confidence in the sentence of life imprisonment without parole as an alternative to death.” (People v. Kaurish (1990) 52 Cal. 3d 648, 710.) After ignoring this known fact, respondent presents three points in an attempt to demonstrate that any error was harmless beyond a reasonable doubt. 3. The AbsenceofParticular Language in Prosecutorial Argument Does Not Insure Harmlessness First, respondent observes that the prosecutor never specifically suggested “that the death penalty was the only meansofprotecting the public *’People v. Kaurish (1990) 52 Cal. 3d 648, 710. 227 from a defendant who posesa significant escape risk,” citing two cases in which it was assumed or held that such an argument could be prejudicial. (ARB 229.) Respondent assumes that the prosecutor must make a bad situation egregiousfor it to be sufficiently prejudicial. But neither case cited by respondent disagreed with Kaurish’s holding that, prosecutorial argument aside, escape testimony alone carries such great risk of prejudice thatit is categorically inadmissible on the penalty issue. (52 Cal.3d at p. 710.) Moreover,neither case held that for escape-related evidence to contribute to a juror’s decision, there must also be prosecutorial argumentthat explicitly addressesthe safety issue, presents the escaperisk as “significant,” or claims that death is the “only” meansofprotecting the public. In People v. Jackson, supra, 13 Cal.4th 1164, the first case cited by respondent, the prosecutor did not argue the point. Rather, the defendant argued before this Court that a prosecutor’s argument that an escape attempt showedthat the defendant would escape ifhe wantedto effectively “implanted ... the notion” about the need for a death sentenceto protect the public from a defendant who wasa significant escape risk, and that it was therefore prejudicial. (/d. at pp. 1232-1233.) This Court found the argument“plausible in the abstract,” but held that ultimately there was no prejudice from erroneous admission of escape-related evidence, largely because evidence of a more violent escape attempt was properly before the jury. (/d. at p. 1233.) In finding the claim “plausible in the abstract,” the Court endorsed the notion that referenceto risk of future escape raises the public-protection argumentin the minds ofjurors, whether or not the prosecutorstates it explicitly. The secondcaseis only slightly more helpful to respondent. In People v. Lancaster, supra, 41 Cal.4th 50, this Court also used the language quoted by respondent. The pertinent language in Lancaster, however, merely cited 228 Jacksonfor the proposition that “[w]e have noted that escape evidence may be particularly prejudicial if used to suggest to the jury that the death penalty is the only means of protecting the public from a defendant who poses a significant escape risk.” (Ud. at p. 95.) Part of the harmlessness analysis did rely on the prosecutor’s having made “no such insinuation,” in an argument that was “almost perfunctory” in its mention of escape preparations. (Jbid.) In addition, however, the evidence in question was, as noted above, only ofthe defendant’s possession of a handcuff key. Neither the evidenceitself norits use in argument raised a significant enough specter of violent escape to influence the deliberations of a jury that had far greater aggravating circumstances before it. (Ubid.) This Court did not purport to set up, as a general test for penalty-phase harmlessness, whether or not prosecutorial argument suggested the public-protection issue, much less whether particular terms were used. Certainly this Court has never proposed any general test for when improperly-admitted escape-attempt evidenceis prejudicial. It could not do so. Whether an error is prejudicial depends upon the entire record in any particular case, including “any indirect effect” that improperly-admitted evidence “might have had because ofthe way in which[it was] used.” (People v. Gonzales (1967) 66 Cal.2d 482, 493.) | In any event, here the evidentiary error actually was exploited in a manner that further makes it impossible to find it harmless beyond a reasonable doubt. It was part of the prosecutor’s basic argumentthat the price of compassion for appellant would be the creation of future victims and that a death sentence was not only “just” but “necessary.” (RT 48: 7271; 54: 8026, 8030.) This is exactly the reasoning that makesit too prejudicial to be 229 admissible.** The escape preparations were not dwelt on at length in argument, but, given their potency, they did not have to be. One doesnot have to plant a coconut to grow a palm tree that will cast a shadow; the pit ofa date will produce one as well. 4. The Prosecutor’s “Sophistication” Argument Did Not Downplay the Escape-Risk Claim; it Bolstered it In this vein, respondent’s second contention is that the prosecutor “primarily argued the escape attempt as evidence of Romero’s sophisticated, schemingnature,and his propensity to violence in or out of prison” (RB 229) and that such argument “was wholly proper” (RB 230). True, the prosecutor integrated the escape preparationsinto a larger argumentaboutall of the post- arrest offenses and what they showed about appellant’s propensity for violence (and the resulting need for a death sentence). And, as respondent emphasizes, he also mentioned the likelihood of violence had the escape plan proceeded farther. But none ofthis negates the fact that the prosecutor also clearly and directly stressed that appellant “has shownthathe is not content to remain in custody.” (RT 54: 8030.) Even if the other uses of the evidence were proper, it is undeniable that its improper use—practically unavoidable by a jury in any event—wasalso made explicit by the prosecutor. Moreover,part ofthe argument about sophistication and scheming was that appellant would have decades to come up with similar escape schemes. (RT 54: 8030.) Sophistication and scheming were not presented as *8See People v. Jackson, supra, 13 Cal.4th 1164, 1232; People v. Kaurish, supra, 52 Cal. 3d 648, 710; People v. Gallego, supra, 52 Cal.3d 115, 196; Garvey, The Emotional Economy of Capital Sentencing (2000) 75 N.Y.U. L. Rev. 26, 66-67; Platania & Moran, Due Process and the Death Penalty: The Role of Prosecutorial Misconduct in Closing Argument in Capital Trials (1999) 23 Law & Hum. Behavior 471, 476, 478-479, 481. 230 aggravation in the abstract; the point was the purpose for which appellant could be expected to concoct schemes, and one of the purported goals was to escape. (See RT 54: 8026-8030.) Arguing that harm to othersinside prison could be another predictable outcome did not detract from the effect ofhaving the escape-plan evidence to consider, improperly, in the cumulative weighing of evidence in aggravation. A prosecutor does not have to make evidencehis sole reasonfor putting a defendant to death in order for it to have helped make his case for that sentence. Providing other reasons does not diminish the potency of particularly potent evidence and the argumentsupporting its use. And, again, whetheror not the argument was “wholly proper”is not the issue. The issue is whether respondent can show harmlessnessof evidentiary and instructional error in the face of that argument. 5. The Presence of Other Aggravation Does Not Demonstrate Harmlessness Beyond a Reasonable Doubt Respondent’s third argument for harmlessness again claims that the evidence of escape preparations “paled in comparison to the other evidence presented.” (RB 230.) It is clearly not the case that, in the abstract, the specter of future escape could not have affected a juror’s penalty calculus. Thus respondent is urging the Court to inappropriately reweigh the balance ofthe evidence bearing on penalty, decide whichofthe highly-contested versions of the circumstances of the offenses the jury believed, and cometo its own conclusion of what a jury in a hypothetical trial without the error would have determined. (See Sullivan v. Louisiana (1993) 508 U.S. 275,279.) Even such a reweighing could not producethe level of confidence required to sustain any criminal conviction, much less a death sentence, for reasons explained 231 previously.”’ As mentioned previously, when addressing other claims of error, respondenttellingly includes the “escape attempt”as part of the supposedly insurmountable case in aggravation that made any sucherrors harmless. (E.g., RB 150, 240, 261.) In doing so, respondent acknowledgesits likely weight in the jury’s decision-making. Respondent wants this Court to recognize the influence which the escape-preparations evidence had on the jury when considering it in other contexts but not when considering it in this one. Respondent’s arguments that the jury’s decision waspartly attributable to the escape-preparation evidenceare correct, and they fatally undermineits attempt to have this Court hold that the contrary is true beyond a reasonable doubt. The death judgment must be reversed. // // ?°4 complete argument on both respondent’s misapplication of the Chapman/Brownstandard and the evidentiary picture presented in this case appears in the discussion of harmlessness in issue II, at pages 101-114 and 120-122, above. A more summary version concludes issue IV, at pages 167-172. 232 Vir THE HARASSMENT OF TYREID HODGES DID NOT INVOLVE VIOLENCE AND WAS THEREFORE INADMISSIBLE AS AGGRAVATION, AND ITS ERRONEOUS LABELING AS AGGRAVATING VIOLENT CONDUCT SKEWED THE JURY’S ASSESSMENT OF THE OTHER EVIDENCE ADMITTEDIN AGGRAVATION As an incarcerated child molester, Tyreid Hodges was, predictably, subject to a campaign of harassment by his fellow county jail inmates, including appellant. Hodges and appellant were neverin the samespaceat the same time, but, according to Hodges, appellant sometimes flung small items or squirted obnoxious substances in Hodges’direction throughthe six-inch gap under one or the other’s solid metal cell door. Appellant’s display of dislike for Hodges wasoffensive, but he never did anything that did or could harm Hodges, nor did his words or conduct put Hodgesin fear for his safety.” ‘See AOB 371. Respondent addresses this claim in its Argument XIILB, RB 230-231, 233-234. *RT 51: 7502-7516, summarized at AOB 372-373 and RB 231. Respondent misstates the record in claiming that appellant “hit Hodges with a shampoobottle, hair brush, and soap” and “did not miss his target.” (RB 231, 232.) Here is the testimony: Q. ... [Was there an... incident... when... something was thrown at you? A. Yes. ...[F]irst it was a, um, shampoobottle. Then it was a hairbrush, um, and a couple of other things. Um, I think he threw a bar of soap at me one time too. ... Q. Okay. And these items would be thrown from his cell? A. Yes. ... Underneath the door, yes. Q. Were you struck by any of these items? (continued...) 233 Section 190.3, factor (b), and the Eighth Amendment prohibit unadjudicated misdemeanors that involve neither violence nor the threat of violence, as those terms are commonly used in the criminal law, to be considered as reasons for imposing a death sentence.’ Factor (b)’s “purpose is to show the defendant’s propensity for violence,” a matter relevant to the capital sentencing decision. (People v. Bunyard (2009) 45 Cal.4th 836, 857, citation and quotation marks omitted; see also id. at fn. 7, last paragraph.) Thus this Court has assumed “that factor (b) can be interpreted to exclude certain violent activity as too minor to be within the scope of the evidence to be considered by a jury in arriving at a penalty phase judgment.” (Jd. at p. 857.) Nevertheless, appellant’s harassment of Hodges and a related statement were admitted in aggravation as violent criminal conduct, and the jury was instructed that they were relevantto its life-or-death determination. Clearly the prosecutor believed they had value in making the case for death and, depending on a juror’s particular values and sophistication or lack of it regarding the realities of life in jail, it could have tipped the scales in that *(...continued) A. No. Ijust barely missed the brush. The shampoobottle had something in it. ... But the liquid did hit my pantleg. (RT 51: 7509.) >See AOB 371-379,citing Beam v. Paskett (9th Cir. 1993) 3 F.3d 1301, 1308; People v. Boyd (1985) 38 Cal. 3d 762, 774-776; People v. Musselwhite (1998) 17 Cal.4th 1216, 1268; People v. Stanley (1995) 10 Cal.4th 764, 823; People v. Raley (1992) 2 Cal. 4th 870, 907; People v. Grant (1988) 45 Cal.3d 829, 851; see also People v. Balderas (1985) 41 Cal.3d 144, 202 (even felonies, if not violent, may be weighed only if evidenced by a conviction; otherwise their limited probative value fails to justify the time involved in proving them); cf. section 667.5, subdivision (c) (legislature’s list of violent felonies for purposes of enhancing sentencesto prison). 234 direction. Even if it did not, by labeling these fairly lightweight misdemeanors a proper circumstance in aggravation, the trial court deeply skewed the jury’s understanding of the continuum of misconductthat can properly help justify a death sentence, giving an undeserved gravity to appellant’s other alleged jailhouse assaults. Appellant invokes a de novo standard of review, because whether section 190.3 , factor (b), either does or constitutionally can coverthe conduct at issue is a matter of law,’ and respondentdoesnot disagree. Theparties also agree that the conduct described by Hodges amounted to misdemeanor assaults, in violation of section 240, which the trial court considered to be enoughto qualify it as violent conduct under factor (b). But to say this is only to say that each action was a wrongful attempt to commit “the least touching.” (People v. Colantuono (1994) 7 Cal.4th 206, 214.) Not every such attemptis conduct “of a type which should influencea life or death decision.” (People v. Stanley, supra, 10 Cal.4th 764, 823.) While the mind naturally associates the concept “assault” with violence, amoment’s analysis reveals that not every wrongful touch even approaches the common conception of violent conduct or amounts to the kind of misdeed that the law and the Constitution permit to be used in deciding that a person should be sentenced to death.” Factor (b)’s use of the term violence involves onlyits “common-sense core of meaning,” one which “requires no further elucidation in the jury instructions.” (People v. Bunyard, supra, 45 Cal.4th at p. 857, quotation marks omitted.) Categorizing the Hodges incidents as section 240 violations takes care of the “See AOB 373, fn. 228, citing People v. Louis (1986) 42 Cal. 3d 969, 986, and 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 317, p. 355. See fn. 3, p. 234, above, and accompanyingtext. 235 criminal-conduct prong of factor (b) but, contrary to what the trial court believed, contributes nothing one wayor the other in determining whetherthe violence requirement was met. Thus in People v. Raley, supra, this Court held that a battery in the form of a lewd touching of a child amounted to a factor (b) crime of violence because the victim’s resistance was overcome through force. (2 Cal.4th at p. 907.) It was implicit in the Court’s analysis that the fact of a battery alone was not enough. Respondentrelies on People v. Pinholster (1992) 1 Cal.4th 865, 961, and People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1053. Appellant has already pointed out that—to the extent that the Pinholster discussion seemed to accept the notion that any battery would qualify under factor (b)—it was dictum, did not discuss the contention raised here, was soon contradicted by the reasoning in People v. Raley, supra, 2 Cal.4th at p. 907, and is distinguishable on the facts. (See AOB 377, fn. 229.) Respondent has no answer. Lewis and Oliver is also distinguishable. The defendant threw hot coffee at a guard, who had to dodgeit to avoid being hit. (39 Cal.4th at p. 1053.) Trying to scald someoneis violent; it can cause both pain and physical harm. Flinging soap or a plastic shampoo bottle with whatever force and directionality is possible through the gap under a door, or squirting feces or urine under the door, does not have the same potential.° Thus neither case ‘In one incident, Hodges accepted the prosecutor’s characterization of the urine squirted on him from a shampoo bottle as a “hot liquid.” (RT 51: 7507-7508.) Clearly whatever warmth it had, originally, and after being kept in a shampoo bottle until Hodges came by and then being squirted through the air, was not enoughto cause pain or injury. Forit did hit Hodges’ clothing, but Hodges said nothing about discomfort from its temperature or (continued...) 236 cited by respondentis authority for the proposition that actions which cannot do physical harm and which do not give rise to fear on the victim’s part are violent. Appellant has shown that the purpose of section 190.3 requires a different interpretation, that the term violent is never used this way elsewhere in the criminal law,that the trial court’s holding that a technical assault or battery alone is sufficient violates the Eighth Amendment, and that Peoplev. Raley, supra, 2 Cal.4th at p. 907, implicitly supports appellant’s position on the question. (AOB 373-379.) Other than citing Pinholster and Lewis & Oliver, respondent has no answer. Finally, respondentstates that appellant “threatened to ‘take [Hodges] out’ if it was up to him.’” (RB 234, substitution in original.) Admission of the statement, which in fact was not a threat, only compoundedthe error and the associated prejudice. As appellant has explained, inmates werelet out oftheir cells for “day room time”only one at a time and thus were always separated from each other by a metal door.’ So appellant’s statement that, “if he had his °(...continued) other adverse effects. (RT 51: 7507-7508.) Similarly, the prosecutor did not argue that there was a threat of harm while seeking admission of the evidence; rather, his sole position was that harm orthe threat thereofwas unneededifthe elements of an assault or battery were met, a stance adopted bythetrial court. (RT 51: 7500-7501.) In his summation to the jury, the prosecutor used the incidents as general bad-character evidence, describing them as disgusting and as evidence of appellant’s resourcefulness, but he said nothing about any danger of physical harm to Hodges,or fear on the latter’s part. (RT 54: 8027). In sum, the description ofthe urine as “hot,” in a context where there was no evidence of potential for injury or fear of it created, does not make it comparable to throwing hot coffee at someone. "RT 50: 7420, 7448-7450; 51: 7502, 7508; Exs. 431, 432, reproduced (continued...) 237 way aboutit,” he would “take .. . out” Hodges (RT 51: 7505), which waspart of a longer statement that a child molester had norights to time outofhis cell, was not a threat; it was expressed in the subjunctive because both parties to the conversation knew that appellant could not “have his way aboutit.” The prosecutor did not attemptto prove that Hodges experiencedfear as a result of appellant’s statement, much less that any fear on the part of the recipient would have been reasonable, and that the statement conveyed an immediate prospect of execution of a threatened action. All of these are elements of a criminal threat. (§ 422; In re George T. (2004) 33 Cal. 4th 620, 630.) The statement was not a violent crime, and it was not presented as a circumstance of any violent crime. It just served to make appellant look worse in the eyes of the sentencing jury. All of this was argued previously,* and respondent makes no attempt at rebuttal. As explained more fully in the opening brief,’ the error cannot be knownto have been harmless, and, in fact, probably did have a real impact. The prosecutor judged the incident important enough to go to the expense of transporting Hodgesfrom state prison to testify. He did not dwell at length on it in argument, but the use he made of it was significant. In a powerful conclusion, he argued that executing appellant was necessary,in order to avoid there being further victims. For this point he relied on the evidence of appellant’s jail misconduct. A key prong of that argument wasthat appellant wasbright, resourceful, and sophisticated in finding meansnotonly to try to 7(...continued) at SCT — Photos2: 582, 584. SAOB 379-380, fn. 230. °AOB 379 et seq. and cited portionsof the record. 238 escape, but to hurt people in prison. (RT 54: 8026-8030.) The prosecutor used two pieces of evidence to make that point: the escape preparations, and the Hodgesincident. The latter showed, Mr. Romerois very bright and resourceful. Make no mistake about that. He found a wayto be as offensive as he possibly could under the limited circumstances that he found himself in.... (RT 54: 8027.) It is more than reasonably possible that this logic influenced a juror. Beyondthat, the trial court specifically instructed the jury that the Hodgesincidents, if the jury believed they happened, were the kind of violent criminal activity which the law required them to take into accountin deciding penalty. (CT 9: 1991, 1989.) This skewed the entire range of apparent aggravation by givingit a trivial bottom, making the other jailhouse incidents appear to be mid-range although, if they were worthy of considerationatall, they belongedat the bottom. (Cf. Apprendi v. New Jersey (2000) 530 U.S. 466, 512-513, 522 (conc. opn. of Thomas, J.) [judge’s choice of mid-range sentence did not show harmlessness of invalid mandatory minimum,since error skewed the range, thus also skewing the judge’s perception of the severity of the choice he made].) This made the error in admitting the evidence a very serious one, not the kind that can be found, beyond a reasonable doubt, to have been incapable of affecting a penalty decision. Respondent makesa perfunctory attempt to meet its burden of showing harmlessness. First, it shifts that burden: “... Romero cannot establish prejudice.” (RB 234.) Then, citing the other jail incidents and the 239 circumstances of the crimes, while seriously exaggerating both,’ it claims harmlessness simply because the challenged evidence “pales in comparisonto the other evidence before the jury... .” (Jbid.) So respondentagain addresses the wrong question, which is not how it or this Court thinks various considerations would or should have beensignificant in deciding penalty, but whetherthe possibility of a juror having been influenced can beruled out." Then respondententirely ignores how the evidence wasactually usedto bolster the case for death, by showing the resourcefulness appellant could be expected to bring to bear on future attempts to harm people and escape. Respondent also ignores the way the evidence and accompanying instructions effectively misinformed the jury as to how to evaluate the seriousness of the other factor (b) misconduct. The Hodges incidents were Respondentclaims, “Romero hunted three young menlikeprey,killed them without any apparent remorse, and continuedto satiate his appetite for violence while awaitingtrial.” (RB 234.) The evidence presented Aragon as only arobberytarget for appellant, whom Self (or Self and Munoz) decided to kill, and the idea that the Lake Mathewsvictims were sought out in advance as murder victims is a totally speculative interpretation of the evidence. Further, though legally responsible for three murders, the prosecution’s case showed appellant to have killed one person, not three, and even concluding that he did that requires believing Munoz. Asfor the three jailhouse incidents in four years that involved violence, they were too minor to satiate any real appetite for violence. This is particularly true in light of the fact that appellant never used the shanks which he possessed or threatened anybody with them,andin light of a jail culture in which a certain amount of toughnessneedsto be projected in order to avoid being victimized oneself. (See summary at AOB 124-126.) "'A complete argument on both respondent’s misapplication of the Chapman/Brownstandard and the evidentiary picture presented in this case appearsin the discussion of harmlessness in issue II, at pages 101-114 and 120-122, above. A more summary version concludes issue IV, at pages 167-172. 240 indeedfairly “pale,” which is why they should not have been admitted. But whetheran error in admitting evidence is prejudicial depends, among other things, upon “any indirect effect” that the evidence “might have had because ofthe way in which[it was] used.” (People v. Gonzales (1967) 66 Cal.2d 482, 493.) Here it was usedto teach the jury that the range of wrongdoing to be “considerfed]” and “take[n] into account” (RT 54: 8063) in deciding appellant’s sentence included these minor incidents, deeply exaggerating the aggravating force of the evidence of other unadjudicated misconduct. It is standing Chapman and Brown ontheir heads to ignore how the case wastried and argued and then claim that the strength of the rest of the prosecution’s case for death and the relative insignificance of the Hodges misconduct are enough to demonstrate, beyond a reasonable doubt, that the error was not one “which possibly influenced the jury adversely” The penalty judgment mustbe reversed. // // "People v. Neal (2003) 31 Cal.4th 63, 86, quoting Chapman v. California (1967) 386 U.S. 18, 24; see People v. Ashmus (1991) 54 Cal.3d 932, 965 (in death cases, state-law test is equivalent to Chapman). 241 VItt' EXCLUSION OF MITIGATING EVIDENCE WAS PREJUDICIAL CONSTITUTIONAL ERROR A trial court’s power to limit testimony offered by a capital defendant in mitigation is sharply constrained by the Evidence Code, the Sixth and Fourteenth Amendmentrights to present a defense in any criminal case, and the Eighth Amendmentright to present any evidence relevant to mitigating a possible death penalty.” In the Eighth Amendmentcontext, there is a “low 3threshold for relevance,”” and the high court has characterized its own expression of the relevance standard for mitigation as being “in the most expansive terms.””* Relevance for these purposesis “any tendency to makethe existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” This includes testimony supporting the credibility of a mitigation witness, when "See AOB 384. Respondentaddressesthis claim in its Argument XV, RB 241. "Evid. Code §§ 210, 351, 780; U.S. Const., 6th, 8th, & 14th Amends.; Cal. Const., art. 1, §§ 7, 15, 17; Holmes v. South Carolina (2006) 547 US. 319, 324 (right to present a complete defense); Taylor v. Illinois (1988) 484 U.S. 400, 409 (same, per right to compulsory process); Chambers v. Mississipi (1973) 410 U.S. 284, 294-295 (same, per due process); People v. Mickey (1991) 54 Cal.3d 612, 692-693 (federal right to present any relevant evidence potentially mitigating the sentence). *Tennard v. Dretke (2004) 542 U.S. 274, 285. *Tennard v. Dretke, supra, 542 U.S. at p. 284. "Ibid. 242 credibility could be anissue.® Here the defense offered Maria Self’s testimonythat she was regularly raped by twobrothers,starting at age six and continuing for seven years. The evidence was offered, in part, to substantiate her narrative of her extreme abuse and neglect of her own sons by providing a windowinto her psyche. This was in the face of what was correctly predicted to be prosecutorial argumentthat her testimony wasthe grossly exaggerated, unsubstantiated, and improbable story of a highly biased witness. The testimony wasalso offered as part of the direct case in mitigation, as she wouldtestify that at times she left her young sons in the care of the same violent and grossly abusive brothers. This was a further example of her neglect, qualitatively different from the others before the jury, as well as circumstantial evidence tending to show where appellant and Self may have found modelsfor allowing their own dark sides free rein.’ The trial court, while agreeing that Maria Self’s credibility would bein issue,® excluded the testimony. It saw no relevancein it, mistakenly thinking thatall it did was mitigate Maria Self’s culpability for her own conduct. Then—using an entirely different measuring stick than it used when determining whether prosecution evidence could arouse prejudice and confusion among the jurors—the court found the evidence “highly °See Davis v. Alaska (1974) 415 U.S. 308; Smith v. Illinois (1968) 390 U.S. 129; Pointer v. Texas (1965) 380 U.S. 400, 403-404; and analysis and additional cases cited at AOB 387, fn. 232, as well as Holmes v. South Carolina, supra, 547 U.S. at p. 324; see also Evid. Code § 210 (relevant evidenceincludesthat relating to credibility of a witness). "See RT 52: 7731, 7733-7735 (offer of proof and argumentin favor of admission). °RT 52: 7734. 243 prejudicial” and likely to confuse and mislead the jury. (RT 52: 7735.) Both prongsofthe court’s ruling were mistaken, leading the court into prejudicial statutory and constitutional error. Respondent contendsthat appellant has forfeited appellate review ofhis claims to the extent that they have constitutional bases, that the proffered evidence wasirrelevant, that its admission would have created a substantial risk that sympathy for Maria Self would have so biased the jury that it would havefailed to give the death penalty due consideration, and that any error in excluding it was harmless. (RB 241-248.) The parties agree only partially on the applicable law, and they disagree on the critical question of the standard of review. A. Appellant Is Entitled to Review of His Claim Under Constitutional Standards Preliminarily, respondent contendsthat the constitutional basesfor this claim were forfeited becauseoftrial counsel’s failure to articulate them when arguing for admission ofthe testimony. (RB 242, fn. 75.) This contention was anticipated in the opening brief. (AOB 398, fn. 238.) To the extent that this Court agrees with appellant that, under the Evidence Code, the trial court lacked discretion to exclude the evidence, the congruence between (uncited) constitutional and (cited) non-constitutional law gave the trial court a full opportunity to adjudicate the issue. In this circumstance, there is no preservation requirement. (People v. Yeoman (2003) 31 Cal.4th 93, 117-118; see also People v. Partida (2005) 37 Cal. 4th 428.) To the extent that the state and federal constitutions gave appellant broaderrights, the futility exception (People v. Boyette (2003) 29 Cal.4th 381, 432) applies. This is becausethe trial court was absolutely unable to see any relevance in the testimonyat issue. Since neither the right to present a defense 244 northe right to present all meaningful mitigation conveysa right to introduce irrelevant testimony,its ruling would have been no differentif it had applied the rubric of those rights. Put differently, the failure to invoke those rights did not deprive the court of the ability to understand the issue better. Respondent asserts, without further reasoning, that this pointis “‘. .. merely speculative,’” citing People v. Sanders (1990) 11 Cal.4th 471, 51[0], fn. 3. (RB 242, fn. 75.) But in Sanders nothing about the trial court’s reasoning showedthat it would have reached the sameresult even if a more stringent federal standard had been brought to its attention, so the failure to do so may have affected its ruling. It had excluded expert testimony about potential weaknesses in eyewitness identifications. (See 11 Cal.4th at pp. 507-508.) Its ruling involved judgment calls about both the value of the testimony under the circumstancesand the cost in terms of time that would have been consumed by its admission. (/d. at pp. 509-510.) Thusit was speculative to assert that the trial court would not have ruled differently under a more rigorous standard, and asserting that standard for the first time on appeal wasnotpermitted. (/d. at p. 510, fn. 3). Here, in contrast, it is not speculative to recognize that a court that saw proffered testimonyas logically entirely unconnected to any material fact would have ruled the same way underconstitutional standards, none of which require admissionof irrelevant testimony. Appellant has stated three other applicable exceptions to the preservation requirementandcited the state’s own interestin a fair and reliable penalty verdict.’ He has also urged that—to the extentthere is any doubt about *See AOB 398-399,fn. 238, citing People v. Vera (1997) 15 Cal.4th 269, 276-277 (deprivation of fundamental constitutional rights); People v. Hines (1997) 15 Cal.4th 997, 1061 (pure question oflaw on undisputedfacts); (continued...) 245 whether the trial court would have known of the constitutional context—failure to raise it constituted ineffective assistance, properly reviewable on appeal because of the lack of any conceivable tactical basis for failing to bring the most favorable law to the court’s attention. (AOB 398-399, fn. 238.) Respondent disputes none of these additional grounds for reviewing the constitutional claim here.’ B. Under the Eighth Amendment and Other Constitutional Protections, a Trial Court’s Discretion Regarding Proffered Mitigation Exists Only at the Margins of Relevance, and Review Should Accordingly Be Undeferential 1. Near-Absence of Trial-Court Discretion Respondentagrees that a defendant has a constitutional right “to offer any relevantpotentially mitigating evidence.” (RB 243.) Respondent does not °(...continued) People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 (court’s discretion to consider claims for which right to review has been forfeited); People v. Hill (1992) 3 Cal.4th 959, 1017, fn. 1 (conc. opn. of Mosk, J.) (same; constitutional right to correction of miscarriage of justice prevails over judicially-created waiver rules); People v. Koontz (2002) 27 Cal.4th 1041, 1074 (state’s own interest in a fair and reliable penalty verdict). ‘Respondentalso states that the constitutional claims are premised on the assertion that the trial court prejudicially erred (presumably understate law), and that lack of error underminesthe claims. (RB 242, fn. 75.) This can be true where constitutional and non-constitutional rules are the same, and the sole reason to cite federal constitutional law is to invoke a different harmlessness standard or permit subsequent federal review. (People v. Partida, supra, 37 Cal. 4th 428.) Respondent’s assertion makes no sense here, however, as appellantis claiming that the constitutional protections—such as the broad right to introduceany potential mitigating evidence—limit any discretion thetrial court may otherwise have had under Evidence Code section 352. Not every ruling that passes state-law muster thereby also meets constitutional standards. 246 dispute that this fundamental right encompasses evidence supporting the credibility of a defense witness. However, respondent goes on to quote, out of the context of the cases in which they arose, seemingly general formulas about the Eighth Amendmentnotabrogating the Evidence Code, the ordinary rules of evidence not generally infringing on an accused’s Sixth and Fourteenth-Amendment rights to present a defense, and a trial court’s discretion to exclude potentially mitigating evidence if its probative value is substantially outweighed by the probability that its admission will create substantial danger of confusing the issues or misleading the jury. (RB 244.) Respondent apparently would have the Court give lip service to the principle that all relevant mitigation must be admitted and then use the quoted language to affirm, by ruling that a trial court’s discretion under the Evidence Codeto exclude mitigating evidenceis as broad as it is with evidence offered in any other procedural setting. Each statement quoted by respondent, if taken to generally permittrial courts significant discretion to violate the principle that potentially relevant mitigation must be admitted, would be erroneous. Unsurprisingly, therefore, a reading ofthe authorities on which respondent relies shows respondent’s use of each to be unsupported. Rather, the synthesis between the overriding Sixth-, Eighth-, and Fourteenth-Amendment protectionsthat require admitting “any”'' potentially mitigating evidence and the cases from which respondent draws certain language is this: in a narrow area, at the outer margins of relevance, and where both therisk of prejudice or confusion and the degree of such prejudice or confusion are high, the trial court has some discretion. "People v. Mickey (1991) 54 Cal.3d 612, 692, citing,inter alia, Skipper v. South Carolina (1986) 476 U.S. 1. 247 Respondent cites People v. Phillips (2000) 22 Cal.4th 226, 238, and People v. Edwards (1991) 54 Cal.3d 787, 837, for the proposition that the Eighth-Amendmentrule allowing all relevant mitigating evidence has not abrogated the Evidence Code. The testimonyat issue in Phillips was hearsay, and there was good reason to believe that it was double hearsay, based on a self-serving statement by the defendant rather than the informant’s personal knowledge. (22 Cal.4th at pp. 234-237.) The Phillips Court acknowledged that even the Evidence Code’s hearsay ban would give way to the right to present mitigation if the testimony were highly relevant and had substantial indicia of reliability, but neither of these conditions was met. (/d. at p. 238.) The secondcase cited by respondentis similarly illustrative of the very narrow range of the principle invoked by respondent. It involved another violation of the hearsay rule, as the defendant attempted to defeat the prosecution’s right to test mitigation evidence through cross-examination, by offering his own pre-trial statements, without taking the stand himself. (People v. Edwards, supra, 54 Cal.3d at p. 837-838.) After discussing the guidance Green v. Georgia (1979) 442 U.S. 95 gave regarding whenstate hearsay rules must give way to constitutional protections, this Court upheld the exclusion of the testimony. (Jbid.) Thus when Peoplev. Phillips and People v. Edwards stated that the Evidence Code survives the Eighth Amendment during a penaltytrial, they were not holding that every codified evidentiary restriction can be applied to justify exclusion of evidence in mitigation. Here the provision respondent counterposes to the Eighth Amendmentis not the clearly definable and reliability-enhancing hearsay rule—though even that must give way at times—but a court’s otherwise broad discretion under Evidence Codesection 352. Respondent’s apparent attempt to undermine the principle that “[t]o 248 guarantee that capital sentencing decisions are as individualized andreliable as the Constitution demands, . . . the defendant may not be barred from introducing any relevant mitigating evidence,” also relies on broad language from People v. Prince (2007) 40 Cal4th 1179 about the ordinary rules of evidencenot generally infringing on an accused’s right to present a defense. (RB 243.) As shownina prior discussion,’* nothing in Prince, nor the cases on whichit relies, seeks to dispute the fact that there are numerous areas where the constitution constrains courts’ evidentiary rulings. The observation about the rules of evidence generally being constitutional may be true, but it is unhelpful in analyzing a claim that a particular application was unconstitutional. What it does is somehow suggests that appellant has an uphill battle. In fact, the uphill battle—andit is a steep one—is faced by the party seeking to justify exclusion of evidence offered in mitigation, in the face of the Eighth-Amendmentrule. Finally, respondent quotes People v. Guerra (2006) 37 Cal.4th 1067, 1145, for the broad proposition that the trial court determinesthe relevance of evidence offered in mitigation and retains discretion to exclude such evidence if its probative value is substantially outweighed by the probability that its admission will create substantial danger of confusing the issues or misleading the jury. (RB 244.) This, too, is a serious overstatement, although—as appellant shows below—thetrial court’s ruling here would have been error even if this were the standard. The facts in Guerra resembled a law-school hypothetical about the Eighth Amendmentrequiring the admission of “any” ”People v. Mickey, supra, 54 Cal.3d 612, 692-693. See pp. 149-152, above. 249 relevant mitigating evidence.'* The asserted error was exclusion of a photographof the defendant’s horse and his three children. It was offered to showthe defendant’s family as he lived with it in Guatemala, and the horse he rode whenhe gave medical attention to peoplein his village. Other photos of the children had been admitted, and there was testimony about his delivering medications on horseback. This Court upheld a finding that the photo was irrelevant, as well as excludable under Evidence Code section 352. (dd. at p. 1145.) In reality, the claim was a frivolous one. It would be error to now employ language used by this Court to disposeofit, in order to subvert a very broad principle enunciated by the high court, in the context in which that principle is intended to apply. Clearly what Guerra stands for is the common-sense proposition that a defendant’s relevance claim need-not be accepted at face value without testing by the trial and reviewing courts just because the evidence is purportedly mitigating.'* Moreover,as explained previously,'° while relevance issues are normally pure questions of law, to which there is a single right answer determined bylogic, there is an area of discretion at the margins in allowingor excluding “facts that merelyfill in the backgroundofthe narrative See People v. Mickey, supra, 54 Cal.3d 612, 693, quoting Skipper v. South Carolina (1986) 476 U.S. 1, 4, and Eddings v. Oklahoma (1982) 455 U.S. 104, 114, and citing numerous other high court cases. 'SSee Tennard v. Dretke, supra, 542 U.S. 274, 286, where the court reaffirms that all evidence which a sentencer could consider mitigating must be admitted, while acknowledging that “gravity has a place in the relevance analysis, insofar as evidenceofa trivial feature of the defendant’s character or the circumstances of the crime is unlikely to have any tendency to mitigate ....” "SAOB 391. 250 andgiveit interest, color, and lifelikeness.” (1 McCormick, Evidence (5th ed. 1999) Relevance, § 185, p. 637.) At those margins, too, Evidence Code section 352 discretion would apply, even in a mitigation setting, as long asit is narrowed by Eighth Amendment concerns. Clearly a picture of a defendant’s horse,if relevantat all, falls into this category. Evidence which, amongotherthings, circumstantially explains how a mother could behave in an unmotherly fashion, and do so to a degree that is otherwise incomprehensible, in the face of the prosecution’s vigorously disputing that she did so, does not." Respondent makes no attempt to reconcile a broad application of the Guerra language with whatboth it and this Court have acknowledged to be Eighth Amendmentlaw. Respondent’s quotation from Guerrais followed bycitationsattributing it not only to Guerra, but to “People v. Box, supra, 23 Cal.4th at p. 1153,” and People v. Karis (1988) 46 Cal.3d 612, 641-642, fn. 21. The cited page in Box is the first page of the opinion, containing its front matter, and the entire opinion has neither the language used in Guerra nor a discussion of the law relating to mitigation evidence. There is, however, a reference to the portion of People v. Karis which respondentcites, and that discussionis instructive. (See People v. Box, supra, 23 Cal.4th at pp. 1200-1201.) Both cases deal with the question of whethera trial court retains section-352 discretion to exclude evidence offered in aggravation by the prosecution. In an in-depth discussion of the extent of that discretion under factor (a) (the circumstances of the crime), the Court concluded in Box that the discretion exists but, because of the statutory and procedural framework, “is more circumscribed than at the Put differently, such evidenceis a horse of a different color. 251 guilt phase.” (23 Cal.4th at p. 1201.) Notably, even anotherstatute, therefore, can circumscribea trial court’s discretion under section 352. Thus Peoplev. Box supports the proposition that to say that section-352 discretion is retained in the face of external constraints is not to say that such discretion will look the sameas it does whenneither other statutory nor constitutional considerations cause it to be “reduced accordingly.” (/bid.) Here the appropriate reduction is drastic. Discretion must be limited to the Guerra situation of evidenceat the far margins of arguable relevance. Otherwise a court is bound by the uncompromising rule that a defendant on trial for his or her life must be permitted to offer any evidence relevant to a mitigating circumstance. 2. Standard of Review After suggesting that a trial court’s normal section-352 discretion is unconstrained in the mitigation context, respondent advocates an abuse-of- discretion standard ofreview,not only in a section-352 context, but even ofthe basic relevance determination. Respondent is wrong regarding both questions. a. Review of Relevance Determination Appellant addressed the standard of review in the openingbrief.’* He acknowledged that there is broad language in this Court’s opinionsstating generally that claimsoferror in evidentiary rulings, including relevanceissues, are reviewed only for abuse of discretion. Respondent now offers that language without further comment (RB 244), although appellant had pointed out that ° in actual practice, this Court routinely analyzes some evidentiary questions as matters of law—including relevance questions—even where constitutional rights are not involved, 'SAOB 389et seq. 252 and even when the Court beginsbystating that the trial court has broad discretion in determining relevance;'” ° neither the Witkin nor McCormick treatises on evidence list relevance rulings as amongthose wherea court has discretion;”° ° this Court has never explained why,in the face of (a) Evidence Code section 351’s flat command that all relevant evidence is admissible except as otherwise provided and(b) the pure-logic, matter-of-law nature of every relevance question (see Evid. Code § 210),”’ a trial court would have discretion, i.e., “the 9922power to makethe decision, one way or the other” to make relevance determinations and have them receive deferential 23,24 and review; ° the line of authority broadly stating an abuse-of-discretion standard for evidentiary rulings goes back only to very specific situations where discretion was established by statute or "See AOB 389, 391, and casescited. *°9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 357, pp. 405-406; 1 Witkin, Cal. Evidence (4th ed. 2000) Circumstantial Evidence, § 4, pp. 325-326, § 26, pp. 351-353; 1 McCormick, Evidence (Sth ed. 1999) Relevance, § 185, pp. 637-648.) *1The degree of probative value can be a judgmentcall, but whether evidence has a tendencyin reason to prove a material fact is not. *”People v. Carmony (2004) 33 Cal.4th 367, 375 (defining discretion). See AOB 388-390. Again, the exception would be on the margins of relevance, where trial courts may make judgmentcalls about backgroundfactsthat give interest and color to a narrative. (See 1 McCormick, Evidence, supra, Relevance, § 185, p. 637.) 253 logically required.” The point may seem academic, since relevance issues do tend to be clear-cut and this Court treats them this way, without referring to a trial court’s discretion, even after openingits discussion with a general statement aboutthe abuse-of-discretion standard. But appellant seeks clarity on the standard of review because taking the abuse-of-discretion standard as even a nominal starting point can create a mind-set favoring affirmance. What appellant seeks is review of his contention based on the clear commandsofthe Evidence Code and his rights under the Constitution, not on an erroneous framing of the question as whetherthetrial court abused a discretion that need not and does not exist. Respondent does not argue with any of appellant’s reasoning, authorities, or conclusion on the matter ofthe standard ofreview regarding the initial relevance determination. Respondent does, however, state that a trial court’s ruling on the admissibility of evidence will not be disturbed unless the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice, citing People v. Guerra, supra, 37 Cal.4th 1067, 1113. Guerra made that statement, in a setting where no constitutional constraints applied.’ In it—as in the cases cited by appellant—this Court went on to affirm the correctness ofthe trial court’s ruling without in any way relying on a standard, suchasthat relied on by respondent, that would affirm every colorably rational trial-court ruling. Put differently, the Guerra Court did not affirm merely by finding thatthetrial >See AOB 389-390 & fn. 233. **This wasin a different portion of its opinion than that discussing the mitigation claim. 254 court’s ruling was not arbitrary or absurd. Nothing in Guerra defeats appellant’s position that the typical relevance question is a black-and-white one, with a correct answerthat this Court can, should, and does determine on its own. b. Review of Discretionary Balancing of Probative Value and Prejudicial Effect Appellant has argued, citing the practices of both the United States Supreme Court and this Court, that even to the extent that a balancing of probative value versusprejudicial effect may have been appropriate in ruling on the prosecution objection to the Maria Self rape/incest testimony, the normal level of deference to a trial court does not apply in reviewing claims based on the constitutional rights to present a defense and all mitigating evidence.”’ As he put it there, “The extent of a defendant’s constitutional rights is not committed to the discretion of trial courts to handle in varying waysaccordingto their views ofwhat is appropriate. (Cf. People v. Carmony, supra, 33 Cal.4th 367, 375 [discretion is the power to rule either way].)” Respondent has not commented onthis analysis. Moreover, even in ordinary situations, [t]he abuse of discretion standardis not a unified standard; the deferenceit calls for varies according to the aspect ofa trial court’s ruling under review. Thetrial court’s findingsoffact are reviewed for substantial evidence, its conclusions of law are reviewed de novo,andits application of the law to the facts is reversible only if arbitrary and capricious. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, footnoted citations omitted.) The degree to which constitutional law should impact a court’s perspective on an evidentiary question is a conclusion of law,subject 27\OB 392 and casescited. 255 to de novo review. Moreover, the statement suggesting freedom to apply the law to the facts in any mannerother than an arbitrary one seems overbroad. (Cf. Miyamoto v. Department ofMotor Vehicles (2009) 176 Cal.App.4th 1210, 1222 , conc. opn. of Rushing,P.J. [“The trial court had no discretion to decide what the applicable law wasor to determineits logical effect in light of the facts found”). The entire opinionis an illuminating discussion of the uses and misusesof the abuse-of-discretion standard.) Finally, as shown below, following the lead of the prosecutor,the trial court entirely misunderstood the bases on which the defense was contending that the evidenceat issue was relevant, despite clear statements from defense counsel. Under these circumstances,a proper exercise of any discretion it may have had was impossible, and this Court must determine the issue de novo. (Cf. Haraguchi v. Superior Court, supra, 43 Cal.4th 706, 712, fn. 4; Martin v. Alcoholic Beverage Control Appeals Bd. (1961) 55 Cal.2d 867, 875.) Cc. The Evidence Was Relevant to the Mitigation Case, and There Was No Substantial Risk of Undue Prejudice to Respondent On the merits, respondent goes to some lengths to argue that sympathy for members of a defendant’s family is not a proper circumstance in mitigation, and that the family’s background “is of no consequence in and of itself.” (RB 244, quoting People v. Rowland (1992) 4 Cal.4th 238, 279.) Thereis no needto rebut this argument, because admission of the Maria Self testimony wasnot sought oneitherbasis. Unlikethe trial court, respondentat one point acknowledgesappellant’s reasons for seeking admission of the evidence. (RB 244.) Its only answer, however, is a non sequitur that repeats the trial court’s misunderstanding. After stating the bases on which relevance wasactually claimed, respondent asserts,“Put another way, appellants wanted the jury to consider an improper 256 and irrelevant matter in mitigation, i.e., their mother’s background and character in an attempt to create sympathy for her.” (RB 244-245, emphasis added.) This is not “putting” anything “another way”: it is shifting to speculatively ascribing ulterior motives to the defense. But doing so does not weaken appellant’s showing that the evidence had a tendency in reason to make more probable the legitimate propositions that would have bolstered the mitigation case. 1. The Evidence Would HaveSignificantly Supported the Credibility of a Key Witness Whose Truthfulness the Prosecution Attacked While respondent accurately states the bases for admitting the evidence, it ignores most of appellant’s underlying reasoning.”* In brief, “[A] host of research andclinical studies . . . indicate” what is well knownin the culture and wasatthe time of appellant’s trial: “that adult survivors of incest suffer from devastating personal and interpersonal difficulties.” (Kirschner, Kirschner & Rappaport, Working with Adult Incest Survivors: The Healing Journey (1993) p. 3.) Without the rape/incest background, Maria Self’s story of addiction and of abusing and neglecting her children and raising them in chaos had no explanation except for a bad marriage,and, as the prosecutor was soon to argue,” her obvious bias in wanting her sons to live. Her own background made her account of how shetreated her children considerably moreplausible, for it made obviousthe probability that, while a young mother, she had serious psychological problems. While respondent now emphasizes *See AOB 393-399. RT 54: 8020, 8022. 257 that there was testimony about her having such problems,”’ the prosecutor sought to imply that her condition was of recent vintage, brought on by her sons’ arrests.’' The missing rape/incest piece also would have supported the testimony, provided by Maria’s niece Sheila Torres, regarding Maria’s hatred of males and her taking that hatred out on her sons.” Respondent has no answerto anyofthis. Appellant has also pointed out that prosecutors may introduce evidence of a defendant’s motive. Because it provides a reasonfor the alleged criminal action, it makes it more likely that the defendant committed it than if there were no motive. It is thus circumstantially probative on the issue of his or her actions. (See 1 Witkin, Cal. Evidence, supra, Circumstantial Evidence, § 119, pp. 466-468.) Yet here, when the defense had a parallel need to establish a reason for Maria Self’s actions, the trial court could “see no issue before the jury as to the reason why she did or did not do certain things to the defendants.” (RT 52: 7735.) Evidence that would provide a reason for Maria Self’s actions madethe claims that she committed them much moreplausible, just as evidence of a reason for a defendant to commit a crime supports the case that he or she did so. It was evidence “having any tendency in reason to prove”that her accountofthat behavior wastrue (Evid. Code §§ 210, 780), for it would have “‘. . . render[ed] the desired inference more probable thanit would be without the evidence.’” (People v. Warner (1969) 270 Cal.App.2d 900, 907-908; see also Tennard v. Dretke, supra, 524 U.S. 274, 284 [same test for relevance of mitigating evidencefor purposesofprinciple that relevant *°RB 246. RT 52: 7758-7759. *RT 53: 7904-7905. 258 mitigation must be admitted]; cf. Skipper v. South Carolina, supra, 476 U.S. 1, 7-8 [state could not exclude, as cumulative, testimony of disinterested witnesses corroborating mitigating facts testified to by defendant and his wife].) The trial court simply did not understandthis, and its ruling was error under any standard. Again, respondent has no answer. Apparently it would have this Court affirm by silently applying different rules of relevance to defendants than to the prosecution. 2. Respondent’s Disparagement of Family-History Testimony Urges a Departure from the Norms of Capital-Case Litigation In a related point, appellant has shownthatit has long been accepted in capital cases that mitigation evidence pertaining to the background and character of the defendant will sometimes include the background or psychological disabilities of family members, citing cases where the defense presented, amongother things, parents’ own childhood sexual victimization.” Respondentstates that none of these cases involved a direct holding that the defendantwasentitled to present the evidence. (RB 247.) Thisis true only in the most narrow,technical sense, and it is noteworthy that respondentoffers no authorities holdingsuch evidence inadmissible. In People v. Rowland, discussed by both parties here, the issue was a claim of prosecutorial error in arguing that much of the defense case, which included testimony that both of the defendant’s parents came from violent, See AOB 395-396, citing Wiggins v. Smith (2003) 539 U.S. 510, 524-525, 535; People v. Michaels (2002) 28 Cal.4th 486, 506; People vy. Wharton (1991) 53 Cal.3d 522,545; People v. Rowland, supra, 4 Cal.4th 238, 255. 259 alcoholic homesand were sexually victimized as children,’ had nothing to do with the defendant. Rather than holding, as a matter of law, that the prosecutor wascorrect and that the evidence should not even have been before the jury, this Court held that the prosecutor was urging the jury to apply the correct standard. For he was urging it to decide what in the family-backgroundfacts actually could have affected the defendant and what could not have done so. The propriety of the admission of the evidence was unquestioned, and the prosecutor was entitled to argue its significance before the body that would ultimately decide that question. (People v. Rowland, supra, 4 Cal.4th at pp. 278-280.) Rowland clearly accepts the premise that the significance of facts substantially illuminating the kind of person whom the defendantwasraised by is a jury question, not a legal one. Similarly, while Wiggins v. Smith (2003) 539 U.S. 510, did not directly hold that the kind of information offered here was material mitigation, the Supreme Court clearly consideredthis to be the case. It held that a competent attorney would normally prepare a social and family history of a capital defendant, and it foundit likely that, in the case before it, such an attorney would have placedthat history before the jury. (/d. at pp. 524-525, 535.) The ineffectiveness-of-counsel claim before the Court would have been meritless if the evidence were not something whicha jury could appropriately consider mitigating. Moreover, in Wiggins, the undiscovered evidence included the defendant’s mother’s alcoholism, which the Court clearly saw as shedding light on her abuse and neglect of the defendant. (/d. at pp. 516-517, 524-525, 535.) Maria Self’s carrying the scars of seven years of incestuous childhood rape was entirely comparableto the disabilities inflicted by alcohol. But by the **People v. Rowland, supra, 4 Cal.4th at p. 255. 260 narrow logic of the court below,neither a mother’s alcoholism (Wiggins) nor her history likely to cause serious psychological damage (appellant’s case) would “relate to factors in mitigation for the defendants.” (RT 52: 7735, emphasis added.) Only her direct acts towards them—“whatshedid or did not do to her sons”—would. (RT 52: 7731.) Respondent overlooks the reason for the absence of 100-percent explicit holdings in favor of appellant’s position—or,for that matter, against it. It is that, normally, such mitigation evidence is unchallenged. Thetrial courts in the variouscasescited in the opening brief did not curb its admission. The reviewing courts, which certainly could have commented on any impropriety in admitting such evidence, did not do so. The only reason such a claim is being litigated now is that the court below truly misunderstood the point of the testimony. It knew that evidence that appellant was abused as a child was admissible to mitigate his responsibility for his actions, thought that Maria Self’s victimization was similarly being offered to mitigate hers, and knew that her culpability and the degree to which it was mitigated were immaterial.’ It simply did not get that background evidence explaining her behavior both bolstered the likelihoodofthe truth of accounts ofthat behavior and provided additional evidence—apart from the details of this or that incident of abuse or neglect appellant suffered at her hands—about the environmentin which appellant was raised. Orat least a rational juror could have thought so, whichis enough to have deprived thetrial court of the power to exclude it. (Skipper v. South Carolina, supra, 476 U.S. 1, 4-5; People v. Mickey, supra, 54 Cal.3d 612, 693.) Since the trial court did not understand the contention before it, any **See AOB 396, quoting RT 52: 7731, 7733, 7735. 261 discretion it may have had cannot be considered to have been properly exercised, and this Court must determine the issue de novo. (Cf. Haraguchi v. Superior Court, supra, 43 Cal.4th 706, 712, fn. 4; Martin v. Alcoholic Beverage ControlAppeals Bd. (1961) 55 Cal.2d 867, 875.) While respondent, as noted previously, seeks abuse-of-discretion review,it has neither sought to disprovethefactthatthe trial court failed to understand the proffered basis for the testimony’® nor disputed the impact of such a failure on the standard of review.” Respondent relies heavily on People v. Holloway (2004) 33 Cal.4th 96. (RB 245-247.) Hollowayat best pushesthe limits of the Eighth Amendment, and extending it to the current facts would clearly violate the ban on limiting relevant mitigating evidence. Holloway, like this case, involved evidence offered in mitigation which a jury could theoretically use in two different ways. The similarities end there, however, and the differences dictate different results. In Holloway the defense purportedly wanted to establish that the defendant’s young motherhadto raise him on her own,withouthelp or support from the father, who was generally absent, or from her ownparents. Instead, however, counsel asked the mother what her parents’ reaction was to her leaving homewith the father-to-be. The answer, to which an objection was sustained, would havebeenthat they disowned her. Muchofthe defense case already “created a substantial danger the jury’s attention and deliberations would incorrectly focus on [the defendant’s father’s] character.” (33 Cal.4th at p. 149.) Disparaging the father’s character could create sympathy without being a true basis for mitigating the defendant’s punishment. In context, *°Compare RB 241-248 with AOB 396-397. °7Compare RB 244 with AOB 397. 262 evidence that the grandparents disowned the mother for going off with the father was a further attack on the father’s character, because it was opinion evidence showingthe parents’ strong disapproval of him. This Court pointed out that the mother and others could havetestified directly to the actual mitigating fact, i.e., the absence of parental help and support. (/bid.) Thesalient facts, then, are that the Holloway defendant sought to prove a legitimate mitigating fact through indirect means when direct meansthat did not risk confusing the jury were available, and that the evidence dealt with a matter (the father’s character) as to which the defense had already presented considerable material which risked leading the jury to considerirrelevant facts to be mitigating. (People v. Holloway, supra, 33 Cal.4th at pp. 148-149.) Neither of these is true here. On the legitimate, controverted factual issue of Maria Self’s credibility (in describing the extent of her abuse and neglect of her children), there was an absence of more direct evidence about a likely root cause of deficiencies that could result in such abusive and neglectful conduct. Indeed, respondent’s argument for Holloway’s applicability ignores—as it has to—the fact that the issue here wasnot the character of a parent, but her credibility as a witness. (See RB 246 [arguing that, as in Holloway, appellant had noright to introduce evidence about a parent’s character per se].) As to the other factor leading to the result in Holloway, there was nothing else in the mitigation case that could be understood to be evoking sympathy for the defendants’ mother. Respondent is wrong, by the way, in claiming that, “As recognized by this Court in Holloway, the admission ofthis type of evidence creates a substantial danger that the jury’s attention will incorrectly focus on the family’s character and not the defendant’s.” (RB 246.) Holloway contained no generalizations about any “type of evidence”; a fact-specific analysis of the defendant’s mitigation case 263 led to the conclusion that there was a substantial risk of misdirecting the Hollowayjury. (People v. Holloway, supra, 33 Cal.4th at p. 149.) Respondent invokes a supposedgeneralprinciple becauseit can point to no suchfacts here. Indeed, were respondent’s approach, and that of the court below, applied to the facts in Holloway, the evidence which this Court emphasized could have been provided in that case by direct and legitimate means would have been inadmissible. According to respondent, all that matters is a mother’s actual behavior regarding her children; the conditions that provide a context for that behavior, making it more understandable and thus making the testimony regarding it more credible, are not. The Holloway mother’s being on her own would have not only been besidethe point but, according to respondent’s logic, it would have created a grave danger of arousing so much sympathy— for her—that it would have endangered the jury’s capacity to put aside that sympathy in considering a death verdict. Not only, then, is Holloway distinguishable, but its overall reasoning supports appellant’s premise, not respondent’s. Turning it, instead, into a precedent for limiting legitimate mitigating evidence would extend it into unconstitutionalterritory. 3. The Evidence Was Relevant in Other Ways Respondent’s argumentignores three other ways in which the evidence was relevant mitigation. First, while there was evidence of other forms of abuse and neglect by appellant’s parents, his being left in the care of violent and abusive men whohada history of raping children would have added a whole new dimensionto the picture. In a related point, the presence of these men in the family, and their close contact with, and responsibility for caring for, appellant, would have helped explain the darker aspects of his character and conduct. Their aggressiveness may well have been a model for appellant’s. Finally, as noted above, the excluded fact would have 264 corroborated and explained Sheila Torres’ testimony about, regarding Maria’s hatred of males and her taking that hatred out on her sons, another fact which—once made believable—helped explain the inexplicable in Maria’s purported conduct. In any event, a rational juror could have seen the facts these ways, whichis enough to have deprived the trial court of the powerto exclude the testimony. (Skipper v. South Carolina, supra, 476 U.S. 1, 4-5; Peoplev. Mickey, supra, 54 Cal.3d 612, 693.) 4. Respondent’s Claim that the Testimony Would have Been Cumulative Reprises an Argument Rejected in Skipper v. South Carolina Respondent also comparesthe instant case to People v. Holloway by claiming that, as in Holloway, the proffered testimony was unnecessary. In Holloway it was unnecessary because the disowning was circumstantial proof of the pertinent fact regarding the mother’s being on her own, a fact to which the mother and other members of the family could havetestified directly. (People v. Holloway, supra, 33 Cal.4th at p. 149.) Here respondent points to a different kind of purported lack of necessity: the testimony was cumulative. According to respondent, Maria “testified to her psychological issues”; other family memberstestified that the family was violent and that Maria had psychological problems; “lajnd there was vast amounts of testimony recounting Maria’s neglectful parenting.” Therefore “[t]here was no needto elaborate on the bases for her psychological problems or neglect of her children... .” (RB 246-247.) Respondent would have this court ignore the fact that its trial counsel vigorously disputed each of these matters. The prosecutor argued to the jury 265 that helping her sons was more importantto Maria Self thantelling the truth.”* He added that her testimony “and the testimony of most of the family members” was overwhelmingly vague in terms of names and dates and unsupported by corroborating documents” and claimed that “[t]hese things were kept vague for a reason.”*° He added that her prior statement to the investigator and answers which she gave on cross-examination showed that she wastrying to grossly exaggerate herfailings as a mother.*! Whileit is true that there was somecorroboration from family members, it was not enough to foreclose this line of argument, and it is disingenuous to suggest that the credibility of her account of her behavior was not in issue. As to her psychological problems, the prosecutor began his cross-examinationofher by eliciting that her regular use of medications began after her sons’ arrests, seeking to establish that her difficulties began then.”” RT 54: 8020. RT 54: 8020-8021. RT 54: 8021. “RT 54: 8021-8023. “°RT 52: 7758-7759. The defense corroboration on Maria’s “psychological problems,” which respondent now emphasizes (RB 246), was a statement, without elaboration, about a “nervous breakdown”; a general reference to her not being stable enough to raise the boys, explained only in terms of her being generally neglectful; and a statement that family members assumed she had psychological problems because she “acted crazy,” was involved in a relationship they did not understand, was aggressive, and did not confide in them. (RT 52: 7788, 7843-7845, 7849, cited at RB 246-247. Respondent also cites pages 7899-7904, but most ofthat is a colloquy outside the presence of the jury about another matter.) None of these vague characterizations was (continued...) 266 This Court has referred to the kind of error committed here as “Skipper error.”*? Skipper v. South Carolina itself rejected an argumentlike that which respondent makes now. Oneof the state’s claims wasthatjailers’ testimony about the defendant’s good conductin jail would be cumulativeto his and his former wife’s uncontradicted testimony to the same effect. But because a jury could “tend to discount as self-serving,” such testimony, that of the more disinterested witnesses should have been admitted. (Skipper v. South Carolina, supra, 476 U.S. 1, 8.) Here the excluded testimony came from the same witness whose testimony was underattack, but accusing family members, in a public court proceeding,of raping her repeatedly is neither as easy to do nor nearly as obvious a way of seeking to help her sons as exaggerating her deficiencies as a parent. And the information would haveprovided a key piece to the puzzle of how she could have behavedasshesaid shedid, in the face of the prosecutor’s argumentthat “this bleak, awful picture” that she had painted wasfalse.** Just as in Skipper, the fact that it ultimately related to the same subject as other evidence is not determinative. It would have added to the believability of that evidence—along with adding a particularly outrageous example of the woman’s utter failure to take care of and protect her children, explaining her hatred towards men and the boys who remindedher of them, and giving a better sense of the environment in which the defendants grew up (including the likely modeling of abusive attitudes and conduct by the caretaker brothers)—andtherefore could not be excluded. “(...continued) a substitute for an explanation ofher difficulties. “People v. Mickey, supra, 54 Cal.3d 612, 692. “RT 54: 8021. 267 5. Respondent Sees Most Errors as Harmless Because a Death Verdict Was Inevitable but Insists Here That the Jury’s Ability to Reach That Outcome Was So Fragile That Sympathy for Maria Self Would Have Underminedit The trial court thought that the proffered evidence was “highly prejudicial” and would belikely to confuse and mislead the jury. (RT 52: 7735.) Respondent agrees. (RB 245, 246, 247.) In his opening brief, appellant set forth, among other things, the patent dishonesty of pooh-poohing the impact on a verdict of sympathy for victim-impact witnesses or evidence of planning an escape, as well as other evidence admitted over objection here, while claiming justice for a man found guilty of the crimes at issue would be denied because the jury found out that Maria Self was an incest survivor; the law on what constitutes “a substantial danger of undue prejudice,” as used in Evidence Codesection 352; the commonality of aspects of witnesses’ testimony evoking some element of sympathy and the trust that our system normally places in jurors” abilities to recognize what the true issues are; — the disingenuousnessofthe prejudice claim, regarding creating jury sympathy for Maria Self, in light of the prosecutor’s having elicited evidence from her about how muchsuffering her “More recently, this Court has reaffirmed that even prosecution evidence in aggravation, which has no Eighth Amendmentprotections, is excludable under Evidence Code section 352 onlyif it eee ... uniquely tends to evoke an emotional bias against a party as an individual’ and has only slight probative value.’ ” (People v. Carey (2007) 41 Cal.4th 109, 128.) 268 sons’ having put themselves in the position they were in was causing her; and ° the availability of a limiting instruction if needed. (See AOB 399-403.) Respondent’s only answer to any ofthis is its bare assertion that the evidence would have inappropriately elicited sympathy for Maria Self and have been prejudicial to the case for death. (RB 245-247.) Respondent offers no explanation for why a jury would so lose sight of the issues before it, including significant aggravation, that creating a bit of sympathy for Maria Self, as a byproduct of legitimately supporting the mitigation case in several ways, would undermineits ability to recognize that appellant deserved death (if that was the case). Nor does respondent explain whya limiting instruction would have been inadequate.*° (See People v. (Gerardo) Romero (2008) 44 Cal.4th 386, 425 [trial court properly instructed jury not to vote for life to make defendant’s family feel better].) Moreover, the prosecutor wasfree to argue to the jury that being influenced by sympathy towards Maria or other witnesses was inappropriate. The likelihood that this or that piece of evidence would have affected the jury’s penalty verdict is relevant in several different contexts. Respondent would have this Court uphold the judgment by adopting contradictory views of that likelihood, depending on the context. On one hand, respondentinsists over and overin its brief that aggravating circumstances so outweighed mitigating circumstances that no error could have affected the penalty “°F.g., “The testimony that Maria Self was sexually abused by her brothers was admitted only as it might shed light, in your view, on her credibility in describing her behavior as a parent or on other mattersrelating to the backgroundofthe defendants. You may not let sympathy for her on this account influence your deliberations on the appropriate punishment.” 269 judgment. On the other hand, suddenly there is a substantial risk that a life verdict would have been improperly returned because jurors would think—in the face of all that purportedly overwhelming aggravation and a purportedly unimpressive mitigation case—“That poor woman—nowthat we know that she wasraped byher brothers when she was young,wecertainly can’t vote to execute her son.” In any event, respondent’s view of potential prejudice must be evaluated according to legal precepts which respondent declines to acknowledge. Even under Evidence Code section 352, 1.e., leaving out constitutional strictures, had the trial court understood the issues well enough to exercise its discretion, it would have had the power to exclude the evidence only if its probative value were “substantially outweighedby the probability that . . . its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code § 352, emphasis added.) The statute permits exclusion only of “evidence which uniquely tends to evoke an emotional bias against . . . [a party] and which has verylittle effect on the issues.” (People v. Bolin (1998) 18 Cal.4th 297, 320; People yv. Wright (1985) 39 Cal.3d 576, 585.) “[C]Jourts must focus on the actual degree of risk that the admission of relevant evidence mayresult in undue delay, prejudice, or confusion.” (People v. Hall (1986) 41 Cal.3d 826, 834.) They cannot focus, as respondent andthe trial court did, on wildly speculative possibilities of prejudice possible only through extreme jury irrationality. As explained more thoroughly in the openingbrief, once the right to present a defense is implicated, the scope of state courts’ power to limit relevant evidence is drastically curtailed. For example, the United States Supreme Court summarily dismissed a Kentucky court’s concern,in 1988, that 270 evidence that a white rape victim was cohabiting with a black man would produce prejudice against the complainant. (Olden v. Kentucky (1988) 488 U.S. 227, discussed at AOB 402; see also AOB 387.) And, as discussed previously, the Eighth Amendment addsyet anotherlayer of protection when a person ontrial for his or her life proffers evidence in mitigation. Any whiff of substantiality to the trial court’s concern that what it mistakenly saw as an attempt to mitigate Maria Self’s conduct would be “highly prejudicial””’ evaporatesin the light of these standards. Not even the statutory requirements for exclusion were met; a fortiori, the constitutional ones were violated. “Evidence is substantially more prejudicial than probative under Evidence Code section 352 if it poses an intolerable ““risk to the fairness of the 99599proceedingsorthe reliability ofthe outcome. (People v. Guerra, supra, 37 Cal.4th at p. 1114.) Respondent’s attempt to save the trial court’s prejudice rationale—arationale based on a misunderstanding—fails. Asthetrial court utterly failed to recognize, the evidence wasrelevant mitigation. If there is a qualification to the general inability of a state court to exclude relevant mitigation, where relevance borders on the ephemeral (a photo of a horse) and prejudice is significant, this case does not fall underit. D. The Error Was Prejudicial Here, as elsewhere, respondent argues that any error was harmless without citing any law, i.e., without acknowledging its burden of proof or the standard that it would have to meet. As noted in the openingbrief, the United States Supreme Court has repeatedly treated Skipper error as reversible perse. That treatment is appropriate because of the constitutional sensitivity surrounding the exclusion ofevidence that could have saved a defendant’s life, “RT 52: 7735. 27) and the difficulty predicting how such evidence would have affected any particular juror.** If respondentwereentitled to try to show harmlessness,the error could not be known, beyond a reasonable doubt, to have had no effect. (Chapman v. California (1967) 386 U.S. 18, 23.) As quoted in more detail above,” the prosecutorstrenuously argued that Maria Selfhad fabricated her testimony and that it was very weakly corroborated. The jury could see, as the prosecutor also argued,’ that the witness cared about appellant at the timeoftrial. It lacked any explanation for how her behavior as a young mother could have been so at odds with that caring, and at so odds with the bare minimum of maternal instincts. A harmlessness holding would require Chapman-level confidencethat no juror accepted the prosecutor’s position that her portrayal of herself was essentially false; that thus destroying one of the main legs of the mitigation case had no effect on such a juror’s vote; and that providing an explanation of why Maria would have been promiscuous, drug-abusing, rageful, and hateful ofmen—and hence abusive and neglectful as a mother of four boys—could not have defused the prosecutor’s argument. Such confidence is unavailable. Andthis is only the credibility angle. A holding that respondent has met its burden would also require near-certainty that no juror could have been affected by the additional possible implications ofthe evidence: that appellant “Eddings v. Oklahoma, supra, 455 U.S. 104, 112-116; Bell v. Ohio (1978) 438 U.S. 637; Lockett v. Ohio (1978) 438 U.S. 586; but see Skipper v. South Carolina, supra, 476 U.S. 1, 7; see discussion at AOB 403-404. “Pages 265, et seq., above. RT 54: 8020, 8022. 272 was mothered by a woman whose immersionin her own acting-out world was so extreme that she was willing to leave her sons with the child rapists who had so badly abused her for so long; that whatever sociopathic elements becamea part of appellant’s character may well have been modeledby these men, whom hewasarounda great deal in his formative years;”’ andthat his jailhousehostility towards child molesters may have had something to do with a sense or actual knowledge of his mother’s victimization or with having been victimized himself. Respondent offers no reason why this Court should engage in a harmlessnessanalysis that the high court has repeatedly abjured. Respondent cites three cases after its statement that any error was harmless (RB 248), but two involved other kinds of errors,” and the third citation is to the first page of an opinion in which there was no Skipper error found.” Nor does respondent acknowledge the high court’s practice of reversing death verdicts whereerror involved an issue that the prosecutor focused on in argument.” *'The brothers, Joe and Ernie, were at the house daily when the boys were wardsofthe court and stayed with Maria’s mother. On later occasions, too, they would be there with the boys, sometimes with no other adults present. (RT 52: 7736-7737.) Maria made no moveto keep her sons away from them until appellant wasat least seven, possibly older, when she found one ofthem threatening the boys and making them drink beer. (RT 52: 7738-7739; see also 7702, 7744.) °°People v. Lewis & Oliver (2006) 39 Cal.4th 970, 1058 (witness asked jurors to “do the right thing”); People v. Jones (2003) 29 Cal.4th 1229, 1264, fn. 11 (trial court granted discovery of defense psychiatrist’s reports). **Respondentcites “People v. Jackson, supra, 13 Cal.4th at p. 1164.” (RB 248.) The full case citation is People v. Jackson (1996) 13 Cal.4th 1164. “See Clemonsv. Mississippi (1990) 494 U.S. 738, 753-754; Johnson (continued...) 273 What respondent doesdois repeat its current assertions that the jury already had ample evidence of Maria’s abuse and neglect of her children, including family members’ corroboration of her testimony (RB 248), while ignoring the not-untenable position respondenttook before thejury—thatifthe testimony were true, it could have been presented with much more clarity about dates, places, and incidents, and with independent corroboration.” Respondent cannot thus meet its burden of demonstrating that the outcome could not have been influenced by preventing the defense from bolstering her credibility through other means, showing a dramatic and entirely different example of her ongoing neglect, further helping explain what might have influenced appellant as he grew up,and providing a possible explanation for his hostility towards child molesters. Respondentadds, “[T]he jury knew Maria wasafraid ofher brothers but still chose to leave appellants in their care.” (RB 248.) This is correct. But it only addresses one of the four ways” that the excluded evidence could have appropriately been used by a juror. Moreover, as an argument for harmlessness, it ignores the difference between a vague assertion offear, by a biased witness whose credibility was strongly attacked for vagueness, and one including an explanationofthe basis for the fear. And it does not account **(_. continued) v. Mississippi (1988) 486 U.S. 578, 586, 590 & fn. 8; Skipper v. South Carolina, supra, 476 U.S. 1, 8, all ofwhich refused to find harmlessnessin the face of prosecutorial argument making use of an error; see also People v. Roder (1983) 33 Cal. 3d 491, 505; cf. People v. Hinton (2006) 37 Cal. 4th 839, 868. °°See portions of the record cited at pages 265 et seq., above. *’See the last sentence of the previous paragraph. 274 for the difference between leaving one’s children with siblings of whom one has somekindoffear, and leaving them with people whorape children. These men were horrible abusers, and the jury needed to knowthat. Respondent argues elsewhere that the mitigation evidence was inadequate to avoid a death verdict, even absent error strengthening the case in aggravation: “While appellants presented evidence of childhood neglect and abuse early in their lives, the same evidence also showed.. . they had the benefit ofloving grandparents and other extended family members even during the worst of times ....” (RB 241.) Part of the reason that the evidence showedthat is because respondent’s trial attorney succeededin excludingpart of the picture of what was going on with the “extended family members.” Respondent is unable to show that allowing such a distortion cannot have influenced a juror’s vote. Respondent makes one more argument for harmlessness: ‘“Maria’s ... ownassertions about her own childhood trauma would not have made her testimony any more credible.” (RT 248.) Presumablythe pointhereis that the rape evidence, having come from the same source as the evidence whichit would help explain, would not have helped resolve any credibility problems. This reasoning ignoresthe differencesin the contentofthe variousparts ofthe witness’s testimony. The portrait of abuse and extreme neglect would, for somejurorsat least, seem somewhat improbable (without explanation). And the jurors had to decide whether Maria was exaggerating her parenting deficits at trial or was,as she testified, minimizing them three years earlier, when she gave a defenseinvestigator the very different accountthat the prosecutor used 275 against her.*’ As noted previously, publicly accusing family members of raping her repeatedly is neither as easy to do nora particularly obvious way of seeking to help her sons, compared to exaggerating her deficiencies as a parent. Moreover, even the general principle which respondent invokes, while having somesurface appeal, is flawed. A witness’s challenged testimony can become morecredible ifthe witnessis able to give more facts which round out the picture and makeit more internally consistent. If a harmlessness analysis were appropriate, it would not be possible to exclude, beyond a reasonable doubt, the possibility that excluding the childhood rape evidence “might have contributed to” the result.** The death judgment cannot stand. / // *7See Statements of Facts at AOB 68 and RB 68 andcited portions of the record. *$Chapman vy. California, supra, 386 U.S. at p. 24. 276 IX’ THE PROSECUTOR OBTAINED A DEATH VERDICT THROUGH HEAVY RELIANCE ON FUTURE DANGEROUSNESS, AND RESPONDENTHAS BEEN UNABLE TO PROVIDE PRECEDENT OR ARGUMENT EXPLAINING WHYUSE OF SUCH NON- STATUTORY AGGRAVATION WAS PROPER Respondentinvites summarydisposition ofan extremely troublingerror. A key focus of the prosecutor’s argument for death was an extended purported demonstration that “the price of compassion for this murderer will be more victims.” (RT 48: 7271; see also RT 48: 7268-7271; 54: 8026, 8028-8030 [penalty argument].) Future dangerousness, however,is not in the exclusivelist of factors which section 190.3 authorizes jurors to consider aggravating as they engage in their weighing process. Prosecutors make this argumentin case after case, and its appeal is powerful. The empirical data, however, prove thatit is grossly misleading: people with life sentences—including appellant’—make a significantly better adjustmentto prison than the average prisoner. Notonly, therefore, did the argumentviolate the controlling statute. Depriving appellant ofhis life on a basis not legislatively authorized would also violate his state and federal due processrights.’ In addition, the elementofunreliability introduced 'See AOB 408. Respondentaddressesthis claim in its Argument XVI, RB 248. *In the opening brief it was stated that appellant had been housed for five years in a small section of San Quentin reserved for model prisoners among the condemned population. (AOB 414, fn. 250, explaining—with authorities—why the Court can consider this fact in this context.) His stay there has been uninterrupted and has now reached nineyears. °U.S. Const., 8th Amend.; Cal. Const., art. 1, §§ 7, 15; Hicks v. Oklahoma (1980) 447 U.S. 343, 346; Hewitt v. Helms (1983) 459 U.S. 460, 471-472; cf. Keeler v. Superior Court (1970) 2 Cal.3d 619, 631-633 (judicial (continued...) 277 by relying on a speculative factor, so subjectively compelling and yet objectively so likely to be false, violates the Eighth Amendment’s reliability requirement.’ Here, as elsewhere, respondent states appellant’s basic contention, replies without addressing the reasoning underlying that contention, and would have this Court summarily affirm rather than evaluate appellant’s analysis. The parties agree that appellant’s prosecutor made a significant argumentthat appellant must be executed because he would harm others if merely imprisoned. (See RB 249.) Indeed, perhaps because that argument was one of two focal points of the state’s case for death, this is one instance where respondent does not contendthat any error would be harmless. Respondent also appears to concede that future dangerousness is not a listed factor in aggravation, that the prosecutorial argumentrelying onit is a standard one,’ and that it is factually misleading.° On the other hand, appellant has acknowledged this Court’s precedents rejecting the contention made here or—to put it more accurately—stating that the contention has beenrejected in the past. Theparties disagree on only two points: whetherthe error is reviewable *(...continued) expansion oflegislated criminal liability “is wholly foreign to the American conceptof criminal justice”); see also Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643 (prosecutorial error infecting the entire proceeding with unfairness violates due process). “See People v. Horton (1995) 11 Cal.4th 1068, 1134. “In addition to the cases cited in the opening brief (AOB 410-412 & fns., 414), see the examples cited in People v. Zambrano (2007) 41 Cal.4th 1082,1180,acase wherethe prosecutor’s argument wasalmostidentical to that madehere. °See AOB 414-415. 278 absent an objection below, and whether this Court has ever made a reasoned analysis reconciling the purported appropriateness of future-dangerousness arguments with the exclusivity’ of California’s statutory list of factors in aggravation. Asto the latter point, respondent’s only answer to appellant’s survey of case law is to falsely assert that this Court addressed the challenge posed by section 190.3 in another case. In fact it has only addressed other challenges, later employing overly-general language saying that future- dangerousness arguments are permissible. Asto the preservation question, appellant anticipated it in the opening brief. Respondent makes no attempt to answerappellant’s demonstration ofthe applicability of both the futility exception—given language in opinionsbythis Court which were binding on the trial court—and the exception that applies when a trial court would be unable to cure the error by jury admonition.® Appellant would add that, given the stakes, in this matter and intrials yet to be held, the Court should also exercise its discretionary powerto reach the merits in the face of the forfeiture rule which it has created.’ Given the potent but misleading nature of the argument, the Court should also reach the merits because of the state’s own interest in fair and reliable penalty verdicts. (See People v. Koontz (2002) 27 Cal.4th 1041, 1074.) But the futility exception is enough—appellant was not required to ask his trial court to overrule prior holdingsof this Court. On the merits, respondent reprints the portion of People v. Michaels "See People v. Boyd (1985) 38 Cal.3d 762, 775. ®See AOB 417-418. *See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; People v. Hill (1992) 3 Cal.4th 959, 1017, fn. 1 (conc. opn. of Mosk,J.). 279 (2002) 28 Cal.4th 486, 540-541, which appellant had already quoted, and then characterizes it as if this Court provided a rationale which it saw no need to provide and did not provide.'® There is no dispute—nor can there be—asto whatthe passage says. The Court clearly, as appellant has acknowledged,states disagreementwith the contention madehere. It supports its position by quoting twoearlier cases that state that a future dangerousness argumentis not error or misconductif supported by the evidence. That’s it. Neither its own language nor that quoted from the precedents acknowledges an apparent conflict with section 190.3 or seeks to explain whythere is no such conflict. In other words, Michaels falls into one of the main categories of opinions identified in appellant’s survey of the precedents in this area, those which simply noted that the Court had rejected previous attacks on future-dangerousness arguments. But as that survey makesclear,all of the earlier precedents rejected only attacks that were madeonbasesother than the section 190.3 hurdle." Oneofthe quotations upon which People v. Michaels relies refers to the type of evidence which could support a future-dangerousnessinference,that “of past violent crimes admitted underoneofthe specific aggravating categories of section 190.3.”'* Respondent emphasizes, then, that the evidence from which appellant’s prosecutor drew his future-dangerousness inference was “properly admitted evidence of an authorized circumstance in aggravation under Penal Code section 190.3.” (RB 251.) According to respondent, “... Michaels stands for the unsurprising proposition that the prosecution may make reasonable ‘RB 250-251; cf. AOB 411. "See AOB 411-412. "People v. Ray (1996) 13 Cal.4th 313, 353, quoted in People v. Michaels, supra, 28 Cal.4th at p. 540. 280 inferences from properly admitted evidence to argue for imposition of the death penalty.” (RB 251.) Not so. It is elementary that some reasonable inferences drawn from properly admitted evidence would be improperusesofthat evidence. Thus, in another issue in this appeal, respondent argues that evidence of Maria Self’s childhood victimization—whatever its value to legitimately bolster the mitigation case (e.g., by showing that she left appellant in the care of her rapists)—could be misused to create sympathy for Maria. Respondent argues that a jury could take that as mitigation, even though to do so would be improper. (RB 245, 247.) Similarly, evidence admissible for a proper aggravating purpose could be misused for an improperone. Michaels and the cases it quoted did not make the ridiculous error—which respondent implicitly attributes to this Court—ofoverlookingthis possibility. In noting that argument had to be supported by properly admitted evidence, such as that of past violent crimes, the Court was simply stating the limitations included in its precedents permitting argument on future dangerousness. First, it was being cautious to avoid giving prosecutors carte blanche to argue the point without an evidentiary basis. Second, it was acknowledging that not all evidence bearing on the issue is admissible, particularly in light of the rule prohibiting testimony regarding future dangerousnessperse becauseofits questionable reliability, marginal relevance, and highly prejudicial nature.'* The opinion doesnot claim that, once evidence is admitted for a legitimate purpose, it may be relied on for any other inferences to whichit maygiverise. "See People v. Murtishaw (1981) 29 Cal.3d 733, 742-743, cited in People v. Michaels, supra, 28 Cal.4th at p. 540. 281 The death-penalty statute enumerates what evidence is admissible at the penalty phase, including evidence of prior criminal convictions and unadjudicated violent crimes. (§ 190.3, first three paragraphs.) It then lists the factors which, if relevant, the trier of fact is to take into account. (/d., sixth paragraph.) Finally, the statute reiterates that the sentencer “shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section... .” (/d., last paragraph.) Future dangerousnessis not amongthose. For well-understood reasons,the list of factors is exclusive. (People v. Boyd, supra, 38 Cal. 3d at pp. 773-775.) Future dangerousness, therefore, is not a matter which the jury is authorized to considerin its weighing process. It arguably appearsto be areasonable inference from evidence properly admitted on an authorized factor, one that does pertain to whether the defendant deserves death,i.e., his criminal history itself, devoid of whatever implications it might have for the future. But this does not somehow place future dangerousnessin the statute. Neither People v. Michaels nor the opinions which it quoted sought to provide a rationale for a different conclusion. It being the case that the jury could not consider future dangerousness,it followsthat a prosecutor’s remarks emphatically urging use of such extra-legal aggravation constitute error. (See People v. Young (2005) 34 Cal.4th 1149, 1219; People v. Walker (1988) 47 Cal.3d 605, 649-650.) | Again, People v. Michaels did not reason otherwise. It simply held that the question was well settled, against defendants. Generally speaking, well- established rules, particularly those that appear to conflict with equally well- established, and broader, principles, have their genesis in an opinion that explains their basis. This one does not. Appellant canvassed the cases that for 282 such an explanation by this Court, and there is none.’ If he had represented the cases surveyed inaccurately, respondent would have pointed it out. Similarly, Justice Mosk’s explanation of where the Court wentastray’ is undisputed. If there were a basis for now finally arguing directly that the current rule can actually be reconciled with section 190.3, respondent would argueit, rather than claiming that Michaels had grappled with the question, when Michaels merely repeated whatit believed to be existing law.'® But appellant has shownthat the foundation for the precedents on whichit relies is ephemeral, and respondent neither disagrees norfinally provides a logical or principled foundation. There was error; appellant did not have to make a futile objection to preserve his right to review; and the error was so clearly prejudicial that respondent doesnot claim otherwise. Reversal is required. // // “AOB 410-413 & fs. 242-245. "People v. Taylor (1990) 52 Cal.3d 719, 752 & fn. 1 (conc. opn. of Mosk, J.), quoted at AOB 413. The cases on which Michaels relies were decided during the period when this Court, clearly influenced by an intense “tough-on-crime”political environment, created someofthe conditionsforits current high automatic-appeal caseload, i.e., by expanding the death-penalty selection and eligibility criteria, opening the door to victim-impact evidence (see AOB 171-172 & fns. 93-94), and radically changing its approach to penalty-phase harmless-error review (see AOB 84-85 & fn. 53). '°Respondent also relies on People v. Zambrano, supra, 41 Cal.4th 1082. In Zambrano, however, the appellant conceded the point argued here, claiming only that the emotional appeal of the argument in that case went past a legitimate future-dangerousness argument. (/d. at p. 1179.) 283 x! THE PROSECUTOR MISLED THE COURTAS TO HIS INTENDED USE OF TESTIMONY ABOUT APPELLANT’S STATEMENT REGARDING WHAT HE WOULD DO TO A CHILD MOLESTER,IN A SUCCESSFUL ATTEMPT TO PERSUADE THE COURT TO ADMIT INADMISSIBLE EVIDENCE The prosecutor sought to introduce evidence of a statement in which appellant showed an inclination to attack child molesters, but the trial court correctly ruled it inadmissible as an aggravating circumstance, because it may have been a threat but was not a crime.” Shortly thereafter, however, the prosecutor sought admission of a similar statement, one made to appellant’s girlfriend, Stephanie Stinson. He claimed that the statement would help prove appellant’s identity as Olen Thibedeau’s attacker, since appellant’s boast ofwhat he would do to a molester housed next to him bore some resemblance to how he had attacked Thibedeau eight months earlier. The fantasy scenario wasalso, "See AOB 422. Respondent addressesthis claim in its Argument XIV, RB 235. In analyzing it, both appellant and respondent rely—heavily in the case of appellant—on their discussions of appellant’s claim regarding the prosecutor’s use of a future-dangerousness theme in his penalty-phase summation. Appellant therefore respectfully suggests that it would be more efficacious for the Court to addressthat issue first, as appellant has done, even though, if the Court ultimately organized its opinion as the issues arose chronologically at trial, its disposition of the claim would appear after it discusses this one. The future-dangerousness issue comprises appellant’s Argument IX, AOB408et seq. and pp. 277 et seq., above, and respondent’s Argument XVI, RB 248et seq. °RT 48: 7206-7210; see also 7201. See People v. Boyd (1985) 38 Cal.3d 762, 774. 284 however, markedly different;’ it spoke of future conduct;’ and it was elaborated long after the Thibedeau incident. It took place, in fact, during the period in which appellant was harassing Tyreid Hodgesin an attempt to get him moved off appellant’s tier and was probably part of that campaign, since Stinson’s reaction showed that she and appellant knew that conversations were monitored.” Appellant’s counsel repeatedly assured the court that the identity of Thibedeau’s attacker would not be disputed. As both attorneys no doubt knew, it could not be*® and, as events played out, it was not. Appellant’s objection that the evidence would be misused as highly inflammatory, non- statutory bad-character evidence wasoverruled. Before the jury, the prosecutor’s claimed need to corroborate Thibedeau’s identification of his attacker evaporated. In his sole argument in the penalty phase, the prosecutor never addressed Thibedeau’s credibility, much less used the contested statement to support it. He in fact treated the incidentas if guilt *See AOB 428, fn. 258, for particulars. ‘In his jury argument, the prosecutor accurately described the statement as being future-oriented. (RT 54: 8028.) The taped statement (Ex. 435) is quoted at AOB 423. (It is reproduced identically at RB 237, although respondentattributesit to a transcription that could not be located for inclusion in the record. [See AOB 423, fn. 255, and Clerk’s Certificate of 7/25/03, inside back cover, Fourth Supplemental Clerk’s Transcript. ]) *See RT 51: 7518 (statement to Stinson was 2/8/95); 51: 7501-7516 (Hodges incidents were 9/94—3/95); 7505, 7508 (appellant and others were telling Hodges to demand other housing); 7519 and Ex. 435 (Stinson cautions appellant to watch what he says). °See AOB 427, fn. 257, describing the indicia of reliability in Thibedeau’s account and its corroboration by deputies and by appellant’s possession of materials used to make the channel-changer he attacked Thibedeau with. 285 was conceded,’ as defense counsel had said it would be.® Rather, at the conclusion of his argumentthat death was the “necessary” punishment, in the climax of his entire plea for a death sentence, he replayed the taped statement, then told the jury, Mr. Romerogives you yourverdict right there. You can’t expect him not to do something like this. He said it, “But whenthey stick a child molester next door to me and not expect me to do something ....” He is telling you what to expect from him. You don’t need acrystal ball to know whatto expect from Mr. Romero in the future. (RT 54: 8028.) Even if the evidence been used for its purported purpose, it is questionable whetherthetrial court could have properly admitted it, given its lack of probative value and the well-documented enormousprejudicial effect of giving juries reasons to imaginethat the defendantwill be a dangerif permitted to live. But that is not the issue here. The prosecutor used the evidence only for an indisputably illegitimate purpose’ after misleading the court as to a basis for its admission. This was prejudicial prosecutorial error. Respondent contendsthat, even thoughtrial counsel objected vigorously to the introduction of the evidence, the point is not preserved for review. Respondentinsists that the prosecutor was validly concerned with Thibedeau’s credibility, given the degree to which counsel’s questioning went over his background as a child molester and a supposed“line of questioning” aboutbias. "RT 54: 8027-8028. The prosecutor argued first. (See also RT 54: 8033-8050 [defense argument; no mention of Thibedeau].) *RT 50: 7468; 51: 7477. *See People v. Boyd (1985) 38 Cal.3d 762, 775 (only evidence relevant to aggravating factors listed in § 190.3 is admissible at penalty phase). 286 Supporting a trial court ruling that appellant does not attack, respondent argues that admission of the statement was within the court’s broad discretion. Respondentthen points outthat, under this Court’s holdings, once the prosecutor had obtained admission of the evidence for a purpose other than showingfuture dangerousness, he could argue it for that purpose. Finally, respondent thinks that a statement that the prosecutor characterized as “giv[ing] you your verdict right there” could not have affected the verdict. A. Appellant Has Not Forfeited Review of the Misconduct Claim Respondent writes, “Romero has waivedthis claim oferror by failing to raise a misconductclaim in thetrial court or otherwise object to the prosecutor’s use of this evidence at closing argument.” (RB 238.) Appellant objected vigorously to admission of the evidence, arguing that it was far more a matter of showing future dangerousness than of corroborating Thibedeau. (RT 50: 7465-7469; 51: 7477-7482, 7519-7521.) This was all he could do. As noted in the previous argument, objecting to the prosecutor’s use ofthe evidence in argument would have been futile, as this Court had held that future dangerousness could be argued if inferable from evidence admitted for other purposes.’° As to the misconduct which led the court to admit the evidence, the evidence wasin, and the prosecutor had just replayed the tape. Objecting then that the prosecutor had misled the court into admitting the evidence could have produced no remedy. Respondent does not claim that the jury could have been effectively instructed at that point to disregard it, and certainly no such admonition could have been effective. There was no forfeiture of the claim. See p. 279, above. 287 B. The Prosecutor Misled the Court Respondent strenuously insists that appellant had strongly attacked Thibed eau’s credibility on cross examination. In particular, respondentstates that “[t]hrough one line of questioning, the defense also suggested Thibedeau might be seeking favorable treatment”via his testimony. (RB 236.) Respondent misstates the record. There was one non-leading question, not a “line of questioning”andit and its answer occupy seven lines ona pageoftranscript, not the three transcript pages which respondent cites. (See RT 50: 7443.) There was no “accusation,” only an open-ended question. The witness’s negative answer seemedcredible and drew no followup questions."! The remainder of the cross-examination, which covered only six transcript pages in its entirety, covered only two subjects: the harassment to whichincarcerated child molesters are subjected by other inmates in general, and a detailed run-through of the witness’s record of sex offenses or, as respondent aptly puts it, “documenting Thibedeau’s sordid history for the jury.” (RT 50: 7438-7444; RB 236.) There were no questions regarding crimes involving deception, no questions about use of deception in any of the sex offenses, not a single question aimed at raising doubt about Thibedeau’s capacity to perceive "The entire colloquy wasthis: Q. And were you given any promises or assurancesthat somehow you would be given any favorable treatment for coming downandtestifying? A. Uh, no. Asa matter of fact, it’s been adverse to me. I have had — I lost my job. I lost my job status. Classification changes because now I'm not working so I don’t have any privileges or anything like that — that I did have. (RT 50: 7443.) 288 or recall the cell from which an inmate had assaulted him—incontrastto,e.g., the cross-examination of Tyreid Hodges, who could not be so sure about some of the incidents;'? not a question about whether it had happened, and no questions suggesting animus on the part of the witness towards appellant, who _wasa strangerto Thibedeau at the time he reported the incident. As respondent points out, the prosecutor had already brought out Thibedeau’s child-molestation convictions and that he was serving a sentence in the 200-year range. Bringing out the details of his record did not make him less believable; it made him less sympathetic. The cross-examination clearly had but one purpose: to defuse the aggravating impactofthe assault. This it did by attemptingto portray the victim as a despicable character and by showingthat such attacks were not uncommon. Respondent ignores the prosecutor’s handling of this cross-examination, as if it has nothing to do with his actual assessmentofits effect on his witness’s credibility. On redirect, the prosecutor did nothing but follow up—briefly—on the point that Thibedeau had made about comingtotestify not being particularly in his interests. He did not ask anything else about bias, capacity to perceive, or whetherthe witness wastelling the truth. (RT 50: 7444.) Respondentprovides no explanation for why the prosecutor—supposedly so concerned about corroborating the witness through appellant’s later admission about predisposition—never used it for that purpose during his summation. As appellant pointed out in the opening brief, each side knew it would get only one chance to argue, under the ground rules for this trial, and the prosecutor went first. So if either he did not believe counsel’s repeated assurances to the court "See RT 51: 7511-7516. 289 that he would notbe attacking the truth of Thibedeau’s account”or agreed with the court that—jury argument or no—credibility had already been disparaged, he would have used the evidence for the purpose he had articulated when arguing for its admission. But he did not, though nothing had changed in the interim. Obviously, he never intendedto. Clearly the Thibedeau-needs-corroboration point was a pretext. It was needed because the evidence was not admissible merely for showing future dangerousness,'* yet, under this Court’s precedents, could be used in argument for that purpose if admitted on anotherbasis.'* Obtaining a favorable ruling by deceptive means was misconduct understate law. (People v. Gamache (2010) 48 Cal.4th 347, 371; People v. Hill (1998) 17 Cal. 4th 800, 819.) Certainly using deception to bring in a piece of evidence so powerful that the prosecutor could argue that appellant was “telling you what to expect from him... you don’t need acrystalball,”!® as part of a strong argumentthat death was necessary to avoid future victims, rendered the penalty trial fundamentally unfair. (U.S. Const., 14th Amend.) It also violated the other federal constitutional rights enumerated in the opening brief."” RT 50: 7468; 51: 7477. See People v. Boyd, supra, 38 Cal.3d at p. 775 (only evidencerelevant to aggravating factors listed in § 190.3 is admissible at penalty phase). The trial court agreed that admission of evidence simply of threatened future conduct would be inadmissible, unless the threat itself amounted to a crime. (RT 48: 7201, 7206-7210; see also 51: 7520-7521.) People v. Michaels (2002) 28 Cal.4th 486, 540-541, and casescited. "RT 54: 8028. ‘7AOB 429,invoking appellant’s due-processright not to have state-law (continued...) 290 C. The Error Was Prejudicial Whether the error was of only state law or of federal constitutional dimension, respondent bears the burden of showing harmlessness beyond a reasonable doubt.'"* Characterizing the aggravating circumstances in a way only partly supported by the evidence,” respondent once again treats the question asit would if arguing to ajury. “Appellants’ mitigation evidence simply could not compare with the evidence in aggravation.” Then respondent gives its view of the weakness of the mitigation case. (RB 241.) Respondentis entitled to its opinion on the balance of the aggravating and mitigating circumstances, but respondentfails to address the only pertinent question: whethera rational juror could have had a different opinion’’ or—rather—whetherthis Court can sayit is so certain of its conclusion on that score that no reasonable doubts remain. “The inquiry . . . is not whether, in a trial that occurred withoutthe error, [the "(...continued) protections arbitrarily withdrawn,andhis rights to a fair, reliable, and non- arbitrary penalty determination, citing the federal Eighth and Fourteenth Amendments and a numberofcases. "Chapmanv. California (1967) 386 U.S. 18, 24; People v. Ashmus (1991) 54 Cal.3d 932, 965. "There was evidence that the defendants, Munoz, and sometimes Chavez wereattentive to finding likely robbery victims, presumably like most robbers, but not that appellant “hunted [murder] victimslike prey.” (RB 241.) Nor was there evidence that he “lived off the proceeds of his crimes” or “thoroughly enjoyed killing or harming people.” (RB 241.) *°Nederv. United States (1999) 527 U.S. 1, 19 (for constitutionalerror, issue is “whether the record contains evidence that could rationally lead to a contrary finding” to that which would supportverdict); see also discussion at pp. 106 et seq., above, and authorities cited. 291 same] verdict would have been rendered, but whether the . . . verdict rendered in this trial was surely unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) Respondent’s summary omits the possibility of a juror’s disbelief or agnosticism regarding Munoz’s characterizations of the circumstances of the crimes; the evidence that appellant may have been the least violent member of the group”’ and protectedortried to protect victimslike Jerry Mills andhis son, Albert Knoefler, and even Jose Aragon;”* the possibility that some jurors would have recognized appellant’s jailhouse acting out as not particularly unusual and been impacted by there having been no such incidents within the previous year and a half; the timing of the beginningsof anyhints of stability in appellant’s upbringing, which was wellafter the critical early-childhood years; appellant’s attempts to rehabilitate himself; and his involvement in caring relationships, including with his young son. The prosecutor did not think a death verdict was inevitable, or he would not have succumbedto the temptation to use any rationale to get the Stinson statement admitted. Finally, respondent conveniently forgets the use the prosecutor madeofthe testimony in argument,as well as the principle that errors amplified in an argument for death will rarely meet the test for harmlessness.” *1See the review of the evidence at AOB 114-115, a review which respondenthasnot disputed. See 3SCT 2: 309-310 (Jerry Mills & his son); RT 35: 5386-5387 (same); 3SCT 45: 12976 (Munoz: Chavez said Self wanted to kill Millses); 3SCT 2: 302-304 (Aragon); RT 39: 5979-5983; 48: 6258-— 6260 (same); 3SCT 2: 310 (Knoefler). This evidence was emphasized at AOB 115, and respondenthas not disputed appellant’s characterization ofit. See Clemons v. Mississippi (1990) 494 U.S. 738, 753-754; Johnson (continued...) 292 Respondent urgesthis Court to find insignificant evidence and argumentthat the prosecutor usedas the climax of his argumentfor death, near its ending, with the statement that it “gives you your verdict right there.” To do so is to call fora disingenuous, result-oriented analysis entirely abstracted from the reality of the trial that resulted in appellant’s death judgment. In a similar situation, where a prosecutor had argued that consideration of certain evidence wascrucial to the properverdict, this Court remarked,“Thereis no reason why weshouldtreat this evidence as any less ‘crucial’ than the prosecutor—and so presumably the jury—treated it.” (People v. Cruz (1964) 61 Cal.2d 861, 868.) Nor should the Court treat the evidence at issue here as anyless likely to have given the jurors their verdict. The judgment should be reversed. // // (continued) v. Mississippi (1988) 486 U.S. 578, 586, 590 & fn. 8; Skipper v. South Carolina (1986) 476 U.S. 1, 8; People v. Roder (1983) 33 Cal. 3d 491, 505. 293 xI’ GIVING A NON-UNANIMITY INSTRUCTION REGARDING ONLY UNADJUDICATED OFFENSES WAS UNFAIRLY ONE-SIDED AND UNCONSTITUTIONALLY IMPLIED A NEED FOR UNANIMITY ON MITIGATION The prosecution, like the defense,’ should have to rely on the jury’s overall understanding ofthe sentencing scheme regarding where unanimity was necessary, rather than receive a pinpointinstruction favoringits position. A lack of evenhandednessin instructions in this area was prejudicial in itself, and it created further error by misleading appellant’s jury. The penalty-phase instructions given to appellant’s jurors explained that each was to decide individually the weight to assign to aggravating and mitigating circumstancesand thus determine whether aggravation so outweighed mitigation as to warrant a sentence ofdeath. However, in contrastto the Judicial Council instructions, which also state that each juror must decide individually whether particular aggravating or mitigating factors exist at all, the CALJIC instruction given to appellant’s jury stated that rule only as to certain critical alleged aggravation, i.e., whether appellant had committed the unadjudicated offenses that the prosecution had soughtto prove. The instructional package thus represented a fatal tilt towards the prosecution, in violation of due process.’ 'See AOB 432. Respondent addresses this claim in its Argument XVII.A, RB 254, except for the question of prejudice, which it addresses in XVII.D, RB 260. *See People v. Breaux (1991) 1 Cal.4th 281, 314; accord, People v. Crew (2003) 31 Cal. 4th 822, 860. 3U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7 and 15; Reagan (continued...) 294 Further, in a context in which the concept of unanimity of subordinate findings underlying a final verdict—i.e., the elements ofeach offense—had been drilled into the jurors during the guilt phase, the giving of the prosecution- oriented pinpoint instruction on non-unanimity regarding factor-(b) aggravation—without an explanation that the same was true of mitigation—carried the reasonable, but erroneous, implication that unanimity wasrequired to find the existence of any particular mitigating factor. Such an implication violated the Eighth Amendment.’ This is the core of appellant’s claim. To understandit, it is particularly critical to understand that the jury was operating in a context in which unanimity had previously been emphasized. For in a different context—this Court’s jurisprudence—it is black-letter law that unanimity is required nowhere in the penalty deliberations except in the final verdict, so the absence of anything clearly contradicting that principle can seem like an absence of error. But the instructions given to appellant’s jury, unlike the Judicial Council instructions, fail to state that principle anywhere. The effect of finally saying something about non-unanimity, and saying it only about factor (b) aggravation, had a different meaning to a lay juror than it would to an attorney or judge familiar with California law on the subject. It implied a need for unanimity to find the truth of a mitigating circumstance. Finally, combining the general instructions with the prosecution-oriented one deprived appellant of the level of protection given defendants instructed with the Judicial Council instruction,in violation ofthe Equal Protection Clause. Respondent consistently mischaracterizes appellant’s contention, 4(...continued) v. United States (1895) 157 U.S. 301, 310; People v. Moore (1954) 43 Cal.2d 517, 526-527. “Mills v. Maryland (1988) 486 U.S. 367. 295 recasting it into a supposed claim that “the trial court erred when it failed to instruct the jury with a non-unanimity instruction on mitigating evidence.” (RB 254.) Itis only by misstating the claim that respondent can arguethat the claim is forfeited for failure to request such an instructionattrial and that appellant’s contention is foreclosed by precedentrejecting the need for such an instruction. Theactual claim is that an improper instruction was given, not that another one should have been given, although both are true. Providing an instruction regarding mitigation would, in fact, have been another wayof rectifying the imbalance, and appellant hereby alternatively makes such a claim.’ A. Appellate Review is Available The short answer to respondent’s forfeiture contention is that it is foreclosed by recent precedent. The disparity in the handling of the absence of a unanimity requirementin the factor (b) and mitigation contexts was addressed, in the face of a forfeiture objection, in People v. Lewis (2009) 46 Cal.4th 1255, 1318, fn. 45, because it was a claim of instructional error involving the defendant’s substantial rights. The differences between Lewis and the instant case do not makeit distinguishable on this score.° Mischaracterizing appellant’s primary claim as the failure to give a non- unanimity instruction, and overlooking—until it turns to the merits—thefact that °Since respondent has already responded to the claim, it is not disadvantaged by appellant’s notstating it until his reply brief. °They were that Lewis addressed only the evenhandednessissue,not the federal constitutional requirement that individual jurors be permitted to consider any mitigating factor they considered to be true and that, for reasons stated below, there would have been no forfeiture here in any event. 296 this Court had held that he wasnotentitled to one,’ respondent contendsthat the claim is forfeited for failure to request such an instruction. (RB 254.) In addition to avoiding addressing either appellant’s primary claim orthe futility issue, respondent ignores appellant’s unsuccessful request for an instruction which would have at least mitigated the actual error claimed in the opening brief. The proposed instruction read as follows: The People and the defendant are entitled to the individual opinion of each juror. YOU MUST INDIVIDUALLY DECIDE EACH QUESTION INVOLVED IN THE PENALTY DECISION.® After the word You, the second sentence comesstraight from People v. Breaux, supra, | Cal.4th at p. 315, which appellantcited to thetrial court.’ Telling the jurors that they must each individually decide each question might have effectively undone the unanimity implications in the prosecution’s proposed instruction, which was given. Respondent acknowledgesthe request but fails to quote the language regarding individually deciding each question. Instead, respondent misquotes the instruction as simply “reiterating the jury’s duty to ‘individually decide the case.’”'” Respondent’s language simply does not appearPp PP "People v. Breaux (1991) 1 Cal.4th 281, 314-315. As respondent observes, Self’s attorneys requested and received such an instruction anyway. *The instruction appears at 4SCT 2: 396-397. See also 6SCT 134, 9 59 (authenticating the version of the document appearing in the Fourth Supplemental CT) and RT 53: 7974 (trial court’s refusal to give the instruction, erroneously cited as 7474 in the AOB). °4SCT 2: 396-397 (points and authorities in support of proposed instruction). RB 252, fn. 76. Respondentcites a different version of what appears to be the sameinstruction, the origin of which is not identified in the Clerk’s (continued...) 297 in the requested instruction. Respondent then argues that the requested instruction was duplicative of another instruction given. The misquoted version would have been duplicative; appellant has already explained why the instruction actually requested wasnot.'' In any event,ifa trial-level request for remedial action were a prerequisite to appellate review, the prerequisite would have been met, despite the fact that there might have been even better ways of addressing the problem. Moreover, there is no such prerequisite; appellant is entitled to review of a claim of misinstructing the jury whether or not he took action in thetrial court. It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case. [Citation.] (People v. Breverman (1998) 18 Cal.4th 142, 154, internal quotation marks omitted.) It goes without saying thatthe trial court’s duty is to instruct correctly in such circumstances. Thus, “[t]he appellate court may . .. review any '°C...continued) Transcript and which was unidentifiable during record correction. The supposed quotation doesnot appearin it, either, however. (See CT 9: 2015.) See AOB 434 and fn. 263, discussing CALJIC No. 17.40. This was an instruction drafted for use in the guilt phase (where unanimity is generally required on questions subordinate to the ultimate verdict). It covers, among other things, the need to arrive at an independent judgment, rather than simply going along with others. (See CT 9: 2008, quoted at RB 253, fn. 76.) Thus respondent’s rewrite of the proposed instruction (“individually deciding the case”) is covered; the actual instruction requested (“individually decide each question”) is not. 298 instruction given refused, or modified, even though no objection was made thereto, if he substantial rights of the defendant were affected thereby.” (Pen. Code § 1259; People v. Williams (2010) 49 Cal.4th 405, — [2010 WL 2557530 *36].) This is why, as noted above, this Court recently entertained a comparable appellate claim wherenoaction to preserve it had been madeat all. (Peoplev. Lewis, supra, 46 Cal.4th at p. 1318, fn. 45.) Respondent assumesthe applicability of an exception to this principle without acknowledging the general rule or analyzing when the exception might apply. Oncea trial court has fulfilled its obligation to correctly instruct on the applicable issues raised by the evidence, [a] party may not complain on appealthat an instruction correct in law and responsive to the evidence wastoo general or incomplete unlessthe party has requested appropriate clarifying or amplifying language. [Citation.] But that rule does not apply when,as here, the trial court gives an instruction that is an incorrect statement of the law. [Citations.] (People v. Hudson (2006) 28 Cal.4th 1002, 1011-1012; accord, People v. Williams (2010) 49 Cal.4th 405, — [2010 WL 2557530 *36].) Respondent cites People v. Marks (2003) 31 Cal.4th 197. In Marks the trial court answered ajury question aboutthe law by rereading CALJIC No. 8.88 rather than, as the defendant contended on appeal, giving amore succinct answer directly addressing the jury’s question. Sincethetrial court’s reply was a correct statement of the law, the failure to request further clarification forfeited the claim. (/d. at pp. 236-237.) Marks cited People v. Arias (1996) 13 Cal.4th 92, as does respondent. With minimal explanation, Arias holds failure to request clarification of an aspect of an instruction that was claimed to be misleading forfeited the claim. (/d. at pp. 170-171.) Explanation was supplied in Arias, howeverbyits citations to People v. Rodrigues (1994) 8 Cal.4th 1060, 1192, and 299 People v. Johnson (1993) 6 Cal.4th 1, 52, and the fact that Rodrigues relied on Johnson. Johnsonstates the rule more fully: where an instruction is not claimed to be incorrect, but only inadequate, it is the defendant’s duty to request clarification.” (bid.) It is noteworthy that in all ofthese cases, the claim was also rejected on the merits, so the procedural holding was not a determination that the defendant wasto be put to death despite the possibility of a seriously misinformed jury. Appellant’s case, however, reveals a gray area. Each elementof the instructions at issue here was, taken alone, a correct statement of the law. Put together, however, they produced an incorrect statement, since the mostrational interpretation of the singling out of the prosecution’s other-crimes aggravation for a non-unanimity instruction was that this was an exception to a continuing unanimity rule. Should this Court see the matter differently, and also disagree that appellant’s requested instruction preserved the issue, the Court should still exercise its discretion’ to reach the claim on the merits, given the stakes here and the possibility that some trial courts will continue to use the unbalanced 2Johnsonrelies on People v. Hardy (1992) 2 Cal.4th 86, 153 (“because the instruction given wascorrect, it was incumbent on defendants to request clarifying language”), and People v. Sully (1991) 53 Cal.3d 1195, 1218 (‘A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language’”). Again, appellant did request clarification. The text aboveis pointing out, additionally and alternatively, that he did not have to under the circumstances in order to be entitled to review. "People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; People v. Hill (1992) 3 Cal.4th 959, 1017, fn. 1 (conc. opn. of Mosk,J.). 300 CALIJIC instruction rather than the fair Judicial Council one. B. There WasInstructional Error 1. The Instruction Was Infirm for Its Lack of Even- Handedness, and Its Failure to Give Appellant the Benefit of the Accurate and Fair Instruction Provided by the Judicial Council’s Version Denied Equal Protection Respondenthas not attemptedto reply to appellant’s claim that explaining how atrule should be applied in the prosecution’s favor while failing to mention its equal applicability to the defense violates a long-established constraint which due process places on the crafting of jury instructions.’’ Appellant therefore relies on his presentation in the openingbrief. The sameis true of appellant’s claim of an equal-protection violation, in the failure to instruct the jury fairly and accurately in the mannerthat benefits defendants who are instructed using the Judicial Council instruction on the issue.'° 2. The Instruction’s Exclusiveness Wrongly Implied a Unanimity Requirement for Mitigation a. Respondent Does Not Dispute That This Court Consistently Recognizes That Jurors Will Interpret Instructions in the Manner Claimed Here Respondent accepts the premise that the Eighth Amendmentbars leading ajury to believe that, for a juror to considera particular mitigating circumstance, the jury as a whole mustfirst agree that it exists. Respondent maintains, however, that nothing in the instructions could have produced such an ’See AOB 433, citing People v. Moore, supra, 43 Cal.2d 517, 526-527, and Reagan v. United States, supra, 157 U.S. 301, 310. See AOB 438. CALCRIM No.764 is quoted at AOB 437, fn. 264. 301 impression. Respondentfails to commenton the reason whyappellant contends that they werelikely to do so, namely, that a common-senseunderstanding ofthe instructions would involve the sameprinciples courts use in construing statutory and contractual language. Thefirst of these is that a carefully-crafted statement will not contain surplusage. The second is a corollary of that principle: enumerating one condition where a conclusion applies implies the exclusion of its application under other conditions.'? Concretely, making a point of identifying the decision whether a factor (b) crime was committed as a matter for individual juror determination left the strong impression that that issue was the sole exception to the unanimity requirement. It must be recalled that the unanimity principle generally governed the jury’s processes, starting with the guilt phase, where notonly the verdict but subordinate findings on each element of each offense and special circumstance had to be found unanimously,and that it governed the ultimate decision as to penalty. The only explicit instructions were those requiring unanimity, and the one at issue, stating an exception. Appellant pointed out'® an example of this logic in People v. Roldan (2005) 35 Cal. 4th 646. There the Court upheld a refusal to instruct that a mitigating factor need not be proved beyond a reasonable doubt, because such an instruction “implies erroneously that aggravating factors must be proved beyond a reasonable doubt.” (Id. at p. 741.) By the samereasoning,stating the non-unanimity principle only as it applies to an aggravating factor implies that "See AOB 435-436, discussing People v. Roldan (2005) 35 Cal. 4th 646, 741, and citing Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 225-226; Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4th 541, 546; Stevenson v. Drever (1997)16 Cal.4th 1167, 1175; and In re Carissa G. (1999) 76 Cal.App.4th 731, 737. 'SAOB 435. 302 other circumstancesin aggravation or mitigation require unanimity. Respondent does not mention Roldan or attempt to explain why its underlying principle should be applied only in favor of the prosecution. Appellant also pointed out"’ that similar logic underlies cases like People v. Taylor (2001) 26 Cal.4th 1155, which holds that an instruction listing the factors applicable to the penalty choice suffices to prevent the use of unlisted factors as aggravation. The implication is considered clear enough to meet a trial court’s instructional obligation on this cardinal principle, particularly since the jury is told that the list of mitigating factors is non-exclusive. (Jd. at p. 1180.) Respondent ignores this point. Yet there is no principled way to distinguish how a jury would understand the implication of singling out mitigation, in the Taylor situation, from how it would understand the implications of singling out factor-(b) aggravation here. In the Taylor context, this Court found the implicationat issue to be clear enoughthat there was no dangerofthe jury’s failure to understandthe law.L.e., not only could reasonable jurors take the mention of one thing to exclude another, but they can be counted on to do so. Here, in contrast, if the“interpretation of the sentencing process” that follows from the same logic regarding what it means to mention one factor only “is one a reasonable jury could have drawn from the instructions,” there was constitutional error. (Mills v. Maryland, supra, 486 U.S. at pp. 375-376, emphasis added.) If a jury can be counted on to interpret instructions in that manner, there certainly is an Eighth- Amendment-violating risk that it will do so. 'AOB 436. 303 b. Respondent’s Reliance on People v. Breaux Is Misplaced Rather than analyze the instructions given appellant’s jury, respondent tries to fit the claim into the holding of a case with critically different facts. Respondentrelies on People v. Breaux (1991) 1 Cal.4th 281, which held that a trial court could properly refuse a defense request for an non-unanimity instruction on mitigation. But the result in Breaux, as appellant pointed out in the openingbrief, was based on the fact that the instructions there “unmistakably told the jury that each membermustindividually decide each question involved in the penalty decision.” (/d. at p. 315.) Respondent seemsto assumethat this Court held that this principle was madeclearto the Breaux jury only through the giving of the CALJIC instructions which appellant’s jury also received, but the opinion provides no basis for that assumption. Certainly nothing in the instructions given here told the jury any such thing and,as noted previously, an instruction that would have done so was refused. Moreover, there was no indication in Breaux that a non-unanimity instruction on factor-(b) aggravation had been given,andit probably was not.”® The giving of such an instruction, in a context where it was the only non-unanimity directive, is the basis of appellant’s complaint here.” The existence of factor (b) aggravation was not at issue in Breaux. “The parties stipulated to the reading of a statement of facts on three prior offenses, two of which had been pleadedas prior convictions and foundtrue at the guilt phase.” (People v. Breaux, supra, 1 Cal.4th at p. 307.) *!Respondent points out that this Court has “affirmed its decision in Breaux and should continue to do so here. (People v. Cook [2007] 40 Cal.4th [1334,] 1365; People v. Smith (2003) 30 Cal.4th 581, 639.) Cook and Smith do reaffirm Breaux ’s rejection of a defendant’s purported generalright to a non-unanimity instruction, i.e., they reject only the claim which respondent (continued...) 304 Respondenttries unsuccessfully to bring the instant case within the ambit of Breaux’s reasoning about instructions clearly telling the jury that each membermustindividually decide each question involvedin the penalty decision. Thus respondentnotes that appellant’s jurors were told that to reach a penalty verdict, all must agree, “but,” says respondent, they were also told that “each” had to conclude that aggravating circumstances so outweighed mitigation as to warrant a death sentence if they were to cometo a death verdict. (RB 255.) Respondent’s use of the conjunction but is puzzling, for the second statement also emphasizes unanimity. Saying that each juror had to reach that conclusion for a death verdict to be returned meantthat they all had to. Doing so did not contradict any perceived need for unanimity on any finding, ultimate or subordinate. Next, respondentnotes that someofthe instructions referred to the tasks facing “a juror” when considering mitigating evidence. (RB 255.) Thefirst example cited by respondent stated, after explaining that a mitigating circumstance does not need to be proved beyond a reasonable doubt, that “a juror mayfind that a mitigating circumstance exists if there is any evidence to support it, no matter how weak the evidence is.” (RT 54: 8066; CT 9: 1993.) Again,nothing here is inconsistent with the schemesetup in the guilt phase and implied by the prosecutorial pinpoint instruction specifying a single case ofnon- unanimity. Saying what is required for a juror to come to a particular conclusion, when every juror has to cometo an individual conclusion even on findings requiring unanimity, does not suggest non-unanimity, muchless express *I(_..continued) repeatedly and wrongly states was raised in the opening brief, rather than considering the impact of singling out factor-(b) aggravation for a non- unanimity instruction. 305 it “unmistakeably,” as the instructional package used in Breaux did. (People v. Breaux, supra, | Cal.4th at p. 315.) Respondent’s other example of an instruction referring to “a juror” explained, “A juror is permitted to use mercy, sympathy and/or sentiment in deciding what weight to give each mitigating factor.” (RT 54: 8066-8067; CT 9: 1993.) Here too, there is nothing that points to non-unanimity in deciding whether a mitigating factor exists; the only thing helpful on this score is the indirect implication—andthe only hintin the entire set of instructions—that the moral weight to be assigned to each factor may be determined by individual jurors.” In truth, respondent could have come up with slightly more colorable examplesto try to make its point. The special instructions read at the request of the defense included referencesto “ajuror[’s]” deciding to take into account any particular mitigating circumstance.”’ In the abstract, jurors deeply attuned to CALJIC No.8.88, given a few minuteslater, simply uses the pronoun “you” in stating what appearsto be the entire jury’s freedom to assign whatit considers to be the appropriate moral or sympathetic weight to be assigned each factor, aggravating or mitigating. (RT 54: 8072; CT 9: 2011-2012.) The instructions included thefollowing: The mitigating circumstancesthat I have read for your consideration are given merely as examples of some of the factors that a juror may take into accountas reasonsfor deciding not to impose a death sentence in this case. A juror should pay close attention, that is, careful attention, to each ofthose factors. Any one of them maybesufficient, standing alone, to support a decision that death is not the appropriate punishment in this case. But a juror should not limit his or her consideration of mitigating circumstancesto these specific factors. A juror may also consider any other circumstances (continued...) 306 legal logic could have considered those references to cast doubt on the otherwise apparent need for unanimity in deciding whether such a circumstance exists. But assuming such juror sophistication would be baseless.** Second,there is again no clear contradiction of the unanimity rule from whichthe prosecution- oriented instruction carves out a definite exception: the instructions couldstill be referring to what use individual jurors make of mitigating circumstances agreed bythe entire jury to have been shownto exist. Finally, whenthe bestthat can be said aboutinstructions about how to decide if a defendantis to be put to death is to say that they support this kind of guesswork as to how jurors might have interpreted them,the reliability required of capital proceedings is simply missing. (Cf. Francis v. Franklin (1985) 471 U.S. 307, 322 [correct statement of law in contradictory instructions cannot save it from constitutional infirmity caused by incorrect statement because reviewing court cannot know which principle jurors applied].) Indeed, in Mills v. Maryland, the case on whichthe instant claim turns, the Court found “[t]he critical question” to be simply “whetherpetitioner's interpretation ofthe sentencing processis one a reasonable jury could have drawnfrom the instructions given bythetrial judge.” (486 U.S. at pp. 375-376.) The fact that they also might have interpreted the instructions in an appropriate manner wasnot relevant. (/d. at pp. 376-378; see also pp. 383-384.) Appellant repeats the complaint he made in the openingbrief: continued) relating to the case or to the defendant as shownbythe evidence as reasons for not imposing the death penalty. (RT 54: 8066: CT 9: 1993.) “See, e.g., Haney, Santag and Costanzo, “Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death” 50 Journal of Social Sciences No. 2 (Summer 1994). 307 It is unclear why this Court and the CALJIC committee refuse to mandate an instruction that wouldset forth a principle [lack of a unanimity requirement for determining whether mitigating factors exist] that is so clearly the law. Prosecutors and civil litigants are not required to hopethat jurors will guessat the rules of law that might favor them, and capital defendants should not be required to do so, either. (AOB 436-437,fn. 264, concluding with the CALCRIMinstruction which does simply state the actual rule, in neutral terms, with reference to both aggravating and mitigating circumstances.) 3. People v. Lewis Does Not Resolve Appellant’s Claim A claim similar to appellant’s was denied in People v. Lewis, supra, 46 Cal.4th 1255. Lewis pointed out the disparate instructional treatment of non- unanimity for mitigation and non-unanimity for factor (b), arguing that “thetrial court failed to ensure impartiality and parity in the jury instructions,in violation of his right to a fair and reliable penalty determination under the Eighth and Fourteenth Amendment... .” (/d. at p. 1317.) It does not appear that the even greater problem raised by appellant—the likely implication, in context, of a unanimity requirement for mitigation—wasraised directly, but Lewis relies on People v. Holt (1997) 15 Cal.4th 619, which does address that contention. (15 Cal.4th at p. 686.) Both casesrely on the repetition in the penalty phase of a standard guilt- phase instruction, CALJIC No. 17.40, which is entitled “Individual Opinion Required — Duty to Deliberate.””> (See CT 9: 2008; RT 54: 8070.) Since, in *°Thetrial court read the instruction to appellant’s jury, as follows: The People and the defendant are entitled to the individual opinion of each juror. Each of you must consider the evidence for the purpose (continued...) 308 the guilt phase, unanimity is required not only on the ultimate verdict, but also on subordinate questions such as whethereach elementofthe offense is proven, it would be error for CALJIC No. 17.40 to imply otherwise, and it does not. Rather than dealing with how manyvotesare required to decide a question, the instruction states how each juror is to decide how to vote. (See People v. Gunder (2007)151 Cal.App.4th 412, 425 [contrasting instructions about “the procedure for returning verdicts” with CALJIC No. 17.40’s directives concerning “each juror[’s] decisionmaking”}, cited with apparent approval in People v. Moore (No. 8081479. Jan. 31,2011) _- Cal-4th —,___ (slip opn.,p. 31.) CALJIC No. 17.40, speaking as it does to the manner of arriving at decisions on whateverquestionsare before a juror,is not intended to—and does not—provide guidance on which matters must be agreed on unanimously in order to return a final verdict and which do not require agreement. Clearly this is why the prosecution needs an explanation that unanimity is not required on whethera factor (b) offense was proven and can be consideredby ajuror, absent a clear statement, like that in CALCRIM,that no aggravating or mitigating circumstance needs to be proven to the satisfaction of other jurors to be *>(__.continued) of reaching a verdict, if you can do so. Each of you must decide the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors. Donot hesitate to change an opinion ifyou are convinced itis wrong. However,do not decide any question ina particular waybecause a majority ofthe jurors, or any ofthem, favors such a decision. Do not decide anyissue in this case by chance, such as the drawing of lots or any other chance determination. (RT 54: 8070.) 309 considered by one. (Cf. CALCRIM No. 766, quoted at AOB 437, fn. 264.) If the defense does not receive the sameinstruction as to mitigation, a reasonable juror could certainly concludethat the principle stated regarding factor (b) does not apply across the board. OF The Trial Court’s Error Requires Reversal of the Penalty Judgment Respondent’s attempt to present the law applicable to its burden of showing harmlessnessis confusing. (See RB 260-261.) Respondent arguesthat any error was only of state law. This could only be true if state law affords appellant a protection that the federal Constitution does not. However, neither appellant nor respondent has suggested that California has extended the protections ofMills beyond those required by the case itself and the federalright which it expounds. After this detour, respondent concedesthat the standard for state-law error affecting penalty is the same as that for federal constitutional error in any event. Then, however, respondent wrongly claims that appellant has the burden of demonstrating prejudice under state law, rather than that respondenthas the burden of showing harmlessness beyonda reasonable doubt, whichis the case underthe applicable federal standard and therefore has to be true under the equivalent state standard as well.”* Significantly, respondent ignores entirely the rule applicable to the specific error claimed here: where the jury charge was such that a reviewing court “cannot conclude, with any degree ofcertainty, that the jury did not adopt [an] interpretation of the jury instructions” that precluded them from *°See RB 260-261, mis-citing People v. Rogers (2006) 39 Cal.4th 826, 901, for the proposition that appellant has a burden of showing prejudice. (See People v. Rogers, supra, 39 Cal.4th at p. 901, citing Chapman v. California (1967) 386 U.S. 18, 24.) 310 understanding that each juror should take into account whatever mitigation he or she believed to be true, penalty reversal is required. (Mills v. Maryland, supra, 486 U.S. at pp. 377-378.) In other words,if there is Mills error at all, the only basis for showing harmlessness would be if no mitigating circumstances had been presented and thus there was nothing for a juror to have been precluded from considering. That is not the case here, as respondent acknowledges in other contexts. Ignoring this controlling precedent, respondent gives an abstract argument based on its one-sided view of the evidence in aggravation and mitigation,asserts that a death verdict was inevitable in any case, and again fails to answer appellant’s showing that neither the evidence nor the question of harmlessness may be approachedin this fashion.”’ Indeed, Mills is proof of appellant’s position that appellate reweighing of aggravation and mitigation is not a legitimate way of approachingthe state’s attempt to show harmlessness. For there is nothing sui generis about Mills error, nothing in the high court’s opinion suggesting that such error is “structural.” Rather, the court takes it for granted that if a juror could have been precluded from considering a mitigating circumstance by that juror’s understanding of the instructions, the penalty judgement cannot be knownto have been unaffected by the error. The kind of canvassofthe picture before the jury, in order to ascertain what it might have done if correctly instructed, which respondent engagesin throughoutits brief, had no placein that court’s analysis. (See Mills v. Maryland, supra, 468 U.S. 367, 377-384.) It “7A complete argument on both respondent’s misapplication of the Chapman/Brownstandard and the evidentiary picture presented in this case appears in the discussion of harmlessness in issue IJ, at pages 101-114 and 120-122, above. A more summary version concludes issue IV, at pages 167-172, above. 311 should not here, either, with this error or any other. // // 312 xII' REFUSING TO INSTRUCT THE JURY ON MUNOZ’S SENTENCE AS A BASIS FOR LENIENCY, AND PROHIBITING ARGUMENT ON THE POINT, WAS FEDERAL CONSTITUTIONAL ERROR Federal law clearly requires that anything which a sentencer could reasonably determine to be a basis for a sentence less than death be considered by the sentencer, if the defendant offers it. The issue is not whether the proffered evidence mitigates culpability for the capital crime, but whetherit could mitigate punishment for that reason or any other.’ This is not an area wherestate law can constrain the sentencer.’ As appellant has pointed out,* the ‘See AOB 439. Respondent addresses this claim in its Argument XVII.C, RB 259, except for the question of prejudice, which it addresses in XVH.D, RB 260. *Abdul-Kabir vy. Quarterman (2007) 550 U.S. 233, 246 (“sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might providea basis for refusing to impose the death penalty”); Tennard v. Dretke (2004) 542 U.S. 274, 285 (evidencethat “would be mitigating in the sense that [it] might serve as a basis for a sentence less than death” must be admitted “even though . . [it]did not relate specifically to petitioner’s culpability for the crime he committed,” citations and quotaton marks omitted); see also Smith v. Texas (2004) 543 U.S. 37, 45 (Court has “unequivocally rejected” position that mitigating evidence is limited to that which has some nexusto the crime). See also the discussion at p. 242, above, and the authorities cited there. The question is not only whether the evidence is admitted, but whether the jury is permitted to consider it as mitigation. (See, e.g., Abdul-Kabir v. Quarterman, supra, 550 U.S. at p. 246.) ‘Skipper v. South Carolina (1986) 476 U.S. 1, 4; McKoy v. North Carolina (1990) 494 U.S. 433, 440. “AOB 440-442, 444-446. 313 United States Supreme Court, Congress, numerous other courts’ (though certainly not all), and a broad spectrum of the lay public would considera life- with-the-possibility-of-parole sentence for a codefendant who in significant ways was similarly situated, and was arguably at least as culpable,° to be a matter to take into consideration. So, regardless of the reasons whyit is reasonable to not consider a codefendant’s treatment, it is also reasonable to considerit, and a sentencing jury may therefore not be prevented from doing so. This Court has held, however, that a jury should be precluded from considering a codefendant’s treatment in deciding a defendant’s sentence. Respondent makes a rote statement that appellant “offer[s] no persuasive reasons” for reconsidering its earlier holdings on this question. Appellant’s briefing of the issue, however, is anything but rote. It is a genuine argumentfor reconsideration, despite respondent’s attemptto treat it as “generic”claim,’ and it provides several reasons for reconsidering that are not addressed in this Court’s prior opinions. Respondent has declined to speak to those reasons, leaving the Court unassisted in deciding whether appellant’s basis for maintaining that a different result is constitutionally required is “persuasive” or not. Respondent’s failure to brief the issue as it has been actually presented here should not confuse this Court regarding the need to address the concernsraised by appellant and particularly the contrary Eighth-Amendmentjurisprudence by which the state is bound. There is, however, nothing for appellant to reply to, *In addition to the cases cited in the openingbrief, see United States v. Mitchell (9th Cir. 2007) 502 F.2d 931, 981, where an equally culpable codefendant’s not receiving the death penalty was “the focal point” of the defendant’s case in mitigation. °See AOB 447-449 andcited portions of the record. "Cf. People v. Schmeck (2005) 37 Cal.4th 240, 303-304. 314 andherelies on the argument contained in his openingbrief. Similarly, on the question of whether the error could be found harmless, appellant has explained why one or more reasonable jurors could have viewed Munozasat least equally as culpable and dangerousas appellant and have found the prosecutorial and judicial treatment of the former to be a persuasive reason why executing appellant was neither “just” nor “necessary,” to use the prosecutor’s categories.» Respondent has no rebuttal to either the characterization ofthe evidenceor its possible implications. Rather, respondent shifts the burden of proof to appellant on the harmlessness question, implicitly urges appellate resentencing on the basis of respondent’s or this Court’s view of aggravation and mitigation instead of considering whetherthe only legitimate sentencer could have been influenced by the error, and presents the facts in a light most favorable to its position instead of considering all those that a reasonable juror might have found to enter into the weighing process. (RB 260-261.) All this was explained in more detail above, since respondent uses the same prejudice argumentto cover several instructionalerrors.” H Hf SAOB 447-451. *See pages 310-312, above. 315 xi THE TRIAL COURT COMMITTED PREJUDICIAL CONSTITUTIONAL ERRORIN SEVERAL RESPECTSIN ITS INSTRUCTIONS REGARDING UNADJUDICATED CRIMINAL ACTS, INCLUDING DIRECTING A VERDICT ON WHETHER THE CHARGED ACTS OF UNADJUDICATED CRIMINALITY WERE VIOLENT AND FOLLOWINGA CALJIC-INITIATED ELIMINATION OF THIS COURT’S FORMER UNANIMITY REQUIREMENT FOR CHARGES OF UNADJUDICATED CRIMINALITY A. Introduction Appellant contends that CALJIC No. 8.87 (1989 revision), as given to appellant’s jury, was fatally flawed in five respects. Each error could have affected the jurors’ evaluation of evidence of unadjudicated offenses under factor (b), offenses on which the prosecutor relied heavily in his argumentfor death. Appellant acknowledged that most of the problems with the instruction have beenraisedin other cases but stated that only one sub-issue raised a generic claim, while the others involve analyses that the Court has apparently not addressed previously. Appellant also documentedthat four ofthe five problems with the instruction arose from CALJIC-initiated changes in the law, later ratified by this Court, a method of law-makingthat raises serious due-process concerns. Aswith the previous issue, however, respondent takes—and encourages this Court to take—the shortcut of pretending that summarytreatment of these issues is appropriate. Thus, what appellant briefs in sixty-five pages, respondent briefs in under two. The difference is not solely attributable to counsels’ respective styles. Certainly, after actually analyzing appellant’s arguments— 'See AOB 452. Respondent addresses this claim in part ofits Argument XVIII, RB 263-265. 316 whichforthrightly acknowledgethis Court’s precedents but contend that various considerations have been overlooked—the Court is free to conclude that appellant has raised nothing newafterall, or only unpersuasive arguments, and that summary treatment is appropriate. But at this stage, appellant respectfully submits that the briefing does not permit the Court’s analysis to begin and end with stating the overall claim and citing precedentsrejecting it. B. The Instruction Erroneously Withdrew from the Jury the Question of Whether Appellant’s Acts Involved Violence’ It is undisputed that the jury was told that each alleged instance of unadjudicated criminal activity involved force or violence, rather than that the force or violence issue wasfor jurors to determine in each case. Appellant alternatively analyzed the question in the terms that this Court has donein the past, i.e, whether the question was onefor judge orjurors, but to some extent that is beside the point here. Not only was the jury given no opportunity to decide the issue, but there was not even a trial courtfinding on whether the force-or-violence element was met on each allegation.’ The prosecutor’s allegation was submitted to the jury as fact. Respondent neither disputes this point nor acknowledgesit and its significance. On the only question that this Court has addressed before, whether the issue is one for judge or jurors,’ appellant marshaled authorities showing *Respondent addressesthis sub-issue at RB 263, secondfull paragraph. *See AOB 468-470. “For the purposes of this sub-issue, appellant assumes arguendo the propriety of individual jurors, rather than the jury as a whole, deciding whether a factor (b) allegation has been proved. 317 that issues of fact are to be decided by the jury;° that this Court has clearly recognized that some crimes commonly alleged as factor (b) offenses may be committed in ways that do or do not involve force or violence,or the threat thereof, and the proper characterization in a particular case is a question offact,° and it has justified submitting equivocal cases on the force-or- violence elementto the jurors because they would decide whether it was proven;’ that the law on this matter was changed only becauseofa drafting error by the CALJIC committee and that the change itself was never acknowledgedorjustified by that body or this Court;* that one of the cases now relied on by respondent was based on since-overruled United States Supreme Court precedent, that a key element of the analysis presented here was not raised by the defendant in the California case, and that current high court precedent requires a contrary conclusion;’ and that another precedent now relied on by respondent cited no authority for its summary statement that the force-or-violence °AOB 457. This includes mixed questions of law and fact. (United States v. Gaudin 1995) 515 U.S. 506; see also id. at p. 514 [“the jury’s constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion”].) °AOB 456-457, 460-461. 7AOB 457. ®AOB 457-458. °AOB 457-459, discussing People v. Ochoa (2001) 26 Cal.4th 398, 318 issue is a question of law, did not acknowledge or seek to reconcile its conclusion with this Court’s prior cases holding to the contrary,'® and flew in the face of a very substantial body of jurisprudence on howto distinguish questionsof law,for thetrial court’s determination, from questions of fact to be submitted to the jury." In addition, appellant has shownthat this Court’s precedents treated the force-or-violenceissue as a jury question until 2001,'? while appellant’s crimes took place in 1992. Retroactive removal of the requirement to prove the issue to any juror who would use a factor (b) crime as aggravation would therefore violate due process." Respondent cites five cases for the proposition that this Court “has repeatedly rejected appellants’ claim and should continue to do so... .” (RB 263.) None deal with the due-process/retroactivity issue or a complaintthat not only wasthere no jury finding on the force-or-violence question, but that there was not even a trial-court finding. All involved only the question of who the factfinder should be, judge or juror. One did not even reachthe issue, because a trial-court modification of the CALJIC instruction required the jury to decide the question.'* Three of respondent’s cases were discussedfully in the opening '°AOB 459-461, discussing People v. Nakahara (2003) 30 Cal.4th 705, 720. ""AOB 461-467. '*AOB 457-459,including thefirst full paragraph on page 457. See cases cited at AOB 468. '’People v. Prieto (2003) 30 Cal.4th 226, 265 (“[w]e reject [appellant’s] (continued...) 319 brief.'° The opinions, two of which are seminal but contain brief, summary dispositions, do not contain a rebuttal to appellant’s analysis, and respondent provides none. Thelast case relied on by respondent simply quotestwo of the others and addedthat any error would have been harmless underthe facts ofthat case.’° Thus as to two of the problems with the handling of the force/violence element(retroactivity, lack of even a judicial determination), respondenthas no answer. As to the question of who should determine the fact, appellant’s substantial reasons for seeking reconsideration of prior holdings remain unansweredbyeither opinions of this Court or any reasoning of respondent’s. Appellant has explained why the errors cannot be held harmless."” Respondent doesnot attempt to argue that they can,in the sense thatit could be known beyond a reasonable doubtthat a jury permitted to consider the force-or- violence element on any incident would have found it to be true.'* Respondent '4(,..continued) contention that the modified instruction somehow implied that the jury did not haveto find that the unadjudicated criminal acts involved force or violence”). '’People v. Ochoa, supra, 26 Cal.4th 398, 452-454, discussed at AOB 457-459; People v. Nakahara, supra, 30 Cal.4th 705, 720, discussed at AOB 459-461 (see also pp. 461-467); and People v. Monterroso (2004) 34 Cal.4th 743, 793, discussed at AOB 459-460 andfn. 278. '©People v. Gray (2005) 37 Cal.4th 168, 235, quoting the Monterroso and Nakahara casescited in the previous footnote. ""AOB 470-476; see also AOB 512-516. '8See See Neder v. United States (1999) 527 U.S. 1; People v. Flood (1998) 18 Cal.4th 470, both of which permit a harmlessnessfinding when an elementofan offense is withdrawn from jury consideration, where the element was both undisputed and undisputable. 320 does argue elsewhere that admitting evidence of most of the offenses at issue here could not have affected the deliberations of a jury which, in its implicit view, can be assumedto have believed the worst scenarios of the circumstances of the crimes put forward by the prosecution’s informant and dismissed the mitigating evidence involving both those circumstances and appellant’s background and character.’? Appellant relies on what he hassaid previously in this brief about respondent’s marshaling the wrong facts and assumingthat this Court’s properrole is no different from that of a sentencing juror,” as well asa demonstration in the opening briefthat the prosecutor made powerful use of the other-crimes evidence.”' C. The Instruction Improperly Heightened the Seriousness of the Incidents by Characterizing Them as at Least Actual, Express Threats and by Creating the Supposed Aggravating Circumstance of “Implied Use” of Force or Violence” Given, as just explained, that the jury wastold that the all the acts charged, if true at all, were legally considered to have involved force or violence, the way that the instruction characterized the force or violencethat the jurors were being told was involved became important. Unaccountably scrambling the statutory language,”* the CALJIC instruction eliminated the possibility that many of the actions were merely implied threats, which was RB 230, 234. °See pages 101-114 and 120-122, above, or the summaryversion at pages 167-172. *1AOB 512-516. **Respondentaddresses this sub-issue in the first half of the first full paragraph of RB 264. >See AOB 476-477. 321 actually the most that either the escape preparations or the four shank possessions” could have amounted to. Instead, it stated that all the actions involved the use or threat of force or violence, which would be moreserious aggravating conduct than simply an impliedthreat. The effect was complemented byanotherresult ofrandomizing the order of the statutory terms: the creation of the novel category of “implied use” of force. For those jurors who could see that there was no actual threat communicated and no actual use of force or violence in the five incidents just mentioned, the remaining characterization supplied by the court— “implied use” of force or violence—hadto be the one that applied. So for such jurors, this aspect of the botched language, too, elevated the seriousness of the shank possessions and escape preparations. They were, supposedly, what the law evidently considered a use of violence, even if “implied.” Thus for any juror, what were at worst implied threats, under a very broad use of even that term, were authoritatively characterized as either actual threats, or implied use, of force or violence. All of this, and its constitutional implications, are explained in more detail in the opening brief.’” Respondent’s sole answeris to quote the summary “Both appellant and respondentlist three shank-possession incidents under that heading in their Statements of Facts. The fourth involved Arthur Dicken’s testimony regarding seeing a four-to-six-inch piece of sharpened steel in appellant’s possessionas part ofthe escape-preparations evidence. See also Item (4) of the Notice of Evidence to Be Introduced in Aggravation. (CT 6: 1172 [listing possession of a shank as part of that incident].) °*>AOB 476-481; see also 515-516 and fn. 322. Appellant neglected to point out previously that this error in the instruction deprived him of his due-process right to the protections of California’s statutory law. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346.) (continued...) 322 disposition of an attack on the same language madebythe appellant in People v. Prieto, supra, 30 Cal.4th at p. 265.”° Again, there is nothing to reply to here. The reasons why Prieto is both distinguishable and should be reconsidered are already explained in the opening brief,’’ and respondent has no response. As to harmlessness, respondent does not contend that authoritatively describing the offenses as more serious than they were could not matter. Appellant has already explained why it is likely that it did.* As noted previously, respondent does argue elsewherethat admitting evidence ofmost of the offenses at issue here could not have affected the penalty deliberations. Appellant discussed that argument in the previous sub-issue andrelies on that discussion here.”’ *°(...continued) It also gave the jury a vague aggravating factor (“implied use”). (Stringer v. Black (1992) 503 U.S. 222, 231, 235; People v. Bacigalupo (1993) 6 Cal.4th 457,477.) Given respondent’s position that there wasno error and its decision not to address any of the specific constitutional claims, appellant asks the Court to consider these constitutional claimsas well, despite his raising it only in this brief. (Compare the argument regarding taking the force-or-violence issue away from the jury, where appellant did raise the Hicks claim [AOB 470] and respondent declined to specifically address it [RB 263].) *°RB 264. Respondent’s citation, in the same paragraph, of People v. Martinez, supra, 31 Cal.4th 673, appearsto be its responseto a different point raised by appellant, under subheading D. *7See AOB480,fn. 293. *®See AOB 512-516. *’See page 321, above, and portionsof this and the openingbrief cited there. 323 D. Only Crimes Involving at Least a “Threat to Use” Force or Violence Are Aggravating under Section 190.3, but the Instruction Required Jurors to Weigh Crimes That Merely Created a Risk of Force Being Employed or Triggered” Section 190.3, factor (b), authorizes admission of evidence of criminal activity which involved the express or implied threat “to use force or violence.” Part of the CALJIC rewrite of the statute changed the language to involve “the threat of force or violence.” The two expressions invoke two different definitions of the term threat, as both dictionary definitions and ample legislative and case-law uses of them make clear. The statutory aggravating circumstance involves a communication (made expressly or by implication) to another(the one threatened) of a threat to use force or violence. The CALJIC aggravating circumstance sweeps more broadly, to include, as this Court has held, creation of a risk that violence will somehow result from a person’s actions.” In People v. Martinez, supra, 31 Cal.4th 673, the defendantdid not attack CALJIC’s taking liberties with the statutory language but did argue that evidence of mere shank possession, without some kind of a threatening communication, directed towards another, and using words or actions, was insufficient evidence of a “threat of” force or violence. This Court rejected the argument summarily, reasoning that acommunicated threat would be an express one, and factor (b) includes implied threats. (31 Cal. 4th at p. 694.) Appellant has pointed out that the holding stands alone; that it is a matter of black-letter *°Respondent addresses this sub-issue at RB 264, in the portion of the first full paragraph that begins with the word Similarly and discusses People v. Martinez, supra, 31 Cal.4th 673. *'See AOB 482-486. 324 law that threats—in the sense of a threatening communication—can be communicated by implication. For that reason the case should be reconsidered. Additionally, its 2003 expansion of the previously-clear statutory liability for factor-(b) aggravation would violate due process if applied retroactively to appellant.” Respondent’s only argumentin favor ofupholding CALJIC’s expansion of the statutory language regarding a “threat to use force or violence”to include actions which created a “threat of force or violence” is to cite Martinez. (RB 264.) Respondent says nothing about appellant’s reasons why Martinez should be reconsidered,its dealing only with a different and weak variant of appellant’s contention,** or why its holding cannot be applied to appellant retroactively. Nor does respondentseek to answer appellant’s demonstration that, everywhere else in the law and in commonusage,the difference between the meaningsofthreat of something happening and threat to do something are clear and substantial. Appellant therefore relies on the discussion in his opening brief.** Similarly, appellant argued that the error cannot be known, beyond a See the discussion ofPeople v. Martinez at AOB 486-489. The other constitutional violations causedby the instruction’s deviation from the statute are enumerated at AOB 481-482. Even though the Martinez appellant argued that a threat was a communication, he eviscerated the claim by conceding that the issue was whether his shank possession amounted to a “threat ofviolence,” rather than getting to the heart of the matter, which is that the statutory aggravating circumstance includesonlythreats fo use violence. (People v. Martinez, supra, 31 Cal.4th at p. 693.) **AOB 481-490. 325 reasonable doubt, to be harmless,*’ and respondent does not argue otherwise in the context of this specific error. In other words, respondent does not claim that being directed to consider criminal activity beyond a threat to use force or violence did not broaden the conduct the jury would have considered aggravating. As noted previously, respondent does argue elsewhere that admitting evidence of mostofthe offensesat issue here could not have affected the penalty deliberations. Appellant discussed that argument in sub-issue B, above, and relies on that discussion here.*® E. The Instruction Failed to Require Unanimity on Findingsthat Other-Crimes Allegations Were True, and Unanimity is Required on Such Findings Even if it is Not Required for Aggravating Circumstances in General”’ Appellant’s jurors were instructed that they were to determine individually whether factor (b) crimes had been proven, and to individually use or not use the evidence based ontheir findings. While appellant later makes a “generic” claim** that every aggravating circumstance must be proved to a unanimousjury if it is to be weighed by any juror,’ here he also vigorously contends that, even if this is not the case, there is a unanimity requirementfor other-crimes allegations and that this Court’s contrary conclusion should be *°See AOB 489-490. *°See page 321, above, and the portions of this and the opening brief cited there. *7Respondentaddressesthis sub-issue at RB 263, in the middle of the first full paragraph. *®See People v. Schmeck (2005) 37 Cal.4th 240, 303-304. Argument XXI.D, AOB 568. 326 reconsidered.*” The contention is based largely on two factors which make factor (b) aggravation qualitatively and materially different from the other aggravating circumstances which a jury is required to consider, factors which appellant believes not to have been addressedin this Court’s opinions, as well an analysis of federal Sixth Amendmentjurisprudence which also appearsto have been previously unaddressed." Asto the two reasonsfactor (b) aggravation is different, the first is that many circumstances, like whether the age of the defendant is aggravating, require little fact-finding and are truly normativejudgments. However,deciding whether a defendant committed a previously-uncharged crimeis the prototypical fact-based determination. This Court’s jurisprudence requiring such crimes to be proven beyond a reasonable doubt recognizes this way in which factor (b) decisions are unique, since mostfactors in aggravation are normative judgments (like whether the age of the defendant is aggravating) to which, in the Court’s view,a standard of proof could not be applied. Second, this Court, like others, has long recognized the heavy impact of other-violent-crimes evidence on juries considering whether to impose death sentences, so the importance of traditional safeguards for fact-finding with regard to such evidence is greater. Indeed, for this reason, this Court traditionally required the same safeguardsas are afforded a defendantin trial on the issue of guilt to be provided in the trial of factor (b) allegations. This included the reasonable-doubt standard and certain less-critical procedural safeguards, which have survived,and the unanimity requirement, whichhasnot. “Argument XIII.E, AOB 490-510. “'Regarding the Sixth Amendment, see AOB pp. 505-508, discussing the treatment of Ring v. Arizona (2002) 536 U.S. 584 in People v. Prieto (2003) 30 Cal.4th 226. 327 Its demise lies in a particularly suspect form of law-making. The details need not be repeated here, but appellant’s opening brief showsthat several decades of prior law were dropped without acknowledgment in 1987—inthefirst post- Bird-Court death-penalty case decided by this Court—in a brief summary ratification of a new and ambiguous CALJIC instruction. It, and a similar opinion issued a few monthslater, are the sole foundation for current law, and they fail to address the reasons whyfactor (b) aggravationis different from other factors for this purpose. Respondenttreats this claim in summaryfashion, relying on casesthat do so as well. (RB 263, secondhalf of first full paragraph.) Appellant therefore relies on the analysis in his opening brief.”” F, The Instruction, Like the Guilt-Phase Reasonable-Doubt Definition, Failed To Tell the Jury the Degree of Certainty Required to Find Guilt of a Factor (b) Offense Appellantbriefed this issue in summaryfashion,”and morefully in claim XVIIL,relating to the guilt-phase instruction on reasonable doubt."* Respondent “See AOB 490-509. Review of a historical footnote in that briefing (AOB 495, fn. 305) showsthe footnote to be difficult to follow. Appellant was unable to locate the version of the pertinent CALJIC instruction introduced immediately after this Court rejected the CALJIC committee’s unilateral elimination of the reasonable-doubt standard. The point of the footnote is to show circumstantially that language that was ambiguous about the need for unanimity was apparently introduced when the reasonable-doubt requirement was put back into the instruction. The exact chronology is not, however, essential to the analysis. *AOB 510-513. “See AOB 543-546. 328 addresses the claim in that context, and appellant’s reply is there as well.” // // “See RB 164-167 and pages? et seq., below. 329 XIv' THE TRIAL COURT SHOULD NOT HAVE PERMITTED EVIDENCE OF THE ESCAPE PREPARATIONS AND SHANK POSSESSIONS TO BE INTRODUCED AND CONSIDERED IN AGGRAVATION BECAUSE THERE WASNO EVIDENCE THAT THEY INVOLVED “THREATS TO USE” FORCE OR VIOLENCE Section 190.3, factor (b) permits the prosecution to introduce, as a circumstance in aggravation, evidenceofprior criminal activity which involved an express or implied threat to use force or violence. Five of the incidents introducedagainst appellant in the penalty phase may have involved a “threat of use”of force or violence, in the sense of a risk that violence could theoretically result, but not the narrowerrange of conduct permitted as aggravation under the statute. A “threat to use” involves a well-recognized different sense ofthe word threat, i.e., a communication—express or implied—that puts another in fear.’ The CALJIC committee unilaterally altered the statutory language, expanding the reach of the aggravating circumstance to “threats of use.” This Court adopted the CALJIC languagein some ofits opinions without explanation or even an indication that it had noticed the difference, then finally rejected a weak challengeto it. All this is briefed in a claim regarding the CALJIC instruction itself that appears earlier in appellant’sbrief.’ The instant claim is that the ‘See AOB 517. Respondent addresses this claim in part of its Argument XIII.B, RB 232-233. *As appellant pointed out in the opening brief, even the use of the phrase “express or implied” supports the need for a threat in the sense of a threatening communication. Extant risks of violence, like those inherent in carrying a weapon in jail or trying to break out while armed, are neither express nor implied; they just exist. (See AOB 486.) 5AOB 481-490; see also pp. 324, et seq., above. 330 evidenceofthe four shank possessions and the escape preparations‘ was devoid, in each case,ofany threat made to another,i.e., a threat to use force or violence. Since this claim is premised on the proposition that conduct involving a mere risk of violence occurring is unauthorized aggravation, appellant respectfully suggests that the Court consider its response to claim XIII.D—-where that proposition is briefed—before analyzing the parties’ positions on the instant claim. Respondent characterizes appellant’s complaint as being that the incidents “did not rise to the level of criminal activity involving force [or] violence . . . contemplated by” the death-penalty statute. (RB 230.) This description confuses the issues. The question is not whetherthe requisite level of threatened violence was reached, but whether there wasa threatto use itat all in any of the five incidents. Respondent claims that People v. Martinez (2003) 31 Cal.4th 673 disposes of appellant’s argument. Respondent ignores not only the significant differences between appellant’s contention and the argument addressed in Martinez, but also appellant’s authorities on the different uses of threat in the expressions threat to use and threat of use, the reasons Martinez should be reconsidered even on the aspect of the issue that it does cover, and the due- process ban on applying the newercase to appellant’s 1992 crimes. (RB 232.) All this is explained in appellant’s reply on the instructional issue and need not be repeated here.” Practically proving appellant’s point on the matter, respondent observes, “Or alleged escape attempt. For this purposeit is the facts that matter, not whether they amounted to a criminal attempt. *Pages 324 et seq., above, and cited portions of appellant’s opening brief. 331 This Court has repeatedly held that the possession of shanks qualifies as a crime involving the implied threat of violence. [Citations.] Here, all of Romero’s weapons were capable of slashing, stabbing, or cutting, and clearly involved the threat of violence. (RB 232, footnote omitted, emphasis added.) The fact remainsthat neither party has found a case holding that mere possession of a shank wasa threat, express or implied, to use force or violence. Respondent can make its case only by pretending that the statute reads as the CALJIC instruction does, which it does not. Respondentsimilarly cites cases where “[t}his Court also has squarely held that an escape attempt in which no force wasactually used is admissible if, on its facts, it presented a ‘threat’ of violence. [Citations.]” (RB 232.) However, the question at issue here was not before the Court in any of respondent’s authorities. Again, that question is whether creating a threat of violence,in the sense of somehowcreating risk ofviolence occurring,suffices, or whether the statute’s use of the expression of the term “express or implied threat to use” force or violence means what it does in every other context involving classification of felonies as violent—i.e., that the conduct, if not including actual use of force or violence, involved confronting a victim with a threat. Respondent contends that the instant claim is “waived.” (RB 231.) Appellant has already pointed out that objecting in thetrial court on this ground would have beenfutile, given this Court’s precedents—nowalso emphasized by respondent— holding evidenceofboth escape plans and weaponspossessionto be admissible under factor (b).° A defendant need not make a futile objection SAOB 517-518. 332 in order to preserve a claim for appellate review. (People v. Boyette (2003) 29 Cal.4th 381, 432.) Respondent’s harmlessness argument follows the pattern established elsewhere. Rather than acknowledgeits high burden of proving harmlessness beyond a reasonable doubt, respondent would have this Court see appellant as having to “establish prejudice” to obtain reversal.’ Respondent misstates even the version of the facts that emerges from assumingthatall jurors accepted the prosecution’s case uncritically.. Respondent wrongly ignores both the mitigation case and more favorable ways that a jury might have viewed the circumstancesofthe crimes and appellant’s involvement, both ofwhich need to be considered in determining whether every juror’s verdict wasso easily arrived at that erroneously adding mostofthe post-arrest “crimes ofviolence” could not have contributed to his or her decision. Respondent ignoresthe difficulty of an appellate court’s making such a determination—to the level of certainty required—in the penalty context.’ "RB 234. Cf. Chapman v. California (1967) 386 U.S. 18, 24; People v. Guerra (2006) 37 Cal. 4th 1067, 1144-1145 (sametest for state-law error affecting penalty). ’See RB 234 (“Romero hunted three young menlike prey [and] killed them”). The prosecution’s evidence showedthe defendants generally driving around a long time before selecting any of their robbery victims, but there was nothing aboutan intention to find people to kill. As to whetherhe killed three, the Munoz-based prosecution case showed appellant to have shot Joey Mans and been involved with his brother in chasing down Timothy Jones, but to have been a surprised bystanderin Self’s killing of Jose Aragon. °A complete argument on both respondent’s misapplication of the Chapman/Brownstandard and the evidentiary picture presented in this case appears in the discussion of harmlessness in issue II, at pages 101-114 and 120-122, above. A more summary version concludes issue IV, at pages (continued...) 333 Finally, appellant has offered a very specific analysis of the potential impact ofthe evidence challenged here on jury decision-making,in particular its providing by far the bulk of the material for the prosecutor’s argument that appellant’s death would be necessary to avoid future victims.’ Respondent simply offers a general assertion that the evidence pales in comparison to the other reasons for imposing death. The choice to ignore what wasusedattrial and the manner in which it was argued to the jury speaks volumes about respondent’s inability to show harmlessness. Reversal is required. // // °(...continued) 167-172. "AOB 518-519; see also 512-515. 334 Xv' THE PROSECUTION RECEIVED AN ILLEGITIMATE ADVANTAGEBYFILING DUPLICATIVE MULTIPLE-MURDER ALLEGATIONS, AND IT IS TIME FOR THIS COURT TO PUTA STOP TO THE PRACTICE The parties agree that the prosecutor charged six multiple-murder allegations instead of the one required by this Court. They agree, although respondent’s concession is only implicit, that the procedures employed below involved reading the six allegations to the jury six times each. They agreethat, while this Court has held that even charging a multiple-murderallegation for each of two murdersartificially inflates the seriousness of the defendant’s conduct andthereby creates a risk of arbitrary imposition of the death penalty, it has alwaysheld the error harmless. Regardingthe particulars ofthis case, they agree that there is no doubtthat the jury knew how many murdersappellant was actually charged with. This Court should nonetheless find reversible error here, or at least include the over-charging in any analysis of cumulative prejudice from various errors and other rulings. The precedents on harmlessness are distinguishable because none involved the 36-fold repetition ofmultiple-murderallegations that occurred here. In addition, the charging practice here suggested to appellant’s jury that the prosecutor and court considered each murder to be an aggravated one because of the two multiple-murder special circumstances attachedto it, rather than simply acknowledging that the fact of three murders was a special circumstance and a circumstance in aggravation. The ongoing flouting of this Court’s admonitions about the correct "See AOB 520. Respondent addressesthis claim its Argument XI, RB 200. 335 pleading procedure should giverise to concern about whethersimply reiterating the proper procedure is enough. It also suggests that some prosecutors—closer to the realities ofjury trials than appellate jurists or attorneys—think juries are in fact subliminally influenced by this kind of repetition. Their judgment regarding the value of persisting in the long-banned practice should not be ignored by this Court. Respondent replied to none of this. Appellant therefore relies on the discussion in his opening brief. // // 336 xvi' APPELLANT’S DEATH SENTENCE WAS THE PRODUCT OFA TRIAL FATALLY INFECTED WITH UNFAIRNESS AND UNRELIABLEIN ITS OUTCOME A. Appellant’s Entitlement to Reversal in the Absence of a Reliable and Fundamentally Fair Proceeding is Not Dependent on the Existence of Cognizable Error This is the point in a brief where an appellant typically makes a cumulative-error claim, but appellant is relying on broaderprinciples than the one that trial errors that are individually harmless may cumulatively require reversal. The reality is that rulings, actions, and omissions at trial—whether error or within a trial court’s discretion, whether preserved for review or not—can,taken together, deprive a defendantof his or her constitutional rights to a fair trial and a reliable penalty verdict and therefore require reversal. Appellant has explained both whyit is necessary to consider this principle here and how the propriety ofdoing so is supported by authorities from this Court and others.” (See AOB 526-530; cf. Parle v. Runnels (9th Cir. 2007) 505 F.3d 922 "See AOB 526. To the extent that respondent addressesthis claim, its response is in Argument XIX, RB 270. "Regarding the role of appellate review in general, in ensuring a fair trial and a reliable penalty judgment, see, e.g., Neder v. United States (1999) 527 U.S. 1, 18; California v. Ramos (1983) 463 U.S. 992, 998-999; People v. Stanworth (1969) 71 Cal.2d 820, 833. Regarding the need to reverse when various circumstances, none necessarily error in themselves, result in a denial of due process, see Taylor v. Kentucky (1978) 436 U.S. 478, 486-488, 490; see also Lisenba v. California (1941) 314 U.S. 219, 236 (due-process question is not whethervalid rules aimed at protecting fairnessoftrial were adheredto, but whetherthere was unfairnessin a particular case). See People v. Mendoza (2000) 24 Cal.4th 130, 162 (discretionary denial of a motion to sever, defensible when made,will require reversal if the trial unfolded in a manner that denied due process); People v. Chambers (1964) 231 Cal.App.2d 23, (continued...) 337 [it is clearly established by U.S. Supreme Court precedent that non-constitutional errors can cumulatively violate due process, citing Chambers v. Mississippi (1973) 410 U.S. 284.) Respondent can be fairly characterized as tacitly concedingthe point, for respondent nowheredisputes it. B. Not Only Did Prejudicial Actions Taken at Appellant’s Trial Have a Cumulative Effect, But Many Strengthened the Effects of Each Other Appellantrelies on the prejudicial impactofthe varioustrial-court rulings and prosecutorial actions pointed outin his individual substantive claims,for his contention that even if individually harmless or—in somecases, not error or not preserved for review—they cumulatively renderedhis trial unfair and the penalty judgment constitutionally unreliable. Moreover, many of these actions had a synergistically negative impact on the fairness andreliability ofthe proceedings. Appellant explained this synergism in the opening brief with considerable specificity,’ but respondent replies with a single sentence: “Since every claim of error raised by appellants waseithernoterror, invited, forfeited, or harmless, there is no prejudice to appellants, and thus no cumulative effect.” (RB 270.) This impoverished response merely emphasizesthe validity ofappellant’s position. Even under conventional cumulative-error review, whethera particular *(...continued) 27-28 (antecedent case for rule affirmed in Mendoza: despite lack of error or failure to preserve right of review of errors made, overall result denied due process and required reversal). Compare People v. Crew (2003) 31 Cal. 4th 822, 839 (prosecutorial error is examined for its effect on the trial, regardless of prosecutor’s good or bad faith). *AOB 530-532. 338 error was harmless when viewedinisolationis beside the point,’ yet respondent propoundsthe harmlessnessof individual errors as sufficient for affirmance. (RB 270.) Andgiven that appellant’s actual contention is that even actionsthat this Court determines to have been, in respondent’s words,“not error, invited, [or] forfeited” (ibid.) can and did together create a situation where reversal is required, respondent’s labeling someofthe challenged actions with that phrase is also beside the point. Moreover, respondent does not dispute appellant’s contention that many of the claimed actions had significantly synergistic effects which must be taken into account in a cumulative-error analysis. Appellant has also pointed out that deeply troubling occurrencesattrial other than those raised as appellate issues contributed to making the death verdict unreliable.” These are matters that appellant has not briefed as appellate claims because of counsel’s judgmentthat lack of objection makes them more properly habeas corpus issues or—as to two°—recognition of the current state of the law as propoundedbythis Court. Appellant did not make up the concept that consideration of such matters—if they are clear from the record and the underlying legal principles are straightforward—can inform this Court’s decision regarding whether to sign off on an execution. He cited People v. Hernandez (2003) 30 Cal.4th 835, 877-878, in which, after explaining why cumulative error required reversal of a death sentence, this Court also “note[d] with concern” certain non-appealable events which showedfailures ofthetrial ‘Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862, 883; People v. Hill (1998) 17 Cal. 4th 800, 845. °AOB 532-536. *The numerous gruesome photographs and the distortion of what amounts to mitigation by instructing the jury with inapplicable and extreme examples of mitigation, like a victim’s consent to the homicide. 339 court and the attorneysto fulfil their duties “to proceed with the utmost care and diligence and with the most scrupulousregard for fair and correct procedure.” Moreover, as long as the matters not briefed as appellate claims are supported by the record, the principle that this Court should prevent execution of a death judgmentresulting from proceedings that cannotbe relied on to have produced an appropriate result makes it appropriate to consider them.’ Respondentgives this part of the cumulative-unfairness argument far more attention than any other, in an unnecessary argumentthat this Court should not treat, as claimsof error, matters that were notraised as claims of error. (RB 270-271.) Appellant agrees.* What respondent doesnot address is whether the matters raised by appellant should inform this Court’s view ofwhether appellant had a fair trial. Appellant maintains that it should, and respondent, forall its discussion, never actually disputes the point. But this is the least important part of the cumulative-unfairness-and- unreliability argument. The matters briefed as appellate issues, taken together, created a result that undermines confidencein the penalty-trial outcome, with or without the additional disturbing eventsattrial. The decision not to repeat here what wassaid in the opening brief about how the various actions at trial mutually reinforced the potential prejudice created by each makes the discussion here abstract. Moreover, the current infrequency of executions in California, the time lag between an affirmance in this Court and an execution, the possible drudgery of analyzing claims in 7See cases cited at AOB 527-530 and People v. Hernandez (2003) 30 Cal.4th, supra, at pp. 877-878. *He doesnot, however, agree with respondent’s implying that appellant did not cite authorities where appropriate. (RB 270-271, quoting People v. Stanley (1995) 10 Cal.4th 764.) 340 lengthy automatic-appeal briefs, and the potentialfor relief in federal courts can makeit difficult to take seriously—asa significant step in deciding whether the state will extinguish a human life—the analysis of this and other claims. Appellant nonetheless implores the Courtto “take a liberal view ofthe technical rules applicable to criminal cases generally [citation] and examine the record with the view of determining whetheror notin the light of all that transpired at the trial of the case a miscarriage ofjustice has resulted.” (People v. Bob (1946) 29 Cal. 2d 321, 328 [explaining duty ofreviewing court in a capital case].) This meansseriously holding in mindall the challenged actionsattrial and deciding whether the entirety of the proceedings permits confidence in the outcome. Moreover,as for the subset of those actions which the Court has determined to be error, the question is whether the Court can know, beyond any doubt (other than unreasonable doubts), that no juror was influenced in his or her vote by their cumulative impact. Appellant submits that the answer has to be “no.” // // 341 xvir' CALJIC NO. 3.02 CREATES AN UNCONSTITUTIONAL MANDATORY PRESUMPTION THAT AIDING AND ABETTING A ROBBERY IN WHICH MURDER WASFORESEEABLEIS EQUIVALENT TO AIDING AND ABETTING MURDER, AND COMPARABLE ERROR INFECTED OTHER INSTRUCTIONS Penal Code section 31, the only authority in this state for imposing accessorialliability for crime under an aider and abettor theory, requires that a defendant have acted with intent to commit or encourage or facilitate commission of the perpetrator’s offense, to be guilty of that offense.” CALJIC No. 3.02, however, as adapted for the murder charges and several others, told appellant’s jury that it was enoughthat he aided and abetted a robbery of which a murder wasa natural and probable, or foreseeable,’ consequence, rather than that he needed to intend to encourage or facilitate murder. The pattern instruction expresses a doctrine well established in California. This much is undisputed. Appellant’s position, however,is that the doctrine improperly substitutes a mandatory presumption for the statutorily-imposed element of intent to commit, encourage,or facilitate the murder,in violation of his due process and "See AOB 537. Respondentaddressesthis claim in its ArgumentVIII, RB 172. *People v. Mendoza (1998) 18 Cal. 4th 1114, 1123. >The instruction mentions only natural and probable consequences,but this Court has held that a jury would understand the expression to be equivalent to a reference to foreseeable consequences. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 107; accord, People v. Medina (2009) 46 Cal.4th 913, 920 [“to be reasonably foreseeable ‘[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough... .’”J.) 342 jury-trial rights. (U.S. Const., Amends 6 & 14.) This tremendous broadening ofthe definition of a death-eligible crime also violates the Eighth Amendment’s direct proscription on cruel and unusual punishment, as well as its requirement of significant narrowingin the death-eligibility determination.* The presumption is that, if murder was a foreseeable consequence of the crime known about and intended by the accessory, knowledge of and intent to encourage or aid the murder are to be presumed as well. Appellant has found no case attempting to explain how such an end run around the intent element, with a presumption that negligence—i.e., acting in the face of a foreseeable consequence—is equivalent to intending that consequence, could possibly be proper. Respondentevidently has been unable to do so, either. Nor has respondent suggested anylogic ofits own to support the instruction. In fact, the application of the natural-and- probable-consequences doctrine to accomplice liability is the subject of scholarly criticism and has been rejected in the vast majority of American jurisdictions. (United States v. Wilson-Bey (D.C. Cir. 2006) 903 A.2d 818, 830-839 (en banc) [collecting authorities].) Both parties discussed the closest thing to a California case on point, People v. Coffman and Marlow, supra, 34 Cal.4th 1. However,it is not at all clear that the same contention was made in Coffman and Marlow, whichlisted *Appellant’s Eighth-Amendmentrights werenotcited in the portion of his opening brief relating to this claim. Given that current United States Supreme Court jurisprudence would not appear to support this part of the claim for one in appellant’s position, where there was a jury finding of recklessness (see p. 347, fn. 9, in this brief, below), it would appear that respondent is not disadvantaged by his belated citation of the Eighth Amendmentin this context. (See Tison v. Arizona (1987) 481 U.S. 137 [states may makeaccessorial liability with reckless indifference to humanlife death- eligible].) Appellant therefore asks this Court to consider the Eighth- Amendmentquestion as well. 343 the arguments that were made anddid not include the one madehere.” Aswill be shownbelow,this Court nonetheless madea passing referenceto a possible issue about a presumption and concludedthat it was not a problem in that case, given the other instructions read to that jury, but the more crucial of those instructions was not given here. Respondent, who claimsthat appellant’s reading of the case is a “gross misinterpretation,” seems to understand the plain language of the opinion through the filter of what respondent wouldlike it to say. Respondentinsists that the Court “plainly held that CALJIC No. 3.02, with or without reference to other instructions, did not create an unconstitutional presumptive mental state and correctly instructed on vicarious liability.” (RB 174.) What the Court actually said was that the instruction covered the natural and probable consequencesdoctrine correctly—notthat it alone handled everything required to explain vicarious liability. The question about the doctrine arose because of a defense contention® that the trial court should have explained natural and probable consequencesin termsof reasonable foreseeability. After explaining the equivalence of the expressionsin lay usage andthe lack of authority for the °The opinion noted that one of the appellants contended that (1) the instruction at issue here “wasprejudicially defective in failing to inform the jury that ‘natural and probable’ means‘reasonably foreseeable’”; (2) the trial court failed to adequately instruct on the use of certain evidence admitted on the issue of intent; and (3) that “the natural and probable consequences doctrine is unconstitutional in capital cases because it predicates criminal liability on negligence, in violation of due process.” (34 Cal.4th at p. 107.) Herethe claim is not that the negligence standard is an unconstitutional basis for capital liability, although it is, but that the jury was instructed to conclusively presume the statutory element of specific intent from the predicate fact of negligence. °See the previous footnote. 344 defendant’s position, this Court concluded, Indeed, in People v. Nguyen (1993) 21 Cal.App.4th 518,535 ..., the Court of Appeal found sufficient, without inclusion of the phrase “reasonably foreseeable,” the instruction Coffman challenges here. We agree with the Nguyen court that CALJIC No. 3.02 correctly instructs the jury on the natural and probable consequences doctrine. (People v. Coffman and Marlow, supra, 34 Cal.4th 1, 107-108.) There is nothing else in the opinion that could possibly be interpreted to mean what respondentclaimsit says. Andatthis point in the discussion, nothing had been said about presumptions. The next three sentences in Coffman and Marloware the only onesthat conceivably pertain to the issue presented here: To the extent Coffman contends that imposition of liability for murder on an aider and abettor under this doctrine violates due process by substituting a presumptionfor, or otherwise excusing, proof of the required mental state, she is mistaken. Notably, the jury here wasalso instructed with CALJIC No.3.01, advising that an aider and abettor must act with the intent of committing, encouraging or facilitating the commission of the target crime, as wellas CALJIC No. 8.81.17, which required, for a true finding on the special circumstance allegations, that defendants had the specific intent to kill the victim. These concepts fully informed the jury of applicable principles of vicariousliability in this context. (People v. Coffman and Marlow, supra, 34 Cal.4th 1, 107-108.) Appellant’s position is that Coffman and Marlow is distinguishable because there was no specific-intent requirement in the version of CALJIC No. 8.81.17 given to appellant’s jury.’ Respondent maintains, however,that the language about the "No. 3.01, which contained the specific-intent requirement, is not in itself enough to avoid the errorin the instructional package. To the extent that it and the very clear directives set out in No. 3.02 contradict each other, it is (continued...) 345 related instructions, including one requiring specific intent to kill the victim, was not necessary to the Court’s conclusion onthe pointat issue here.” If that were the case, then that conclusion would have been given without any supporting reasoning whatsoever, in the three words, “she is mistaken.” This is a strange reading of the opinion and, if correct, would be a thin reed on whichto rest respondent’s position. Finally, in Coffman andMarlow,the jury did findtrue the special-circumstance allegation, as to which there was a clear intent-to-kill requirement. (/d. at p. 108.) Respondentalso erroneously disputes the other premise of appellant’s conclusion that Coffman andMarlowis distinguishable. Respondentclaimsthat appellant’s jury was “in fact instructed similarly to the Coffman & Marlow juries.” (RB 175.) The version of CALJIC No. 8.81.17 given in appellant’s case did not require specific intent to kill for a true finding on the robbery- murderspecial circumstance underaider/abettorliability. However, respondent claims that the same function was fulfilled by CALJIC No. 8.80.1, “which instructed that, in order to return a true finding on the special circumstance allegations, they had to find that appellants specifically intended to kill the 7(...continued) impossible for a reviewing court to determine whichrule the jury applied, and reversal is required. (Francis v. Franklin (1985) 471 U.S. 307; see also People v. Ford (1964) 60 Cal.2d 772, 796, overruled on another point in People v. Satchell (1971) 6 Cal.3d 28. Both cases were cited at AOB 363.) The reason that the special-circumstance instruction could prevent reversal is that the error would be knownto be harmlessif the jury rendered anotherverdict(i.e., on the special circumstance ofrobbery-murder) for which it was unambiguously instructed that it had to find intentto kill. *See RB 174-175. 346 victims.” (RB 175.) Notso. The instruction offered the alternative mentalstate of reckless indifference to human life, which is a higher standard than negligence but does not equate to an intentto kill.’ Respondent does not claim that any error, i.e., offering the jury the presumption that the statutory specific-intent element for aider and abettor liability on any crime is met by evidence that the crime was a foreseeable consequenceof the criminal action intended by the accessory, could be found harmless regarding any of the eight counts which it affected. (See AOB 541-542.) Respondent’s only harmlessness argumentis the erroneousclaim that the true findings on the special-circumstancesallegations showed intent to kill, The instruction read, If you find that a defendant wasnotthe actual killer of a human being or if you are unable to decide whether the defendant was the actual killer or an aider or abettor, you cannot find the special circumstanceto be true unless you are satisfied beyond a reasonable doubt that such defendant with the intentto kill aided, abetted, counseled, commanded, induced, solicited, requested,or assisted any actor in the commissionofthe murder in the first degree, or with reckless indifference to human life and as a major participant aided, abetted, counseled, commanded, induced, solicited, requested, or assisted in the commission of the crime ofrobbery or attempted robbery which resulted in the death of a human being, namely Joey Mans, Timothy Jones, Jose Aragon. A defendantacts with reckless indifference to humanlife when that defendant knowsor 1s aware that his acts involve a great risk of death to an innocent humanbeing. (CT 7: 1629-1630; RT 46: 7075, emphasis added.) Parenthetically, the reason that appellant is not making Coffman’s claim about a due-processviolation in making him death-eligible on the basis of negligence is that death eligibility may be predicated on being a major participant who acted with reckless indifference. 347 on the three murder counts. (RB 175.) The guilt verdicts on the three murders and five of the other assaultive crimes must be reversed.'° // // ‘Respondent likewise does not dispute that, absent the presumption, there was insufficient evidence of accessorial specific-intent on Counts HI and IX, barringretrial. 348 XVHI-XXIv' In the main, Claims XVIII through XXIV present challenges pertaining to the reasonable-doubtinstruction, the death penalty statute, and implementing instructions which this Court has rejected previously and which,in general,it rejects summarily on a routine basis. Appellant presents what he believes to be substantial reasons to reconsider each of these holdings. Respondent has replied, in summary fashion, by citing this Court’s precedents rejecting the challenges. Appellant therefore relies on the arguments made in his opening brief. One of those claims, however, calls for more than summary treatment. The contention labeled XXIII.B,’ regarding the failure to delete inapplicable sentencing factors, presents what appellant believes to be new arguments that this Court has not yet considered, and the next argument, XXIII.C, regarding restrictive adjectives used in the list of potential mitigating factors, contributes to the analysis in “B” as well. Respondent addresses only the latter point,’ saying nothing about the inapplicable-factors issue. In any event, as appellant made clear in an italicized introductory paragraph in the opening brief, he is definitely not presenting that issue as a “generic” claim,’ and he seeksfull review of it. "See AOB 543-596. Respondent addresses these claims in its Arguments VI (enactment of special circumstances), VII (reasonable doubt instruction), and XVITI (challenges to death-penalty scheme), beginning at RB 161, 164, and 262, respectively. “AOB 582-586. °RB 265, first two sentencesoffirst full paragraph. “See People v. Schmeck (2005) 37 Cal.4th 240, 303-304. 349 XXV APPELLANT ROMERO CONTINUESTO JOIN IN ALL CLAIMS OF ERROR RAISED BY CO-APPELLANT SELF WHICH MAYINURE TO HIS BENEFIT, EXCEPT FOR WITHDRAWING JOINDER IN CLAIM II Appellant Romero previously joined in all claims not raised in the opening brief, but raised by co-appellant Self, which might inure to appellant Romero’s benefit. He reserved the right to withdraw,in a later pleading, his joinder as to any particular claim or argument, should such action appear appropriate. (AOB 596.) He hereby withdrawshis joinder in ArgumentII in the Self brief, raising several claims of prosecutorial misconduct. // // 350 CONCLUSION Forall of the reasonsstated above,the convictions on counts IJ, II, HI, V, VI, VIII, IX, and X must be reversed, the death judgment must be reversed, and retrial is prohibited on counts II and IX. DATED: May 12, 2011. Respectfully submitted, Michael P. Goldstein, Attorney for Appellant Romero 351 CERTIFICATE OF COUNSEL (CAL. RULES OF COURT, RULE 36(b)(2)) I, Michael P. Goldstein, am the attorney appointed to represent Orlando Gene Romero,Jr., in this automatic appeal. I conducted a word countofthis brief, using the word-processing program usedto prepare the brief. On the basis of that count, I certify that this brief is 100,152 words in length, excluding the tables andcertificates. Dated: May 12, 2011 Michael P. Goldstein
