PEOPLE v. LEON (RICHARD)Appellant’s Reply BriefCal.June 27, 2013SUPREME COURT COPY CQ)PY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, CRIM.No. 8056766 Plaintiff and Respondent, | Death Penalty Case vs. | Los Angeles , :. - County Superior RICHARD LEON, No. PA012903 Defendant and Appellant. FILED. JUN 27.2013 APPELLANT'S REPLY BRIEF Automatic Appeal from the Judgmentof the___ Superior Court of the State of California Deputy for the County of Los Angeles Frank A. McGuire Clerk The Honorable Judge Ronald S. Coen MICHAEL J. HERSEK | State Public Defender — ALISON PEASE | _ Senior Deputy State Public Defender ‘Cal.State Bar No. 91398 ~s Attorneys for Appellant. DEATH PENALTY TABLE OF CONTENTS Page APPELLANT’S REPLY BRIEF......... ccc cece cece cece eeeees 1 I. THE TRIAL JUDGE ERRED IN REJECTING THE DEFENSE REQUEST THAT PROSPECTIVE JURORS BE ASKED WHETHER THEY WOULD ALWAYSVOTE FOR DEATH IF APPELLANT WAS CONVICTED OF MULTIPLE MURDERS AND WHETHER THEY WOULD CONSIDER MITIGATING EVIDENCETO BE AN “ABUSE EXCUSE”.. 2 A. Respondent’s Arguments Cannot Prevail ............. 2 B. The Prejudice Resulting From the Failure to Include Appropriate Questions on the Juror Questionnaire and in Voir Dire .........0 eee ee eees 15 C. The Trial Judge Erredin Refusing Appellant’s Request for a Question About “Abuse Excuse” Evidence .........cceeeeeeeeeecens 17 D. Conclusion ....... cece een erence eeeee eee ee eees 20 Il. THE TRIAL JUDGE ERRONEOUSLY DISMISSED FOR CAUSE THREE PROSPECTIVE JURORS BECAUSE OF THEIR VIEWS ABOUT THE DEATH PENALTY.......... 21 A. Introduction ...... . wee e eee e eee eee e eee etseeeeennaes 22 B. Responseson the Questionnaire and During Voir Dire ........... cece cece eee eee ceee 26 1. Prospective Juror RC... .. ccc cece eee eee 26 2. Prospective Juror D.A. 2.0... cece ee ee tence 29 3. Prospective Juror N.C. ......eccece cence eee s 33 Il. TABLE OF CONTENTS Page Respondent’s Arguments Regarding the Dismissals of Prospective Jurors R.C., D.A., and N.C. are not Persuasive ........ cece cece cena 35 No Deference is Due to the Trial Judge; Instead, This Court Must Conduct De Novo Review .......... 39 Nothing in the Record Shows that DemeanorPlayed Any Part in the Decision to Excuse Prospective Jurors R.C., D.A., and N.C... cece ccc ce eee ee een eees 41 To the Extent the Answersof Prospective Juror R.C. and N.C. Were Not Inconsistent or Equivocal, They did not Establish that These Prospective Jurors Were Substantially Impaired and Thus Not Qualified to Sit on a Capital Jury 2.0... ccc cece eee eee ween eens 45 The Trial Court’s Error in Dismissing Prospective Jurors R.C., D.A., and N.C. Requires Reversal of Appellant’s Death Sentence ...........ee see ee eee 46 THE TRIAL JUDGE ERRED IN ALLOWING THE TESTIMONY OF JULIO CUBE PURSUANT TO EVIDENCE CODE SECTION 1101, SUBDIVISION (B) .... 49 A. B. Introduction ........ccee eee e eee e cence cece eeennes 49 The Testimony of Julio Cube was not Probative of the Real Issue in This Case: the Identity of the Perpetrators ............0eeeeeee 50 _ The Trial Judge Should Have Excluded Cube’s Testimony Under Evidence Code Section 352 ........ 55 The Introduction of Julio Cube’s Testimony wasPrejudicial Error, Requiring Reversal........... 58 il IV. VI. VIL. TABLE OF CONTENTS Page THE ERRONEOUS ADMISSION OF IDENTIFICATION TESTIMONY OF DETECTIVE OPPELT CONTRAVENED STATE EVIDENTIARY RULES AND APPELLANT’S DUE PROCESS RIGHTS..... see e eee teen nee r cetera ee eees 60 THE TESTIMONY ABOUT THE AUTOPSY OF NORAIR AKHVERDIAN VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONTATION... 69 A. Appellant has not Forfeited this Claim by Failing to Object at Trial ................ cece 69 Despite this Court’s Decision in People v. Dungo, the Court Should Find that the Autopsy Reportin this Case was Testimonial ...........0 ccc ccc cccecceecs 70 THE PROSECUTOR’S IMPROPER CLOSING ARGUMENTAT THE GUILT PHASE CONSTITUTED REVERSIBLE ERROR ........ 0c. cece eect e eee eect eees 79 A. Appellant’s Misconduct Claim was not Forfeited ..... 79 B. The Prosecutor’s Comments were Improperand Prejudicial .......... 0... cece eee eaes 82 C. This Error was not Harmless .............00000000 85 THE TRIAL JUDGE ERRED WHENHE INSTRUCTED THE JURY WITH CALJIC NO. 2.52 AT APPELLANT’S GUILT PHASE TRIAL 220... cece cece cece cece teen eees 89 A. Respondent Fails to Counter Appellant’s Claim that CALJIC No. 2.52 is Impermissibly Partisan and Argumentative ....... 0. ccc cece ccc e eee e ec eeecenes 90 The Error of Instructing Pursuant to CALJIC No. 2.52 was not Harmless ................ 93 ST TABLE OF CONTENTS Page VIIL THE TRIAL JUDGE’S REFUSAL TO GRANT APPELLANT’S MOTION TO CONTINUE WAS AN ABUSEOF DISCRETION AND VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS ....-+-+0:: 95 A. Respondent’s Brief Presents an Inaccurate Picture of the Facts ....---+++eeerereccee 95 1. There was no Evidence Mr. Leon “Attacked” Bryan Soh .....--eseeeeeerseeces 95 2. Mr. Leon Provided Compelling Reasons for a Continuance ......+eeeeeeereses 97 B. The Trial Judge Abused his Discretion in Denying the Requestfor a Continuance .......-+26++5 101 C. The Denialof the Continuance Motion Prejudiced Appellant ...2.-.+-+sseerereeer eerste 102 XI. THE TRIAL JUDGE ERREDWHEN HE REFUSED TO GIVE APPELLANT’S PROPOSED INSTRUCTIONS ON MERCYAT THE PENALTY PHA SE .....-eeeeeeeee 106 THE TRIAL JUDGE ERRED IN ALLO WING HEARSAY EVIDENCE REGARDING AN INCID ENT IN THE COUNTY JAIL INVOLVING APPELL ANT ....---:-+s005 112 A. Soh’s Statement to Deputy Hutchin son did not Qualify as a Spontaneous Statement und er Evidence Code section 1240 ......-eee eeereerereee 113 Admission of the Testimony about Soh’s Hearsay Statements Violated Appellant’ s Sixth Amendment Rights .....--.+-sseecse ereserrerees 117 The Admission of Soh’s Hearsay Stateme nts Prejudiced Appellant .......-+++++0+5 ce ce ee eeee 122 iv TABLE OF CONTENTS Page CONCLUSION ............eee eee cece eee eeeeeeeeeeeeees 124 CERTIFICATE OF COUNSEL cede ee eee eee e ween eee eeneeenes 125 TABLE OF AUTHORITIES Page(s) Adams v. Texas (1980) 448 U.S. 38 0...ccnt eset ness 36 Andrewsv. City & County ofSan Francisco (1988) 205 Cal.App.3d 938 ........++ +:cence eect enn ees 57 Beck v. Alabama (1998) 447 U.S. 625 00.0 eee eee eenseben ences 94 Blevins v. Cesna Aircraft Co. (10th Cir. 1984) 728 F.2d 1576 21.0... eect eee reenter ees 85 Bullcoming v. New Mexico (2011) 564 U.S.___, 131 S.Ct. 2705 6... eee eee eee nes 71, 76, 77 Caldwell v. Mississippi (1985) 472 U.S. 320.6... eee eee een cence ences eee e eens 94 California v. Brown, (1987) 479 U.S. 538 2... cece teen enter etre nets 107 Chapmanv. California . (1967) 386 U.S. 18.2... e ee eee eeeSinn e eee e ence eeeeeee passim Coy v. lowa (1988) 487 U.S. 1012 0... cence ee eter ee ne es 78 Crawford v. Washington (2004) 541 U.S. 36... cece teeter e ene e nes passim Davis v. Washington (2006) 547 U.S. 813 «06. eee eeecee eee 77, 118, 119, 121 Delaware v. Van Arsdall (1986) 475 U.S. 673 «06.cab n eee e eee eee eene 78 Vis TABLE OF AUTHORITIES Page(s) Dennis v. United States (1950) 339 US. 162 0.0.eceee nen n eens 13 Donnelly v. DeChristoforo (1974) 416 U.S. 63700eetc nent ene nes 87 Drake v. Kemp (11th Cir. 1985) 762 F.2d 1449 0...ccccee 107 Granfield v. CSX Transp.Inc. (ist Cir. 2010) 597 F.3d 474 20.cece teen tenes 85 Gray v. Mississippi (1987) 481 U.S. 64800ceceeee eens 21, 48 Green v. Bock Laundry Machine Co. (1989) 490 ULS. 504 2occteen een e eens 92 Gregg v. Georgia (1976) 428 U.S. 153 2.ccccena 35, 107, 108, 110 Griffin v. California (1965) 380 U.S. 6092.cece cnet ene tees 11] In re Hitchings (1993) 6 Cal.4th 97 ooccccece ete enna 18, 19 In re Winship (1979) 397 ULS. 3580.tent e tne eens 92 lvy v. Security Barge Lines, Inc. (Sth Cir. 1978) 585 F.2d 732 0...teen ene eee 85 Joan W. v. City ofChicago, (7th Cir. 1985) 771 F.2d 1020 0...ceceene 85 Vil TABLE OF AUTHORITIES Page(s) Johnson v. Mississippi (1988) 486 U.S. at p. 590 «16... eee eeeenenee n ees 94 Lockhart v. McCree (1986) 476 U.S. 162 00...eeeeee teres 26, 46 Lovett ex. rel. Lovett v. Union Pacific R. Co. (8th Cir. 2000) 201 F.3d 1074 2.0... cece eee eee teen e ene 85. Martinez v. State 761 So.2d 1074 (Fla.2000) .....eeeees 64 Maxwell v. Pennsylvania (1984) 469 U.S. 971occe eens 110 McCleskey v. Kemp (1987) 481 U.S.279 0. cece eeet ee t ene ee eetnnenes es 110 Melendez-Diaz v. Massachusetts po (2009) 557 U.S. 305 2.6... eee eee eee cee eee eee 69, 71,77 Michigan v. Bryant (2011) 562 U.S.UBL oeeee ens 118, 119, 120 Moore v. Balkcom (11th Cir. 1983) 716 F.2d 1511 ence deeb ee nee ene tenn nee eeee 108 Morford v. United States (1950) 339 U.S. 258 0. cece eeeee eer nent ees 14 Morganv.Illinois (1992) 504 U.S. 719... c eeeetter e ees 13,17 Neumann v. Bishop (1976) 59 Cal.App.3d 451 ...----- eescee eee een enn nneaee 85 vill TABLE OF AUTHORITIES Page(s) Old Chiefv. United States (1997) 519 U.S.1720.cenceence ees 104 Owens v. Superior Court ofLos Angeles County (1980) 28 Cal.3d 238 0.0...ceceee eee ens 98 People v. Allen (1986) 42 Cal.3d 1222 2...ceneens 107 People v. Andrews (1989) 49 Cal.3d 200 2...ceceeee n eae 107 People v. Avila (2006) 38 Cal4th 491 2.ceceen eens 41 People v. Balcom (1994) 7 Cal.4th 491oeeeeeens 53 People v. Beeler . (1995) 9 Cal. 4th 953 00ceteen eens 70 People v. Black (2007) 41 Cal.4th 799 02.ccteen eee 69 People v. Bolton (1979) 23 Cal.2d 208 2... ccccee ttn tenn en nnes 82 People v. Bonin (1988) 46 Cal.3d 659 0...cetteeens 80 People v. Brown (1985) 40 Cal.3d 512 2...ceete 107 People v. Brown (1988) 46 Cal.3d 432 2...ceceence nes 94 1X TABLE OF AUTHORITIES Page(s) People v. Brown (2003) 31 C.4th 518 2...eeeens 116, 119, 120 People v. Byoune (1966) 65 Cal.2d 345 2...eseee eee 101 Peoplev. Cage (2007) 40 Cal.4th 965 2...eeeee ee 121, 122, 123 People v. Cajina (2005) 127 Cal.App.4th 929 2...eeee eens 104 People v. Carasi (2008) 44 Cal.4th 1263 2.6...iceteens 5,6 People v. Carter (2003) 30 Cal.4th 1166 2.0... ccc ccceee eens 87 People v. Cash (2002) 28 Cal.4th 703 2... ccceeeeee 2, 3, 16, 17 People v. Chavez (1980) 26 Cal.3d 334 0...ccceneeens 69 People v. Chavez (2004) 118 Cal.App.4th 379 2.0...eens 58 People v. Clark (1992) 3 Cal. 4th 41 ........... Lene teen eee e ete e ete ene 70 People v. Clark | (2011) 52 Cal.4th 856 2.1...cts114, 115, 116 People v. Cook (2006) 39 Cal.4th 566 2.1...eeeteenies 88 TABLE OF AUTHORITIES Page(s) People v. Courts (1985) 37 Cal.3d 784 0...cectene 98, 100, 101 People v. Crowe (1973) 8 Cal. 3d B15 Locteeet ene nes 13 People v. Cunningham (2001) 25 Cal.4th 926 20...cececette eee 16 People v. Daniels (1991) 52 Cal.3d 815 ...........ccc eee teen eee eee +. 90 People v. Duncan (1991) 53 Cal.3d 955... .eeeen nes 110 People v. Dungo (2012) 55 Cal.4th 608 2.0...ceceeens passim People v. Ewoldt (1994) 7 Cal.4th 380 0...eteeens 50, 53, 54 People v. Farley . (2009) 46 Cal.4th 1053 2...ceeens 44 People v. Farmer (1989) 47 Cal.3d 888 0...ceeens 114, 117 People v. Fields (1984) 35 Cal.3d 3292.eeenen eas 88 People v. Geier (2007) 41 Cal.4th 555 ooeee70 People v. Green (1980) 27 Cal. 3d 1 oo. eccceet tenes 81 Xi TABLE OF AUTHORITIES Page(s) People v. Gutierrez (2009) 45 Cal.4th 789 2.0...ceeens 117 People v. Hamilton (1989) 48 Cal.3d 1142 22.ceceeee es 80 People v. Hernandez (1988) 47 Cal.3d 315 0...cccee ete nes 35 People v. Hill (1998) 17 Cal.4th 800 00...ceeens 79, 81 People v. Hill (1992) 3 Cal4th 959 2.ceete eee 1 People v. Horning . (2004) 34 Cal.4th 871 ...........00.8.eeeocc ence eee eects 45 People v. Ingle (1986) 178 Cal.App.3d 505 2... ccccceects 61, 62 People v. Johnson (2004) 121 Cal. App. 4th 1409 ...........cece eee nent n eee 70 People v. Jones (2012) 54 Cal.4th 1...eece eens 35, 43 People v. Kaurish (1990) 52 Cal.3d 648 2.0...eceeenee ee ees 36 People v. Kelly (2007) 42 Cal.4th 763 ...........008.teen ene eee 53 People v. Kipp (2001) 26 Cal.4th 1100 22...eeeeee 88 xii TABLE OF AUTHORITIES Page(s) People v. Lancaster (2007) 41 Cal4th 50 2...eens36, 37 — People v. Lewis (2008) 43 Cal.4th 415 2...cecetenes 44 People v. Lindberg (2008) 45 Cal4th] ............teneseect teen eee nea 53 People y. Lindsey (1988) 205 Cal. App. 3d 112 2...ceeee ee 81 People v. Lopez (2011) 198 Cal.App.4th 698 2...ceeeee 50 People v. Lynch (2010) 50 Cal.4th 693 2.0.2... eee eee. cb eee eee eens 117 People v. Martinez (2009) 47 Cal.4th 399 2...ceeee eee 39, 44 People v. McKinnon (2011) 52 Cal.4th610 2...eceee 39, 41, 47 People v. Mincey (1992) 2 Cal.4th 408 0.0...cence eens 90 People v. Mixon (1982) 129 Cal.App.3d 118 0.2...eeeeee 61, 62, 63 People v. Nieto Benitez (1992) 4 Cal.4th 91 ooo.ceenee ees 90 People v. Paniagua (2012) 209 Cal.App.4th 499 oo...eee, 55, 56, 57 xii TABLE OF AUTHORITIES Page(s) People v. Pearson (2012) 53 Cal.4th 306 26...ceceteens 45 People v. Perry (1976) 60 Cal.App.3d 608 2.0... ceeeneee eens 61 People v. Pitts (1990) 223 Cal.App.3d 606 2.0.0... ceecece 79, 80, 81 People v. Poggi (1988) 45 Cal. 3d 306 ............cee eee eee ee ene 113 People vy. Raley (1992) 2 Cal.4th 870 2...eeeeens 114, 116 People v. Ramirez (2006) 143 Cal.App.4th 1512 2... eeeeeeee 114 People v. Riccardi (2012) 54 Cal.4th 758 2...keene... 21, 30, 39 People v. Rios (1985) 163 Cal.App.3d 852 2... ccceee tee tees 81 People v. Riva (2003) 112 Cal. App. 4th 981 2.ceceee eee 117 People v. Robinson (1954) 42 Cal.2d 741occeee eens 99 People v. Rodriguez (1986) 42 Cal.3d 730 2... ccccette eens 109, 111 People v. Roldan (2005) 35 Cal.4th 646 2...ceceeee eens 18 XLV TABLE OF AUTHORITIES Page(s) People v. Rountree (2013) 56 Cal.4th 823, 157 Cal. Rptr. le.eeeee eee 42, 43 People v. Russell (2010) 50 Cal.4th 1228 0...cetteeens 4] People v. Saffold (2005) 127 Cal. App. 4th 979 occeens 70 People v. Sakarias (2002) 22 Cal.4th 596 2...ieeecent eens 98 People v. Scott (1978) 21 Cal.3d 284 2...cettenes 78 People v. Smith (2005) 135 Cal. App. 4th 914 2...eeeeee 116 People v. Stansbury (1993) 4 Cal.4th 1012 2.ecteens 84 People v. Stewart (2004) 33 Cal.4th 425 21.cee32, 36, 46 People v. Thomas (2011) 51 Cal.4th 449 oo.ccceens 44 People v. Thomas (2012) 53 Cal.4th 771...keeee tenes 39, 41 People v. Thornton (2000) 85 Cal.App 4th 44 20.0.0... cece eee ees 105 People v. Turner (1990) 50 Cal.3d 668 2.0...ceceee tenets 69 XV TABLE OF AUTHORITIES Page(s) People v. Valdez (2012) 55 Cal.4th 82 2...eee14, 15 People v. Vance (2010) 188 Cal.App.4th 1182 2...ceeeee 84 People v. Vieira (2005) 35 Cal.4th 264 2...eecteeeee 7 People v. Waidla (2000) 22 Cal.4th 690 0.0...eeetees 114 People v. Watkins (2012) 55 Cal.4th 999 2.eee39, 41 People v. Watson (1956) 46 Cal.2d 818 ..........6..ee59 People v. Wright (1988) 45 Cal.3d 1126 2...eeeeee eee 90 Peterson v. State (Fla.Ct.App.1979) 376 So.2d 1230 2...eee85 Proctor v. State (2012) 97 So.3d 313 0...ceeeeeae 63, 64 Roper v. Simmons (2005) 543 U.S. S5512.eteeee 35, 106 Rosales-Lopez v. United States (1981) 451 U.S. 182 20.eeebeeen teen eens 19 Schwendeman v. Wallenstein (9th Cir. 1992) 971 F.2d 313 2...eens94 Xvi TABLE OF AUTHORITIES Page(s) Stansbury v. California (1994) 511 U.S.318 02.etette 84 State v. Belk (2009) 689 S.E.2d 439 2.eenssees 64 State v. Bell (Conn. 2007) 931 A.2d 198 20.certeens 85 State v. George (2009) 150 Wash.App. 110 2.0...ceeee 64, 65 State v. Latney (N.J. App.Div. 2010) 1 A.3d 741.1... ceceeee 91,92 States v. Fessel (Sth Cir. 1976) 531 F.2d 1275 0...tenes 99 Sullivan v. Louisiana (1993) 508 US. at p. 279 2.eeeeee eens 94 Thompson v. Oklahoma (1987) 487 US. 815 2.eetee 35 United States v. Fessel (Sth Cir. 1976) 531 F.2d 1275 1.00... .0.00..eee teens 99 United States v. Flynt (9th Cir. 1985) 756 F.2d 1352 2...cette 98 United States v. Pope (9th Cir. 1988) 841 F.2d 954 2...cee99, 101 United States v. Teslim (7th Cir. 1989) 869 F.2d 316 2...teens 85 XVii TABLE OF AUTHORITIES Page(s) United States v. Williams (7th Cir 1994) 33 F.3d 876 20...eeenee 91 Uttecht v. Brown (2007) S51 US. ooeeeSee e eee eee 36, 37, 38, 48 Wardius v. Oregon (1973) 412 U.S.470 2...ccee tenn eens 92 Williamsv. Illinois (2012) 557 U.S.132 S.Ct. 2221 2.eee ee passim Wainwright v. Witt (1985) 469 US. 412 .eenens passim Wong Sun v. United States (1963) 371 U.S. 471 26.cceens91 Woodson v. North Carolina (1976) 428 U.S. 280 2...ceeens 35, 110 CONSTITUTIONS Cal. Const., art. I, §§ Tilcee eee e eee e nee 89, 93, 94 h 89, 93, 94 16 iceeee eee 89, 93, 94 89, 93, 94 U.S. Const Amends apassim VIccc eee tenes passim VEL oo.eeeeee passim DSpassim XViil TABLE OF AUTHORITIES Page(s) STATUTES Code of Civil Procedure § 223) 20...ceees 18 Evid. Code, §§ B52 cecetenes 55, 56, 57, 58 0) 61 1101, subd. (b) 2...eeeee 49, 58 120 113 1240 Looe cece ee ees 113, 114, 117 Govt. Code § OeSS77 Pen. Code, §§ 87ceeee eee eee eens 5 190.3, subd. (b) ......... 0.0005. 95,101, 112, 123 830.30 . occceetee eee teens 77 1050 subd. (€) 2...eecteee 98 LV27C cectte nee ees 92 JURY INSTRUCTIONS CALJIC Nos. 252ccceee teen eens 89, 90, 92 a108 B88cetteteens 108 TEXT AND OTHER AUTHORITIES 5 John H. Wigmore, Evidence § 1367 (3d ed. 1974) .............45. 104 Blauner, Sociology in the Courtroom: The Searchfor White Racism in the Voir Dire in Minimizing Racism in Jury Trials...00es13 Broeder, Voir Dire Examinations: An Empirical Study, (1965) 38 So.Cal.L.Rev. 503 0.0... eeceeeens 13 Cobb, Reviving Mercy in the Structure ofCapital Punishment, (1989) 99 Yale L.J. 389 20...teenies 107 Shakespeare, Wm., The Merchant of Venice .........00..0 0. 107, 111 XIX IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Defendant and Appellant. ) PEOPLE OF THE STATE OF CALIFORNIA, ) | ) Plaintiff and Respondent, ) No. $056766 ) V. ) Los Angeles County ) Superior Court RICHARD LEON, ) No. PA012903 ) ) ) APPELLANT’S REPLY BRIEF In this reply brief, appellant, Richard Leon, addresses specific contentions madeby respondent, but does not reply to argumentsthat are adequately addressedin his opening brief. In particular, this reply does not address Arguments IX, XII, XIII and XIV. The failure to address any particular argument, sub-argumentor allegation made by respondent, or to reassert any particular point made in the opening brief, does not constitute a concession, abandonmentor waiverof the point by Mr. Leon (see People v. Hill (1992) 3 Cal.4th 959, 995, fn. 3), but reflects his view that the issue has been adequately presented and the positions of the parties fully joined. The arguments in this reply brief are numbered to correspond to the argument numbersin appellant’s openingbrief.' ' All statutory references are to the Penal Codeunlessstated otherwise. As in the openingbrief, citations to the record are abbreviated as follows: “CT”is the clerk's transcript on appeal, and “SCT”is the supplemental clerk's transcript on appeal. The reporter’s transcript for the trial is abbreviated “RT.” For each citation, the volume numberprecedes, — and the page numberfollows, e.g, 1 CT 1-3, is the first volume to the (continued...) 1 I. THE TRIAL JUDGE ERRED IN REJECTING THE DEFENSE REQUEST THAT PROSPECTIVE JURORS BE ASKED WHETHER THEY WOULD ALWAYS VOTE FOR DEATH IF APPELLANT WAS CONVICTED OF MULTIPLE MURDERS AND WHETHER THEY WOULD CONSIDER MITIGATING EVIDENCE TO BE AN “ABUSE EXCUSE” In his opening brief, Mr. Leon argued generally that the jury selection processat his trial deprived him of a fair and impartial jury in violation of his constitutional rights under the Sixth, Eighth and Fourteenth Amendmentsto the federal constitution. (AOBat 58-88.) He specifically argued that the trial judge erred in denying his requests for additional questions in the juror questionnaire and refusing to allow counsel to ask follow-up questions or even to ask follow-up questions himself. Appellant’s opening brief (“AOB”) also arguedthatthe trial judge was improperly motivated by a desire to shorten the jury selection process and by a biasin his rulings regarding challenges for cause made by the two parties. (AOBat 59-60, 72-73.) | Respondent’s brief rejects all these claims. A. Respondent’s Arguments Cannot Prevail Respondentargues that appellant cannot rely on this Court’s decision in People v. Cash (2002) 28 Cal.4th 703 because in this case jurors were asked the precise questions prohibited by the trial court in Cash. Specifically, jurors were asked about their views concerningtheir ability to perform their function in cases involving special circumstances (which in this case included robbery-murder and | (continued) clerk’s transcript at pages 1-3. multiple murders), and specifically asked whether there were any circumstances under which a prospective juror would automatically impose the death penalty. (See Question 58(d).) (RB at 68.) Respondent misrepresents the record. As wastrue in the Cash case, the issue raised by defense counsel wasthe refusal of the trial judge to ask specific questions to the prospective jurors about facts in the case that might makeit impossible for a prospective juror to vote for life without the possibility of parole at the penalty phase trial. In Cash, supra, 28 Cal.4that, p. 719, the question proposed by the defense and rejected by the trial court was whetherthere were “any particular crimes” or “any facts” that would cause a prospective juror to automatically vote for the death penalty. Respondent’s claim that subsection (d) of question 58 of the juror questionnaire in this case “. . . askedthe precise questions prohibited by the trial court in Cash” (RB at 68) is not true. In Cash, the defense sought to - determine whethera prospective juror would automatically vote for death when heor she learned that Mr. Cash, when he wasa juvenile, had killed his grandparents. By contrast, question 58(d)’ asked whetherthe * Question 58(d)stated: Assumefor the sake of this question only that the jury has found the defendantguilty of first degree murderand has found one or more of the special circumstancestrue and that you are in the penalty phase. Would you, because of any views that you may have concerning capital punishment, automatically refuse to vote in favor of the penalty oflife imprisonment withoutthe possibility of parole and automatically vote for a penalty of death, without considering any of the evidence, or any of the aggravating and mitigating factors (to which you will be instructed) regarding the facts of the crime and the background and character of the defendant. (continued...) prospective juror generally would automatically refuse to vote for a sentenceoflife without the possibility of parole and automatically vote for the death penalty. Defense counselin this case asked thetrial judge to ask a morespecific question; that is, whether the fact that the case involved more than one murder would lead them to vote automatically for the death penalty. The general nature of question 58(d) simply did not provide prospective jurors with the information necessary to determinetheir ability to remain opento both penalty options. | In this case, the proposed question’ specifically asked if the jury * (...continued) (Emphasis in the original.) (1 SCT 43-44.) > The question proposed by the defense and rejected bythetrial court stated: 55-1. Assume, for the purpose of the following questions only, that a defendant has been found guilty of two counts of murderin the first degree, and that the special circumstance of multiple murder and/or the special circumstance of robbery murder has been foundto betrue. . At the penalty phase, do youfeel so strongly about the death penalty that regardless of the evidence presented by the defendantand the prosecution in the guilt and penalty phases ofthetrial: (a) You would always vote against the death penalty? ___Yes No Please explain (b) You would always vote in favor of the death penalty? ae ___No Please explain (8 CT 1867.) were to be convict Mr. Leon of two counts of murderandfind the special circumstance of multiple murdertrue, would that cause prospective jurors to automatically vote for or against the death penalty. Thetrial judge rejected the question, stating only that he would inform the prospective jurors about the charges in the case before they filled out the questionnaire. What respondent’s brief fails to address is the fact that the jurors in this case were not asked whetherthe fact that the case involved two murders and a multiple murder special circumstance allegation would lead them to automatically vote for death. The only time the fact that the case involved two murders came up before the prospective jurors completed their questionnaires or underwentvoir dire was whenthetrial Judge stated very briefly in his opening remarks before jury selection that appellant was charged with two murders and the special circumstance of multiple murder.’ Prospective jurors were neverinstructed that their answers to any questions on the questionnaires should take into account the specific charges in this case. | Respondentalso relies uponthe decision in People v. Carasi (2008) 44 Cal.4th 1263. (RB at 69.) However, a key difference between the instant case and the Carasi case is that during the voir dire in the Casari case “the oral examination focused more specifically on premeditated * During the jury selection in this case, the only statements referring to the multiple murders alleged in this case were the following: Defendantis charged in two counts with a violation of Penal Code section 187 which is known as murder. Special circumstancesare alleged. That is that the murders were committed in the course of a robbery andthat there are multiple murders. (13 RT 224-225.) murder, multiple murder, and murder involving financial gain and lying in wait.” (d., 44 Cal.4th at pp. 1284-1285.) 'By contrast, in this case, there were no questions, either in the juror questionnaire or during the very limited voir dire, that focused on the facts in Mr. Leon’s case;that is, the two charges of murderand a special circumstance allegation of multiple murderas well as a special circumstance allegation of robbery murder. In the Carasi decision, this Court observed: ac 6 _..a defendant cannotinsist upon questions that are “ ‘so specific’ ” that they expose jurorsto the facts of the case,or tempt them to prejudge penalty based onthe aggravating and mitigating evidence. Nevertheless, voir dire cannot be so abstract that it fails to identify those jurors whose death penalty views would preventor substantially impair their performance under Witt, supra, 469 U.S. 412,424. Rules have developed to balance the competing interests. Thus, on the one hand,the trial court cannot bar questioning on any fact present in the case “that could cause some jurors invariably to vote for the death penalty, regardless of the strength of the mitigating circumstances.” But the court”s refusal to allow inquiry into such facts is improperonlyif it is “categorical ” and deniesall “opportunity” to ascertain juror views aboutthese facts. (Id., 44 Cal.4th at p. 1286 [citations omitted].) The voir dire which occurred in the Carasi case, as described in this Court’s opinion, provided the opportunity to question the prospective jurors about the multiple murders involved in that case; no such opportunity was afforded appellant. The Carasi opinion described the process in that case as follows: “The court urged counsel to suggest additionalor clarifying questions. The court asked many of counsel’s questions, and resolved excusals for cause.” (/d. at p. 1280.) Unlike the situation in Carasi, the jury ‘selection process in appellant’s case-both the jury questionnaire and the voir dire — denied all opportunity to ascertain prospective juror views about the facts of this case, including the fact it involved two murders. And certainly, that a capital case charges more than one murderis a fact that could cause somejurors to vote for the death penalty, regardless of mitigation evidence presented attrial. Similarly, in People v. Vieira (2005) 35 Cal.4th 264, another case cited in respondent’s brief, the death qualification process differed significantly from that found in this case. This Court rejected Vieira’s claim that the trial court erred in failing to include on the juror questionnaire the question, “Do you feel you would automatically vote for death instead oflife imprisonment with no parole if you found the defendant guilty of two or more murders?” However, the Court noted that the record in Vieira showedthat the defense was not prohibited from asking questions on voir dire about the multiple murders in the case. The Vieira opinionstates: Although asking the multiple-murder question in the jury questionnaire would not have been improper, refusal to include the question was not error so long as there was an opportunity to ask the question during voir dire. Because defendantdid not attempt to havethe trial court conduct a multiple murder inquiry during voir dire, and thetrial court was given no opportunity to rule on the propriety of that inquiry, we conclude defendant cannotclaim error. [citations omitted] (d., 35 Cal. 4th at pp. 352-353; emphasis added.) Bycontrast, in this case, after the trial judge denied defense counsel’s pre-trial request that the juror questionnaire include a question about whether if defendant were convicted of two murders anda special circumstance of multiple murder, it would lead a prospective juror to vote automatically for the death sentence, counsel asked the court to voir dire prospective jurors about this issue in a motion entitled Defendant’s Proposed Voir Dire Questions. At a hearing on this motion on May 15, 1996, defense counsel argued: How can wegeta fair and impartialjury if we have people sitting on the jury whoare goingtosay, if I believe beyond a reasonable doubtthat he killed two people, I will automatically give him the death penalty? I will not listen to mitigation. (14 RT 360-361.) Respondent does not address the fact broughtupat trial and again argued in appellant’s opening brief that the answers actually given by prospective jurors abouttheir attitudes about the death penalty undercut any claim that the questionnaire had questionswhich would effectively identify “automatic death penalty (““ADP”)” prospective jurors. Trial counsel pointedout that, based on the answers of 108 prospective jurors to the death qualification questions on the questionnaires, none would automatically vote for death. (14 RT 356.) Thetrial judge countered by stating that his review of the answers on the jury questionnaire revealed one ADP prospective juror. (14 RT 356.) Therefore, even according to the trial judge, based on the juror questionnaire, which was the primary tool used in jury selection in this case, less than one percentofthe prospective jurors called in Mr. Leon’s case would automatically vote for death after having convicted appellant offirst degree murder and a special circumstance. As noted in the openingbrief, several studies concerning the attitudes of those whoactually had been chosen to sit ona capital jury showed much higher percentages ofADP jurors. (AOBat 66-67, n. 26.) Even if one were to ignore the studies cited in the openingbrief, given the overwhelming public support for the death penalty in the mid-1990s,° it defies commonsensethatless than one percent of any group of randomly selected prospective jurors called to jury service would qualify as ADP jurors. Therefore, as trial counsel argued,it is clear that the death qualification questions both on the juror questionnaire and in voir dire were not effective in uncovering the realattitudes about the death penalty of the prospective jurors in Mr. Leon’s case. This was particularly true in this case because the four rote voir dire questions asked of the few prospective jurors actually orally examined were very similar to the questions about the death penalty on the questionnaire. The questions on the questionnaire regarding the death penalty were as follows: | 56. What are GENERAL FEELINGSregarding the death penalty? 57. What are your feelings on the following specific questions: . (a) Do youfeel that the death penalty is used too often? Too seldomly? Please explain: (b) Do you belong to any group(s) that advocate(s) the increased useor the abolition of the death penalty? (Yes? No?) 1. What group(s)? 2. Do you share the viewsofthis group(s)? 3. How strongly do you hold these views? (c) Is you view in answers (a) and (b) based onreligious consideration (Yes? No?) > During the mid-1990s, when the Pew Research Centerfirst surveyed on this issue, support for the death penalty wasat a historic high point. In 1996, 78% favored capital punishment for people convicted of murder. See www.people-press.org/2012/01/06/ continued-majority-support-for-death-penalty. Appellant wastried in 1996. 9 58. Ina death penalty case, there may be two separate phases or trials, one on the issue of guilt and the other on penalty. Thefirst phase is the “guilt” phase, where the jury decides on the issue of guilty as to the chargesagainst the defendant and the truth of any alleged special circumstance(s). The second phaseis called the “penalty” phase. If, and only if, in the guilt ~ phase,the jury finds the defendantguilty offirst degree murder (which will be definedat trial) and further finds any alleged special circumstancesto be true, then and only then would there be a second phaseortrial in which the same jury woulddetermine whether the penalty would be death orlife imprisonment without possibility of parole. (A special circumstance is an alleged description whichrelates to the charged murder, upon which the jury is to make a finding. For example, wasthe murder committed in the commission of certain felonies such as robbery,rape, or other enumerated offenses, or was the murderan intentionalkilling of a peace officer in the course of the performance of duty, a previous conviction of murder, etc.?) The jury determines the penalty in the second phase by weighing and considering certain enumerated aggravating facts and mitigating factors (bad and goodthings) thatrelate to the facts of the crime and the background and character of the defendant, including a consideration of mercy. The weighingofthese factors is not quantitative but qualitative, in which the jury, in orderto fix the penalty of death, must be persuaded that the aggravating factors are so substantial in comparison with the mitigating factors, that death is warranted instead oflife imprisonment withoutparole. (a) Assume forthe sake of this question only that, in the guilt phase, the prosecution has provedfirst degree murder beyond a reasonable doubt and you believe the defendantis guilty of first degree murder. Would you, because of any views that you may have concerning capital punishment, refuse to find the defendantguilt of first degree murder, even though you personally believed the defendantto be guilty offirst degree murder, just to prevent the penalty phase from taking place? (b) Assumefor the sake of this question only that, in the guilt phase, the prosecution has provento be true one or more special circumstances, beyond a reasonable doubt and you 10 personally believe the special circumstance to be true. Would you, because of any views that you may have concerning capital punishment, refuse to find the special circumstance(s) true, even though you personally believeit (them)to be true, just to prevent the penalty phase from taking place? (c) Assumefor the sake of this question only that the jury has found the defendantguilty of first degree murder and has found one or more ofthe special circumstancestrue andthat you are in the penalty phase. Would you, because of any views that you may have concerning capital punishment, automatically refuse to vote in favor of the penalty of death and automatically vote for a penalty of life imprisonment — without the possibility of parole, without considering any of the evidence,or any of the aggravating and mitigating factors (to which you will be instructed) regarding the facts of the crime and the background and character of the defendant? (d) Assumefor the sake of this question only that the jury has found the defendant guilty of first degree murder and has found oneor more ofthe special circumstances true and that you are in the penalty phase. Would you, because of any views that you may have concerning capital punishment, automatically refuse to vote in favor of for a penalty oflife imprisonment without the possibility of parole and automatically vote for the penalty of death, without considering any of the evidence or any of the aggravating and mitigating factors (to which you will be instructed) regarding the facts of the crime and the background and character of the defendant? (e) If your answerto either question (c) or question (d) was “yes,” would you change your answer,if you are instructed and orderedbythe court that you must consider and weigh the evidence and the above mentionedaggravating and mitigating factors regarding the facts of the crime and the background and character of the defendant, before voting on the issue of penalty? (f) Could you set aside your own personal feelings regarding what the law oughtto be and follow the law as the court explains it to you? . | The four voir dire questions askedby thetrial judge were as 1] follows: Do you have such conscientious objections to the death penalty that, regardless of the evidencein this case, you would refuse to vote for murderin the first degree merely to avoid reaching the death penalty issue? Do you have such conscientious objectionsto the death penalty thatregardiess of the evidencein this case, you would automatically vote for a verdict of not true as to any special circumstance merely to avoid the death penalty issue? Doyou have such conscientious opinions regarding the death penalty that, should we get to the penalty phaseofthis trial, and regardless of the evidence, you would automatically, and in every case, vote for death and never vote for life imprisonment without thel possibility of parole? Do you have such conscientious objections to the death penalty that, should we get to the penalty phase ofthistrial, and regardless ofthe evidence in this case, you would automatically vote for a verdictoflife imprisonment without the possibility of parole and never vote for the verdict of death? (14 RT 385-387.) These questions were so similar to the ones on the juror questionnaire that the voir dire in this case was meaningless since the questions were evidently not designed to go beyondthe inquiry madeby the few questions about the death penalty on the questionnaire. In fact, the questionnaire actually contained two questions (questions 58 (e) and (f), quoted ante) that went to the heart of the issue most relevant to death qualification under Wainwright v. Witt (1985) 469 U.S. 412, 424-426, whether a prospective juror could aside his or her views aboutcapital punishment and makethe penalty determination based onall ofthe 12 case did not cover this importantissue. Moreover, all of the questions about capital punishment, except question 57 on the questionnaire, posed to the prospective jurors in this case were close-ended;thatis, they elicited only yes or no answers. Such questionsare not as effective in uncovering the true views and feelings of prospective jurors as open-ended questions. In discussing closed-end questions, this Court observed in People v. Crowe (1973) 8 Cal. 3d 815: . . . questions to whichthereis a ‘right’ and a ‘wrong’ answer maybelesslikely to reveal such bias than more open-ended questions. See generally Blauner, Sociology in the Courtroom: The Searchfor White Racism in the Voir Dire in Minimizing Racism in Jury Trials (Ginger ed. 1969) pages 43-71; Broeder, Voir Dire Examinations: An Empirical Study (1965) 38 So.Cal.L.Rev. 503. (/d. at p. 831.) As the United States Supreme Court noted in Dennis v. United States (1950) 339 U.S. 162,“preservation of the opportunity to prove actualbias is a guarantee of defendant’s right to an impartial jury.” (/d. at pp. 171-172.) Appellant’s constitutional right to an impartial jury meantthat he was entitled to “. . .an adequate voir dire to identify unqualified jurors.” (Morganv. Illinois (1992) 504 US. ‘719, 729.) Moreover, as the Morgan decision stated, appellant was entitled “’,. upon his request, to inquiry discerning those jurors who, even prior to the State’s case in chief, has predeterminedthe terminating issueofhistrial, that being whether to impose the death penalty.” (/d. at p. 736.) The death-qualification questions in this case were so inadequate to the task of uncovering prospective jurors’ attitudes about the death penalty that they call to mind the Supreme Court’s caution in Wainwright v. Witt (1985) 469 U.S. 412, 424: “determinations of 13° juror bias cannot be reduced to question-and-answersessions which obtain results in the manner ofa catechism.” (emphasis added; see also Morfordv. _ United States (1950) 339 U.S.258, 259 [reversing conviction where voir dire was unduly restricted].) The four pattern questions during voirdire in this case did resemble a catechism. Since Mr. Leonfiled the opening briefin this case, this Court decided People v. Valdez (2012) 55 Cal.4th 82, which dealt with the issue of when, in a case involving more than one murder, a trial judge should allow certain questions to prospective jurors concerning how those facts will affect their ability to be impartial jurors in the penalty phase ofa capital case. This Court rejected Valdez’s claim that the trial judge had erred in restricting voir dire concerning howthefact that the case involved five charges of murder would affect prospective jurors’ ability to decide the issue of penalty fairly. The Court, however, stated: _.. atrial court would err in categorically prohibiting a defendant from asking prospective jurors whether they could vote for life without parole for a defendant convicted of ‘multiple murder.’ (People v. Valdez, supra, 55 Cal.4th at p. 165.) The Court rejected Valdez’s claim because thetrial judge did not so curtail the voir dire. In fact, in the Valdez case, the juror questionnaire specifically asked whetherin a case involving multiple murder, a juror would always vote for death, never impose the death penalty or base their decision on the evidence presented at both the guilt and penalty phases. (Ibid.) In addition to this question, beforedistributing the juror questionnaire, the judge in the Valdez casetold the prospective jurors that 14 questionnaire, the judge in the Valdez case told the prospective jurors that the death penalty was at issue because there was a multiple murder special circumstance allegation. (/bid.) Even more importantly, in questioning each prospective juror during voir dire, the trial judge in Valdez asked “whether, in a penalty phase where the special circumstance is more than one murder, he or she would always vote to impose the death penalty no matter what the evidence was, or would be open to returning either the death penalty orlife without parole depending on whatthe evidence was.”(/d.at p. 166.) Moreover, in the Valdez case, unlike the instant case, both the defense attorney and the prosecutor were allowed to question prospective jurors about whateffect the fact that the case involved multiple murders would have on their deliberations. (/d. at p. 166, fn. 43.) Thus,it is clear that in Valdez, where this Court rejected the appellant’s claim that the trial judge had erroneously restricted voir dire about multiple murder, the death qualification process wasvery different than the one in this case. Here there were no questions to the prospective jurors about whether the fact the case involved two murder charges and a multiple murder special circumstance allegation would affect their ability to render an impartial penalty phase decision. Also, in this case the trial judge did not allow the attorneys to do any of the questioning during voir dire, and he refused all requests by defense counselthat he ask follow-up questions to prospective jurors which the prosecutor challenged for cause because of their views about the death penalty. In fact, the record showsthat the trial judge neverasked any follow-up questions, despite the defense counsel’s requests. (14 RT 387-389, 14 RT 434, 14 RT 549.) B. The Prejudice ResultingFrom the Failure to Include Appropriate Questions on the Juror Questionnaire — and in Voir Dire 15 Respondent argues that Mr. Leon cannot prove that he was prejudiced by anyrestriction of voir dire in this case, and that anyerrorin restricting death-qualification voir dire does not automatically require reversal of a judgementof death. (RB at 69.) This Court has held that a defendant whoestablishesthat a juror who eventually served was biased against him is entitled to a reversal. (Peoplev. Cunningham (2001) 25 Cal.4th 926, 975.) However, in People v. Cash, supra, this Court recognizedthat it may not be possible to make such a showing. In Cash, as in the presentcase,the trial court’s ruling prevented the defense from examining prospective jurors about whether they believed that the death penalty should be imposed invariably and automatically when the defendant had committed one or more murders other than the murder charged in the case. Like Mr. Leon, the defendant in Cash could not identify a particular biased juror because he had been denied adequate voir dire about convictions for multiple murders, which this Court recognized as a possibly determinative fact for a juror in Cash.§ (People v. Cash, supra, 28 Cal.4th at pp. 722-723.) The Cash decision found that reversal of the judgment of death was the appropriate remedy,stating: Becausethetrial court’s error makesit impossible for us to determine from the record whether any ofthe individuals who were ultimately seated as jurors held the disqualifying view that the death penalty should be imposed invariably and automatically on any defendant who had committed one or more murders other than the murder chargedin this case,it ° As explained previously, the issue in1 the Cash case was not a charge of two murders anda special citcumstanceallegation of multiple murders. The question in that case was whether prospective jurors could -consider a life sentence oncethey learned that the defendanthadkilled his grandparents when he was a juvenile. 16° cannot be dismissed as harmless. Thus, we must reverse defendant’s judgment of death. (Ud. at p. 723, citing Morgan v. Illinois, supra, 504 U.S.at p. 739.) Similarly, in this case, it is equally impossible for the Court to determine from the record whether any of the individuals seated as jurors would not have been able to consider a sentence oflife without parole because the case involved two murders and a multiple murder special circumstance. As result, as found in People v. Cash, supra, the error cannot be found harmless, and Mr. Leon’s sentence of death must be reversed. C. ‘The Trial Judge Erred in Refusing Appellant’s Requestfor a Question About “Abuse Excuse” Evidence In his opening brief, Mr. Leon argued thatthe trial judge erred in refusing to include the following question in the juror questionnaire: Doyoufeel any attempt bythe defense to put on mitigation evidence of the defendant’s background and character is an “abuse excuse,” and should be ignored? (8 CT 1868.) Asdefense counsel arguedpre-trial, this question was important because Mr. Leon’s trial came on the heels of the much publicized murder trial of the Menendez brothers in Los Angeles County. The theory of the defense in that case was that the defendants had killed their parents because they had been abused by them. Critics of this defense pejoratively 2°describedit as the “abuse excuse.” Defense counselin this case was rightfully worried that appellant’s mitigation case in the penalty phase ofhis trial would be prejudiced by the media fixation in Los Angeles on the ‘abuse excuse.” 17 As defense counsel observed: Weare living in a climate in which a major trial -the Mendez [sic] case has been going on for severalyears, just recently concluded, the terminology of abuse excuse as well as the content, though pattern, is one that js commonandcurrent in in our society. Listen (sic) to any talk radio in this community will reveal that there are any numberofpeople whofeel thatit makes absolutely no difference what a defendant’s backgroundorcharacter is, that they wouldn’t consider any of those factors, that given the circumstancesof a crimethey feel that although those things should be ignored andthey just couldn’t consider such evidence.” (1-10 RT 141A.) Thetrial judge denied the request to include this proposed question on the questionnaire, citing the following language in Code of Civil Procedure section 223, “examination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause.” (1-10 RT 140A.) Thetrial judge’s ruling wasin error. First, the proposed question about the “abuse excuse” wasrelevant to possible challenges for cause since it went to the crucial issue of whether a prospective juror would be able to listen to and consider mitigation evidence at the penalty phase of the trial. Ifa prospective juror could not consider mitigating evidence because he or she believed it was merely an “abuse excuse” that would violate appellant’s constitutional rights to a fairtrial and to a reliable sentencing verdict in a capital case and would bea basis for a challenge for cause. Moreover, this Court has found that a lack of adequate voir dire impairs a defendant’s right to exercise peremptory challenges. (People v. Roldan (2005) 35 Cal.4th 646, 689; In re Hitchings (1993) 6 Cal.4th 97, 110.) In the latter decision, the Court wrote: The impartiality of prospective jurors is exploredat the 18 preliminary proceeding knownasvoir dire. Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendmentright to an impartial jury will be honored. Without an adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannotbefulfilled. [Citation.] Similarly, lack ofadequate voir dire impairs the defendant's right to exercise peremptory challenges where provided by statute or rule ....” (Ibid., quoting Rosales-Lopez v. United States (1981) 451 U.S. 182, 188; emphasis added.) Thenecessity of including at least one question about prospective jurors’ viewsof so-called “abuse excuse”evidence was demonstrated by the prosecutor’s penalty phase closing argumentto the jury in this case. Making a not too oblique reference to the Menendeztrial, the prosecutor told the jurors: “I think you ought to reject this abuse excuse wholesale. This excuse has been offered by many, many defendants. It’s not new.It’s being offeredall the time.” (41 RT 3292.) Respondent’s brief does not address the argumentthatthetrial judge erred in failing to include this question on the juror questionnaire and that Mr. Leon wasprejudiced by that error. Given the place and timing of appellant’s trial, his request to question prospective jurors abouttheir exposure to discussion in the media about so-called “abuse excuse” evidence offered by defendants in criminal cases wasentirely appropriate and necessary. Given the intense and widespread media coverage, including live coverage ofthe entire trial on Court TV, of the Menendez case and the ubiquitous and overwhelmingly negative public discussion about the “abuse excuse” which resulted from that trial, it was unreasonable forthe trial judge to deny appellant’s counsel any opportunity to question 19 prospective jurors about their thoughts about the “abuse excuse” controversy.” Given her statements during closing argumentat the penalty phase, the prosecutor obviously believed characterizing Mr. Leon’s mitigation evidence as an “abuse excuse” wasan effective way to persuade the jurors to return a verdict of death. (41 RT 3292.) Herreliance on this argument demonstrated the importance of asking prospective jurors about their knowledge of and/orattitudes about the so-called “abuse excuse” during the jury selection process. | D. Conclusion Forall of the foregoing reasonsas well as for the reasonsset in appellant’s opening brief, the trial judge erred whenhefailed to conduct voir dire adequate to protect Mr. Leon’s constitutional rights, in particular his right to a panel ofjurors who would be able to consider the mitigation evidence offered during his penalty phase trial and remain open to voting for the penalty oflife without the possibility of parole in a case where two murders had been charged. Thus, Mr. Leon’s death sentence should be reversed becausehis rights, underthe Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution, to a fair trial and a reliable penalty phase determination were violated. * ok Ok 7 Two people whosat on appellant’s jury stated in their juror questionnaires that they had followed the Menendeztrial. (8 SCT 2358, 8 | SCT 2104.) 20 II. THE TRIAL JUDGE ERRONEOUSLYDISMISSED FOR CAUSE THREE PROSPECTIVE JURORS BECAUSE OF THEIR VIEWS ABOUT THE DEATH PENALTY Appellant’s opening brief arguesthatthe trial judge erred in dismissing for cause three prospective jurors, R.C., D.A., and N.C.,° based on their opposition to the death penalty. This error violated Mr. Leon’s right to an impartial jury under the Sixth and Fourteenth Amendmentsto the United States Constitution. (AOB at 77-88.) The record in this case does not establish that the views of these prospective jurors concerning capital punishment“would prevent or substantially impair the performance of [their] duties as .. . juror[s] in accordance with [their] instructions and [their] oath.” (Wainwright v. Witt (1985) 469 U.S. 412, 424-426.) This error requires the reversal of Mr. Leon’s sentence of death.’ Respondentclaimsthat this Court must defer to the trial judge’s determination of the state of mind and qualifications of these prospective jurors becausehedid not abusehis discretion. (RB at 80.) Respondentis mistaken. I HI * This reply brief will refer to the prospective jurors by their initials, but the openingbrief used their full names. ° In People v. Riccardi (2012) 54 Cal.4th 758, this Court noted that under federal constitutional law, as interpreted by the United States Supreme Court,“the erroneous excusal of a prospective juror for cause based on that person’s views concerning the death penalty automatically compels the reversal of the penalty phase without any inquiry as to whether the error actually prejudiced defendant’s penalty determination.” (/d.at p. 783, citing Gray v. Mississippi (1987) 481 U.S. 648, 659-667.) 21 A. Introduction In this case, the juror selection process was extremely truncated. The juror questionnaire contained only a few questions regarding attitudes about the death penalty: 56. 57. (c) 58. What are your GENERALFEELINGSregarding the death penalty? Whatare yourfeelings on the following specific questions: (a) Do youfeel that the death penalty is used too often? Too seldomly? Please explain. (b) Do you belong to any group(s) that advocates(s) the increased use or abolition of the death (Yes?No?) 1. What group(s)? . 2. Do you share the views ofthis group(s)? 3. How strongly do you hold these views? Is your view in answers(a) and (b) basedonreligious consideration (Yes? No?) In a death penalty case, there may be two separate phasesortrials, one onthe issue of guilt and the other on penalty. Thefirst phase is called the “guilt” phase, wherethe jury decides on the issue of guilt as to the charges against the defendantand thetruth of any alleged special circumstance(s). The second phaseis called the penalty phase. If, and only if, in the guilt phase, the jury finds the defendant guilty offirst degree murder (which will be definedattrial) and further finds any alleged special circumstancesto betrue, then and only then would there be a secondphaseortrial in which the same jury would determine whetherthe penalty would be deathorlife imprisonment without possibility of parole. (A special circumstanceis an alleged description whichrelates to the charged murder, upon whichthe jury is to making a finding. For example, was the murder committed in the commission of certain felonies such as robbery, rape, or other enumerated offenses, or was. the murder an intentional killing of a peace-officer in the course of the performanceof duty, a previous conviction of murder, etc.?) a 22 The jury determines the penalty in the second phase by weighing and considering certain enumerated aggravating factors and mitigating factors (bad and goodthings) that relate to the facts of the crime and the background ofthe defendant, including a consideration of mercy. The weighing of these factors is not quantitative but qualitative, in which the jury, in order to fix the penalty of death, must be persuaded that the aggravating factors are so substantial in comparision with the mitigating factors, that death is warrantedinsteadoflife imprisonmentwithoutparole. Based on the above: (a) Assumefor the sake of this question only that, in the guilt phase, the prosecution has provedfirst degree murder beyond a reasonable doubt and you believe the defendantis guilt of first degree murder. Would you, because of any viewsthat you may haveconcerningcapital punishment, refuse to find the defendant guilty of first. degree murder, even though you personally believed the defendantto be guilty of first degree murder, just to prevent the penalty phase from taking place? (b) Assumefor the sake of this question only that, in the guilt phase, the prosecution has proven to be true, one or more special circumstances, beyond a reasonable doubt and you personally believe thespecial circumstance(s) to be true. Would you, because of any views that you may have concerning capital punishment, refuse to find the special circumstance(s) true, even though you personally beieved it (them) to be true, just to prevent the penalty phase from taking place? (c) Assumefor the sake of this question only that the jury has found the defendant guilty of first degree murder and has found one or more ofthe special circumstances true and that you are in the penalty phase. Would you, because of any views that you may have concerning capital punishment, automatically refuse to vote in favor of the penalty of death and automatically vote for a penalty oflife imprisonment withoutthe possibility of parole, without considering any of ‘ the evidence,or any of the aggravating and mitigating factors (to which you will be instructed) regarding the facts of the crime and the backgroundandcharacter of the defendant? (d) Assumefor the sake of this question only that the jury has found the defendant guilty of first degree murder and has found one or moreofthe special circumstancestrue andthat you are in the penalty phase. Would you, because of any views that you may have concerning capital punishment, automatically refuse to vote in favor of for a penalty oflife imprisonment without the possibility of parole and automatically vote for the penalty ofdeath, without considering any of the evidence or any of the aggravating and mitigating factors (to which you will be instructed) regarding the facts of the crime and the background and character of the defendant? (e) If your answerto either question (c) or question (d) was “yes,” would you change your answer,if you are instructed and ordered by the court that you must consider and weigh the evidence and the above mentioned aggravating and mitigating factors regardingthe facts of the crime and the background and character of the defendant, before voting on the issue of penalty? (f) Could youset aside your ownpersonalfeelings regarding what the law oughtto be and follow the law as the court explains it to you? The voir dire was even morelimited. The trial judge asked prospective jurors if they wished to change anything they had written on their questionnaire, and then asked four rote questions about their attitudes about the death penalty: Do you have such conscientious objections to the death penalty that, regardless of the evidencein this case, you would refuse to vote for murderin the first degree merely to avoid reaching the death penalty issue? Do you havesuch conscientious objections to the death penalty that, regardless of the evidencein this case, you would automatically vote for a verdict of not true as to any special circumstance merelyto avoid the death penalty issue? Do you have such conscientious objections to the death 24 penalty that, should we get to the penalty phase ofthistrial, and regardless of the evidence in this case, you would automatically vote for a verdict oflife imprisonment without the possibility of parole and nevervote for the a verdict of death? Doyou have such conscientious opinions regarding the death penalty that, should weget to the penalty phaseofthis trial, and regardless of the evidence, you would automatically, and in every case, vote for death and never vote forlife imprisonment without the possibility of parole? There wasa crucial difference, however, between the death- qualification questions on the questionnaire and those asked during voir dire. Unlike question 58(e) and (f) on the juror questionnaire, quoted ante, the voir dire questions did not ask the prospective jurors if they could set aside their personal views about the death penalty and considerthe evidence, including the aggravating and mitigating factors, before voting on penalty. Therefore, the voir dire in this case did not include any questions about the issue at the heart of Witt: whether a juror,who has scruples against the capital punishment, can nonetheless put aside those feelings and base his or her decision on penalty on a fair consideration ofboth the aggravating and mitigating evidence. This difference wascritical inthis case because on the questionnaire, as respondent’s brief concedes, each of these three disputed prospective jurors answered “yes”to question 58 (e), thus agreeingthat they would change their answers on questions 58 (c) and (d) about automatically voting for or against the death penalty and would consider and weigh the evidence and the aggravating and mitigating factors before voting on the issue of penalty. Each of them also agreed in answer to question 58 (f) that they couldset aside their personal feelings regarding what the law oughtto be 25 and follow the law as the court explainedit to them. Defense counsel asked thetrial judge to ask Prospective Jurors R.C., D.A., and N.C. follow-up questions during voir dire to clarify if, in fact, they could set aside their scruples about capital punishment andconsiderall of the evidence, both aggravating and mitigating, before voting on whether to vote for or against the death penalty. Thetrial judge refused these requests; thus, as the record in this case stands,all three prospective jurors qualified as acceptable jurors under the Witt standard. In Lockhartv. McCree (1986) 476 U.S. 162, 172, the High Court stated that prospective jurors who expressstrong feelings against the death penalty nonetheless can serve in a capital cases “so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.” In this case Prospective Jurors R.C., D.A. and N.C. each wrote on their questionnaires that they could do just that. Asthe following discussion makesclear,thetrial judge’s decisions to dismiss these jurors cannot be upheld; they are not entitled to deference nor are they supported by substantial evidence. | B. Responseson the Questionnaire and During Voir Dire 1. Prospective Juror R.C. Lookingfirst at his juror questionnaire, in describing his general feelings aboutcapital punishment, R.C. wrote that he did not “believe the death penalty is a humain(sic) punishment, I do not believe the death penalty stops or prevents anyone from committing acrime.” (3 SCT'® 867.) Hedid not answerthe question asking if he thought the death penalty was used too often or too seldom. (3 SCT 868.) R.C. wrote that he did not 10 “SCT”refers to the Supplemental Clerk’s Transcriptin this case. 26 belong to any group that advocates the increased use or the abolition ofthe death penalty and that his views about the death penalty were not based on any religious considerations. (3 SCT 868.) In response to the questions of whether he wouldrefuse to find the defendantguilty of first degree murderorrefuse to find the special circumstancestrue to prevent the penalty phase of the trial from taking place, R.C. wrote “no.” (3 SCT 869.) Whenasked if he would automatically refuse to vote in favor of the death penalty, R.C. wrote: “I would vote for life imprisonment.” (3 SCT 870.) He did not answerthe question that asked if he would automatically vote for the penalty of death. (3 SCT 870-871.) In responding to the question about whether he would changehis answerto the previous two questions (Question 58 (c) and (d)) if instructed by the judge to consider and weigh the mitigating and aggravating evidence about the crime and the background and character of the defendant, R.C. wrote “yes.” (3 CT 871.) He also wrote “yes”to the question whether he could set aside his personal feelings regarding what the law ought to be and follow the law as the court explainedit to him. (3 SCT 871.) / During voirdire, the trial judge asked R.C. the same four questions he askedall prospective jurors who were orally questioned. The entire voir dire of R.C. wasas follows: The Court: Mr. R.C., you arenow in Box number 1. Ihave read your questionnaire. Is there anything you wish to have changed? Prosp. Juror R.C.: No. 27 The Court: Before I get to the other questions, I want to get to the four questions that I am going to ask every juror. These are questions you have already answered. I may ask them ina different way. Do you have such conscientious objections to the death penalty that, regardless of the evidencein this case, you would refuse to vote for murder in the first degree merely to avoid reaching the death penalty issue? R.C: No. The Court: Do you have such conscientious objections to the death penalty that, regardless of the evidencein this case, you would automatically vote for a verdict of not true as to any special circumstance chargedmerely to avoid the death penalty issue? Ss R.C.: No. The Court: Three, do you have such conscientious objections to the death penalty that, should wegetto the penalty phase of this trial, and regardless of the evidencein this case, you would automatically vote for a verdictoflife imprisonment withoutthe possibility of parole andnever vote for a verdict of death? R.C.: That’s the one I have a problem with. The Court: J understand. What’s your answer? R.C.: I would vote for life imprisonment. The Court: Regardless of the evidence? R.C.: Regardless of the evidence. _ The Court: Finally, do you have such conscientious opinions regarding the death penalty that, should wegetto the penalty phaseofthis trial, and regardless of the evidence in this case, you would automatically, and in every case, vote for a verdict of death and never vote for a verdict oflife imprisonment without the possibility of parole? , R.C.: It’s still life in prison. 28 The Court: Would you always vote for death? That was the question. Regardless of the evidence. R.C.: Yes. The Court: You would vote for death? R.C.: Well, I mean — can you rephrase the question? The Court: It’s the opposite of the third question. Do you have such conscientious opinions regarding the death penalty that, should we get to the penalty phaseofthis trial, and regardless of the evidence, you would automatically, and in every case, vote for death and nevervotefor life imprisonmentwithout the possibility of parole? R.C.: No. (14 RT 384-387.) At the invitation of the judge, the prosecutor challenged R.C.for cause. (14 RT 387.) Defense counsel argued that there were inconsistencies between R.C.’s answers on the questionnaire and his statements on voir dire and requested thatthe trial judge ask follow-up questionsto see if, as he stated on his questionnaire, R.C. could set aside his views about the death penalty, follow the court’s instructions and weighall relevant evidence before deciding the issue of punishment. (14 RT 387-388.) Thetrial judge refused to ask any more questions, stating that R.C.’s views “would prevent or substantially impair the performanceof his duties as a juror in accordance with his instructions.” (14 RT 388.) Further, the judge stated that even if R.C.’s answers could be viewed as equivocal, “[t]he | determination of an equivocal response is by me.” (14 RT 388.) 2. Prospective Juror D.A. D.A.’s answers on the juror questionnaire were confusing. Some tended to show that she was opposed to the death penalty; for example, in response to the question about her general feelings about the death penalty, 29 she wrote:“I opposted (sic) to the death penalty.” (3 SCT 798.) In answer to the question of whether shefelt the death penalty was used too often or too seldomly, she wrote: “I think we should not have a death penalty atall.” (3 SCT 799.) However, in responding to the question asking whether she would automatically refuse to vote for the death sentence, D.A. wrote “no.” (3 SCT 801.) In responseto the question of whether she would automatically refuse to vote for the penalty oflife imprisonment without the possibility of parole and automatically vote for the penalty of death, she wrote: “Yes, I don’t believe in death penalty.” (3 SCT 802.) Moreover, she agreed that if she were instructed and ordered by the court to consider and weigh the evidence, both aggravating and mitigating, she could change her answersto the foregoing questions. She also answered “yes”to the question of whether she could set aside her personal feelings and follow the law asthe court explained it. (3 SCT 802.)"': The questioning of this prospective juror on voir dire was even more cursory than that of R.C. Thetotality of the voir dire of D.A. was as follows: | . The Court: I have read your questionnaire. Is there anything that you wish to have changed? D.A.: No. The Court: All right. I am going to ask you the four questions. Do you have such conscientious objections to the death penalty that, regardless of the evidencein this case, you '! Those answersestablish that despite her statements indicating opposition to the death penalty, D.A. was not substantially impaired under Witt. See People v. Riccardi, supra, 54 Cal.4th 758, where this Court wrote that twovery similar questions on the Riccardi questionnaire were “most directly relevant to the Witt standard. (/d. at p. 780.) 30. would refuse to vote for a verdict of guilty of murder in the first degree merely to avoid reaching the death penalty issue? D.A.: Yes. The Court: You wouldn’t even vote for murderin thefirst degree? D.A.: I vote for first degree, but I didn’t believe in the death penalty. The Court: I understand that, Let me ask you, would you let your feelings as to that, regardless of the evidence, stop you from voting guilty of murderin the first degree? D.A.: No. The Court: All right. Do you have such conscientious objections to the death penalty that, no matter what the evidence is, you would automatically vote for a verdict of not true as to any ofthe special allegations alleged merely to avoid reaching the death penalty issue? . D.A: No. The Court: Do you have such conscientious object ons to the death penalty that, should we get to the penalty phase ofthis trial, and regardless of what the evidence is, you would automatically and in every case, vote for a penalty oflife imprisonment without the possibility of parole and never vote for death? D.A.: Yes. The Court: Yes? D.A.: Yeah. The Court: Do you have such conscientious opinions about the death penalty that, regardless of the evidencein this case, and should wegetto the penalty phase ofthis trial, you would automatically, and in every case, and should wegetto the penalty phase ofthis trial, youwould automatically, andin 31 every case, vote for death and nevervote for life imprisonment withoutthe possibility of parole? D.A.: No. (14 RT 432-434.) Despite the inconsistencies among her answers onthe juror questionnaire as well as the contradictions between those answers and what she said during voir dire,’* thetrial judge did not seek clarification when he questioned her during voir dire. Rather, he asked her the same four rote questions he askedall prospective jurors who were actually called for voir dire. (14 RT432-433.) As this Court noted in People v. Stewart (2004) 33 Cal.4th 425, 448, a written response that suggests ambiguity establishes “the need for clarification on oral voir dire,” but does not, by itself, disqualify the prospective juror. Nevertheless, the trial judge in this case once again summarily rejected defense counsel’s argumentthat because D.A. had written on her questionnaire that she said she could set aside her feelings about the death penalty and follow the law D.A.’s answersdid not show that she would be substantially impaired in performanceofher duties as a juror under the Witt standard. (14 RT 434.) Given the contradictions in the record, as defense counsel repeatedly requested, the trial judge should have asked D.A. follow-up questions. Accordingly, D.A.’s dismissal for cause was not supported by substantial evidence. 2 For example, on the questionnaire, D.A. answered no to question 58 (c), which asked if she would automatically vote for life without the possibility of parole and against the death penalty. (3 SCT 801.) During voir dire, D.A. contradicted her answerto question 58 (c), stating that she would automatically vote for LWOPandagainst the death penalty. (14 RT 433-434.) 32 3. Prospective Juror N.C. Prospective juror N.C.’s answers on the questionnaire were inconsistent and confusing. In responding to question 56 regarding her general feelings about the death penalty, she wrote: “I disagree becauseif he is guilty and death penalty will be the punishment- person will not suffer anymore.” (2 SCT 476.) Her answerto question 57 about whether she thought the death penalty is used too often or too seldomly, N.C. wrote: “too seldomly.” (2 SCT 477.) Despite the fact that her answers to questions 56 and 57 suggested she favored the death penalty (although she thoughtthat it wasn’t punitive enough), she answered “yes” to question 58 (c) which asked whether she would automatically refuse to vote for the penalty of death and would automatically vote for the penalty of life without the possibility of parole (LWOP). (2 SCT 479.) In answering question 58 (d) which asked whetherthe prospective juror would automatically vote against LWOPandfor the death penalty, N.C. wrote: “I’m in favoroflife imprisonmentwithout parole.” (2 SCT 480.) However, she also agreed that, if instructed by the court, she would consider the mitigating and aggravating evidence before voting on theissue of penalty and would set aside her personalfeelings about the law and follow the law as explained by the judge. (2 SCT 480.) The entire voir dire of N.C. was as follows: The Court: Let me ask you the four questions before I go on. By the way, I do have your questionnaire. Is there anything you want to change? N.C.: No. The Court: As to the four questions. Do you have such conscientious objections to the death penalty that, regardless of the evidence, you would absolutely refuse to vote for a verdict of guilty of murderin the first degree merely to avoid 33 . reaching the death penalty issue? N.C.: No. | The Court: Do you have such conscientious objections to the death penalty that, regardless of the evidence, you would automatically vote for a verdict of not true as to any ofthe special circumstances alleged merely to avoid reaching the death penalty issue? N.C.: No. The Court: Do you have such conscientious objections to the death penalty that, should we get to the penalty phase ofthis trial, and regardless of the evidence, you would automatically, and in every case, vote for a verdict oflife imprisonment without the possibility of parole and nevervote for a verdict of death? N.C. Yes. The Court: Do you have such conscientious opinions regarding the death penaltythat, should we get to the penalty phase ofthis trial, and regardless of the evidence, you would automatically, and in every case, vote for a verdict of death and nevervote for a verdict oflife imprisonment without the possibility of parole? N.C.: No. (15 RT 549-550.) Once again,the trial judge refusedthe defense request that he ask some follow-up questionsto clarify the inconsistency between her answers on the questionnaire stating that she could set aside her feelings about the death penalty and her answers about being opposedto capital punishment. (15 RT 550-551.) Given that on her questionnaire N.C. expressed the view that LWOP wasactually a more severe punishment thin the death penalty,the trial judge’s failure to engage in a more searching voir dire and to ask follow-up 34 questions wasparticularly important in her case. In responding to question 56 regarding her generalfeelings about the deathpenalty, N.C. wrote: “I disagree becauseif he is guilty and death penalty will be the punishment- person will not suffer anymore.” (2 SCT 476.) Becausethe notion that LWOPis a more severe penalty than a death sentenceis legally wrong,the trial judge should haveclarified that point with N.C. The United States Supreme Court has consistently stated that the death penalty is the most severe punishment.(See, e.g., Woodson v. North Carolina (1976) 428 U.S. 280, 305; Gregg v. Georgia (1976) 428 U.S. 153, 187.) The High Court has been absolutely clear on this point: “Because the death penalty is the most severe punishment, the Eighth Amendmentapplies to it with special force.” (Roper v. Simmons (2005) 543 U.S. 551, 568, citing Thompson v. Oklahoma (1987) 487 U.S. 815, 856 (conc. opn. of O’Connor, J.), emphasis added.) This Court also has recognizedthis principle. (See, e.g., Peoplev. Jones (2012) 54 Cal.4th 1, 81; People v. Hernandez (1988) 47 Cal.3d 315, 362.) It is probable that thetrial judge’s failure to assure that prospective juror N.C. understood this important principle resulted in an unnecessary dismissal of a prospective juror who wasfully qualified to serve. C. Respondent’s Arguments Regarding the Dismissals of Prospective Jurors R.C., D.A., and N.C.are not Persuasive Respondent’s arguments in support ofthetrial judge’s decision to excuse these three prospective jurors misconstrues the meaningofthe Witt decision. Also, the caselaw cited in respondent’ s brief is distinguishable. The first argument offered by. respondenti1S: “The three prospective Jurors at issue were properly excused for cause based on their answers expressing reservations concerningtheir ability to impose the death 35 penalty.” (RB at 73.) “Expressing reservations” aboutthe death penalty or about one’s ability to imposeit is not a sufficient ground for dismissing a prospective juror for cause. The United States Supreme Court has long held that prospective jurors should not be excludedfrom sitting in a capital case simply because they oppose the death penalty. (See, e.g., Uttecht v. Brown (2007) 551 U.S. 1, 6; Wainwright v. Witt (1985) 469 U.S. 412, 421; Adams v. Texas (1980) 448 U.S. 38, 45, 48.) Indeed, as this Court has observed, A prospective juror may not be excluded for cause simply because his or her conscientious viewsrelating to the death penalty would lead the juror to impose a higher threshold before concluding that the death penalty is appropriate or because such views would makeit very difficult for the juror ever to impose the death penalty. (People v. Stewart, supra, 33 Cal.4th at p.447, citing People v. Kaurish (1990) 52 Cal.3d 648.) A prospective juror can be removedfor cause in a capital case only if the record showsthat he or she would notbeable to set aside his views, follow the law as set forth by the trial court and fairly consider death as an option. (Uttecht v. Brown, supra, 551 US. at p. 9; Adams v. Texas, supra, 448 U.S.at p. 48.) In this case, on their juror questionnaires, R.C., D.A. and N.C. answered yes to questions 58 (e) and (f), which askedif they could change their answers abouttheir views about the death penalty if instructed to and orderedby the court and could set aside their personal feelings regarding what the law oughtto be and follow the law as the court explainedit. (3 SCT 871, 3 SCT 802, 2 SCT 480.) Respondent’sbrief relies principally on this Court’s decision in People v. Lancaster (2007) 41 Cal.4th 50, to support the contention that the trial judge properly dismissed these three prospective jurors. Because the — 36. Jury selection process in Lancaster was so different from the one used in this case, the applicability of the Lancaster decisionto this caseis questionable. (RB at 80-81.) In Lancaster, the inquiries made of the two prospective jurors dismissed for cause were extensive when comparedto the inquiries madein this case. Moreover, the prospective jurors at issue in that case were questioned both bythetrial judge and the attorneys. More importantly, there were follow-up questions in an effort to resolve the ambiguities in the prospective jurors’ statements concerningtheir feelings about capital punishmentandtheir ability to set aside those feelings and consider all of the relevant evidence presented by both the prosecution and the defense and render a fair and impartial verdict on sentencing.(/d. at pp. 78-80.) Similarly, in Uttecht v. Brown, supra, 551 U.S. 1, another decision cited by respondent, the Supreme Court stated that it would deferto the decision ofthe trial judge in that case to excuse Juror Z for cause because: ... where, as here, there is lengthy questioning ofa prospectivejuror and the trial court has supervised a diligent and thoughtfulvoir dire, the trial court had broad discretion. (d., 551 U.S.at p. 20, emphasis added.) Asdescribed in the opening brief (AOBat 83-84), the voirdire in the Uttecht case took more than two weeks, including 11 days of voir dire devoted to death qualification. (/d. atp. 10.) In addition to the initial voir dire in that case, the trial court gaveeach side a chanceto recall the contested prospective juror for additional questioning. (/bid.) By contrast, I HI 37 in the instant case, not only was the voir dire very truncated — four questions — butthetrial judge refused requests of counselto ask any follow-up questions and also refused to ask such questions himself. Since both the juror questionnaire and the voir dire were so limited, the information available to determine whether Prospective Jurors R.C., D.A., and N.C. were substantially impaired on the issue of capital punishment was woefully inadequate. Therefore,the trial court’s decision to excuse these three prospective jurors for cause couldnot be and was not supported by substantial evidence." '3 In Uttecht, supra, Justice Kennedy, writing for a five-member majority, described other factors relevant to the issue of whetherthetrial court in that case had improperly dismissed jurors for cause based ontheir opposition to the death penalty. For example, oneofthe factors considered in the Uttecht majority decision was the numberofchallenges for cause madeby both the prosecution and the defense and how thetrial court ruled on those. Justice Kennedy observed thatin the Uttecht casethatthetrial court had ruled in favor of the defense challenges for cause over the prosecution’s objections with far greater frequency (11 excused out of 18 challenges or 61%) than it hadto the prosecution’s challenges for cause over the defense objections (2 excused out of 7 challenges or 29%.) Ud. at pp. 10-11.) By contrast, the record in this case shows how the defense was more disadvantaged than the prosecution by the waythetrial judge conducted juror selection. The prosecutor challenged eight prospective jurors for ~ cause;thetrial court granted five of those eight. (14 RT 382, 389, 424, 430, 434:15 RT 506, 507, 517.) The defense challenged eleven prospective jurors for cause; the trial court granted two of those. (14 RT 382, 426, 427, 428, 429, 448, 449, 475; 15 RT 529, 534.) That means that the successrate of the prosecution cause challenges was 43% while the successrate for the defense was 18%. Under the analysis set forth in the Uttecht decision, this disparity betweenthe successof the prosecution and the defense challenges for cause provides yet another reason to question the validity of the trial judge’s decision to dismiss Prospective Jurors R.C., D.A. and N.C... 38 D. No Deferenceis Due to the Trial Judge; Instead, This Court Must Conduct De Novo Review While this Court has deferred to a trial court’s ruling under the Witt standardin certain circumstances, such deference is not universal. For example, in a case where the decision to excuse a prospective juror for his or her views about capital punishmentis based solely on the answers on a juror questionnaire, the appellate court does not accord as much deference becausethe trial judge has not had anyopportunity to observe the demeanor of the juror. In such a case, the appellate court applies a de novo standard of review. (People v. Riccardi, supra, 54 Cal.4th at p. 758, citing People v. McKinnon (2011) 52 Cal.4th 610, 647.) The sine qua non ofdeferenceto the trial judge’s determinationis that the voir dire processtruly provided an opportunity for the judge to observe the demeanorofthe prospective juror. As the Court observed in People v. Watkins (2012) 55 Cal.4th 999: If, after reasonable examination, the prospective juror has given conflicting or equivocal answers, andthetrial court has had the opportunity to observe the juror’s demeanor, we accept the court’s determination of the juror’s state of mind. (Ud. at p. 1012, citing People v. Thomas(2012) 53 Cal.4th 771, 790; emphasis added.) The Watkins opinion showsthat there was extensive voir dire of the disputed prospective juror by the trial judge, the prosecutor and defense counsel. (/d., at pp. 1011-1018.) An appellate court op defers to a trial judge’s decision to dismiss a prospective juror for cause when the lower court is in the “best position to determinethe potential juror’s true state of mindfor a particular reason, i.e., because it has observed firsthand the prospective juror’s demeanorand verbal responses.” (People v. Martinez 39 (2009) 47 Cal.4th 399, 426.) | _ Although there was nominalvoir dire in this case, it was so perfunctory and inadequatethatit failed to add anything to the purpose of jury selection process in a death penalty case: to determine whether a prospective juror can set aside his or her views about capital punishment and make the penalty determination based on the evidence presented by both the prosecution and the defense. | The voir dire in this case added nothing at all to the information provided in the questionnaire because, as noted, the voir dire consisted of the same exactfour questions asked of every prospective juror actually examinedorally by the trial judge. In fact,voir diremade the determination of whether a prospective juror was substantially impaired under Witt more difficult becausethetrial judge failed to ask the prospective jurorsif they could set aside their scruples and follow the law. R.C., D.A. and N.C.all wrote on their questionnaires that they couldset aside their feelings about the death penalty, considerall of the evidence and follow the law as explained by the judge. Yet, during voirdire, the trial judge failed to ask questions that either would confirm those answersortest their accuracy. Indeed, he resolutely refused to ask any follow-up questions despite the repeated and consistent requests by defense counsel to do so. It was particularly importantin this case that thetrial judge ask these follow-up questionsin light of the prospective jurors’ assertions at the beginning of voir dire that they did not want to change the answers they had written on the questionnaire. (14 RT 382, 14 RT 432,15 RT 549.) Whenthetrial judge has conducted very limited voir dire, this Court should not defer on appealto the judge’s decisions regarding challenges for 40 cause. If, as this Court has held,'* an appellate court independently reviews a trial court’s decision to excuse for cause a prospective juror based solely uponthat juror’s written responses to a questionnaire de novo,this principle should apply in a situation where the voir dire was so minimalthat it would be impossible to make any decision based on the demeanorofprospective jurors. The record showsthat the voir dire in this case metthis criterion. E. Nothing in the Record Shows that Demeanor Played Any Part in the Decision to Excuse Prospective Jurors R.C., D.A., and N.C. Asestablished previously, given the very limited voir dire in this case, coupled with inadequate death-qualification questions on the questionnaire, this Court should notdefer to thetrial judge’s decisionsto dismiss Prospective Jurors R.C., D.A. and N.C. for cause. There is nothing in the record suggesting that the trial judge in this case relied uponthe demeanorofthe prospective jurors in making his decision to dismiss them. Mr. Leon recognizesthat this Court has affirmed decisions to dismiss prospective jurors based in part on demeanor even though the lower court has not mentioned demeanorinits ruling. For example, in People v. Watkins, supra, a case wherethetrial judge did not specifically cite the prospective juror’s demeanor, the Court stated that it could “reasonably infer that the trial court reached this conclusion based on both [prospective juror’s] demeanorand herprior responses. (/d., 55 Cal.4th at p. 1016.) However, in this case the record does not provide any basis from which a reasonable inference could drawnthatthe trial judge excused R.C., '* See People v. McKinnon (2011) 52 Cal.4th 610, 643; People vy. Russell (2010) 50 Cal.4th 1228, 1261, citing People v. Avila, (2006) 38 Cal.4th 491, 529. 4] D.A., and N.C. because of what he had discerned about their demeanor during the jury selection process. As noted previously,the voir dire of each of these jurors was perfunctory, involving the same four rote questions whichelicited primarily yes or no responses. Given these circumstances,it strains credulity that anything could be gleaned from their demeanor during the limited voir dire that would resolve the inconsistencies in their answers aboutcapital punishment and would justify the trial judge’s determination that their scruples about the death penalty wouldsubstantially impair their ability to sit as impartial jurors at the penaltyphase Mr. Leon’strial, despite their statements on the questionnaire that they could set aside those views and feelings and consider all evidence, aggravating and mitigating, before deciding what penalty to impose. | Thefacts of this case contrast with those present in People v. Rountree (2013) 56 Cal.4th 823, 157 Cal. Rptr 1. In Rountree, a prospective juror stated on his questionnaire that he could set aside his religious oppositionto the death penalty and follow the law as instructed. This Court held that the prospective jurorwas nonetheless properly excused for cause because his answers to numerous questions during voir dire showedthat he was very equivocal about whether he couldreally set aside religious scruples. (Jd. at p 24 [“This juror could hardly have been more equivocal about whether he could set aside his religious convictions and perform a juror’s duties.”].) The extensive voir dire in Rountree, supra, showedthat the juror was substantially impaired in spite of his statement that he was willing to set aside his beliefs. In his concurring opinion, Justice Liu observed: Although the juror said he could follow the law if required to do so, the question is whetherthe juror would have been 42 substantially impaired,that is, impaired to a substantial degree. The juror’s discursive answers during voir dire were sufficient to leave the trial court “with the definite impression that [he] would be unableto faithfully and impartially apply the law.” (/d. at pp. 38-39.) Thefacts in Mr. Leon’s case are entirely different: during voirdire, there was no questioning of the prospective jurors about the meaning of their answers on the questionnaire that they were opposed to the death penalty, but could, if asked to do so, set aside such opposition and follow the law. As such,in this case, there is nothing in the record disputing the statements of Prospective Jurors R.C., D.A., and N.C. on the questionnaire that they could set aside their views about capital punishment, considerall the evidence pertaining to penaltyand follow the law as explained by the trial court. Moreover, during voir dire each of them stated that they did not want to change their answers on the questionnaire. The record does not contain the slightest hint that the judge considered the demeanorofprospective jurors R.C., D.A., and N.C. as a factor either for or against dismissing them for cause. The judge made no reference to demeanorin his rulings on defense counsel’s request to ask more questions. Neither the prosecution nor the defense mentioned demeanorin any of the discussions about the disputed cause challenges. In upholding thetrial court’s resolution of the Witt issue based on the judge’s assessment of demeanor, this Court has uniformly pointed to something in the record that showed that demeanor wasa reasonfor the judge’s decision’> — this case does not contain any comparableindications. 'S See, e.g., People v. Jones (2012) 54 Cal.4th 1, 42-43 [prosecutor brought question of challenged juror’s “body language”to trial court’s (continued... 4 In this case it appears that the trial judge took the prospective jurors’ “ves” answerto the voir dire pattern question “Do you have such conscientious objections to the death penalty that, should weget to the penalty phaseofthis trial, and regardless of the evidencein this case, you would automatically vote for a verdict of life imprisonment withoutthe possibility of parole” as “unequivocal” evidencethat the jurors were not qualified to serve. Demeanorplayed norole in his assessment. If the trial judge wasreally taking demeanorinto account, he surely would not have had the identical response to defense counsel’s objections that the record did not show that the jurors R.C. and N.C. were disqualified under Witt. (See trial judge’s response at 14 RT 388 RC.s answers cannot be viewed as equivocal] and at 15 RT 551 [N.C.’s answers were “unequivocal”]. ) Given that the judge apparently believed thattheseparticular answers by R.C. and N.C were unequivocal and thus justified their dismissals, there is no reasonto believe that he had an additional demeanor-based reason for dismissing them. '5 (continued) attention}; People v. Thomas (201 1) 51 Cal.4th 449, 470 (although opposing the challenge, defense counsel“acknowledgedthat the prospective juror was ‘very, very nervous,’ looked almostlike ‘a deer in the headlights,’‘couldn’t gather her thoughts’ and ‘was havingtrouble following ... questions’”); People v. Farley (2009) 46 Cal.4th 1053, 1088 [prosecutornoted hesitancy in A.S.’s responses]; People v. Martinez (2009) 47 Cal.4th 399, 435, 444 [prosecutor remarked on E.H.’s emotionalstate and uneaseandtrial court indicated in general commentsit wasparticularly “sensitive” to and observant of the demeanorofprospective jurors]; People v. Lewis (2008) 43 Cal.4th 415, 485 (record showedthat H.G.“‘loudly’” and “emphatically”stated her belief that she could not consider the death penalty.) 44 F. To the Extent the Answers of Prospective Juror R.C. and N.C. Were Not Inconsistent or Equivocal, They did not Establish that These Prospective Jurors Were Substantially Impaired and Thus Not Qualified to Sit on a Capital Jury Asdiscussed previously, at the time the trial judge addressed defense counsel’s objection to the removal of Prospective Juror R.C. for cause, he suggested that the responses of R.C. on the issue of capital punishment were not “equivocal.” (14 RT 388.) In the case of Prospective Juror N.C., the trial judge was more explicit in stating that he believed her answers regarding the death penalty were unequivocal. (15 RT 551.) As Mr. Leon previously showedin this brief and in his opening brief, the answers of R.C. and N.C.were in fact equivocal. However, assuming arguendo that the trial judge wascorrect in finding the statements ofR.C. and N.C. were not conflicting or equivocal on the issueof capital punishment,the trial court’s decision to dismiss them waserroneous. This Court has madeit clear that more deference is given by an appellate court to the decisions ofthe trial court under Witt when the answers of the prospective jurors are deemed to be equivocal, inconsistent or ambiguous. (See, e.g., People v. Pearson (2012) 53 Cal.4th 306, 327- 328 [When a prospective juror has made conflicting or equivocal statements regarding his or herability to impose either a death sentence,thetrial court is in the best position to assess the potential juror’s true state of mind, a finding that must be deferred to on appeal.]) There is no such deference due when a prospective juror’s answers are unequivocal. Rather: “[i]n the absence of such contradictions or equivocation, the trial court ruling is reviewed for substantial evidence...” (/d. at pp. 327-329, citing People v. Horning (2004) 34 Cal.4th 871, 896-897.) If the answers of R.C. and N.C. were not equivocal,as the trial judge 45 asserted, this Court must find that there is not substantial evidence to find that either of these two prospective jurors were substantially impaired under the Witt standard. On her questionnaire, N.C. stated that, if instructed by the court, she would consider the mitigating and aggravating evidence before voting on the issue of penalty and wouldsetaside her personal feelings about what the law should be and follow the law as explained by the judge. (2 SCT 480.) Similarly, R.C.’s statements on his questionnaire that he too could set aside his views aboutthe death penalty, follow the court’s instructions and weighall relevant evidence before deciding the issue of punishment showed that he was not substantially impaired under the Witt standard. Moreover, both N.C. and R.C.said during voir dire that they did not want to changetheir answers ‘on the questionnaire. G. The Trial Court’s Error in Dismissing Prospective Jurors R.C., D.A., and N.C. Requires Reversal of . Appellant’s Death Sentence The question beforea trial court is notwhethera prospective juror has personal scruples against the death penalty, but whetherhe orsheis able to set aside his or her own beliefs and follow the law. (Lockhartv. McCree, supra, 476 U.S. at p. 176; People v. Stewart, supra, 33 Cal. 4th at p. 446.) The focus, therefore, is on the juror’s decision-making process, not his or her personal or moral feelings about the death penalty. (/d. at p. 453, n.16.) Even where a juror would find it very difficult to impose the death penalty, it would not be appropriate to excuse the juror for cause “unless he or she were unable or unwilling to follow the trial court’s instructions.” Ud. at p. 447, emphasis added.) As demonstrated ante, in the cases of prospective jurors R.C., D.A., and N.C., the trial court’s dismissals for cause were not supported by substantial evidence. There were inconsistencies in the answersofall three 46 which could have beenclarified if the trial judge had asked a few follow-up questions as defense counsel repeatedly requested. In People v. McKinnon, supra, 52 Cal. 4th at p. 644, this Court concluded: Whencounsel failed to openly contest an excusal, we may logically assume counsel didnot opposeit. It is equally logical to assume that when, having been advised ofthe court’s intention to excuse a prospective juror, counsel declined an opportunity for further voir dire to clarify the juror’s views, counsel accepted the record as it stood was sufficient to support the intended ruling. Surely, the converseis true. That is, the fact that in Mr. Leon’s case defense counsel repeatedly but unsuccessfully asked the trial judge to ask follow-up question demonstrates that the defense did not accept the record as sufficient to support the trial judge’s decision. The lower court’s stubborn refusal to conduct a more searching and meaningful examination about how prospective jurors’ views about capital punishment would affect their ability to serve as jurors in this case necessarily meant that his determination that R.C., D.A., and'N.C.should be excused for cause is not supported by substantial evidence. Because the record in this case shows that each of these prospective jurors said they could set aside their views about capital punishment and considerall of the evidence before voting on penalty, it establishes that they were not “substantially impaired” under the Witt standard and were qualified to serve as jurors in a death penalty case. Further, because the voir dire in this case was so minimal, thetrial Judge’s resolution of inconsistencies on the prospective jurors’ answers during the jury selection processis not entitled to deference. The brief voir dire of R.C., D.A., and N.C., which consisted primarily of yes and no answers to four questions, did not offer anyone in the courtroom,including AT the judge, insight into whetheror not these three prospective jurors were “substantially impaired” for purposes ofthe standardset forth in Wittv. Wainwright, supra, Uttecht v. Brown, supra, and the relevant caselaw of this Court. “The erroneous dismissalof [these three prospective jurors] for cause based on that person’s views concerning the death penalty automatically compels the reversal of the penalty phase without any inquiry as to whetherthe error actually prejudiced defendant’s penalty determination.” (Gray v. Mississippi, supra, 481 U.S.at p. 666.) Accordingly, Mr. Leon’s sentence of death must be reversed. kok * 48 Ii. THE TRIAL JUDGE ERRED IN ALLOWING THE TESTIMONY OF JULIO CUBE PURSUANT TO EVIDENCE CODE SECTION 1101, SUBDIVISION(B) Asexplained in appellant’s opening brief, the trial judge violated Mr. Leon’s rights to a fair trial, due process and a reliable determination of guilt under the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution when he erroneously allowed the prosecution to present, under California Evidence Code section 1101, subdivision (b), the testimony of Julio Cube about two uncharged robberies. (AOBat 89-111.) A. Introduction Respondent’s brief fails to address fundamental questions involving the prosecutor’s decision to call Julio Cube as herfirst witness in the guilt phase of Mr. Leon’s trial. This caseinvolved the joinderoften unrelated robbery counts, two of which also involved felony murders. Why did the prosecutor deem it necessary to present evidence of two otherrobberies, which had been dismissed as counts from the case becausethe victim could not identify Mr. Leon, for the supposed reason that such evidence would showhisintent and a plan in the other crimes actually charged against him? The answerlies, it appears, in how the prosecutor used Mr. Cube’s testimony in making her closing argument to the jury. She madean entirely inappropriate appeal to emotion in that speechat the guilt phase trial, and Mr. Cubeplayed a central role. The theme of the prosecutor’s guilt phase argument wasthat the crimes in the case involved “cruel and unnecessary violence:” Same thing with Mr. Cube, the violence in that case is so unnecessary. I don’t know whether you noticed butthat that [sic] Mr. Cube was disabled. He had one hand that was disfigured. He was a manofonly five feet four inchestall. 49 He was a man of 110 pounds. And the robber came back twice, oncesticking a knife in his belly as he says, and the othertimesticking a gun in his neck. Examples of excessive violence in this case. Unnecessary cruelty towards the victims. .. (30 RT 2149.) Defense counsel properly objected to this argument as an improper appealto the passions of thejurors and as, irrelevant to the question of Mr. Leon’s guilt of the charged crimes. (30 RT 2149.) B. The Testimony of Julio Cube was not Probative of the Real Issue in This Case: the Identity of the Perpetrators Mr. Leon acknowledgedin his opening brief that a plea of not guilty technically places all elements of a crime at issue. (AOBatp. 98.) However,the facts of this case are such that, as a practical matter, the intent of whoever committed the charged robberies and the felony murders was not in dispute. As noted in the AOB,it was notthe intent of the perpetrator (or perpetrators) that wasat issue in this case, it was his (or their) identity that was highly contested. Offering the testimony of Julio Cube for alleged purpose of showingintent was, at the least, “gilding the lily.” In People v. Lopez (2011) 198 Cal.App.4th 698, 715, the Court of Appeal, citing People v. Ewoldt (1994) 7 Cal.4th 380, 406, wrote: Simply put, evidence of unchargedacts cannotbe used to prove something that other evidence showed was beyond dispute; the prejudicial effect of the evidence ofthe uncharged acts outweighs its probative value to prove intent as it is cumulative regarding that issue. As the following summary shows, the evidence presented bythe prosecution concerning each of the robberies and the robbery murders chargeddid not leave any room forinterpretation about the intent of the perpetrator or perpetrators involved. 50. The manager of Chan’s Shell Service testified that a man put a gun to his neck and demandedthat he open the cash register, at which point, the man took all the moneyoutofthe register. (17 RT 715- 716.) Several employees and customers of Ben’s Jewelry testified that three men,all carrying guns, entered the store and ordered everyone into a bathroom where they were tied up. The men demanded money from the customers, and once:the robbersleft, it was discovered that almostall of the contents of thejewelry cases and safe had been taken. (18 RT 805-819;24 RT 1578-158: 19 RT 938; 20 RT 991.) The owner and employees ofH & R Pawn Shoptestified that three men, who had guns, entered the pawn shop; openedfire, injuring several of the witnesses, and took jewelry from the display cases and then fled the store. (20 RT 101 1, 1013-15, 1027, 1059-1060, 1062.) The managerof the Seven Star Motel testified about two robbers entering her office, pushing her in corner and holding “something”to her back and demanding money. They took money from her desk drawerand from herpurse. (19 RT 955-959.) An employee of the Original Blooming Design flower shoptestified that three men asked him about“after Valentine” specials. One of them grabbedhishair, pulled him downand held a gun to head. He openedthe cash register, and oneof the robbers took the money.(22 RT 1286-1291.) Two employees of Rocky’s Video Store testified that three men robbed them. All of them had guns. Oneofthem pointed a handgun into one of the employee’s stomachandtold her to give him money, whichshe took from the cash register and gave to him. Healso took 51 money from a drawer and a radio or “boom box.” An employeeofthe Nice Price Store testified about two men robbing her store. Both of them had guns. Oneofthem told her“this is a robbery” and pointed a gun at her. She opened the cash register and gave him the moneyin it as well as the money she had in her purse. (24 RT 1489-1503.) ; An employee ofthe Valley Markettestified that three men entered the market. One of them pointed a gunin his face, then reached over the counter and removed money from the cash register. (21 RT 1198- 1203; 1209, 1213.) a | Twowitnesses testified about the robbery of the Sun Valley Shell Gas Station andthe killing ofNorair Akhverdian. One witness heard coins falling on the floor inside the gas station store; saw a frighten look on the face of Mr. Akveridian and then saw a man. shoot him. The witness testified: “As far as I could tell, hearing change falling andstufflike that, the place was getting robbed.” (28 RT 1907- 1908.) . Several witnesses testified about the robbery of Jack’s Liquor Store and the killing of its owner, Varouj Armenian. Noneofthe witnesses actually viewed the robbery and homicide, but they heard gun shots emanating from the liquor store and found Mr. Armenian’s dead body in the store. When the police arrived, they found two $5 bills and some small changeleft in the cash register and about $1000 . in cash on the body. (23 RT 1455.) A bank security bag, containing $2000, which Mrs. Armenian gaveto her husband the night before was never found. (23 RT 1445,1455.) As the above summary establishes, there was never any question 52 about the intent of whomever committed the robberies and the two felony murders charged in this case. Therefore, the probative value of Julio Cube’s testimonyasit related to the issue of the intent involved in the charged crimes wasextremely limited. As this Court observed in People v. Balcom (1994) 7 Cal.4th 414, 422-423, because the victim’s testimony that defendant placed a gun to her head,if believed, constitutes compelling evidence of defendant’s intent, evidence of defendant’s uncharged similar offenses would be merely cumulative on this issue. Therefore, because other crimes evidenceis so prejudicial (People v. Ewoldt, supra, 7 Cal.4th-at p. 404), it should not be admitted to show intent unless there is somereal possibility that the jury might otherwisefail to find that element beyond a reasonable doubt. Since evidence of uncharged crimesis inherently prejudicial, such 2 99evidence must have “‘substantial probative value’ to be admissible. (People v. Ewoldt, supra, 7 Cal4th at p. 404, italics omitted; People v. Lindberg (2008) 45 Cal.4th 1, 23; People v. Kelly (2007) 42 Cal.4th 763, 783.) The Ewoldt decision identified various factors affecting the weighing of the probative value of uncharged crimes evidence againstits prejudicial effect, including the tendency of that evidence to demonstrate the fact in issue, the independenceof the source of the uncharged crime, whether the uncharged crime resulted in conviction, whetherthe facts of the uncharged crime are more inflammatory than the facts ofthe charged offense, the remotenessin time to the charged offense, and whetherthere is other evidence to substantiate the fact at issue. (People v. Ewoldt, supra, at pp. 404-406.) The probative value of the Cube robberies was limited. As found by the magistrate at the preliminary hearing and affirmed by Judge Ashemanat 53. the 995 motion hearing, Cube’s identification of Mr. Leon as the man who robbed him twice was so inadequate that it did not even meetthe sufficient cause standard applicable at a preliminary hearing, let aside the preponderance of evidence standard required to introduce other crimes evidence. Further, contrary to respondent’s assertions, the similarity between the Cube robberies and the charged robberies was minimal. Indeed, there wasnothingparticularly distinctive about any of these robberies; unfortunately, robberies of small retail establishments in Los Angeles are common. Moreover,the first robbery of Cube involved one perpetrator, using a knife. The second one involved one robber with a gun. By contrast, most of the charged robberies involved more than one perpetrator, and none of them involved the use of a knife. Certainly, there was not enough similarity to be admissible to show a common designor plan, as described by this Court in People v. Ewoldt, supra, 7 Cal.4th at p. 406.) '6 Moreover,the alleged purposeof presenting the testimony of Julio Cube — to show intent and commonplan or design — was more than adequately covered by the evidence offered to prove the charged crimes. As described ante, the intent of the perpetrator or perpetrators in the charged crimes was not and could not be disputed. Also, because Mr. Leon was charged with cight robberies and two robbery murders, to the extent . 6 In Ewoldt, supra, this Court wrote: “A greater degree of similarity [between uncharged crimes and the charged crimes] is required in order to prove the existence of a common design or plan. . . .Evidence of uncharged misconduct must demonstrate “not merely a similarity in their results, but such a concurrence of commonfeatures that the various acts are naturally to be explained as caused by a general plan of which they are individual manifestations.’” (/d. at p. 402.) 54 that the prosecutor thought she needed to show “commonplanor design,” to prove hercase, the joinder of these eight robberies and two robbery murders should have been sufficient to accomplish that purpose. If the prosecution couldn’t show commonplan or design with the evidence presented concerning the ten charged robberies (including two felony murders), the testimony of Julio Cube would not accomplish that purpose. It is clear that the Cube testimony was merely cumulative on the issues of intent and commonplanordesign. C. The Trial Judge Should Have Excluded Cube’s Testimony Under Evidence Code Section 352 Asdiscussed in the openingbrief, the trial judge never ruled on Mr. Leon’s objection that, under Evidence Code section 352, Julio Cube’s testimony should have been excluded becauseits prejudicial effect outweighed whatever minimal probative value it had. (AOBat pp. 103- 110.) A recent decision of the California Court of Appeal, Peoplev. Paniagua (2012) 209 Cal.App.4th 499, 512, involved a similar situation wherea trial judge failed to even mention section 352 when ruling on the defendant’s motion to exclude evidence under that Evidence Code section. The Paniagua Court found reversible error because ofthe trial court’s failure to exercise discretion under section 352. In Paniagua, the Court of Appeal reversed a commitmentof the defendant to the Department of Mental Health for an indeterminate term after a jury found him to be a sexually violent predator. At issue was the prosecution’s introduction of evidence suggesting that Paniagua, who had pled guilty to two counts of molestationof a child younger than 14, had traveled to Thailand in 1998. The defense objected to the evidence’s authenticity and reliability since it consisted only of one document from 55 HomelandSecurity and that information was refuted by other evidence. The Homeland Security documentstated that Paniagua had flown from Trang Airport in Thailand to Los Angeles on United Airlines Flight 842 on August 21, 1998; however, officials of United Airlines stated that it had never flown into Thailand and that on the date mentioned in the Homeland Security document, its Flight 842 went from Auckland, New Zealand to Melbourne, Australia to Los Angeles to Chicago. Defendant Paniagua’s principal objection to this evidence was made pursuant to Evidence Code section 352. Paniagua argued that apart from its unreliability or lack of authenticity, the evidence had very limited relevance or probative value while also being unduly prejudicial because Thailand had a reputation for being a place where sex withminors waseasily available. (Id. at p. 509.) : | | . The prosecutor claimed that he was introducing the evidence to impeach Paniagua and showthathe had not been truthful with the prosecution experts about whether he had traveled outside the United States during that period.'’ The defense countered that if that were the true purposeofthe prosecutor, he should havebeen willing to “sanitize” the evidence by stipulating that the jury would learn that Paniagua had traveled to some unnamedforeign country. While the parties did stipulate to the fact that the records of United Airlines showedthatFlight 842, on August 21, 1998, flew from Auckland to Melbourne to Los Angeles to Chicago (id.at p. 514), the Court of Appeal observed that “the district attorney took every opportunity to have his experts mention Thailand.” (/d.at p. 522.) In deciding to reverse, the Court of Appeal noted that it must apply 7’ There was nodispute that Paniagua had visited El Salvador several times during this time period. 56 an abuseofdiscretion standard to its review of the trial judge’s admission of this evidenceand thatin ruling on a section 352 objection thetrial judge need not expressly weigh prejudice against probative value or even expressly state that it has done so. (/d. at 518.) However, in the Paniagua case, asis in the present case, the record showedthatthetrial judge had not exercised his discretion under section 352 nor had he weighedthe probative value of the proposed evidence againstits prejudicial effect. (/d. at p. 519.) In the view of the Court of Appeal, the trial judge’s statement in Paniagua that he was denying the defense motion to exclude evidence that defendant had gone to Thailand because there wasa conflict in evidence which the jury could resolve showedthat the judge had not properly exercised discretion. The Court observed: ... the record showthat the court [should] exercise[d] “its discretion in an informed manner.” The record here does not measure up. Indeed, there was no weighingatall. (People v. Paniagua, supra, 209 Cal.App.4th at p. 518, quoting Andrewsv. City & County ofSan Francisco (1988) 205 Cal.App.3d 938, 947.) Similarly, in the instant case, the record showsthat in ruling on Mr. Leon’s objection to the Cube robbery evidence, the trial judge did not exercise his discretion in an informed manner, as required by section 352. Noneofhis statements aboutthe ruling suggest that his decision to admit the evidence took into account the issue of whether the probative value of Julio Cube’s testimony was outweighed by its undueprejudicial effect. Accordingly, as in Paniagua, the trial court erred. 57 D. The Introduction of Julio Cube’s Testimony wasPrejudicial Error, Requiring Reversal Respondenturgesthat this testimony was properly introduced as evidencerelevantto the issues of intent and commonplan or design. It is clear, however, that given all of the evidence presented in this case to prove - multiple counts of second degree robbery ofsmall stores as well as two counts of robbery murder, Mr. Cube’s testimony was cumulative. Moreover, this case involved a situation where the “other crimes eviden ce” concerned crimes that had been charged originally in the Information and then dismissed because the evidence was 50 weakthat it didn’t meet the low standard of“sufficient cause” at the preliminary hearing. Therecord ofthis case — that is, the prosecutor’s closing argument to the jury — also makesclearthat the real purpose behind the prosecutor’s insistence that Mr. Cubetestify as the first witness at Mr. Leon’s guilt phase trial was to use Cube’s physical disability and his small stature to convince the jury that Mr. Leon wasnot only a robber but one whoviolated the “criminal code” by choosing vulnerable individuals and engaging in excessive violence andcruelty. (30 RT 2147-2149.) In the context of instructional error, the Court of Appeal noted in People v. Chavez (2004) 118 Cal.App.4th 379, 388, that “closing arguments to the jury are relevant in evaluating prejudice.” Certainly, inthis case, the prosecutor used the Cube robberies to make an improper and inflammatory guilt phase argumentto the jury. As argued ante and in the openingbrief, not only did thetrial judge err in denying Mr. Leon’s motion, pursuantto both sections 1101(b) and 352, to exclude the testimony of Julio Cube, he violated Mr. Leon’s constitutional rights to a due process anda fair trial because this evidenc e 58 tainted the trial by lightening the State’s burden of proof and allowing the Jury to convict Mr. Leon based,at least in part, on evidence of criminal propensity which had limited probative value while being unduly prejudicial. The State cannot prove beyond a reasonable doubtthat the impropertestimony of Mr. Cube did not affect the convictions and death sentencein this case. (Chapman v. California (1967) 386 U.S. 18, 24.) Nor can the State show that if this evidence had not been introduced, the jury would not have returned a verdict more favorable to Mr. Leon. (People v. Watson (1956) 46 Cal.2d 818, 836.) Accordingly, his convictions and death sentence must be reversed. 59 IV. THE ERRONEOUS ADMISSION OF IDENTIFICATION TESTIMONYOF DETECTIVE OPPELT CONTRAVENED STATE EVIDENTIARY RULES AND APPELLANT’S DUE PROCESS RIGHTS In his opening brief, Mr. Leon argued that the trial judge erred in admitting, over his objection, the testimony ofDetective Oppelt regarding videotapes of two robberies whichtookplace at two different stores. The detective identified Mr. Leon as one of therobbers depicted in a videotape of a robbery at the Valley Market which occurredon February 17, 1993'8 (26 RT 1743.) Oppelt also identified Mr. Leon as the robber/murdererin a videotape taken at the Sun Valley Shell Gas Station on February 2, 1993." This identification testimony was impropet and prejudicial both under California evidentiary law and under federal constitutionalprinciples. The trial judge overruled Mr. Leon’s objection to this testimony, relying exclusively on three California Court of Appeals decisions: '8 The videotape taken of the robbery at the Valley Market was marked as People’s Exhibit 9. (26 RT 1708.) '° The videotape taken at the Sun Valley Shell Gas Station was marked as People’s Exhibit 8. (26 RT 1745.) Subsequently, the police madeanother tape comprisedof portions of Exhibit 8; this tape became People’s Exhibit 93, which the prosecutor played during the trial. The prosecutor asked Detective Oppelt to identify the jacket, marked as People’s Exhibit 3, which Mr. Leon was wearing when he wasarrested as being the one worn bythe robber depicted in Exhibit 93, the partial tape of the Shell gas station. (26 RT 1752-1753, 1755-1757.) Therefore, during his testimony about whatwas depicted in Exhibit 93, Detective Oppelt identified Mr. Leonbystating that the jacket on the personin the tape was the same jacket that he had been wearing when hewasarrested. 60 People v. Perry (1976) 60 Cal.App.3d 608; People v. Mixon (1982) 129 Cal.App.3d 118 and People v. Ingle (1986) 178 Cal.App.3d 505. (26 RT 1711-1713, 1716-1717.) While it is true that in each of those decisionsthe appellate court upheldthetrial judge’s admission of identification testimony by law enforcementofficers”® about the content of photographsanda tape, the facts in those cases were distinguishable from those present in this case. In Perry, supra, a concealed surveillance camera photographed the robbery of a cashier’s office. There were two robbers; the cashier was not able to identify defendant Perry in the photograph taken from the surveillance camerafilm, in a photolineup or in an in-person lineup. The trial court allowed Perry’s parole officer and a police officerto testify that defendant was oneofthe robbers appearing in the photograph, and the appellate court upheld this ruling. The California Court of Appeal found that this evidence was properly admittedunder California Evidence Code section 800, governing non-expert opinion testimony, because of the following factors: | The witnesses each predicated their identification opinion upontheir prior contacts with defendant, their awareness of his physical characteristics.on the day of the robbery, and their perception of the film taken of the events. Evidence was introduced that defendant, prior to trial, altered his appearance by shaving his mustache. The witnesses were able to apply their knowledge of his prior appearance to the subject in the film. Such perception and knowledge wasnot available directly to the jury. (People v. Perry, supra, 60 Cal.App.3d at p. 613.) The decision in People v. Mixon, supra, cited People v. Perry, supra, *° The Ingle decision involved testimony ofthe victim,not police officers, about what was depicted on the videotape. 61 and relied upon some ofthe samefactorsto find the disputed testimony to be admissible. In Mixon, a surveillance camera took a photograph of a robbery ofa gasstation. The Court of Appeal upheld the admission of two officers’ identification testimony because they had'seen defendant Mixon several times over many years and also had knowledge of his appearance during the time period whenthe crimes occurred. In affirming the admission ofthis testimony, the appellate court also cited the fact that the defendanthad changed his appearance between the time ofthe robbery and trial and that the surveillance photograph was not clear. (Mixon, supra, 129 Cal.App.3d at p. 130.) | In People v. Ingle, supra, the witness whotestified about the identity of the robber in the surveillance videotape wasthe victim. Relying on the reasoningof both thePerry and Mixon decisions, the Court of Appeal upheld the trial court’s decision to allow the victim to testify that the person in the videotape of the robbery appeared tobe defendant because she had “an adequate opportunity to view defendant’s physical features during the robbery andto relate her observations and recollections to both the video picture and the defendant’s person.” (People Ingle, supra, 178 Cal.App. 3d at p. 514.) The Ingle decision also noted thatthe fact that a person’s appearance might have changed in the period between the crime and the trial justifies identification testimony based on a videotape. Ubid.) Applying the factors identified in these three Court of Appeal decisions to an analysis of this case, Detective Oppelt should not have been allowed to identify Mr. Leon in the videotapes of the Valley Market and Sun Valley Shell Gas Station robberies. First, there was no evidencethat Detective Oppelt had ever seen Mr. Leon before he was arrested. Therefore, unlike the officers in the Perry and Mixoncases, Oppelt did not 62 haveprior contact with appellant, and both of those decisions emphasize the importance of the witness having such prior knowledge of the defendant’s appearance. Second, there was no evidence offeredattrial that Mr. Leon’s appearance had changed between the time the surveillance cameras took photos of the robberies and when thetrial took place. Respondent argues that the prosecutor noted “during closing argumentthat appellant had shaved his mustache, gained weight and changedhishair.” (RB atp. 99.) The prosecutor’s argumentis not evidence. Moreover, during the discussionat trial about the defense objection to Oppelt’s identification testimony, the prosecutor never argued that one ofthe justifications for the testimony wasthe changed appearance of Mr. Leon. When defense counsel argued that allowing Detective Oppelt to testify that Mr. Leon appeared onthe surveillance tapes of the robberies at Valley Market and Sun Valley Shell Gas Station would be particularly prejudicial because the jury would tend to defer to the opinionsofa police officer, the trial judge dismissed this claim as purely speculative. (26 RT 1711, 1716.) However, the Mixon decision clearly states that having law enforcement personnel testify as tohis or her opinion aboutthe identity of a defendant in a surveillance photograph or videotaperaises legitimate concern about undue prejudice. (People v. Mixon, supra, 129 Cal.App.3d at p. 129.) Other courts have recognizedthe potential prejudice which canresult from having a police officer testify that in his opinion the defendant appears in a surveillance photograph or videotape. Very recently, in Proctor v. State (2012) 97 So.3d 313, the Florida District Court of Appeal found reversible error when a police officer testified that in his opinion defendant Proctor was the person shown on a bank videotape cashing somestolen 63 checks. The Court noted: “(E]rror in admitting improper testimony may be exacerbated where the testimony comes from a police officer.” Martinez v. State, 761 So.2d 1074, 1080 (Fla.2000). There is the danger that jurors will defer to what they perceive to be an officer’s special training and access to background information not presented duringtrial. (Proctor, supra, 97 So.3d at p. 315.) Similarly, in State v. Belk (2009) 689 S.E.2d 439, the North Carolina Court of Appeals reversed a conviction becauseit relied upon a police officer’s testimony that defendant Belk was the individual depicted in a surveillance videotape of a breaking and entering incident. One of the reasons why the appellate court found that this evidence was both improper and prejudicial was because of the witness’s status as a police officer: _.. because the witness was a police officer with eighteen years of experience, the jury likely gave significant weight to Officer Ring’s testimony. Officer Ring’s testimony identifying the individual depicted in the surveillance video as the defendantplayed a significantif notvital role in the State’s case, makingit reasonably possible that, had her testimony been excluded,a different result would have been reachedattrial. (Id. at p. 443.) State v. George (2009) 150 Wash.App. 110, involved a robbery which hadbeen captured on a surveillance video. Oneof the investigati ng officers testified at trial and identified defendant George and a co-defendant as two ofthe robbers depicted on the videotape. The Washington Court of Appeals foundthat the trial judge had abused his discretion in admitting this evidence because the detective did not have sufficient contact with the defendants prior to the robbery to express an opinion that they appeared on 64 the videotape. (/d. at p. 119.) While the officer testified that he had viewed the surveillance video “hundredsoftimes”beforetrial, the appellate court foundthat this exposure did not make up for the lack of substantial contact with the defendant before the robbery occurred. (/d. at pp. 115, 118-119.) Respondentargues that even assumingthat the trial court erred in admitting Detective Oppelt’s testimony, any error was harmless because the evidence of Mr. Leon’s guilt was overwhelming. In making this prejudice argument, respondent aggregatesall of the evidence presented by the prosecution to prove the ten robberies and two murders chargedin this case. This assessmentofprejudice is incorrect. In determining whether the admission of Oppelt’s identification testimony was prejudicial, one must look to the evidence presented on the counts related to the Valley Market robbery and the Sun Valley Shell Gas Station robbery/murder, the only incidents which involved videotapes about which Oppelttestified. The evidencethat appellant participated in the Valley Market robbery was not overwhelming. Joon Kim, who was working at Valley Market on the day of the robbery,testified that three men entered the store. Oneofthem pointed a black revolver at Kim’s face and asked for money from the cash register; the man then reached over the counter and grabbed it. (21 RT 1212-1203, 1208) Right after the robbery, Mr. Kim told the police that the robber was “black.” (21 RT 1208-1209.) In court, Kim did not describe Mr. Leon as black butas ethnically mixed, and not white. (21 RT 1208-1216.) While Kim selected Mr. Leon from a photosix-pack, noting that the photo “looked like” the suspect (People’s Exhibit 58, 21 RT 2104), he did not identify Mr. Leon at a live line-up. (7 CT 1745.) Kim said thatall of the participants in the line-up looked alike to him. (21 RT 1207.) Hetestified that police had 65 shown him video footage several times, but he wasnot certain how m any times he had viewed the video between the time of the robbe ry, the time he made a photo line-up identification, and the preliminary hearing. (21 RT 4211-1215.) Similarly, the evidence regarding the Sun Valley Shell Gas Stati on robbery and homicide was not overwhelming. One witness, Raffi Rassam, testified that he saw the robbery when hewas outside attempting t o pump gas. When he wenttoward the station store, he heard coins falling on the floor of the store and saw Norair Akhverian, whowas facin g Rassam, and another man, who hadhis back to him. (28 RT 1907.) Rassam s aw this man jump from behind the counter and then turn and shoot Akhverdian . (28 RT 1909-1911.) At the time ofthe incident, another clerk, Nic k Kirakosyan, had been working in a back room of the store. He never saw the suspect and did not recognize the person depictedin the videotape of the r obbery. Rassam testified that he could not rememberif he had been showe d photographsor video footage between the time of the incident an d the time he identified suspects in line-ups. He remembered that a few week s after the incident the police shown him videotapes of other robberies. Rassam testified that he “may have” formed an opinion that the man who wa s depicted in those videotapes was the same orie who robbed the Sun Valley Shell station and killed Mr. Akhverdian. In photo line-ups, Rassam identified two photos, one of which was of appellant. He noted th at both suspects “resembled the type of face build” as the robber. He al so identified appellant in a live line-up but said “it looked like he wa s scruffier.” (People’s Exhibit 134, 28 RT 1917-1918.) This Court should reject respondent’s argumentthat it aggregate all of the evidence from ten robberies and two felony murders to assess the 66 prejudice created by Detective Oppelt’s identification testimony concerning two of these incidents. Rather, the Court should focus on the factthat it waslikely that the jurors would be influenced by the fact that Oppelt was a police officer and would give his testimony special deference. Another source of undue prejudice was the prosecutor’s reliance on the videotapes in makinghercase for appellant’s guilt. Indeed, the prosecutor arranged to have the tapes shownin the jury deliberation room. (30 RT 2164.) She played one of the tapes, People’s Exhibit 9, for the jury during her closing argumentat the guilt phase. (30 RT 2165.) In narrating the tape, she pointed to one of the people depicted and stated “you have heard testimonythat this is the defendant.” (30 RT 2166-2167.) Not only did Oppelt’s testimony identifying appellant in the tapes become a cornerstone of her argument regarding those two robberies, she used the tapes to support her “theme”?thatall the crimes in this case were exceptionally cruel: | The defendant, you can see from someof the videos ofthe robbery, it’s more than the way he looks. He hasanattitude, a strut about him as he robs people. It is excessive, if you will, becauseifyou look at , for instance, a good exampleofthat is the video that we have ofthe Su or the Chan’s Shell. The way he comesin he is displaying the gun in a very outward position. He is up on the guy’s neck. I mean he turns what could be rather routine robbery into a very frightening and intimidating experience. Andin that respect has left an indelible impression on those victims such that even today, somethree and a half years later, they can comein, they can take the oath, and they can look over at this man and he can shave that mustache off his face. He can gain weight. He can undo the ponytail like he has done today. And they are sure he is the man. They can identify (sic) as the man. (30 RT 2181-2182.) 67 Forall of the foregoing reasonsand those stated in appellant’s opening brief, Mr. Leon’s convictions and death sentence should be reversed. 68 V. THE TESTIMONY ABOUT THE AUTOPSY OF NORAIR AKHVERDIAN VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONTATION In this case, Dr. Eugene Carpenter, a medical examiner in the Los Angeles Coroner’s Office, testified as a prosecution witness about the autopsy of the body of Norair Akhverdian, which was conducted by another medical examiner, Dr. James Wegner. (26 RT 1720-1740.) Argument V of appellant’s openingbrief sets forth in detail why this testimony was improperand violated Mr. Leon’s Sixth Amendmentrights to confrontation, under the principles discussed in the United States Supreme Court’s decision in Crawford v. Washington (2004) 541 U.S. 36 and Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305. (AOBat pp. 126- 142.) This brief will address points raised in respondent’s brief as well as recent decisions of this Court and the United States Supreme Court. A. Appellant has not Forfeited this Claim by Failing to Object at Trial Respondent urges the Court to find that appellant waived this claim on appeal because he did notraiseit at trial. Although this Court has held that challenges to the admission of evidence normally are forfeited if not timely raised in the trial court, “this is not so whenthe pertinent law later changes so unforeseeably thatit is unreasonable to expect trial counsel to haveanticipated the change.” (People v. Black (2007) 41 Cal.4th 799, 810- 811, quoting People v. Turner(1990) 50 Cal.3d 668,703; see also People v. Chavez (1980) 26 Cal.3d 334, 350, n. 5.) Mr. Leon’s trial took place in 1996. In 1992, this Court held that the testimony of a pathologist regarding the contents of an autopsy report 69 prepared by another pathologist, who had since passed away,did notviolate the Confrontation Clause because it was admitted “under a firmly rooted exception to the hearsay rule that carries sufficient indicia of reliability to satisfy the requirements of the confrontation clause.” (People v. Clark (1992)3 Cal. 4th 41, 158, see also Peoplev. Beeler (1995) 9 Cal. 4th 953, 979 [testimony of prosecution witness regarding autopsy findings of another pathologist did not violate confrontation clause].) It was not until 2004 that the United States Supreme Court issuedits seminal decision in Crawford v. Washington, supra, 541 U.S. 36. Crawford “abandoned”the indicia-of-reliability standard used by this Court in People v. Clark. (People v. Geier (2007) 41 Cal. 4th 555, 597.) Becauseofthis wholesale change in the law,courts have held that a Crawford claim is not waived or forfeited by the failure to make a Sixth Amendment objection in the trial court. (People v. Saffold (2005) 127:Cal. App. 4th 979, 984 [“Any objection would have been unavailing under pre-Crawford law’’}; People v. Johnson (2004) 121 Cal. App. 4th 1409, 1411 n. 2 [“the failure to object was excusable, since governinglaw atthe time of the hearing afforded scant grounds for objection’”].) Accordingly, the Court should decide the merits of Mr. Leon’sclaim. | B. Despite this Court’s Decision in People v. Dungo, the Court Should Find that the Autopsy Report in this Case wasTestimonial In Crawford v. Washington, supra, 541 U.S. at p. 68 (“Crawford”), the United States Supreme Court held that admission of out-of-court testimonial evidenceviolates the Confrontation Clause of the Sixth — Amendmentunless the witnessis unavailable and the defendanthas had a prior opportunity for cross-examination. The Court, however, did not spell 70 out a definition of “testimonial evidence,” leaving the exact parameters of its decision open. (/bid.) Sinceits decision in Crawford, supra, the High Court has issued several opinions”! wrestling with the definition. None of these decisions, however, has provided a clear statement of the meaning of “testimonial.” As this Court has observed,the “widely divergent views expressed by the justices of the United States Supreme Court” about the Sixth Amendmentconfrontation right in these decisions has maderesolving the issue in individual cases very difficult. (People v. Dungo (2012) 55 Cal.4th 608, 616.) In particular, the High Court’s decision in Williams v. Illinois (2012) 557 U.S.__, 132 S.Ct. 2221, a case involving DNAcollected in a rape case, is confusing. Chicago police sent an evidence sample,a vaginal swab from the victim of a rape, to Cellmark for analysis. From these swabs, Cellmark reported a DNAprofile which matched defendant Sandy Williams. At Williams’ benchtrial, the analyst who generated the Cellmark report did nottestify; instead, a prosecution expert testified that the DNA profile produced by Cellmark from the victim’s vaginal swabs matched a DNAprofile generated by the state police laboratory from a sample ofthe defendant’s blood. Ina splintered decision with no majority opinion, the United States Supreme Court ruled that the expert’s testimony concerning the Cellmark DNAprofile did not violate the defendant’s Sixth Amendment right of confrontation. | Theplurality opinion authored by Justice Alito and joined only by Justices Roberts, Breyer, and Kennedy, reached its conclusionthat the *! The most recent and relevant are: Melendez-Diaz v. Massachusetts, supra; Bullcoming v. New Mexico (2011) 564U.S.__, 131 S.Ct. 2705; and Williamsv. Illinois (2012) 557 U.S.__, 132 S.Ct. 2221. 71 expert testimony did not violate the defendant’s right to confront wit nesses on two different grounds: (1) the evidence had not been admitted fo r its truth, but rather for the non-hearsay purpose of explaining the basis of the testifying expert’s opinion, and (2) even if the Cellmark lab report ha d been introducedfor its truth, the evidence was not “testimonial” becau seits primary purpose wasnot to accuse petitioner or to create evidence for use at trial. (Id., 132 S.Ct. at p. 2228, 2243.) However, five Justices - the four dissenters and Justice Thomas, who wrote a separate opinion, concurring in the result but not the reasoning o f Justice Alito’s plurality opinion - expressly disagreed with the plurality’ s conclusion that the evidence concerning the DNA sample was not admi tted for its truth. Justice Thomas reasonedthat “statements introduced to explain the basis of an expert’s opinion are not introduced for a plausibl e nonhearsay purpose,” and“[t]here is no meaningful distinction betwee n disclosing an out-of-court statement so that.a factfinder may evaluate th e expert’s opinion and disclosing that statement for its truth.” (/d. at p. 225 7 [Thomas, J., concurring in the judgment].) Justice Kagan, in a dissent joined by Justices Scalia, Ginsburg, and Sotomayor, wrote that five Justices agreed in two opinions” that the expert’s statements about the Cellmark report were admitted for their tr uth. (Id. at p. 2268.) She explained that the utility of an out-of-court state ment admitted as the basis for an expert’s opinion “is .. . . dependent onits tr uth. If the statement is true, then the conclusion basedon it is probablytr ue;if not, not. So to determine the validity of the witness’s conclusion, the factfinder must assess the truth of the out-of-court statement on which it 22 The two opinionsreferred to by Justice Kagan were Justice Thomas’s concurring opinion and herdissenting opinion. 72: relies.” ([bid.) Justice Kagan,joined by three other dissenting Justices, madethis final critique of the Williams plurality decision: Before today’s decision, a prosecutor wishing to admit the results of forensic testing had to produce the technician responsible for the analysis. That was the result of not one, but two decisions this Court issued in the last three years. But that clear rule is clear no longer. The five Justices who control the outcomeoftoday’s case agree onvery little. Amongthem,though,they can boast of two accomplishments. First, they have approvedthe introduction oftestimony at Williams’s trial that the Confrontation Clause,rightly understood,clearly prohibits. Second, they haveleft significant confusion in their wake. What comesout of four Justices’ desire to limit Melendez-Diaz and Bullcomingin whatever way possible, combined with one Justice’s one- Justice view ofthose holdings, is — to be frank — who knows what. Those decisions apparently no longer meanall that they say. Yet no onecan tell in what wayor to whatextent they are altered because no proposed limitation commandsthe support of a majority. (Id. at p. 2277.) In Dungo, supra, this Court addressed the question of whetherthe testimony of a prosecution expert, who had not conducted the autopsy ofthe victim but whotestified about the cause of death, violated the defendant’s Sixth Amendment’s right to confront evidence against him. In Dungo, focusing on the issue of whetherthe autopsy report and photographs were “testimonial” and therefore subject to the Confrontation Clause, the Court did not find a violation. On the issue of whether the evidence was testimonial, the Court considered whetherit was made with the necessary degree of formality or solemnity and whetherits primary purpose pertained to a criminalprosecution. (People v. Dungo, supra, 55 Cal.4th at p. 619.) 73 t In Dungo, the Court foundthat the autopsy report of the non- testifying pathologist in that case was notsufficiently formal. That determination was based on thefact that the expert only testified about the statements in the report which were the pathologist’ s anatomical and physiological observations about the condition of the body. He did not testify about the conclusionsin the autopsy report ab out the cause ofthe victim’s death. (/d. at p. 619.) The Dungo majority opinion deemed these “observations of objective fact” to be less formal a nd therefore not “testimonial” in nature. (/bid.) - ; | Although the Court concluded under the facts of th e Dungo case that the autopsy report and photographs did not amountto “testimonial” evidence, the facts presented in Mr. Leon’s case are distinguishable in significant ways. The first crucial distinction is that i n Dungo, unlike in this case, neither the autopsy report northe autopsy photo graphs were ‘ntroduced into evidence.(/d. at p. 612.) ? It is undispute d thatin this case, the prosecution introduced both the autopsy report wr itten by Dr. Wegner and the photographs that were taken during the autops y. (29 RT 2024-2025; 8 CT 1970.) Another important difference is that in t he Dungo case the Court emphasized that the pathologist testified only about the objective . facts concerning the condition ofthe body as stated in the autopsy report and shownin the photographs but did not testifyabou t the conclusions in the report. (Dungo, supra, 55 Cal.4th at p. 619.) 3 In Dungo, the autopsy report of the non-testifying pathologist, Dr. Bolduc, was not introduced into evidence. The Cour t foundthat significant: «here (unlike in the companion case of People v. Lopez [citation omitted]), Dr. Bolduc’s autopsy report wasnot introd uced into evidence. Thus, we need not decide whether that entire report i s testimonialin nature.” (People v. Dungo, supra, 55 Cal.4th at pp. 6 18-619.) 74 By contrast, in Mr. Leon’s case, Dr. Carpenteressentially parroted whatwascontainedin the autopsy report authored by Dr. Wegner, who actually performed the autopsy, thereby adopting Wegner’s conclusions about the cause of death as his own. (26 RT 1726-1731.) The only time Carpenter was asked to express his own opinion regarding the autopsy of Norair Akhverdian was aboutthe location of the entry wound on the diagram which waspart of Wegner’s report. The prosecutor noted that the location ofthe bullet wound seemed to be lower than where the heart would be, and Dr. Carpenter described lay misconceptions aboutthe location of the heart and explained how the breathing process lowers and rises the position of the heart. (26 RT 1732-1734.) On cross-examination, Carpenter agreedthat he could not know,because it was notstated in the autopsy report, whether Mr. Ahkverdian wasbreathing in or outat the time the bullet hit him. (26 RT 1737.) Therefore, on these facts, Mr. Leon’s caseis distinguishable from Dungo. . The other factor leading the Court in Dungoto find thatthe testimony by an expert about an autopsy done by someoneelse wasnot “testimonial” for purposes ofthe Sixth Amendmentright to confrontation wasthe Court’s determination thatthe primary purposeofthe statements in the report wasnot for purposes of a criminal prosecution. (/d. at p. 621.) In support ofthis conclusion that the primary purpose ofan autopsyis not for criminal investigation, the majority opinion in Dungo observed: The usefulness of autopsy reports, including the one at issue here, is not limited to criminal investigation and prosecution; such reports serve many other equally importantpurposes. For example,the decedent’s relatives may use an autopsy report in determining whetherto file an action for wrongful death. And an insurance company mayuse anautopsyreport in determining whethera particular is covered by oneofits 75 policies. Also, in certain cases an autopsy report maysat isfy the public’s interest in knowing the cause of death, particularly when (as here) the death was reported in t he local media. In addition, an autopsy report may proved answ ersto grieving family members. ([bid.) Ms Mr. Leonasks the Court to reconsider the emphasisit p laced in Dungoon the formality or solemnity aspect of evidencesin ceitis Justice Thomas alone among the Supreme Court Justices whohas placed such importance onthis factor. As Justice Kagan noted in her d issenting opinion (joined by Justices Scalia, Ginsberg and Sotomayer) in Wi lliamsv.Illinois, supra, Justice Thomas’s method of definingtestimonial s tatements based on “indicia of solemnity”is unique and waseschewed by the majority in the Court’s earlier decision in Bullcoming v. New Mexico, sup ra. (Williams, supra, 132 S.Ct. 2221, 2275-2276.) Mr. Leonalso requests that the Court re-examine its find ing in the Dungo case that an autopsy report is not testimonial beca use “criminal investigation was not the primary purpose for the autopsy report’s description of the condition of Pina’s body ” and “crimina l investigation was not the primary purpose for recording the facts in ques tion.” (Dungo, supra, 55 Cal.4th at pp. 620-621.) As Justice Corrigan po ints out in her dissent in the Dungo case,the idea that a statement is not tes timonial unless it was prepared for the primary purpose of accusing a targ eted individual has never garnered a majority ofthe justices of the United States Supreme Court. (Id. at pp. 642-644.) While the plurality opinion, authored by Justice Alito, in the Williams decision adoptedthistest, it was reje cted by five other Justices. In his separate concurring opinion, Justice Thomas criticized this concept becauseit “lacks any grounding in constitutionalte xt, in history, or in logic.” (Williams, supra, 132 S.Ct. at p.2262.) Justice K agan’s dissent, 76 joined by three other Justices, also rejected the accusatory statementtheory, describing the propertest as “whether a statement was madefor the primary purposeofestablishing ‘past events potentially relevant to later criminal prosecution’ — in other words, for the purpose of providing evidence.”(Jd. at p. 2273, quoting Davis v. Washington (2006) 547 U.S. 813, 822.) Asnoted in the opening brief in this case, under California law, the coroner’s function of conducting autopsies is a law enforcementfunction. Under California statutory law, a coroner is a “peace officer.” (Cal. Pen. Code § 830.30; Cal. Govt. Code § 27419.) Detective Oppelt, one ofthe investigating officer in this case, attended the autopsy. (4 CT 872.) The autopsy report and the photographs taken in conjunction with it were entered into evidence and wereclearly offered for their truth. In this case, this evidence qualified as “testimonial” evidence covered by the Sixth Amendmentright to confrontation, and the principles stated in Crawford v. Washington, supra, 541 U.S.at p. 68; Melendez-Diaz v. Massachusetts, supra; 557 U.S. at p. 310; and Bullcoming v. New Mexico, supra, 131 S.Ct. at p. 2717, apply. Respondentargues that any error involved in admitting the autopsy report of Dr. Wegner and allowing Dr. Carpenterto testify about the cause of death in this case was harmless because there was so much other evidence showing that Mr. Akhverdian died of a gunshot wound. Under this hypothesis, the prosecution would never be required to offer expert evidence regarding the cause of death in a homicide case; indeed, the prosecution would not need to conduct autopsies if there was eyewitness evidence about howthekilling at issue took place. The Court should reject this argument. Evenif the prosecution’s case is strong and the defendant’s case is weak, that does not mean that evidence which should not have been 77 admitted is unimportant. (People v. Scott (1978) 21 Cal .3d 284, 295-296.) The prosecution must prove this Sixth Amendmenterr or harmless beyond a reasonable doubt. (Chapmanv. California (1 986) 386 U.S. 18, 24.) Moreover, in applying Chapmanto this Confronta tion Clause error, a reviewing court must assume“that the damaging potent ial of the cross- examination were fully realized,” and then ask whether the error was harmless beyond a reasonable doubt. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684; see also Coy v. lowa (1988) 487 U.S. 10 12, 1021-1022.) Evenif “the case in which this occurred presented a re asonablystrong ‘circumstantial web of evidence”(as in Chapmanv. Ca lifornia, supra, 386 U.S.at p. 25), it cannot be said that there is no reasonab le possibility that the error in this case contributed to the verdict. Accor dingly, Mr. Leon’s conviction for the murder ofNorair Akhverdian, the fi nding of a multiple murder special circumstance andthe death sentence m ust be reversed. * OF 78 VI. THE PROSECUTOR’S IMPROPER CLOSING ARGUMENTAT THE GUILT PHASE CONSTITUTED REVERSIBLE ERROR A. Appellant’s Misconduct Claim wasnot Forfeited Respondent erroneously argues that Mr. Leon waivedhisright to challenge statements in the prosecutor’s closing argumentatthe guilt phase trial as misconduct because he did not object to each of these statementsor request an admonition. (RB at 123-124.) It is true that as a general rule a defendant may not complain on appeal of prosecutorial misconduct unless at trial, the defendant objected and requested that the jury be advised to disregard the impropriety. (See, e.g., People v. Hill (1998) 17 Cal.4th 800, 820-821.) The rationale for the objection/admonitionruleis that“the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the mindsof the jury.” (People v. Pitts (1990) 223 Cal.App.3d 606, 692, citation and internal quotation marks omitted.) But as the Hill opinion explained, the requirementof an objection to preserve appellate arguments is only a “generalrule.” (People v. Hill, supra, 17 Cal.4th at p. 820.) For example, a defendantwill be “excused from the necessity of either a timely objection and/or a request for admonitionif either wouldbefutile.” (/bid.) Similarly, failure to request that the jury be admonished doesnotforfeit the issue for appeal if an admonition would not have cured the harm caused bythe misconduct. (/bid.) Indeed, strict compliance with the objection/admonition rule has not been required, and courts have not found forfeiture when there has been “substantial compliance” by defense counsel. (People v. Pitts, 79 Vy supra, 223 Cal.App.3d at p. 692 fn. 22, citing People v. Boni n (1988) 46 Cal.3d 659, 689.) In this case, defense counsel did objectto the prosecutor’s i mproper appeal to emotion during her guilt phaseclosing argumentto the jury. This objection occurred at the beginning of the prosecutor’s argum ent when she was discussing Julio Cube’s disability and small stature and her claim that his robbery was an example ofthe robber’s “excessive viole nce” and “unnecessary cruelty towards the victims.” (30 RT 2149.) T wo robbery counts regarding Mr. Cube had been dismissed from the Infor mation in this case, but, over the defense’s objection, the prosecutor w as allowed to call him as witness. Defense counsel objected,i stating that this ar gument about Mr. Cube’s physical characteristics and appellant’s alleged e xcessive violence and cruelty _ . is simply appealing to the passion ofthe jury. It’s not relevantto any ofthe other points that the People have to prove or to argue. Whetherit is more or less violent has nothing to do with whether Mr. Leon is guilty of this. And to go on at length just simply describingthe atrocity and violence, this argumentis improper appealing to the passi ons of the jury. (30 RT 2149.) Despite its merit, this objection fell on deaf ears. Thetrial judge rejected it with the terse comment, “{iJt is proper argument.” (30 RT 2 149.) The record in this case makesclear that any further objecti ons would been futile since the trial judge had overruled this objection . The contemporaneousobjection rule is not applicable where an y objection by defense counsel would almost certainly have been overrule d. (Peoplev. Pitts, supra, 223 Cal.App.3d at p. 692;see also People v. Ham ilton (1989) 80 48 Cal.3d 1142, 1184, fn. 27; People v. Rios (1985) 163 Cal.App.3d 852, 868.) Respondentarguesthat“the basis for counsel’s first objection was different than the basis for the claims nowraised here, and further objections should have been interposedto preserve them on appeal.” (RB at 124.) It is not entirely clear what this statement means,but if respondentis claimingthat there was a different basis for Mr. Leon’s objection to the prosecutor’s remarks about the use of unnecessary violence and the particular vulnerability of Julio Cube,that is not true. As explained in appellant’s opening brief, this was the themeofthe prosecutor’s closing argumentat the guilt phase in this case: that appellant was an unusually cruel criminal who often picked on vulnerable victims. Improper comments about Julio Cube, which appearedat the beginningofthe prosecutor’s closing argument, reflected that theme,as did the subsequent improper comments in her argument, which Mr. Leon has challengedin this argument. | | Moreover, a request for admonition in this case would have been equally futile. The absence of a request for a curative admonition does not forfeit the issue for appealif “the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.” (People v. Green (1980) 27 Cal. 3d 1, 35 fn. 19; People v. Pitts, supra, 223 Cal. App. 3d at p. 692; People v. Lindsey (1988) 205 Cal. App. 3d 112, 116 fn. 1; see also People v. Hill, supra, 17 Cal. 4th at pp. 820-821.) The simple reality is that many lawyers are loath to make multiple objections during the opposition’s closing argumentto the jury, particularly if they do notbelieve the judgeis likely to sustain such objections, because 81 it may prejudice the jurors against their clients. As this Co urt noted in People v. Bolton (1979) 23 Cal.2d 208,“[mlerely to raise an objection to [improper] testimony — and more,to have the judgetell the jury to ignoreit — often serves but to rubit in.” (/d.at pp.215-216, fn. 5. ) Because there were numerous instances of improper and prejudicial comments in the prosecutor’s guilt phase closing argume nt, it would have been futile for defense counsel to object to all of i nstances, and multiple objectionspotentially would have prejudiced Mr. Leon in the eyes of the jury. The decision notto make multiple obj ections was a reasonable tactical decision by trial counsel, and appellate consideration o f Mr. Leon’s objection to the prosecutor’s misconduct should notfall victim to a dubious claim of forfeiture. B. The Prosecutor’s Comments were Improper and Prejudicial Respondent argues that it was “faircomment” by the pr osecutor (RB at 124-125) whenshe urged the jurors to consider what t he prosecutor called the particular vulnerability of some of the vi ctims in this case; that is, two women working aloneas well as Mr. Cube, whom t he prosecutor described as disabled. (30 RT 2149-2150.) Respondenta lso defendsthe prosecutor’s comments about the robbers as being assau ltive and using unnecessary force andviolence. (30 RT 2151.) The prosecutor’s statements were not fair comment. H er remarks went well beyond fair comment about the evidence and howit purportedly showed that appellant was guilty of the robberies and two murders with which he was charged. The point of her argument wast o persuade the jurors that Mr. Leon’s alleged conduct was worsethan a regular robber: ... having an attitude, a strut abouthim as he robs pe ople.It is excessive. I mean he turns what could be a rather routine robbery into a very frightening and, intimidating expe rience. 82 (31 RT 2181.) Or, in the case of the robber of Chan’s Shell and Valley Market: Yousee a very assaultive robber, not just show the gun or open his jacket and say give me the money. You see him reaching over, pointing at these people, gesturing, posturing with such arrogance, with arroganceherobs these people. (30 RT 2151.) Or, in the case of the robbery and murderat Jack’s Liquor, the prosecutorrhetorically asks: “It seems to meifyou are after the money do you really need to shoot a person in the back?” (30 RT 2151.) In describing the alleged robberies of Mr. Cube: Samething with Mr. Cube,the violencein that case is so unnecessary. . . examples of excessive violencein this case. Unnecessary cruelty towardsthe victims. (30 RT 2149.) The prosecutor’s theme was that Mr. Leon wasnotyour ordinary robber and murderer; he was something far worse. The murdersin this case were tried as felony murders. The jurors were not asked to determine Mr. Leon’sintent beyond the question of whether he had the intent to commit the underlying robberies. The issue of whether or not Mr. Leon used unnecessary violence or cruelty towards any of the victims was not relevant at the guilt phaseofthetrial, and the prosecutor’s argument constituted misconduct because she employed a reprehensible method to attemptto persuadethe jurors to find Mr. Leon guilty. Respondentalso assertsit was properfor the prosecutor to makethe following argument about one of the murdervictims: Andthis guy [Akhverdian], see how pathetic this is, this guy stands there andheis probably thinking okay,it’s over. I 83 have donethings right. The robberis leaving, he is over the table and he turns and he shoots this man...What could Mr. Akhverdian have done to cause a person to do t hat? (30 RT 2152.) Mr. Leon argued in his openingbrief that this pl ea to the jurors to put themselves in Mr. Akhveridian’s shoesor to s ee through the eyes of the victim was improper argument. (AOB at p. 148.) Respondent counters by stating: “Contrary to appellant’s contentions, the p rosecutordid not invite the jury to imagine Akhverdian’s suffering in the final moments of his life. Thereis, in fact, no mention of Akhverdian’s suffering or any comment of pain he many have endured as a result of being sh ot by appellant.” (RB at p. 128.) | a Respondenthas misconstrued Mr. Leon’s claim regarding the impropriety of this portion of the prosecutor’s clos ing argument. Thereis no requirementthat the prosecutor specifically imp ortune the jurors to imaginethe suffering of the victim; the harm is to a sk them to view the crime through the eyes ofthe victim. (See, e.g., Pe ople v. Stansbury (1993) 4 Cal.4th 1012, reversed on other grounds in Stan sburyv. California (1994) 511 U.S. 318.) This type of argumentis knownas the Golden Rule argument. Asthe Court of Appeal observed in a re cent decision, People v. Vance (2010) 188 Cal.App.4th 1 182, 1198-1 199: The condemnation of Golden Rule arguments in both civil and criminal cases, by both state and federal courts, is So widespreadthatit is characterized as“universal.” [citations below in footnote]And as already shown, Californi a joins 24 The cases cited in People v. Vance,.supra, for the proposition that the prohibition against the Golden Rule argumentis universalare as (continued...) 84 with the nation in generally prohibiting Golden Rule arguments by counselin criminaltrials —a near-categorical prohibitionattributable to the unusually potent prejudicial impact of the crime on the victim’s family. In describing the rationale behind theprohibition of Golden Rule arguments, Justice Sims opined: The appeal to a jurorto exercise his subjective judgment rather than an impartial judgmenton the evidence cannot be condoned. It tends to denigrate the jurors’ oath to well and truly try the issue and rendera true verdict according to the evidence. (Citation omitted.) Moreover, it in effect asks each juror to becomea personalpartisan advocate for the injured party, rather than an unbiased and unprejudiced weigher of the evidence. (Neumannv. Bishop (1976) 59 Cal.App.3d 451, 484-485.) The prosecutor’s comments about Mr. Akhverdian were improper Golden Rule argumentand thus constituted prosecutorial misconduct. C. This Error was not Harmless Respondentclaims that even if the prosecutor’s argumentin this case amounted toerror, it was harmless. (RB at 127.) In particular, respondent asserts that “no fewer than 16 witnesses identified appellant as the perpetrator of the 10 robberies and murders.” (/bid.) Respondent misrepresents the state of the record.(See description of the evidence *4 (...continued) follows: State v. Bell (Conn. 2007) 931 A.2d 198, 214; Peterson v. State (Fla.Ct.App.1979) 376 So.2d 1230, 1233; Granfield v. CSX Transp.Inc.(\st Cir. 2010) 597 F.3d 474, 491; Ivy v. Security Barge Lines, Inc. (5" Cir. 1978) 585 F.2d 732, 741; United States v. Teslim (7" Cir. 1989) 869 F.2d 316, 328; Joan W. v. City ofChicago (7" Cir. 1985) 771 F.2d 1020, 1022; Lovett ex. rel. Lovett v. Union Pacific R. Co. (8" Cir. 2000) 201 F.3d 1074, 1083; Blevins v. Cesna Aircraft Co. (10" Cir. 1984) 728 F.2d 1576, 1580. 85 presented concerning the robberies and robbery/murdersset f orth in the AOBat 5-21.) At most, there were 13 people whoidentified M r. Leon at one time or another as one of the robbers involved in th ese cases; however, with the exception of Yossi Dina in the Ben’s Jewelry Store r obbery, Mei Chai in the Seven Star Motel Robbery, Maria Guadalupe Medi nain the Rocky’s Video robbery, and Hunan Ganzyan and Aslanyan Vardkes in the H & R PawnShoprobbery,all of these witnesses expressed s omehesitation or equivocationin their identification of Mr. Leon asa parti cipant in the robbery in which each was involved. — | For example, Mr. Sutestified about‘the Chan’s Service Stati on robbery, and he hadtrouble picking out Mr. Leon’s photo fr om the six-pack array, writing on the report that he was not sure of his identif ication. (17 RT 740-741.) Similarly, in the Ben’s Jewelry robbery case, Shan t Broutian chose two photos (one of which was of Mr. Leon)in the photo array, and he couldn’t definitively select Mr. Leonin the live line-up. (18 R T 822-824;7 CT 1756.) He stated that “he could never be a hundred perce nt sure.”(18 RT 824.) In the Sun Valley GasStation robbery and homicide , Raffi Rassam wasnot certain abouthis identification of Mr. Leonbot h in the photo array and in the live lineup. (28 RT 1915-1918.) Of the three witnesses at the scene in the Jack’s Liquor Store robbery, onl y one identified Mr. Leon. The two other witnesses, AnthonySchill ing and Gordon Keller, who were on a roof of a nearby building, heard shots and saw one man comeout ofthe store and another who methim onthestreet, did not identify Mr. Leon. ((30 RT 2083, 2126.) Mr. Joon Kim , who was _ working at the Valley Market when it was robbed, selected Mr. Leon’s photograph from the photoarray, but he was uncertain abouth is selection. (21 RT 2104.) Also, he did not identify Mr. Leon at the live line-up. (21 86 RT 1207.) There were only two witnessesto the Original Blooming Design robbery. Only one of them testified at trial, and he never identified Mr. Leonas a participant in the robbery. The other witness, Homer Vela, identified Mr. Leon at the preliminary hearing, but he gaveonly tentative identification of his photo and did not identify him at the live line-up. (7 CT 1747; 22 RT 1291; 22 1318-1322.) | As outlined above,the identification evidence in this case was not “overwhelming”as respondentclaims. Citing People v. Carter (2003) 30 Cal.4th 1166, 1196, respondent asserts that “[a]ppellant’s claim of federal constitutional error mustalsofail becauseit is predicated entirely on his claim ofstate law error.” (RB at 127.) Respondent’s reliance on the Carter decision is misplaced. That decision involved the admission of gang evidence offered by the prosecution as relevantto the issues of motive, intent and identity. This Court analyzed whether the trial judge abused his discretion when he admitted this evidence over defendant’s objection that it was both irrelevant and prejudicial. Finding that the gang evidence wassignificant to disputed | issues and was not cumulative, the Court held that the trial judge had not abusedhis discretion and that appellant Carter’s claims of federal constitutional error also failed because they were entirely dependent onhis state evidentiary error. (/d. at pp. 11 94-1 195.) By contrast, a claim of prosecutorial misconductis not necessarily predicated on state law. Asstated in the openingbrief, prosecutorial misconductviolates the United States Constitution whenit “so infect[s] the trial with unfairness as to make the resulting conviction a denial of due process.” (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643.) The standard under California law for determining the existence vel non of 87 prosecutorial misconductis different; the question is whether the conduct involves the use of “deceptive or reprehensible metho dsto attempt to persuade either the court or the jury” evenif such act ion does not renderthe trial fundamentally unfair. (People v. Cook (2006) 39 Cal.4th 566, 606.) In any event, as discussed in the openingbrief, the pr osecutor’s conductin this case violated the state law standard for prosecutorial misconduct because the prosecutor’s arguments to the jury in the guilt phase were deceptive and reprehensible. Improper appeals t o the passions and prejudices ofjurors, including asking them to view the crime through the eyesofthe victims or focusing on the particular vulne rabilities of the victims when that is not relevant to any elementofthe crime charged, are deceptive and reprehensible. (See, ¢.g., People v. Kip p (2001) 26 Cal.4th 1100, 1130; People v. Fields (1984) 35: Cal.3d 329, 36 2.) Not only wasthe prosecutor’s improper guilt phase a rgument prejudicial understate law,it amounted to prejudicial m isconduct in violation of appellant’s federal constitutional rights to due process. The burden rests squarely on the prosecution to establish th at the prosecutor’s improper remarks were harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 U.S. 18, 24.) Respondenthas no t and cannot carry that burden; accordingly, Mr. Leon’s convictions and death sentence must be reversed. 88 VIL. THE TRIAL JUDGE ERREDWHEN HE INSTRUCTED THE JURY WITH CALJIC NO.2.52 AT APPELLANT’S GUILT PHASE TRIAL In his opening brief, Mr. Leon argued that his convictions and death sentence must be reversed becausethetrial judge, over his objection, instructed the jurors that they couldinfer that he was guilty of the charged crimes because on the day he wasarrested, which occurred sometimeafter the offenses with which he had been charged, he had fled from thepolice. (AOBat 154-169.) This instruction, CALJIC No. 2.52,” was unnecessary and argumentative, improperly favored the prosecution’s case and permitted the jurors to draw irrational inferences against Mr. Leon. The effect was to lessen the prosecution’s burden ofproof in violation of Mr.Leon’s rights to due process,a fair jury trial, equal protection, and reliable jury determinations on guilt, special circumstances, and penalty. (U.S. Const., 6th, 8th & 14th Amends.; Cal.Const., art. I, §§ 7, 15, 16 & 17.) Respondentclaimsthat the instruction was in fact proper, or, in the alternative, if it were not, the use of the instruction in this case constituted * The instruction given at appellant’s guilt phase trial reads as follows: The flight of a person immediately after the commission ofa crime, or after he is accused of a crime,is not sufficient in itself to establish his guilt, but is a fact, which, if proved, may be considered by youin the lightof all other proved facts in deciding the question of his guilt or innocence. The weightto which such circumstanceis entitled is a matter for the jury to determine. : (31 RT 2310; 9 CT 2011.) 89 harmless error. (RB at pp. 130-141.) For all ‘of the re asons set forth in the openingbrief and for the reasons that follow, respond ent’s argument should be rejected. Instructing the jury pursuantto CALJIC No.2.52 was error which prejudiced Mr. Leon. A. RespondentFails to Counter Appellant’s Claim that CALJIC No.2.52 is Impermissibly Partisan and Argumentative ° Argumentative jury instructions are those that “‘inv ite the jury to draw inferences favorable to one ofthe parties from s pecified items of evidence.’ [Citations.]” (People v. Mincey (1992) 2 Cal.4th 408, 437.) Argumentative instructions present the jury with a pa rtisan argument disguised as a neutral and authoritative statement of the law. (See Peoplev. Wright (1988) 45 Cal.3d 1126, 1135-1 137.) Instructi ons which ask the jury to consider the impact of specific evidence, or imply a conclusionto be drawn from the evidence are argumentative and shou ld not be given. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 105 fn. 9; People v. Daniels (1991) 52 Cal.3d 815, 870-871.) Appellant’s openin g brief explains why CALJIC No.2.52 constitutes an impermissible argum entative jury instruction. (AOB at 159-163.) The responseto this claim in respondent’s brief is com pletely inadequate. (RB at 135.) It cites several decisions of this Court but does not explain how they refute Mr. Leon’s argument that CA LJIC No. 2.52 is an argumentative jury instruction. In particular, responde ntignores the discussion in the opening brief about how other state appellate courts have criticized of the use of similar “consciousness of guilt ” jury instructions. Not only havethe courts of ninestates, cited in the opening brief (AOB at 161-163), found that such instructions unfairly highli ght isolated evidence, 00 but other courts have questioned the worth offlight instructions such as CALJIC No. 2.52. In Wong Sun v. United States (1963) 371 U.S. 471, 483, fn. 10, the United States Supreme Court noted thatit “we have consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime.” (See also United States v. Williams (7th Cir 1994) 33 F.3d 876, 879 [“There is a danger thata flight instruction will isolate and give undue weight to evidence.” The facts of State v. Latney (N.J. App.Div. 2010) 1 A.3d 741, a recent decision of the appellate division of the New Jersey Superior Court, are similar to those presented here. In Latney, the appellate court reversed and remandedfor a newtrial on the groundthatthetrial court erred in admitting evidenceofthe defendant’s flight and in instructing the jury on flight as evidence of consciousnessofguilt. Latney was charged and convicted of armed robbery. Prosecution evidence showedthat a policeofficer had followed a speeding Jaguarcar, which defendant Latney was driving and which had beenreported stolen in an incident unrelated to the charged robbery. During the chase defendant crashedinto a police car and was arrested. (State v. Lainey, supra, 1 A.3d at p.744.) The jurors hearing the robbery case wereinstructedthat they could consider Latney’s flight from the police as probative ofhis consciousnessofguilt of the robbery on the theory that he wasfleeing to avoid apprehensionfor that crime. i The New Jersey appellate court held that both admitting this evidenceofflight and instructing the jury that it could be used as evidence against Latney on the robbery charge wasprejudicialerror as it was as likely that Latney had been tryingto elude the police because he knew the Jaguar wasstolen as it was that he was concernedthat the police were 91 pursuing him because ofthe unrelated robbery. (/d. at p. 7 47.) In this case, as in the Latney case,it was impossible to kno w why Mr. Leon choseto flee the police car. The police chase did not occur right after any of the charged crimesinthis case. Given these fa cts, flight from police officers which did not involve flight from acrime s cene,it is entirely speculative that the “consciousness of guilt,” which wasalle gedly the basis ofthe flight, was related to Mr. Leon’s concern that the poli ce were after him becauseof the crimes charged against him in this case. This is one of the reasons so many jurisdictions have forbidden the use offli ght instructionsto juries; the probative value of such evidence andinstructions which call attention to this evidence is outweighed by the po tential for undue prejudice. Accordingly, the trial judge erred in instruct ing Mr. Leon’s jury pursuant to CALJIC No. 2.52 because it was imper missibly argumentative andpartisan. | Moreover, the instruction violated Mr. Leon’s equal protecti on and due processrights. Instructions which highlight the prosecut ion’s version of the facts to the detriment of the defendant deprive his or he r due process rightto a fair trial. (Green v. Bock Laundry Machine Co. (198 9) 490 U.S. 504, 510; Wardius v. Oregon (1973) 412 U.S. 470, 474. ) Instructions slanted in favorof the prosecution also violate due process by lessening the prosecution’ s burden of proof. (dn re Winship (1979) 397 U.S. 358, 364.) Respondent’s brief arguesthat Penal Code section 1127¢ c ompels a trial court to instruct pursuant to CALJIC No.2.52 whenever e vidence of flight of a defendantis relied upon to show guilt. (RB at p. 132 .) Whileit is true that section 1127c doesso state, that provision violates Mr. Leon’s constitutional rights to due process and a fair trial. Sec tion 1127c improperly requires an instruction which isargumentative, im properly . 92 favors the prosecution’s case and permits jurors to draw irrational inferences against Mr. Leon,thus lessening the prosecution’s burden of proofin violation ofhis rights to due process, a fair jury trial, equal protection,andreliable jury determinations on guilt, special circumstances, and penalty. (U.S. Const., 6th, 8th & 14th Amends.; Cal.Const., art.I, §§ 7, 15, 16 & 17.) | B. The Error of Instructing Pursuant to CALJIC No. 2.52 was not Harmless Respondentargues that evenifthe trial court erred in giving the flight instruction, the error was harmless becauseof the “extremely strong evidence of guilt.” (RB at p. 140.) Identity of the perpetrator or perpetrators of the robberies and murders chargedin this case wasthe crucial issue, and respondentclaims that numerous witnesses identified Mr. Leon. In fact, a review ofthe record, reveals that there were inconsistencies in many of those identifications. For example, in the Chan’s Shell Station robbery, the principal witness showed uncertainty in his pre-trial identification of Mr. Leon. (17 RT 726-728, 733, 740-741.) The other witness did not identify Mr. Leonin a photo six-pack,a lineup orin court. (17 RT 763, 766-767.) Similarly, in the Ben’s Jewelry robbery, there were several witnesses who testified, and they did notall identify Mr. Leon. (See description ofthis identification testimony at page 9 of the AOB.) In the Jack’s Liquor Store robbery and murdercase, eyewitnesses gave contradictory descriptions and identifications of the perpetrators. Of the four witnesses whotestified, only one positively identified Mr. Leon as being present at the crime scene. (AOBat pp. 14-15.) Homer Vela, who wasnotavailableto testify, but whosepreliminary hearing testimony was admittedattrial, gave conflicting identifications of the three men he claimed robbed him atthe flower shop, 93 Original Blooming Design. (AOBatpp. 20-21 .) The re cord showed that in pre-trial lineups, he did not identify Mr. Leon, and a t one of these line-ups, he chose someoneother than Mr. Leon asthe person with th e gun who took the money from the cashregister. (AOBatp. 21.) The record in this case belies respondent’s claim that the evidence against Mr. Le on was overwhelming. - Giving the consciousness-of-guilt instruction was anerr or of federal constitutional magnitude. Accordingly, Mr. Leon’s murd er and robbery convictions as well as the two special circumstance findi ngs must be reversed unless the prosecution can show that the error wa sharmless beyonda reasonable doubt. (Chapmanv. California (196 7) 386 U.S. 18, 24; see Schwendeman v. Wallenstein (9th Cir. 1992) 971 F.2d 313, 316 [“A constitutionally deficient jury instruction requires revers al unless the error is harmless beyond a reasonable doubt”].) ‘ | | Moreover, since Mr. Leon’s death sentence relies o n an unreliable guilt verdict, and the death verdict was not surely unattri butable to the erroneous instruction (Sullivan v. Louisiana (1993) 508 USS.at p. 279), the death sentence was obtained in violation of Mr. Leon’s r ights to due process, to a fair and reliable determination of penalty, and to be free from cruel and unusual punishment. (U.S. Const., 5th, 6t h, 8th, & 14th Amends.; Cal. Const., art. I, §§ 7, 15-17; Johnsonv. Mississippi ( 1988)486 U.S. at p. 590; Beck v. Alabama (1998) 447 U.S. 625, 638; Cald well v. Mississippi (1985) 472 U.S. 320, 330-331; People v. Brown (1988) 46 Cal.3d 432, 448.) Forall of the foregoing reasons and for the reasonss et forth in Mr. Leon’s openingbrief, his convictions and death sentenc e must be reversed. 94 VIL THE TRIAL JUDGE’S REFUSAL TO GRANT APPELLANT’S MOTION TO CONTINUE WAS AN ABUSE OF DISCRETION AND VIOLATED APPELLANT’S CONSTITUTIONAL RIGHTS Before the commencement ofthe penalty phase in his case, Mr. Leon filed a motion requesting a continuance of twoto three weeks. (10 CT 2280-2283.) The basis of this motion wasthat he had not received adequate notice to prepare to cross-examine Bryan Soh and Christopher Anders, prosecution witnessesto alleged jailhouse incidents which the prosecution plannedto offer as aggravating evidence under Penal Codesection 190.3, subdivision (b) (“factor b”). Because this evidence related to the penalty phasecase against Mr. Leon, defense counsel argued that denialofthis continuance would violate his constitutional rights, under the Fifth, Sixth, Eighth and Fourteenth Amendmentsto the United States Constitution and under California constitutional and statutory law, to effective assistance of counsel, to cross-examine key witriesses against him andto prepare rebuttal evidence. (10 CT 2280.) | Respondent’s responseto this claim is not persuasive. A. —Respondent’s Brief Presents an Inaccurate Picture of the Facts 1. There was no Evidence Mr. Leon “Attacked” Bryan Soh The rendition ofthe facts in respondent’s brief about the motion to continue is incomplete andin part inaccurate. For example, respondent states that Bryan Soh’s testimony involved “an incident wherein appellant and another inmate attacked and robbed Soh whilein jail.” (RB at p. 142.) There wasabsolutely no evidence suggesting that Mr. Leon “attacked” Soh. 95 The only evidence * ultimately offered aboutthis alleged in cident wasthe testimony of Deputy Sheriff Hutchinson, whotestified that he did not see any physical contact between Leon andSoh. (34 RT 26 56.) He did see Soh and Tony Bryant, another inmate, touch hands. (34 RT 2 641, 2656.) Attrial, Hutchinson gave the following description of what he saw in the Los Angeles County Jail (North County Correctiona l Facility) on July 27, 1994. Mr. Leon and fellow inmate Bryant foll owed inmate Sohinto the day room; they were about 15 feet behind Soh. Af ter they called to him, Soh turned around. Bryant and Mr. Leon approached So h andstarted talking to him. Hutchinson claimed that Soh “looked to be somewhat frightened.” (34 RT 2640.) Although he could only see the side of Mr. Leon’s face, Hutchinsontestified that he looked angry. (3 4 RT 2641.) On cross-examination, Hutchinson concededthat he ha d not written in his report on the incident anything about Mr. Leon appearin g angry; the report stated that he appeared “very upset.” (34 RT 2651 ) Acc ording to Hutchinson, Soh reached into his pocketand gave some thing to Bryant. (34 RT 2641.) After Bryant and Mr. Leonleft the day room, Hutchinso n stopped them and directed them to face a wall, ten feet away fro m each. Deputy Hutchinson asked Mr. Leon whether he had received a nything from Soh, and he said that he had not. (34 RT 2643-2644.) Hutchin sonthen talked to Soh, who wasstill in the day room. Soh claimed that Le on and Bryant had made him to give them a $20 bill. When Hutchinson ret urned to where Mr. Leon and Bryant were standing, he found a crumpled $2 0 bill at the feet of 6 Deputy Hutchinson was the onlywitness whotestified ab out the incident involving Bryan Soh because the trial judge exc luded Soh from testifying at appellant’s penalty phasetrial. 96 appellant. Mr. Leon denied knowing anything about the money. (34 RT 2646.) Deputy Hutchinson testified that he had the impression that Soh was mentally handicapped. (34 RT 2647.) 2. Mr. Leon Provided Compelling Reasons for a Continuance Trial counsel’s affidavit filed in support of his motion for a continuanceas well as his argumentat the July 8th hearing on that motion explained why he needed additional time to prepare to cross-examine Mr. Soh and Mr. Anders, fellow inmates of Mr. Leonin county jail and supposedvictims of crimes allegedly committed by Mr. Leon while he was incarceratedin that facility and awaitingtrial in this case. Soh’s voluminous medical records from several mental hospitals, recordstrial counsel obtained just days before the start of the penalty phasetrial, cast doubt on Soh’s competenceto be a witness and revealed Soh’s history of dishonesty and manipulative conduct. (33 RT 2417.) Trial counsel did not learn of Mr. Soh’s felony history until after a hearing that occurred on June 26, 199627 (33 RT 2419-2420.) He was not given a rap sheet for Mr. Andersuntil June 28. Becausethat rap sheet turned out to be incorrect, it was not until July 2 that defense counsel receivedthe correct information about Anders’ felony history. (10 CT 2267.) At that time, defense counsel learned that Anders had been represented previously by counsel’s office, the Los Angeles County Public Defender, complicating counsel’s ability to prepare to impeach Andersas a penalty phase witness against Mr. Leon. (33 RT 2422-2425.) California law requires that a criminal defendant be afforded a *7 The penalty phase was scheduled to begin on July 8, 1996. (9 CT 2127-2128.) It actually started on July 9, 1996. (10 CT 2295-2296.) 97 continuance of a proceeding upon a sufficient showing of good cause. (Pen.Code §1050, subd. (e).) The determination of whe ther good cause exists rests within the “‘sound discretion « of the trial jud ge. (People v. Sakarias (2002) 22 Cal.4th 596, 646.) In People v. Co urts (1985) 37 Cal.3d 784, this Court identified four factors to be considered by trial courts when a continuance is requested: (1) the diligence of the de fendant; (2) the usefulness of a continuance; (3) the inconvenienceto the court; and (4) the prejudice to the defendantif the continuance is not gra nted. (/d. at pp. 791- 795; see also Owens v. Superior Court ofLos Angeles County (1980) 28 Cal.3d 238, 251; United States v. Flynt (9th Cir. 1985 ) 756 F.2d 1352,1359.) In this case, the only basis for the prosecutor’s “strenu ous” opposition to the defense motion for continuance wast he alleged lack of of diligence of defense counsel. At the hearing on July 8, 1996, the prosecutor arguedat length that Mr. Leon wasnotentit led to a continuance becausehis trial counsel actually had plenty of time t o prepare to cross- examine prosecution witnesses Soh and Anders.(33 RT 2427-2429.) First, the prosecutorargued that since defense counsel hadn otice as of April 1, 1996, that Bryan Soh and Christopher Anders were po tential witnesses, he had plenty of time to locate them and prepare to cross -examine them at the penalty phase trial. (33 RT 2427-2428.) The prosecutor , however, did concede that she didn’t actually provide the defense w ith information about the felony convictions of Soh and Anders and their ra p sheets until June 25, 1996. (33 RT 2428-2429.) The prosecutor did argue, quite illogically, that because the defense had obtained medical records on Mr. Soh’s various stays in mental hospitals that a continuance was not nec essary because the 98 defense actually had more information about Soh ** than did the prosecution. (33 RT 2431 :) Of course, the prosecutor had no needto cross- examine Bryan Soh, and apparently was not concerned about how his psychiatric history would affect his ability to be a competent, reliable and truthful witness. The record in this case does not support the prosecutor’s claim of lack ofdiligence on the part of Mr. Leonor his counsel. First, in determining whether a defendant has acted diligently, the court must focus on the conductofthe defendant, not defense counsel. (People v. Robinson (1954) 42 Cal.2d 741, 748 [defendant’s personal efforts to retain counsel were sufficient to render denial of continuance an abuseof discretion]; see also United States v. Pope (9th Cir. 1988) 841 F.2d 954, 956-957 [although defendant concededhis counselwasnotdiligent, court found the denial of _continuance to be improper because defendanthad not acted dilatorily]; United States v. Fessel (Sth Cir. 1976) 531 F.2d 1275, 1280 [same].) There is nothing in the recordin this case suggesting that Mr. Leon did anything to delay the preparation for his penalty phasetrial. Moreover, the record supports defense counsel’s claim that he acted diligently to prepare to cross-examinepotential witnesses Soh and Anders. While he had received the names ofthese two menas potential penalty prosecution witnesses, the prosecutor told defense counsel several times during the ensuing monthsthat she had not been ableto locate either man. (10 CT 2281.) The prosecutordid not denythis claim: ** Because the Los Angeles Public Defender’s Office had previously represented Mr. Anders in some criminalcases, the prosecutor argued that the defense had more access to potential impeachment material than the prosecution did. (33 RT 2432.) Ethically, defense counsel could not use such evidence to impeach Anders. 99 ‘4 It’s true he [defense counsel Lezin] asked meall alon g if we had the witnesses, and he says I told him that we did not locate them. But I — I believe I neverleft him with th e impression we weren’t looking for them. In other w ords, we found out about these incidents and we were lookin g for them. (33 RT 2427-2428.) Notonly did the prosecutorfail to show that defense c ounsel had not diligently attempted to prepare to defendagainstthe a llegations of prosecution witnesses Soh and Anders, she never argue dthat his request for a continuance would inconvenience the court, the jury, the witnesses orher. As noted previously, inconvenience to thecourt is one of the factors identified in People v. Courts, supra, to be considered in ruling on a motion to continue. Moreover, in discussing his reasons for de nying appellant’s request for a continuance, the trial judge never mentio ned how anyone, including him, would be inconveniencedif the commen cementofthe penalty phase wasdeferred for two or three weeks. Th e judge gave the following reasonsfor denying the continuance request: Atthis time I do not find good causeto continue this matter. What I am goingto doat this time, we are going to pro ceed with other motions. I may precludethe testimony o f the witnesses Soh and Anders. Wewill go forward with t hetrial. I find that you are adequately representing your clien t under both [the] U.S. and state constitutions. ButI will go f orward with the other matter we have before us before I m akea final determination regarding Anders and Soh. (33 RT 2434.) Later in the hearing,the trial judge stated: _. there is probably sufficient items in counsel’s posses sion right now for adequate cross-examination and for adeq uate impeachment. Thefact that he is requesting a continu ance so that he can get more items regarding what occurred in various 100 state hospitals, although the items probably would comein and would comein under the business records exception, this would not add to the impeachment. I am just considering this in my denial of the motion to continue. (33 RT 2436.) B. The Trial Judge Abused his Discretion in Denying the Request for a Continuance Ultimately, the trial court decided that the prosecutor could notcall Bryan Soh as a witness, butthat she could use the incident involving him as factor b aggravating evidence. (33 RT 2445.) The only evidence the prosecution hadto provethat the incident amounted to a crime for purposes of section 190.3, subdivision (b) was the testimony of Deputy Hutchinson about, nter alia, a statement made to him by Soh. In determining whether the denial of a continuance constitutes an abuse of discretion, California courts consider the inconvenienceto the court and the prejudice to the opposing party. (See People v. Byoune (1966) 65 Cal.2d 345, 348 [any prejudice or inconvenience must be evident from the record on appeal].) These concerns are balanced against the importance of the continuanceto this defendant. (See United States v. Pope, supra, 841 F.2d at p. 957 [“[balanced against the importance to Pope’s defense of a psychiatric evaluation, the inconvenience of a request for continuance made on the daytrial was scheduled to commencedid not justify the denial”].) The prejudice must be “serious”in order to justify a denial. (Peoplev. Courts, supra, 37 Cal.3d at p. 794.) The record before the Court in this case does not contain any evidence that the prosecutor arguedorthat the trial judge considered that the short continuance appellant requested would inconvenienceany party. Accordingly,the trial judge in this case did not exercise sound discretion in denying Mr. Leon’s request for a short continuation to prepare 101 to cross-examine two witnesses who claimedthat h e had stolen from them both and assaulted one of them, Mr. Anders. A s defense counsel argued when he movedfor the continuance, at a penal ty phase ofa capital trial, there is “nothing more serious than a witness comin g up here and saying {appellant] was violentin custody.” (33 RT 2433.) C. The Denial of the Continuance Motion Prejudiced Appellant Respondentargues that because the trial court pr ecluded Bryan Soh from testifying, Mr. Leondid not suffer any preju dice from the denial of the motion to continue. (RB at p. 144.) However, si nce the trial judge allowed the prosecutor to present a hearsay statement.of So h via the testimony of Deputy Hutchinson,”’ the decision to preclude Soh as a witness was actually more prejudicial than had Soh testified. At the hearing about whetherSoh’s statementsto D eputy Hutchinson should be admitted as “spontaneous” statements, the trial judge offered this explanation of why he precluded Soh from testifyi ng: The reason Soh wasprecluded from testifying is that I accepted whatyou hadto say regarding the prepar ation. Although I do feel you were fully prepared for ful l and effective cross-examination ofthe witness by [sic] the basis of the records you had before you. J also agree tha t should the statement comein youare not precluded from im peaching the witness by those very same records. Your argu mentis circuitous in that you argue on the one hand that the witness should be allowedtotestify fully and completely and on the other that he should be precluded from testifying. 2? Argument XI of appellant’s opening brief as w ell as Argument XI of this reply briefpost address the impropriety of the trial court’s decision to allow Deputy Hutchinsontotestify about what Bryan Soh told him about the incident involving Mr. Leon and Tony Bryant in the Los Angeles County Jail. 102 (33 RT 2515.) During this hearing, defense counsel pointed out that he did not request the court to preclude Soh as a witness. He requested a continuance so that if Soh did testify, he would be prepared to cross-examine him effectively. By allowing Deputy Hutchinsonto testify about what Soh said aboutthe incident, thetrial judge denied the defense the opportunity of such cross-examination. Thus,the trial judge’s decision to permit Hutchinsonto testify about Soh’s out-of-court statement that Mr. Leon and Bryant had told him to give them all his money denied appellant the opportunity to challenge the credibility of Soh as a witness. While the court did allow the defense to introduce Soh’s hospital records as business records, this evidence could not and did not substitute for cross-examination of Soh. Thetrial court’s response to defense counsel’s argumentthat this unfairly and unconstitutionally denied him hisrights to cross-examination and to present a defense revealed the problems caused by the court’s determination to avoid a short continuance at appellant’s expense. Thetrial judge wentso far as to suggest that if the defense wasnotsatisfied with his ruling, it could call Mr. Soh as a defense witness. (33 RT 2523.) Defense counselreacted to this bizarre suggestion by stating: That puts Mr. Leonat a distinct disadvantage. Mr. Leon should not be required to call a liar because the court has precluded him. I have simply done whatI feel is appropriate as Mr. Leon’s attorney. The People have presented a witness. I said I could not cross-examine him. I need moretimein order to do that. If the court wishes to makea finding that I’m not entitled to a continuance based on that record, the court could have donethat, and so beit, and forced me to meet the evidence with whatI have. But the court didn’t. The court precluded the offer of the evidence and then allows the hearsay to comein and I believe puts Mr. Leon at a serious disadvantage because the court —the jury now,other 103 _— than by calling Mr. Soh as almosta atrocity of my calling Mr. Soh as a mitigation witness. That’s what weare talking about here. This is penalty phase. We are not talking about even though the People are putting on this as aggravation. I don’t wantto be calling the likes of Mr. Soh as mitigation and using the jury’s attention to do that, nor should I be forcedto. (33 RT 2523-2524.) _ Whilethetrial judge stated that “you are not precluded from impeaching the witness by those very same records,” that was not accurat e. (33 RT 2515.) Because Mr. Soh did not testify, there was no witness to impeach with his hospital and criminal records. Certainly it would not have been properto try to impeach Deputy Hutchinson using Soh’s records. The defendantdid introduce those records as exhibits, but they were voluminous. (36 RT 2776; Defense Exhibits P and Q.) It is not reason able to conclude that such evidence was as effective in impeaching the credibility of Mr. Soh’s accountof the incident as cross-examination woul d have been. Cross-examination has been called “the greatest legal engine ever invented for the discovery oftruth.”(5 John H. Wigmore, Evidence § 136 7, at 32 (3d ed. 1974).) Thetrial judge improperly denied Mr. Leontheri ght to cross-examine Soh, a crucial witness against him, underthe f iction that allowing the defense to enter into evidence Soh’s mental health records provided appellant an equivalent vehicle to impeach Soh’s credibility. In an analogoussituation, courts have routinely found thatneither a court no r the defendantcan force the prosecution to acceptstipulations that soften the impactofthe prosecution’s evidencein its entirety. (See, e.g., People v. Cajina (2005) 127 Cal.App.4th 929, 933.) “[A] criminal defendant may n ot stipulate or admit his way outofthe full evidentiary force of the case as t he Governmentchoosesto presentit.” (Old Chiefv. United States (1997) 51 9 104 U.S. 172, 186-187; see also People v. Thornton (2000) 85 Cal.App .4th 44 [defendant’s failure to contest an element ofthe drug charge he wasfacing did not preclude the prosecution from presenting evidenceas to that element].) By the same token, it was improper and unfairfor thetrial judge in this case to assert that the defense could introduce into evidence Soh’s mental health recordsas a substitute for cross-examining Soh. Forall of the foregoing reasons as wellas for the reasonsset forth in Argument VIII of the openingbrief, Mr. Leon’s constitutional rights to confrontation, to due process and to a fair and reliable penalty phasetrial were violated when thetrial judge denied his reasonable request for a short continuance. Because respondent cannot prove beyond a reasonable doubt that the denial of the continuance and the resulting admission of out-of- court statements by Bryan Soh against Mr. Leon did not adversely affect the jury’s penalty phase verdict in this case, appellant’s death sentence must be reversed. 105 X. THE TRIAL JUDGE ERRED WHEN HE REFUSED TO GIVE APPELLANT’S PROPOSED INSTRUCTIONS ON MERCY AT THE PENALTY PHASE Attrial, defense counsel requested two instructions *° explaining to the jurors that they could elect to exercise mercy toward Mr. Leon in determining whether to sentence him to deathorlife without the possibility of parole. (10 CT 2352, 2363.) Thetrial court refused these instructions. (40 RT 3224, 3226.) In so doing, the court violated Mr. Leon’s rights under the Eighth and Fourteenth Amendments ofthe United States Constitution. The Eighth Amendment requires that capital sentencing “reflect a reasoned moral response to the defendant’s background, character, and crime.”(Roper v. Simmons (2005) 543 U.S. 551, 602-603, quoting 0 The twoinstructions proposed by appelfant stated: Anappealto the sympathyor passionsofajury is inappropriate at the guilt phase of a trial. However,at the penalty phase, you may consider sympathy,pity, compassion or mercy for the defendantthat has beenraised by any aspect of the offense or of the defendant’s backgroundor character in determining the appropriate punishment. Youare not be governed by conjecture, prejudice, public opinion or public feeling. You many decidethat a sentence oflife without the possibility of parole is appropriate for the defendant based upon the sympathy,pity, compassion and mercy youfelt as a result of the evidence adduced during the penalty phase. (10 CT 2352.) In determining whether to sentence the defendanttolife without the possibility of parole, or to death, you may decide to exercise mercy on behalf of the defendant. (10 CT 2363.) 106 California v. Brown (1987) 479 U.S. 538, 545 (cone. opn. of O'Connor,J.).) Thelife and death determination “is not simply a finding of facts which resolves the penalty decision;”it is “a “moral assessmentof those facts as they reflect on whether defendant should be put to death ” (People v. Brown (1985) 40 Cal.3d 512, 540.) In determining whetherto sentence a defendant to death, the jurors may apply their own moral standardsto the evidence and mayreject death if persuaded to do so on the basis of any constitutionally relevant evidence or observation. (People v. Allen (1986) 42 Cal.3d 1222, 1287.) Mercy, as a discretionary act ofleniency, applies with special force to the life and death decision capital sentencing jurors must make. (See generally Cobb, Reviving Mercy in the Structure ofCapital Punishment (1989) 99 Yale L.J. 389.) Mercy does not necessarily spring from sympathy or compassionfor its recipient. (People v. Andrews (1989) 49 Cal.3d 200, 236 (dis. opn. of Mosk,J.) [mercy “is obviously not synonymouswith or reducible to sympathy”].) Mercy is “one of the most central sentencing considerations, the one mostlikely to tilt the decision in favoroflife.” (Drake v. Kemp (11th Cir. 1985) 762 F.2d 1449, 1460.) As Portia advises Shylock in Shakespeare’s The Merchant of Venice, mercy “is an attribute to God himself, and earthly power doth then show likest God’s when mercy seasonsjustice.” (Act IV, scene 1, lines 194-196.) | Moreover, mercy is an acceptable part of the guided discretion afforded to jurors in capital cases. In Gregg v. Georgia, the United States Supreme Court noted that “njothing inany of our cases suggests that the isolated decision of a jury to afford mercy violates the Constitution.” (Gregg v. Georgia (1976) 428 US. 153, 203 (joint opinion of Stewart, Powell, and Stevens, JJ.).) In his concurring opinion in the Gregg case, 107 Justice White noted that the Georgiastatute guide[d] the jury in the exercise ofits discretion, while at the same time permit[ted] the jury to dispense mercy onthe basis of factors too intangible to write into a statute.” (Gregg v. Georgia, supra, 428 U.S.at p. 222 (conc. opn. of White, J .).) While discretion exercised in a guided fashion may be required to single out a particular person for the ultimate penalty, the decision to spare a life need not be so reasoned: [D]iscretion to grant mercy -- perhaps capriciously -- is not curtailed. The sentencing authority can assign what it deems the appropriate weightto particular mitigating circumstances. Moreover, with unbridled consideration of mitigating circumstances the sentencing authority may consider somethingto be mitigating that others would consider to be aggravating. . (Moore v. Balkcom (11th Cir. 1983) 716 F.2d 151 1, 1521.) That is, though the death penalty may be imposed constitutionally only if based on the evidence adduced during the penalty trial, the decision to vote forlife is not so restricted: a juror may extend mercy even if the evidencehe or she heard might otherwise weigh heavily for the death penalty. According to respondent, becausethe jury in Mr. Leon’s case were instructed with CALJIC No. 8.85 and CALJIC No. 8.88, there was no need for the mercy instructions requested by him. Citing various decisions of the Court, respondent arguesthat these two instructions “are sufficient, in and of themselves, to convey to the jury that they may consider mercy and compassion for the defendantin determining the appropriate penalty.” (RB at 148.) In particular, respondentcitesthe portion of CALJIC No.8.85 that states that the jury can consider “any sympathetic or other aspect of the defendant’s character or record as a basis for a sentence less than death,” 108 and the language in CALJIC No. 8.88 whichtells the jurors “[y]ou are free to assign whatever moral or sympathetic value you deem appropriate to each andall of the various factors you are permitted to consider.” (RB at 148.) Respondentis wrong; these instructions are insufficient. There is no other way to argue for mercy other than by invoking that specific concept, because mercy is not synomous with sympathy, compassion,or pity. Those concepts have very different connotations and do notindividually or in the aggregate substitute for a clear directive that the jury may extend mercyto a defendantin deciding whether to sentence him or her to death. It is entirely conceivable that a jury could feel no sympathy whatsoever because ofthe heinousnessofthe capital murder, could feel no compassion whatsoeverfor the defendant because of a lack of remorse, and could feel no pity for the defendant because the defendant committed the murder with full volition. At the sametime, the jury could be moved to extend mercy becauseofprior wrongsinflicted on the defendant, such as child abuse, whichlikely played a role in turning the defendantinto the unsympathetic, cold, and remorseless adult whom they convicted of capital murder. Mercyis a juror’s “moral response” to the evidence, through the imposition of a penalty that is less than whatis perceived to be deserved in light of the balance betweenstatutory factors in aggravation and mitigation. (See People v. Rodriguez (1986) 42 Cal.3d 730, 779 [“the sentencing function is inherently moral and normative, not factual”].) In this sense, mercy is a consideration that does not involve the balancing ofstatutory factors in aggravation against those in mitigation in order to determine whetherdeath is the appropriate penalty. Mercy offers a vehicle for the jurors to deliver a life verdict even ifthey find that the aggravating factors 109 outweigh the mitigating factors, or fail to find any mitigating factors. (See People v. Duncan (1991) 53 Cal.3d 955, 979 [ajuror may determine that the evidenceis insufficient to warrant death even in the absence of mitigating circumstances].) | As a discretionary act of leniency, mercy is not only allowed at capital sentencing proceedings, it may not be forbidden: “a capital punishmentsystem that did not allow for discretionary acts of leniency ‘would be totally alien to our notions of criminaljustice.’ ” (McCleskeyv. Kemp (1987) 481 U.S. 279,312, citing Gregg v. Georgia, supra, 428 US., at p. 200, fn. 50; see also Maxwell v. Pennsylvania (1984) 469 U.S. 971 (Marshall, J., dissenting from denial ofcertiorari) [‘‘[mJercy [is] a necessary componentof capital decision making”].) Forbidding a request for mercyis incompatible with the fundamental respect for humanity underlyingthe Eighth Amendment, and with the capital sentencing requirements imposed by the Eighth and Fourteenth Amendments. (See Woodsonv. North Carolina (1976) 428 U.S. 280, 303-305.) The refusal to give the one or both of Mr. Leon’s requested instructions directing the jurors that they could exercise mercy in deciding whether to sentence him to death orlife imprisonment without the possibility of parole prejudiced Mr. Leon. The prosecutor specifically argued to the jurors that they should not show any mercy: I am troubled bythe fact that nowhere throughoutthistrial has the defendant any remorse for the crimes he committed. Because I think unless the ability or the capacity to have remorse for the evil you have done to someone, how can we truly say that you will be rehabilitated or we should give you mercy? How can you expect a jury to give mercy when you have no remorse? (41 RT 3273.) 110 This argument by the prosecutor, which alluded not so subtly to the fact that appellant did not testify at his trial, violated appellant’s Fifth Amendmentright to silence. (Griffin v. California (1965) 380 U.S. 609.) Moreover, it created a false prerequisite; that is, that the jury should show mercy only if appellant had expressed remorse. Mercy is given not earned. As Portia in The Merchant of Venice observed: “The quality of mercyis not strain’d. It droppeth as the gentle rain from heaven uponthe place beneath. It is twice blest: It blesseth him that gives and him that takes. (act IV, scene 1, lines 180-187.) Or as the Book of Micah asks: “What doth the LORD require ofthee, but to do justly, and to love mercy, and to walk humbly with thy God?”(Micah, Book6, verse 8, King James version.) The exercise of mercy is not based on the merit or worth of the recipient; rather, it is a moral act of the person whogrants it. This Court has madeclear,as is consonantwith the death penalty jurisprudenceof the United States Supreme Court, that the juror at capital penalty phase trial must make a moral and normative decision about punishment.(See, e.g., Peoplev. Rodriguez, supra, 42 Cal. 3d at p. 779.) Forall of the reasons set forth above and in appellant’s opening brief, Mr. Leon’s death sentence must bevacated because, despite the defense requests for instructions regarding mercy, the jurors were never directly informedthat they had the option of extending mercy to him in deciding whether they should sentence him to death orlife without the possibility of parole. 111 XI. THE TRIAL JUDGE ERRED IN ALLOWING HEARSAY EVIDENCE REGARDINGAN INCIDENT IN THE COUNTY JAIL INVOLVING APPELLANT The prosecutor introduced as aggravating evidence under subdivision (b) of Penal Code section 190.3 an incident occurring in the Los Angeles County Jail on June 27, 1994, involving Mr. Leon and two other inmates. The incident involved an alleged robbery of inmate Bryan Soh by Mr. Leon and Tony Bryant, another inmate. The prosecutor offered the testimonyof a jailhouse guard, Los Angeles County Deputy Sheriff Jeffrey Hutchinson, who observed this alleged robbery. As explained in Argument VIII, ante, in order to avoid having to grant a two to three week continuance to the defense, the trial judge ruled that the alleged victim, Bryan Soh, could not testify but that Deputy Hutchinson couldtestify to hearsay statements of Soh. In so doing, the court violated California’s rules regarding admission of hearsay as well as Mr. Leon’s constitutional rights under the Sixth and Fourteenth Amendments andto a fair and reliable penalty phase determination under the Eighth Amendment. At issue were statements by Soh, in response to questions by Deputy Hutchinson, that Mr. Leon and Bryant had taken $20 from Soh by threatening him. At the 402 hearing, Hutchinsontestified that Soh told him that he gave him the money because “it felt like they were going to beat the crap out of [me].” (33 RT 2490.) Attrial, Hutchinson testified that Soh said: “They [appellant and Bryant] just made megive them all my money.” (34 RT 2645.) Before the penalty phase began, defense counsel objected thatthis proposed testimony was inadmissible hearsay andits introduction would 112 violate Mr. Leon’s right to confrontation under the Sixth Amendmentandto due process under the Fourteenth Amendment. (33 RT 2508-2512; 2642- 2643.) The prosecutor claimed that Hutchinson’s testimony about Soh’s statement to him was admissible as a “spontaneous statement” under Evidence Codesection 1240. She argued that the statement “was madeat or about when the event occurred andthat it was made spontaneously while Soh wasstill under the stress of what happenedin this particular incident.” (33 RT 2597.) Citing several decisions of this Court and of the United States Supreme Court,the trial judge overruled Mr. Leon’s objection to this testimony, finding that Soh’s statement was spontaneousand its admission did not violate appellant’s confrontation rights. (33 RT 2525-2517.) The trial erred in permitting this testimony. A. Soh’s Statement to Deputy Hutchinson did not Qualify as a Spontaneous Statement under Evidence Code section 1240 With certain limited exceptions, out-of-court statements are not admissible as evidence. (Evid.Code, § 1200.) One of those exceptionsis set forth in Evidence Code section 1240, whichstates: Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was underthe stress of excitement caused by such perceptions. | In People v. Poggi (1988) 45 Cal. 3d 306, 318, this Court noted that whether the requirements ofthis hearsay exception are met in a specific case is a question of fact for the court, not the jury. Thetrial court’s determination will be upheld if supported by substantial evidence. (People 113 v. Ramirez (2006) 143 Cal.App.4th 1512, 1523.) A spontaneousstatement is one made without deliberation or reflection. As the Court has observed: [T]he basis for the circumstantial trustworthiness of spontaneousutterancesis that in the stress of nervous . excitement, the reflective faculties may be stilled and the utterance may becomethe instinctive and uninhibited expression ofthe speaker’s actual impressions and belief.” (People v. Farmer (1989) 47 Cal.3d 888, 903, overruled on other groundsin People v. Waidla (2000) 22 Cal.4th 690, 724.) “The crucial elementin determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsayrule is. .. the mental state of the speaker.” (People v. Raley (1992) 2 Cal.4th 870, 892.) As the Court stated in People v. Farmer, supra, 47 Cal. 3d at pp. 903-904, [t]he nature of the utterance—howlong it was made after the startling incident and whether the speakerblurtedit out, for example—may be important, butsolely as an indicator of the mental state of the declarant. Citing People v. Clark (2011) 52 Cal.4th 856, 925 and Evidence Code section 1240, respondent argues that Soh’s statement was admissible as a spontaneous statement because he madeit within “seconds” after Mr. Leon and Bryant demandedhis money andthis experience of a “jailhouse robbery wasstartling enoughto Soh to.render his statements about appellant and Bryan... ‘spontaneous and unreflecting.”” (RB at 151-152.) In fact, the record in this case does not support a finding thatthis incident was “startling” or stressful enough to makethis hearsay a spontaneous statement under the California Evidence Code The encounter among Soh, Bryant and appellant Leontookplacein the day room of the 114 Los Angeles North County Correctional Facility, a very public area which Deputy Hutchinson described as “a secure room that you are to stage inmates in when you needa place to put them.” (33 RT 2486.) The day room wasin full view of the sheriff's staff station. (/bid.) Accordingly,it wasnotan ideal place to commit a robbery, a fact that would be obviousto virtually all of the inmates of the Los Angeles County Jail. Moreover, Hutchinson did not see any physical contact between Mr. Leon and Mr. Soh. The only contact, and it was just the touching of hands, occurred between Soh and Bryant. (34 RT 2656.) Hutchinson did notreport seeing any actions by Mr. Leon and Bryant which could be described as threatening or menacing. Hedidtestify that he could see but not hear Leon and Bryant say something to Soh. (33 RT 2493.) Hutchinsontestified, however, that he could not remember whether he saw Mr. Leon or Bryantor both of them move their mouths. (/bid.) Healsotestified that Soh “looked to be somewhatfrightened” while Mr. Leon lookedto be angry, although Hutchinson only saw thesideof his face. (34 RT 2640-2641.) Respondentcites several decisions where this Court has upheld a trial court’s admission of hearsay as spontaneous statements. In all of those cases, the declarants faced truly startling and stressful circumstances when they madethe disputed statements. In People v. Clark, supra, at issue were statements to an emergency room doctor by a prosecution witness, Angie. Whenthe doctor asked Angieif she had been threatened with harm, Angie told her “that the person who injured her would kill them if not quiet (sic).” (d., 52 Cal.4th at p. 925.) The record in the Clark case showedthat over the course of a six-hour period Angie heard and saw herbestfriend being injured by defendant. Duringthis time, defendant also severely beat Angie and later placed her, with her wrists bound,in the front seat of his car and 115 drove around for several hours, and then left her for dead afte r strangling her. Obviously, the facts of the Clark easily met the requirem ent that there must be some occurrencestartling enoughto produce nervous excitement and renderthe utterance spontaneousand unreflecting. This C ourt found: Although Angie’s statement came two to seven hours after t he shocking and disturbing events,it retained its spontaneity because, as the evidence showed, her mental and physical condition preventedher from reflecting on and fabricating her account of what had happened. (Id., 52 Cal.4th at p. 926.) Thefacts of other cases cited by respondent contrast with the f acts of the Soh incident because they showedtruly startling or even trau matic circumstances which would cause the suspensionofreflective f aculties making it likely that the hearsay statements were instinctive and unin hibited expressionsofthe speaker’s actual impressions and belief. A su mmary of the relevant facts of these cases follow: | People v. Raley (1992) 2 Cal.4th 870, 893-894 [The murde rvictim, whilestill alive, was rescued by a good Samaritan nearly 18 hour s after the fatal attack. While waiting for medical assistance, the victim mad e statements regarding the sexual nature of the attack.] People v. Brown (2003) 31 C.4th 518, 526, 541, 3 C.R.3d 145, 73 P.3d 1137 [Witness’s testimony that she heard her brother-in-la w say, “I know [defendant] shot her. I knowsheis hurt bad,” was properly admitted even though statement was made 2hours after crime, where b rother-in- law was crying and shaking whenhe spoke.] People v. Smith (2005) 135 Cal. App. Ath 914, 923 [Witnesstesti fied about statements made aboutsix hours after the murderby her boy friend, one of the co-defendants in the case. She described him as appear ing very 116 “distraught” and “very anxious, not knowing what to do with himself.” He had a completely blank look on his face, a look she had never seen him before.] | People v. Riva (2003) 112 Cal. App. 4th 981, 994-995 [Statement by the driver of a van, who had witnessed the crime and wasneverseen again, told the victim at the scene about.a minuteafter the shooting, “he wastrying to shoot us, but we ducked.” The victim testified that the driver acted “real excited” and spoke quickly and ina high-pitched tone which she demonstrated for the court. ] In the two other cases cited by respondent, People v. Lynch (2010) 50 Cal.4th 693, 753-754, and People v. Gutierrez (2009) 45 Cal.4th 789, this Court actually foundthe trial courts had erred in admitting the hearsay statements under section 1240. | There is simply insufficient evidence that the circumstances surrounding the alleged robbery of Bryan Soh by Mr. Leon and Tony Bryant were sufficiently startling, stressful or exciting to cause the suspension of Soh’s reflective faculties and to demonstrate that his statements to Deputy Hutchinson were“instinctive and uninhibited expressions of [Soh’s] actual impressions and belief.” (People v. Farmer, supra, 47 Cal.3d at p. 903.) Accordingly, the trial judge abusedhis discretion in admitting this evidence as a “spontaneous statement” under Evidence Code section 1240. B. Admission of the Testimony about Soh’s Hearsay Statements Violated Appellant’s Sixth Amendment Rights Respondentargues that the admissionofthis evidence did notviolate appellant’s Sixth Amendmentright to confront witnesses against him because Mr. Soh’s statements were not “testimonial,” as defined by the 117 United States Supreme Court in Crawford v. Washington (2004) 541 U.S. 36, 53-54 and Davis v. Washington (2006) 547 U.S. 813, 822. (RB at pp. 153-156.) In support of this claim that Soh’s statements were not testimonial, respondent argues: | In viewingthe totality ofthe circumstances, the primary purpose of Deputy Hutchinson’s conversation with Soh was ~ to deal with a contemporaneous emergency,rather than to produce evidence aboutpast events for possible use at a criminaltrial. Deputy Hutchinson spoke with Sohin orderto appropriately assess and respond to the ongoing situation involving appellant and Bryant, since it was unclear to him as to what had been said, what Soh had handed over, and why Soh appeared frightened. As the primary purpose of obtaining Soh’s statements was to “apprehend”the suspectsin an emergency situation, the statements were non-testimonial. (RB atp. 155.) This argumentis not persuasive because respondent’s characterization of the facts is not accurate. Asdiscussed in appellant’s openingbrief, the Confrontation Clause of the Sixth Amendment guaranteesthat “[iJn all criminal prosecutions, the accused shall enjoy the right. . .to be confronted with the witnessesagainst him. (Michigan v. Bryant (2011) 562 U.S.__, 131 8.Ct.1143, 1152.) It applies to the states under the Due Process Clause of the Fourteenth Amendment. (Ibid.) In Crawford v. Washington, supra, the United States Supreme Court announced a new standard for determining whether hearsay evidence against a criminal defendantviolates the Confrontation Clause whenthe declarantneithertestifies at trial or.is otherwise unavailable for cross-examination by the defense. The Court held that the Sixth Amendmentapplies only to hearsaythat is “testimonial.” (/d. at p. 68.) 118: While the Crawford decision did not provide a comprehensive definition of “testimonial,” it did observe that statements made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for useat a later trial would be deemed testimonial. (/d. at p. 52.) Subsequentdecisions have elaborated on the meaning of “testimonial,” including the decisions in Davis v. Washington (2006) 547 U.S. 813 and Hammonv. Indiana, which was consolidated in the Davis opinion. These decisions are discussed and analyzed at length in appellant’s opening brief. (AOB at 205-207.) Most recently, in Michiganv. Bryant, supra, the Court has examined the meaning of “testimonial” in the context of confrontation rights under the Sixth Amendment. In Bryant, the Supreme Court found the hearsay statements of the victim to the police were not testimonial. The police had responded to a 911 call for a man with a gunshot wound foundin a gasstation parking lot. In responseto police questioning, the victim, who died of his wounds several hourslater, said that Bryant had shot him through Bryant’s back door. The victim | recognized Bryant’s voice behind the door, and as he turned to leave, the victim was shot. The Court found that, because the case involved a gun and a perpetrator who had not yet been apprehended, the statements were non- testimonial: Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purposeofthe interrogationis to enable police assistance to meet an ongoing emergency. (Id.at p. 1154.) HI // 119 The Bryant opinion emphasized that making a determination of whether an emergency situation occurred involves an objective evaluation of the circumstances under which the hearsay statements were madeandis a “highly contextual-dependentinquiry.” (/d. at pp. 1156, 1158.) In determining whether the statements weremade during an ongoing emergency, the focus must be onthe primary purposeofboththe officer and the declarant, both of whom may have mixed motives. Even when responding to an emergency, the officer remains an investigator and, thus, is not indifferent to the gathering of evidence. Similarly, victims and other declarants may or may not wantto see a perpetrator ultimately prosecuted. (d. at p. 1161.) The Bryant decision recognizes that factors other than whether there had been an ongoing emergency must be considered in determining whether the hearsay wastestimonial. These factors include: the type of weapon used, whether an armedassailant remained at large and could be an ongoing threat to public safety, and the medical conditionof the declarant. (/d. at pp. 1157-1160.) The Court found that the statements of the victim in Bryant were not testimonial because there was an “ongoing emergency”and there wasa potential threat to the respondingpolice and the public from an armed suspectat large. (/d. at pp. 1162-1166.) Thefacts of this case differ significantly from those presentin Michigan v. Bryant, supra. In this case, there was no “ongoing emergency” when Officer Hutchinson spoke to Bryan Soh abouthis encounter with appellant and inmate Bryantin the jail day room. Hutchinson had already stopped and contained Mr. Leon and Bryantin another room before he questioned Soh. Also, no one had touched Soh; he wasnot injured; and he did not need any medicalattention. There was no weapon ofany sort 120 involved, and therefore, there were not no dangerto others in the jail. The only reason for Hutchinson to question Soh wasinvestigative. Indeed, based alone on Hutchinson’s observation of the incident, he was notcertain if anything improper had occurred among Mr. Leon, Bryant and Sohuntil he questioned Soh. Respondent’sassertion that “the primary purpose of obtaining Soh’s statements was to ‘apprehend’ the suspectsin an emergencysituation” (RB at 155) simply is not supported by the record. Respondentcited this Court’s decision in People v. Cage (2007) 40 Cal.4th 965, 984 (RB at 154-156); however,that decisionis nothelpful to the prosecutionin this case. Indeed, it supports Mr. Leon’s claim that Deputy Hutchinson’s testimony about Soh’s alleged statement amounted to testimonial hearsay. In Cage, the defendant was charged with assault with force likely to produce great bodily injury against his son. (/d. at p. 971.) In responseto a call abouta fight, a police officer went to the defendant’s residence where he saw the defendant picking up broken glass and spots of blood on the floor. (/bid.) The officer later located the victitn,who had a large cut on his face, a mile or two away; an ambulancetook the victim to the hospital. (7bid.) In the hospital waiting room, the officer asked the victim “what had happened between [him] and the defendant.”(/d.atp. 972.) The victim replied that during a family argument, the defendant had cut him with a piece of broken glass. (/bid. ) The victim did nottestify at trial, and the victim’s statementto the officer at the hospital was admitted over defense objection. (People v. Cage, supra, 40 Cal.4th at p. 974.) This Court found that “Tu|nder these principles [derived from Davis v. Washington, supra,] it seems manifest that [the victim’s] responseto [the officer’s] question in the hospital waiting room wastestimonial.” (Id. at p. 984; emphasis added.) Although the court 121 noted that the victim still required medical treatment, and thusto that extent there was an “ongoing emergency,”the objective circumstances showed that the officer did not playa role in providing medical treatmentto the victim. (/d. at pp. 984-985.) The incident that caused the injury was already over; the assailant and the victim were “geographically separated,” and the victim was “in no danger of further violence as to which contemporaneous police intervention might be required.” (/bid.) Accordingly, the officer’s “clear purpose in coming to speak with [the victim] at this juncture was not to deal with a present emergency,but to obtain a fresh account of past events involving defendantas part of an inquiry into possible criminal activity.” (Id. at p. 985.) The victim’s statements to the officer were therefore testimonial. (bid. ) The facts of People v. Cage, supra, involving the hearsay statements in that case resemble those foundin the instant case. Just as in Cage, Officer Hutchinson’s questioning of Bryan Soh wasnotpart of an “ongoing emergency, ” and at that point Mr. Leon and Bryantdid not pose any risk to either to Soh or to others. Therefore, Soh’s statements were testimonial for purposes ofthe Sixth Amendmentright of confrontation. OF The Admission of Soh’s Hearsay Statements Prejudiced Appellant In arguing againstthe trial court’s decision to deny Mr. Leon’s request for a continuanceto allow adequate time to prepare to cross- examine Bryan Soh, defense counsel observedthat in a penalty phasetrial: “Nothing is more serious than a witnesscoming up here and saying [appellant] was violent in custody.” (33 RT 2433.) The prosecutor’s” closing argumentto the jury at penalty underscoredthe validity of the defense’s concern. In support of her claim that Mr. Leon had been violent 122 all of his life, she asserted that “[t]his is a man whoin prisonis not deterred.” (41 RT 3277.) The prosecutor further argued that if the jurors chose to sentence appellant to life without the possibility of parole rather than death, ... you need to understand this is going to continue. Heis always going to be taking something from someone. . . It makes no sense to keep this man in prison whenheis soat homethere such thathe is still committing crimes. (bid.) Without the testimony of Officer Hutchinson about Soh’s statement that Mr. Leon and Bryan “made megive them all my money,”! there would not have been sufficient evidence to support admitting this incident as an uncharged robbery undersection 190.3 (b). (34 RT 2645.) Because the erroneous admission ofthis evidence not only violated California law regarding the admission of hearsay evidencebut also violated Mr. Leon’s rights to confrontation under the Sixth and Fourteenth Amendmentsandto fair andreliable penalty determination under the Eighth Amendment, respondent must establish beyond a reasonable doubt that the error did not prejudice him. (Chapman vy. California (1967) 386 U.S. 18, 24.) The prosecution cannot meet this burden, and therefore Mr. Leon’s death sentence must be reversed. * OR * *' At the Frank/Phillips hearing about the evidence whichthe prosecution proposed to use as aggravating evidence, Deputy Hutchinson gave a different account of what Soh had told him about whyhe had given his money to Mr. Leon and Bryant: “it felt like they were going to beat the crap out of [me].” (33 RT 2490.) 123 CONCLUSION Forall of the foregoing reasons as well as those reasonsset forth in appellant’s opening brief, both the judgment of conviction and sentence of death in this case must be reversed. DATED:June 26, 2013 Respectfully submitted, MICHAELJ. HERSEK State Public Defender AY, Cat2 se ALISON PEASE Senior Deputy State Public Defender Attorneys for Appellant 124 CERTIFICATE OF COUNSEL (CAL. RULES OF COURT, RULE8.360(b)(1)) I, Alison Pease, am the Senior Deputy State Public Defender assigned to represent appellant, Richard Leon, in this automatic appeal. I conducted a word countof this brief using our office’s computer software. Onthebasis of that computer-generated word count,I certify that this brief is 35,734 words in length excluding the tables and certificates. Dated: June 26, 2013 Aieaee Alison Pease 125 DECLARATION OF SERVICE BY MAIL Case Name: People v. Leon Case Number: Superior Court No. Crim. PA012903 Supreme Court No. S056766 I, the undersigned, declare as follows: Iam overthe age of 18, not a party#3 thisuse, z ap PBeensne county where the mailing took place. My business addressis = H+00, Sacramento, California 95814. I served a copyofthe following document(s): APPELLANT’S REPLY BRIEF by enclosing them in an envelope and // depositing the sealed envelope with the United States Postal Service with the postage fully prepaid; /X/ placing the envelope for collection and mailing on the date and at the place shown below following our ordinary businesspractices. I am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondenceis placed for collection and mailing,it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid. The envelope was addressed and mailed on June 26, 2013, as follows: Richard Leon,#K-25900 Attorney General’s Office CSP-SQ Stacy S. Schwartz 4-EB-48L 300 South Spring Street, Suite 1702 San Quentin, CA 94964 Los Angeles, CA 90013 Habeas Corpus Resource Center Kevin Bringuel 303 Second Street, Suite 400 South San Francisco, CA 94107 I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. Executed on June 26, 2013,at Sacramento, California. Saundra Alvarez bore